Rural Housing Service
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
U.S. Citizenship and Immigration Services
U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Surface Mining Reclamation and Enforcement 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.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Office of the Secretary, USDA.
Final rule.
The U.S. Department of Agriculture is amending its administrative regulations by removing the procedural regulations for the review and issuance of agency guidance documents. Those regulations were issued in accordance with Executive Order (E.O.) 13891, which was revoked January 20, 2021, by E.O. 13992. This final rule implements the direction in section 3 of E.O. 13992 to rescind any regulations that were issued to implement or enforce E.O. 13891.
Effective May 4, 2023.
Mr. Stephen O'Neill, Office of Budget and Program Analysis, USDA, 1400 Independence Avenue SW, Washington, DC 20250-1400, (202) 720-0038 or
In a final rule published in the
E.O. 13992 of January 20, 2021, revoked E.O. 13891 among other regulations-related executive orders listed in section 2 of E.O. 13992. Section 3 of E.O. 13992 directed the heads of agencies to “rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the Executive Orders identified in section 2 of this order.”
Therefore, in accordance with E.O. 13992, the Department is removing the regulations it issued under E.O. 13891. This final rule removes, in their entirety, the regulations in 7 CFR part 1, subpart Q.
This rule relates strictly to internal Departmental management. Therefore, pursuant to 5 U.S.C. 553(a)(2), notice of proposed rulemaking and opportunity to comment are not required.
This regulatory action does not meet the criteria for significant regulatory action pursuant to Executive Order 12866, Regulatory Planning and Review.
The regulations removed by this rule were related the internal management of USDA. As such, they were for the use of USDA personnel only and did not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies or other entities, its officers or employees, or any other person. Accordingly, we expect the economic impact of removing those regulations, if any, to be minimal.
The provisions of the Regulatory Flexibility Act relating to an initial and final regulatory flexibility analysis (5 U.S.C. 603, 604) are not applicable to this final rule because USDA was not required to publish notice of proposed rulemaking under 5 U.S.C. 553 or any other law. Accordingly, a regulatory flexibility analysis is not required.
This final rule does not contain information collection requirements that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Administrative practice and procedure, Antitrust, Claims, Cooperatives, Courts, Equal access to justice, Fraud, Freedom of information, Government employees, Indemnity payments, Lawyers, Motion pictures, Penalties, Privacy.
Therefore, for the reasons set forth in the preamble, the Department is amending part 1 of title 7 of the Code of Federal Regulations as follows:
5 U.S.C. 301, unless otherwise noted.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
The U.S. Department of Energy (DOE) amends the test procedures for refrigerated bottled or canned beverage vending machines (BVMs) to reference the latest version of the industry standard, while maintaining certain provisions specified in the current DOE test procedure. DOE also provides setup instructions for non-beverage shelves, updates the lowest application product temperature definition and test instructions, specifies setup instructions for refrigeration leak mitigation controls, and removes the obsolete test procedure.
The effective date of this rule is June 5, 2023. The amendments will be
The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register on June 5, 2023. The incorporation by reference of certain other material listed in the rule was approved by the Director of the Federal Register on March 8, 2016.
The docket, which includes
A link to the docket web page can be found at
For further information on how to review the docket, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-0371. Email:
Ms. Sarah Butler, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-1777. Email:
DOE maintains a previously approved incorporation by reference and incorporates by reference the following industry standards into part 431:
AHAM HRF-1-2016, “Energy and Internal Volume of Refrigerating Appliances.”
ANSI/ASHRAE Standard 32.1-2022, “Methods of Testing for Rating Refrigerated Vending Machines for Sealed Beverages,” approved December 30, 2022.
Copies of AHAM HRF-1-2016 can be purchased from the Association of Home Appliance Manufacturers (AHAM), 1111 19th Street NW, Suite 402, Washington, DC 20036, 202-872-5955,
Copies of ANSI/ASHRAE Standard 32.1-2022 can be purchased from the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Inc., 180 Technology Parkway NW, Peachtree Corners, GA 300092, (800) 527-4723,
For a further discussion of these standards, see section IV.N of this document.
DOE is authorized to establish and amend energy conservation standards and test procedures for BVMs. (42 U.S.C. 6295(v); 42 U.S.C. 6293(b)(15)) DOE's energy conservation standards and test procedures for BVMs are currently prescribed at subpart Q of 10 CFR part 431. The following sections discuss DOE's authority to establish test procedures for BVMs and relevant background information regarding DOE's consideration of test procedures for this product.
The Energy Policy and Conservation Act, Public Law 94-163, as amended (EPCA),
The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 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 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
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) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle (as determined by the Secretary) or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption. (42 U.S.C. 6295(gg)(2)(A)) Standby mode and off mode energy consumption must be incorporated into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product unless the current test procedures already account for and incorporate standby and off mode energy consumption or such integration is technically infeasible. If an integrated test procedure is technically infeasible, DOE must prescribe a separate standby mode and off mode energy use test procedure for the covered product, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)(ii)) Any such amendment must consider the most current versions of the International Electrotechnical Commission (IEC) Standard 62301
With respect to BVMs, EPCA requires the test procedure to be based on the 2004 version of ANSI/ASHRAE Standard 32.1, “Methods of Testing for Rating Vending Machines for Bottled, Canned or Other Sealed Beverages.” (42 U.S.C. 6293(b)(15))
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including BVMs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A))
If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the
DOE is publishing this final rule in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A))
DOE's existing test procedures for BVMs appear at 10 CFR part 431, subpart Q, appendices A and B, both titled “Uniform Test Method for the Measurement of Energy Consumption of Refrigerated Bottled or Canned Beverage Vending Machines” (appendices A and B, respectively). On or after January 8, 2019, any representations, including compliance certifications, made with respect to the energy use or efficiency of BVMs must be made in accordance with the results of testing pursuant to appendix B.
On July 31, 2015, DOE published a test procedure final rule (July 2015 Final Rule) that referenced updated industry test methods, improved clarity of the procedure, accounted for new equipment features, and established the test procedures at appendices A and B.
On May 19, 2021, DOE published in the
(1) Incorporate by reference the current industry standard ANSI/ASHRAE Standard 32.1-2017.
(2) Incorporate by reference the industry standard AHAM HRF-1-2008 referenced in ANSI/ASHRAE Standard 32.1-2017.
(3) Maintain the existing DOE test procedure requirements that are not included in ANSI/ASHRAE Standard 32.1-2017.
(4) Provide setup instructions for non-beverage shelves in refrigerated compartments.
(5) Amend the definition of lowest application product temperature (LAPT) to allow for testing BVMs only capable of operating at temperatures below the specified test temperature.
(6) Require coin and bill payment mechanisms to be energized for testing if shipped with the BVM (but not until the compliance date of any amended energy conservation standards).
(7) Specify setup instructions for refrigerant leak mitigation controls consistent with the existing test procedure instructions.
(8) Remove the obsolete test procedure in appendix A.
DOE received comments in response to the March 2022 NOPR from the interested parties listed in Table I.I.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
In this final rule, DOE amends the test procedure at appendix B as follows:
(1) Incorporates by reference the current industry standard ANSI/ASHRAE Standard 32.1-2022.
(2) Incorporates by reference the industry standard AHAM HRF-1-2016 referenced in ANSI/ASHRAE Standard 32.1-2022.
(3) Provides setup instructions for non-beverage shelves in refrigerated compartments.
(4) Amends the definition of LAPT to allow for testing BVMs only capable of operating at temperatures below the specified test temperature.
(5) Specifies setup instructions for refrigerant leak mitigation controls.
(6) Removes the obsolete test procedure in appendix A.
The adopted amendments are summarized and compared to the test procedure provision prior to the amendment in Table II.I, along with the reason for the adopted change.
DOE has determined that the amendments described in section III of this document and adopted in this document will not alter the measured efficiency of BVMs or require retesting or recertification solely as a result of DOE's adoption of the amendments to the test procedures. Additionally, DOE has determined that the amendments will not increase the cost of testing. Discussion of DOE's actions are addressed in detail in section III of this document.
The effective date for the amended test procedures adopted in this final rule is 30 days after publication of this document in the
BVMs are commercial refrigerators (as defined at 10 CFR 431.62)
Class A means a BVM that is not a combination vending machine and in which 25 percent or more of the surface area on the front side of the beverage vending machine is transparent.
Class B means a BVM that is not considered to be Class A and is not a combination vending machine.
Combination A means a combination vending machine where 25 percent or more of the surface area on the front side of the beverage vending machine is transparent.
Combination B means a combination vending machine that is not considered to be Combination A.
Combination vending machine means a BVM containing two or more compartments separated by a solid partition, that may or may not share a product delivery chute, in which at least one compartment is designed to be refrigerated, as demonstrated by the presence of temperature controls, and at least one compartment is not. 10 CFR 431.292.
In the March 2022 NOPR, having received no comments on these definitions, and having not identified any BVMs available on the market that would require additional specificity in the existing BVM definitions, DOE tentatively determined that amendments were not required and did not propose any new or amended BVM definitions.
In response to the March 2022 NOPR, NAMA commented that it does not believe further definition of the terms “dispense” or “solid partition” is necessary. (NAMA, No. 14, p. 2)
DOE has not identified BVMs available on the market that would require additional specificity in the existing BVM definitions, which is supported by NAMA's comment. Therefore, consistent with the March 2022 NOPR, DOE has determined that amendments are not required and is not amending any of the BVM definitions in this final rule.
Appendix B incorporates by reference ANSI/ASHRAE Standard 32.1-2010, which was the most current version of the industry standard available at the time of the July 2015 Final Rule. 80 FR 45758, 45762. Appendix B specifically references section 3, “Definitions”; section 4, “Instruments”; section 5, “Vendible Capacity”; section 6, “Test Conditions”; section 7.1, “Test Procedures—General Requirements”; and section 7.2, “Energy Consumption Test” of ANSI/ASHRAE Standard 32.1-2010. Appendix B includes certain exceptions to these references, and in cases of conflict between appendix B language and the requirements of ANSI/ASHRAE Standard 32.1-2010, the language in appendix B takes precedence.
At the time of the July 2015 Final Rule analysis, DOE was aware of ongoing industry meetings to consider updates to ASHRAE Standard 32.1. DOE participated in those industry meetings and, to the extent possible, sought to align its test procedure with the expected updates to ASHRAE 32.1. 80 FR 45758, 45762.
On February 2, 2017, ANSI and ASHRAE approved the latest version of Standard 32.1, ANSI/ASHRAE 32.1-2017, “Methods of Testing for Rating Vending Machines for Sealed Beverages” (ANSI/ASHRAE Standard 32.1-2017).
Many of the revisions included in ANSI/ASHRAE Standard 32.1-2017 harmonize the industry standard with the existing DOE test procedure. However, some substantive differences between DOE's test procedure at appendix B and ANSI/ASHRAE Standard 32.1-2017 remain, notably the following:
(1) Section 2.2.4 of appendix B contains provisions for testing accessory low power mode, and section 2.3.2 of appendix B accounts for refrigeration low power mode, whereas ANSI/ASHRAE Standard 32.1-2017 contains no such provisions (and specifically prohibits operation in low power mode during testing, per section 7.2.2.6.2).
(2) Section 2.1.3 of appendix B provides instructions for testing BVMs that are not capable of maintaining an integrated average temperature of 36 °F ±1 °F during the 24-hour test period, whereas ANSI/ASHRAE Standard 32.1-2017 contains no such provisions.
(3) Section 2.2.1.4 of appendix B specifies a “standard product” consisting of standard 12-ounce aluminum beverage cans filled with a liquid with a density of 1.0 grams per milliliter (g/mL) ±0.1 g/mL at 36 °F, whereas ANSI/ASHRAE Standard 32.1-2017 specifies using a 33 percent propylene glycol and 67 percent water solution.
(4) Section 2.2.5.1 of appendix B provides instructions for payment mechanisms that cannot be disconnected during testing (if the payment mechanism is not removed, appendix B requires it to be in place but de-energized, or set to the lowest energy-consuming state if it cannot be de-energized) and specifies a default payment mechanism energy consumption of 0.20 kilowatt-hours per day (kWh/day), whereas ANSI/ASHRAE Standard 32.1-2017 contains no such provisions.
(5) Section 2.2.3 of appendix B requires energy management systems to be disabled and energy-saving features that cannot be disabled to be set to their most energy-consuming settings, whereas ANSI/ASHRAE Standard 32.1-2017 also requires that energy management systems be disabled but does not address other energy-saving features that cannot be disabled.
(6) Sections 2.2.5.2 through 2.2.5.10 of appendix B provide additional setup instructions regarding certain equipment accessories (
(7) Section 2.2.2 of appendix B prohibits routing thermocouple wires
(8) Section 2.3.3 of appendix B provides rounding instructions on energy consumption results, whereas ANSI/ASHRAE Standard 32.1-2017 contains no such rounding instructions.
(9) ANSI/ASHRAE Standard 32.1-2017 provides an additional recovery test (to determine the product temperature recovery time of the BVM when loaded with product at a certain temperature) and a vend test (to determine how much cold product a BVM will deliver when bottles, cans, or other sealed packages are vended at a rate of two per minute, 3 hours after a half-full machine is refilled with product at a specified beverage temperature), whereas appendix B contains no such tests. These tests assess product temperature recovery and vending performance but do not factor into the energy use measurement in ANSI/ASHRAE Standard 32.1-2017.
In addition to these differences with the DOE test procedure, ANSI/ASHRAE Standard 32.1-2017 also lists key changes from the 2010 version, summarized by the following:
• Updates definitions to specify the application to BVMs;
• Removes zone-cooled/fully cooled distinction;
• Updates AHAM HRF-1 references to a more recent version of the standard (2008);
• Removes the 90 °F test condition for ambient temperature and maintains a single ambient temperature (75 °F);
• Clarifies test setup requirements for temperature sensor locations and test package/wire setup;
• Incorporates requirements for the controls systems; and
• Clarifies the integrated average temperature (IAT) calculation.
In the March 2022 NOPR, DOE proposed to incorporate by reference the most recent updated industry standard, ANSI/ASHRAE Standard 32.1-2017, while maintaining the current DOE test procedure provisions not included in ANSI/ASHRAE Standard 32.1-2017 regarding energy management systems, accessory setup instructions, wire routing, and rounding. 87 FR 18936, 18941. This proposed approach was consistent with the recommendations from interested parties, and DOE tentatively determined that the proposal would not impact current BVM ratings or test costs because the proposed test procedure was substantively the same as the current DOE test procedure.
For consistency with the proposed incorporation by reference of ANSI/ASHRAE Standard 32.1-2017, DOE also proposed in the March 2022 NOPR to incorporate by reference AHAM HRF-1-2008, including the correction sheet issued November 17, 2009, to ensure that BVM testing is conducted to the appropriate test standard. 87 FR 18936, 18941. In the March 2022 NOPR, DOE tentatively determined that the updates made to AHAM HRF-1 between the 2004 and 2008 versions provided clarifications and instructions for measuring components that are specific to consumer refrigeration products (
In the March 2022 NOPR, DOE requested comment on its proposal to incorporate by reference the most current industry test standard, ANSI/ASHRAE Standard 32.1-2017, including the updated reference to AHAM HRF-1-2008 for measuring refrigerated volume. 87 FR 18936, 18941. DOE also requested comment on whether the proposed amendments would affect BVM ratings as measured under the existing test procedure or whether they would impact test burden.
NAMA expressed agreement with DOE that updating the references to AHAM HRF-1-2008 and ANSI/ASHRAE 32.1-2017 is more appropriate. (NAMA, No. 14, p. 2) NAMA also stated that referencing AHAM HRF-1-2008 would help clarify some of the dimensional volume measurements. (NAMA, No. 14, p. 2-3)
Since publication of the March 2022 NOPR, the first public review draft of Board of Standards Review/ASHRAE Standard 32.1-2017R (BSR/ASHRAE 32.1-2017R) was published on April 22, 2022.
On December 30, 2022, ANSI/ASHRAE 32.1-2022 was published. DOE reviewed ANSI/ASHRAE 32.1-2022 and determined that it is substantively the same to BSR/ASHRAE 32.1-2017R. DOE has reviewed the sections in AHAM HRF-1-2016 referenced by ANSI/ASHRAE 32.1-2022 and determined that the updated reference in ANSI/ASHRAE 32.1-2022 to AHAM HRF-1-2016 provides clarifications and does not substantively change the standard. Based on this determination, incorporating by reference ANSI/ASHRAE 32.1-2022 and AHAM HRF-1-2016 would be substantively consistent with DOE's proposal in the March 2022 NOPR and, therefore, DOE has determined to incorporate by reference ANSI/ASHRAE 32.1-2022 and AHAM HRF-1-2016, while maintaining the current DOE test procedure provisions not included in ANSI/ASHRAE Standard 32.1-2022 regarding energy management systems, accessory setup instructions, wire routing, and rounding.
The following sections discuss the proposals from the March 2022 NOPR, any comments received in response to the proposals, and any corresponding finalized amendments to the DOE test procedure.
Section 2.1.2 of appendix B requires testing and rating BVM performance in a 75 °F ambient temperature with 45 percent relative humidity. Prior to the July 2015 Final Rule, the DOE test procedure incorporated by reference ANSI/ASHRAE Standard 32.1-2004, which included two ambient test conditions: 75 °F with 45 percent relative humidity and 90 °F with 65 percent relative humidity. However, compliance with DOE's energy conservation standard was determined based on performance at only the 75 °F with a 45 percent relative humidity test condition. In the July 2015 Final Rule, DOE determined that the 75 °F with a 45 percent relative humidity test condition provides a reasonable and comparable representation of energy performance for all BVMs and removed the 90 °F with a 65 percent relative humidity condition. 80 FR 45758, 45765.
During the rulemaking leading to the July 2015 Final Rule, DOE estimated that 18 percent of Class B and Combination B BVMs were installed outdoors. 80 FR 45758, 45765. DOE determined that, although these BVMs would experience different ambient conditions than in the test procedure, it would not be feasible to test at all the conditions BVMs may experience in the field.
In the March 2022 NOPR, DOE tentatively determined that while BVMs may be installed and operated in a variety of locations and ambient conditions, the existing single test condition provides a representative test condition for BVMs, consistent with the July 2015 Final Rule determination. Accordingly, DOE did not propose any changes to the current requirement to test under the single ambient test condition (75 °F and 45 percent relative humidity), consistent with the test condition specified in ASHRAE Standard 32.1-2022. 87 FR 18936, 18941.
In response to the March 2022 NOPR, NAMA commented that removal of the requirement to test at both 75 degrees and 90 degrees was appropriate and would assist manufacturers in reducing testing costs and would not change the overall energy measurement. (NAMA, No. 14, p. 2) NAMA also expressed agreement with DOE that testing at 75 degrees and 45 percent relative humidity is realistic and provides a reasonable and comparable representation of energy performance. (NAMA, No. 14, p. 3) NAMA also commented that it could not present information about the percentage of machines installed indoors, outdoors, in insulated environments, or in space-conditioned indoor environments. (NAMA, No. 14, p. 3) NAMA explained that BVM manufacturers do not determine placement of machines; rather, the customers of the BVM manufacturer and individual bottlers or store locations make that determination, and such information is not shared with the BVM manufacturer.
Neubauer commented that many BVMs are placed outdoors in uncontrolled environments, such that the previous initial test at 90 °F ambient temperature was reasonable and sound. (Neubauer, No. 9, p. 1) Neubauer added that many customers prefer a colder drink, especially in hot environments.
While acknowledging that a 90 °F ambient temperature may represent certain BVM installations, DOE recognizes that BVMs may be installed and operated in a variety of locations and ambient conditions (including temperatures significantly lower than the aforementioned test conditions). In consideration of these factors, DOE reiterates and maintains its previous determination that the existing single test condition provides for a representative measurement of energy use for BVMs and is not unduly burdensome to conduct. Accordingly, in this final rule, DOE is not making any changes to the current requirement to test under the single ambient test condition (75 °F and 45 percent relative humidity), consistent with the test condition specified in ASHRAE Standard 32.1-2022.
As described in section III.A of this document, DOE defines “combination BVM” as a BVM containing two or more compartments separated by a solid partition, that may or may not share a product delivery chute, in which at least one compartment is designed to be refrigerated, as demonstrated by the presence of temperature controls, and at least one compartment is not. 10 CFR 431.292. The thermal mass of items loaded into the non-refrigerated compartments (or lack of thermal mass for unloaded compartments) may affect the measured DEC of combination BVMs. Section 2.2.1.3 of appendix B specifies that the non-refrigerated compartments of combination BVMs must not be loaded with any standard products or other vendible merchandise during testing. Sections 7.2.2.2 and 7.2.2.7 of ANSI/ASHRAE Standard 32.1-2022 require combination BVMs not to be loaded with any standard products, test packages, or other vendible merchandise in the non-refrigerated compartments.
In the March 2022 NOPR, DOE requested information on typical loads for non-refrigerated compartments in combination BVMs and, if DOE were to require such loads for testing, the potential impacts on combination BVM energy consumption and test burden. 87 FR 18936, 18942.
In response to the March 2022 NOPR, NAMA commented that many machines are configured for both “snacks” and “beverages” and agreed that testing or designing a “standard” thermal mass for testing non-beverage items is difficult and would not provide better information than the test procedure DOE proposed. (NAMA, No. 14, p. 3) NAMA also commented that estimating the thermal characteristics by using no-filled space for non-beverage materials is best, and stated that the method proposed by DOE is a representative, reasonable, and reproducible approach.
NAMA also commented that BVM manufacturers do not dictate what non-beverage materials are placed into the machines; rather, placement of non-beverage materials is dictated by the end user, and therefore BVM manufacturers do not have information on this and would not be able to provide this to DOE. (NAMA, No. 14, p. 3)
As stated in the March 2022 NOPR, typical loads for non-refrigerated compartments can range from small items with density similar to beverages (
Section 2.2.1.4 of appendix B specifies the standard products to be used for testing, which include the following: 12-ounce aluminum beverage cans filled with a liquid with a density of 1.0 grams per milliliter (g/mL) ±0.1 g/mL at 36 °F; or, for product storage racks that are not capable of vending 12-ounce cans but are capable of vending 20-ounce bottles, 20-ounce plastic bottles filled with a liquid with a density of 1.0 g/mL ±0.1 g/mL at 36 °F; or, for product storage racks that are not capable of vending 12-ounce cans or 20-ounce
In the March 2022 NOPR, DOE discussed its previous considerations of other standard products that could potentially be defined, including slimline cans, milk cartons, aseptic packs, pouches, and energy drinks. Having not received comment on this topic in response to the May 2021 RFI, DOE did not propose any changes in the March 2022 NOPR to the current test procedure standard packages of 12-ounce cans, 20-ounce bottles, or the packaging and contents specified by the manufacturer in product literature, depending on the BVM vending capability. 87 FR 18936, 18942. DOE also did not receive any comment in response to the March 2022 NOPR on this topic.
Additionally, certain BVMs are marketed to vend both beverages and food but do not contain a solid partition that separates the shelves or compartments intended for refrigerated bottled or canned beverages from those intended for other merchandise. Section 2.2.1.4 of appendix B specifies that if the non-beverage shelves of these BVMs are not capable of vending 12-ounce cans or 20-ounce bottles, the standard product for testing is the packaging and contents specified by the manufacturer in product literature.
In the March 2022 NOPR, DOE discussed that for non-beverage shelves, manufacturers do not always specify the packaging and contents of the merchandise to be loaded. 87 FR 18936, 18942. Additionally, DOE discussed that measuring temperature at the center of mass of non-liquid merchandise packaging would provide unique challenges compared to liquid containers (
In the March 2022 NOPR, DOE tentatively determined that it could not identify a representative non-beverage test load because of the wide range of merchandise that could be loaded in non-beverage shelves. Additionally, DOE stated that it expects that measuring the temperatures of non-beverage standard packages would be difficult to do repeatably and reproducibly (
DOE requested comment on the proposal to specify that non-beverage merchandise shelves not be loaded for testing BVMs.
NAMA stated that the packaging and contents of merchandise to be loaded in combination machines is the decision of the end user. (NAMA, No. 14, p. 3) NAMA agreed with DOE's assertion that it would be very difficult to design a uniform non-beverage food material for testing and supported DOE's proposal that the non-beverage areas be left empty for testing.
In this final rule, DOE has determined that it cannot identify a representative non-beverage test load because of the wide range of merchandise that could be loaded in non-beverage shelves. Additionally, DOE has determined that, at this time, measuring the temperatures of non-beverage standard packages (
Section 2.2.1.4 of appendix B requires that the standard product 12-ounce cans or 20-ounce bottles be filled with liquid with a density of 1.0 g/mL ±0.1 g/mL at 36 °F, whereas ANSI/ASHRAE Standard 32.1-2022 requires the beverage temperature test packages to be filled with a 33 percent propylene glycol and 67 percent water solution. ANSI/ASHRAE Standard 32.1-2022 does not specify whether these glycol and water percentages are based on weight or volume.
In the March 2022 NOPR, DOE noted the use of a propylene glycol solution in other test procedures, such as for testing commercial refrigeration equipment.
In the March 2022 NOPR, DOE further stated that for BVMs, the target test condition of 36 °F is above the freezing point of water and other liquids likely to be used for testing BVMs.
In response to the March 2022 NOPR, NAMA commented that other ASHRAE
Based on consideration of these comments in response to the March 2022 NOPR, DOE has determined that specifying an alternative propylene glycol solution for testing BVMs is not likely to reduce test variability, as is the case when testing other types of equipment at temperatures at or below the freezing point of water, and would increase test burden compared to the existing test approach. Regarding NAMA's concern that the percentage of propylene glycol and water should be measured by volume, not weight, the test procedure as finalized in this document does not require the use of a propylene glycol mixture. In summary, for the reasons discussed here and in the March 2022 NOPR, DOE has determined to maintain the existing test procedure provisions regarding the specifications of the standard product as proposed in the March 2022 NOPR.
Section 2.1.1 of appendix B requires that the IAT of the BVM be 36 °F ±1 °F over the test period.
DOE's compliance certification database (CCD)
In the March 2022 NOPR, DOE acknowledged that the current LAPT provisions result in some BVMs being tested at a higher temperature than those capable of maintaining the required test IAT. 87 FR 18936, 18943. However, for BVMs not capable of operating with temperatures of 36 °F ±1 °F, the LAPT test provisions are representative of the actual operation of those models.
Therefore, in the March 2022 NOPR, DOE tentatively determined to maintain the current LAPT provisions and proposed adding an additional provision for testing BVMs that are only capable of maintaining temperatures below the 36 °F ±1 °F range. 87 FR 18936, 18943. For these units, DOE proposed to test at the highest thermostat setting.
(a) For units that operate only at temperatures
(b) For units that operate only at temperatures
DOE requested comment on its initial determination to maintain the existing LAPT approach for units that operate only at temperatures above 36 °F ±1 °F. 87 FR 18936, 18944. DOE also requested comment on its proposal to require testing at the highest IAT a given basic model is capable of maintaining for units that are only capable of operating at temperatures below 36 °F ±1 °F.
In response to the March 2022 NOPR, NAMA agreed with DOE's proposal to maintain the current LAPT provisions and to require testing at the highest thermostat setting for BVMs that are only capable of maintaining temperatures below the 36 °F range. (NAMA, No. 14, p. 4)
The Joint Commenters supported DOE's proposed provisions for testing units only capable of operating below 36 °F ±1 °F at their highest thermostat setting, as well as DOE's proposal to update the definition of LAPT to include this situation. Regarding DOE's proposal to maintain the current test provisions for units only capable of operating at temperatures above 36 °F ±1 °F, the Joint Commenters expressed concern that units tested at operating temperatures above the specified test temperature, thus consuming less energy (
Regarding the concerns expressed by the Joint Commenters about units that operate only at temperatures above 36 °F ±1 °F, as discussed previously, the LAPT test provisions produce test results that are representative of the actual operation of such models. Accordingly, the LAPT test provisions measure the energy use of those BVMs during a representative average use cycle or period of use as required by EPCA. (42 U.S.C. 6293(b)(3)) DOE considers equipment class definitions and the applicability of any energy conservation standards to each defined class as part of separate energy conservation standards rulemakings.
For BVMs that are only capable of maintaining temperatures below 36 °F ±1 °F, DOE is adopting the provisions proposed in the March 2022 NOPR to
Section 2.2.5.1 of appendix B requires testing BVMs with (1) no payment mechanism in place, (2) the payment mechanism in place but de-energized, or (3) the payment mechanism in place but set to the lowest energy consuming state if it cannot be de-energized. A default payment mechanism energy consumption value of 0.20 kilowatt-hours per day (kWh/day) is added to the measured energy consumption, according to section 2.3 of appendix B. In section 7.1.2.2. of ANSI/ASHRAE Standard 32.1-2022, payment mechanisms are required to be disconnected during testing.
In the July 2015 Final Rule, DOE determined that because payment mechanisms are variable and not always included in the machine at the time of sale, it is difficult to unambiguously specify a “representative” payment mechanism or device combination. 80 FR 45758, 45776. DOE concluded that conducting physical testing of BVMs with no payment mechanisms installed, as opposed to testing with payment mechanisms in place, is the most straightforward, repeatable, and unambiguous approach.
In the March 2022 NOPR, based on a survey of units currently available on the market, DOE observed that coin and bill payment mechanisms are typically included with BVMs as sold or shipped, but that credit card readers are typically sold as an optional feature and are sold separately from BVMs. 87 FR 18936, 18944. DOE also discussed in the March 2022 NOPR a lack of data regarding the relative use of credit card readers as compared to coin and bill payment mechanisms.
As presented in the March 2022 NOPR, DOE conducted a review of currently available payment mechanisms to determine whether the previously derived 0.20 kWh/day default payment mechanism energy consumption is appropriate. 87 FR 18936, 18944. DOE reviewed manufacturer specifications for 3 coin changers, more than 30 bill validators, and 2 credit card readers.
In the March 2022 NOPR, DOE tentatively determined that requiring a payment mechanism included with a BVM as shipped (
DOE requested comment on its proposal to require testing with coin and bill payment mechanisms energized if they are included in the BVM as shipped. 87 FR 18936, 18945. DOE also requested comment on whether this approach would result in any additional test burden.
The Joint Commenters supported DOE's proposed provisions relating to bill and coin payment mechanisms but expressed concern that the energy consumed by credit card readers would not be captured through direct testing nor accurately captured through the application of the 0.2 kWh power adder. (Joint Commenters, No. 13, p. 1-2) The Joint Commenters encouraged DOE to extend its proposal to all types of payment mechanisms shipped with BVMs and require credit card readers to be energized during testing if they are sold with the models.
NAMA commented that its survey showed the percentage of machines shipped with payment systems ranged from 5 to 98 percent by manufacturer. (NAMA, No. 14, p. 4) NAMA added that some manufacturers ship 80 to 98 percent of units with a payment system, while other manufacturers ship far fewer units with payment systems, instead allowing the customer to add a payment system later.
NAMA disagreed with DOE's estimate of the cost of testing for different payment mechanisms. (NAMA, No. 14, p. 9) NAMA stated that the cost is much higher than $8,300 per basic model.
NAMA commented that testing multiple combinations would be onerous, and stated that while NAMA would agree using an automatic 0.20 kWh/day factor may not be the most accurate in all cases, the current use of this factor is better than requiring hundreds of hours of laboratory testing for the sake of a fraction of a kWh/day difference. (NAMA, No. 14, p. 5) In response to DOE's statement that manufacturers would not be required to retest or recertify BVMs because of the proposed payment mechanism approach until the new standard is effective, NAMA asserted that manufacturers would have to engage in considerable testing before and after the new test procedure becomes required. (NAMA, No. 14, p. 6) NAMA commented that all of the additional testing described in their comment seems unnecessary with regard to a difference in energy use of 0.003 kWh/day.
DOE has further considered its approach regarding payment mechanisms based on these comments and additional analysis and review of the data and information presented in the March 2022 NOPR. The available information demonstrates that a wide (and growing) variety of payment systems is currently available on the market; the most common scenario is for the payment mechanism to be specified (and in some cases, provided) by the customer; and the customer may decide whether to have the payment mechanism installed by the BVM manufacturer at the time of sale. DOE has further analyzed the energy use data presented in the March 2022 NOPR and has concluded that the difference in energy use between types of payment mechanisms (
Based on these considerations, DOE has determined that requiring a payment mechanism to be energized during testing if it is included with a BVM as shipped may not necessarily provide a more representative measure of energy use compared to the current test method, and that any improvement in representativeness resulting from such a requirement would be outweighed by the additional test burden that may be required, as described in stakeholder comments. Therefore, in this final rule, DOE is not amending the test provisions with regard to payment mechanisms as it proposed to do in the March 2022 NOPR. Instead, DOE has determined to maintain the current test provisions, which specify a default 0.2 kWh/day adder.
Appendix B incorporates definitions and test requirements for two types of low power modes:
In the July 2015 Final Rule, DOE acknowledged that the two types of low power modes incorporated into the test procedure may not address all forms of low power modes available in the BVM market. 80 FR 45758, 45786. DOE identified “learning-based” energy management controls that use historical sales and traffic data to predict times of high and low traffic; however, DOE did not propose a test procedure for such controls, determining that it would be difficult to develop a repeatable test procedure to evaluate the energy savings of such controls during a 24-hour test in a laboratory.
In the March 2022 NOPR, DOE described its expectation that the impacts of any learning-based controls would vary based on specific field installation and usage scenarios. 87 FR 18936, 18945. DOE stated that it was not aware of, and interested parties had not previously provided, any data that could be used to determine the impacts of learning-based controls on energy use (
NAMA commented that it disagrees with a comment submitted by the Appliance Standards Awareness Project (ASAP) and Natural Resources Defense Council (NRDC) in response to the May 2021 RFI that asserted that maintaining the provisions for low power mode testing, which are not included in ANSI/ASHRAE 32.1-2017, would incentivize manufacturers to incorporate more energy management controls to reduce energy consumption. (NAMA, No. 13, pp. 2-3;
NAMA also stated that it is not prepared to comment on the energy benefits of “learning-based” energy
At this time, DOE remains unaware of, nor have interested parties provided, any data that could be used to determine the impacts of learning-based controls on energy use (
Section 1.2 of appendix B defines accessory low power mode as a state in which a BVM's lighting and/or other energy-using systems are in low power mode, but not a refrigeration low power mode. Functions that may constitute an accessory low power mode may include, for example, dimming or turning off lights, while not including adjustment of the refrigeration system to elevate the temperature of the refrigerated compartment(s). Section 2.2.4 of appendix B states that accessory low power mode may be engaged for the final 6 hours of the 24-hour test period and requires that the BVM be operated in the lowest energy-consuming lighting and control settings for testing this mode. Section 2.2.4 also requires that any automatic activation of refrigeration low power modes be prevented during the accessory low power mode test period.
The 24-hour test procedure starts after a BVM achieves stabilization as determined in vending mode.
In the March 2022 NOPR, DOE discussed its observations from testing that measured temperatures remain unchanged during operation in vending mode and accessory low power mode.
In the March 2022 NOPR, DOE acknowledged in response to commenters that BVMs may be used in a variety of locations and that the actual duration of accessory low power mode use will vary based on installation location. 87 FR 18936, 18946. In the NOPR preceding the July 2015 Final Rule, DOE stated that the 6-hour duration was selected as a representative length of time for the low power mode test period based on the fact it is intended to represent off hours between periods of vending when the facility may be closed or have low occupancy. 79 FR 46908, 46926. While DOE recognized that there exists a range of types of low power mode controls and time periods for which these controls are enabled, DOE determined that a timeframe of 6 hours was a reasonable representation of average field use.
In the March 2022 NOPR, DOE stated it was not aware of data indicating that durations other than the currently defined 6 hours would be more representative of typical BVM operation in accessory low power mode. 87 FR 18936, 18946. The intent of the accessory low power mode test period remains unchanged from the July 2015 Final Rule approach (
NAMA commented that it agrees with DOE's conclusion not to change the accessory low power mode testing at this time. (NAMA, No. 14, p. 6) NAMA also agreed with DOE that BVMs may be used in a variety of locations and the actual duration of the accessory low power mode will be based on the installation location as well as the choice of the customer/user.
In consideration of these comments, and lacking any new information that would contradict DOE's prior considerations of this issue, DOE has determined to maintain the existing accessory low power mode approach, consistent with the March 2022 NOPR.
Section 1.2 of appendix B defines refrigeration low power mode as a state in which a BVM's refrigeration system is in low power mode because of elevation of the temperature of the refrigerated compartment(s). Section 2.3.2.1 of appendix B includes provisions for confirming the presence of a refrigeration low power mode, either through an increase in average next-to-vend beverage temperature or lack of compressor operation. Unlike accessory low power mode, appendix B does not include a direct test of refrigeration low power mode. Instead, BVMs with refrigeration low power mode receive a 3-percent reduction in DEC as measured.
In the July 2015 Final Rule, DOE determined that a 3-percent energy reduction was more appropriate than a physical test of refrigeration low power mode because refrigeration low power modes are extremely variable in their control strategies and operation and may require instructions from the manufacturer to accommodate specific provisions of a physical test. 80 FR
DOE established the 3-percent credit for refrigeration low power mode by testing several BVMs with this mode. DOE noted in the July 2015 Final Rule that this value is an average that is representative of the common types of refrigeration low power modes available in the marketplace. 80 FR 45758, 45786.
In the March 2022 NOPR, DOE did not propose any changes to the current refrigeration low power mode and validation test method. 87 FR 18936, 18946. DOE also tentatively determined that the challenges of implementing a refrigeration low power mode test would remain the same as those considered in the July 2015 Final Rule.
In the March 2022 NOPR, DOE also did not propose any changes to the 3-percent credit as the energy reduction associated with refrigeration low power mode. 87 FR 18936, 18947. DOE acknowledged that the actual energy impact of refrigeration low power mode would vary depending on the user-specified control parameters for that mode, including duration and temperature settings or refrigeration system control.
In the March 2022 NOPR, DOE requested comment on its initial determination to maintain the existing calculation approach to account for operation in refrigeration low power mode. 87 FR 18936, 18947. DOE continued to seek information and data on whether the assumed operating period (6 hours) and corresponding energy consumption impact (3 percent) are appropriate for BVMs operating in refrigeration low power mode.
NAMA commented that it did not believe any amendments were necessary for the definition of refrigeration low power mode. (NAMA, No. 14, p. 7) NAMA added that it was not aware of any other refrigeration low power mode that cannot meet the definition or validate the test method.
NAMA also commented in response to DOE's questions of whether a physical test to account for low power mode is feasible and what burden would be associated, stating it did not believe a physical test was necessary, and any such test would be a significant burden to manufacturers. (NAMA, No. 14, p. 7) NAMA stated that there are many such low power modes for refrigeration based on end customer use, not necessarily by the BVM manufacturer.
NAMA further commented that manufacturers do not own the equipment in the field and often have no contact with the machines once placed in the field. NAMA stated that from what little information it has, the 3-percent credit and the 6-hour low power mode test period are reasonable, approximate the current status, and are as accurate as possible at this time. (NAMA, No. 14, p. 7) NAMA also noted that some of the commenters stated that the 3-percent credit might be inhibiting to technology, and that NAMA members do not agree with this assessment.
In consideration of these comments, and lacking any new information that would contradict DOE's prior considerations of this issue, DOE is maintaining the existing test procedure provisions and 3-percent energy credit for refrigeration low power mode, consistent with the March 2022 NOPR.
The existing DOE test procedure considers BVM performance only during stable operation (including any operation in accessory low power mode). During typical use, BVMs are regularly opened and restocked with warmer beverages. DOE discussed in the March 2022 NOPR that accounting for BVM energy use during restocking periods and the subsequent product temperature recovery periods may better represent the actual energy use of BVMs during normal operation. 87 FR 18936, 18947.
As stated in section III.B of this document, ANSI/ASHRAE Standard 32.1-2022 provides an additional recovery test to determine the temperature recovery time of the BVM when loaded with product at a certain temperature, whereas appendix B contains no such test. This recovery test does not include a measurement of the corresponding energy consumption. Table 2 in ANSI/ASHRAE Standard 32.1-2022 specifies the reloaded sealed beverage temperature, 90 °F, and the final, instantaneous average next-to-vend beverage temperature, 40 °F, for the recovery test. Additionally, Table 4 in ANSI/ASHRAE Standard 32.1-2022 lists the door-open durations, between 10 and 20 minutes, required during the recovery test while reloading the BVM.
DOE also discussed in the March 2022 NOPR that based on typical operating descriptions provided in vending industry websites,
In response to the March 2022 NOPR, NAMA commented that the current appendix B does not contain a temperature recovery period. (NAMA, No. 14, pp. 7-8) NAMA stated that while machine manufacturers do not have daily contact with machines once in the field, from what NAMA can tell
The Joint Commenters encouraged DOE to investigate units that may have frequent door openings and to consider test procedure amendments for this type of product. (Joint Commenters, No. 13, p. 2) The Joint Commenters specifically described what appears to be a reach-in style unit on the market that is designed so that users open the door to reach in and obtain the beverage product, instead of the product being vended from a chute.
With regard to the specific reach-in style unit described by the Joint Commenters, DOE has determined that while this unit appears to contain a payment mechanism, the design and function of the unit appears to meet the definition of a commercial refrigerator, freezer, and refrigerator freezer at 10 CFR 431.62 and does not meet the definition of a refrigerated bottled or canned beverage vending machine at 10 CFR 431.292.
In consideration of these comments and lacking any new information that would contradict DOE's prior considerations of this issue, DOE has determined to maintain the current test procedure without any reloading or recovery period requirements, consistent with the March 2022 NOPR.
The current BVM test procedure requires that, unless specified otherwise, all standard components that would be used during normal operation of the basic model in the field and are necessary to provide sufficient functionality for cooling and vending products in field installations (
Leak mitigation controls are a component that may be offered on BVMs, particularly in conjunction with flammable refrigerants. In a final rule published April 10, 2015, the Environmental Protection Agency listed propane (R-290), isobutane (R-600a), and the hydrocarbon blend R-441A as acceptable refrigerants for use in BVMs, subject to a 150-gram charge limit per refrigeration circuit and other safety measures to address flammability. 80 FR 19454, 19491. Due to the flammability of these refrigerants, BVMs using hydrocarbon refrigerants may need to implement additional controls and components to mitigate the risk of ignition from any potential refrigerant leaks. The need for such controls also may vary depending on the intended installation location for BVMs.
To the extent that leak mitigation controls on a particular BVM are a user-controllable accessory (
DOE tentatively determined in the March 2022 NOPR that although section 2.2.5 of appendix B currently addresses the use of refrigerant leak mitigation controls during testing, further specification may help ensure reproducible testing. 87 FR 18936, 18948. DOE therefore proposed to amend the test procedure to provide specific instructions regarding the use of refrigerant leak mitigation controls consistent with the current requirements in appendix B.
In the March 2022 NOPR, DOE acknowledged that the investigative work regarding refrigerant leak mitigation is ongoing; however, DOE stated that if refrigerant leak mitigation controls always operate and cannot be de-energized by the user, accounting for the energy use of such controls would ensure that the DOE test procedure measures energy consumption during a representative average use cycle or period of use as required by EPCA. 42 U.S.C. 6293(b)(3); 87 FR 18936, 18948.
As discussed in the March 2022 NOPR, the proposed instructions regarding refrigerant leak mitigation controls are consistent with the current requirements in section 2.2.5 of appendix B, therefore, DOE did not expect the proposed amendments to affect current BVM ratings or result in any additional testing costs. 87 FR 18936, 18948. DOE requested comment on the proposed instructions regarding refrigerant leak mitigation control settings for BVM testing.
In the NOPR public meeting, AHRI described the complexity of refrigerant transitions with respect to timing and stated that it would be helpful for DOE to coordinate with other agencies on this matter. (AHRI, Public Meeting Transcript, No. 12, pp. 18-20) AHRI specifically mentioned the need for building codes to be in place in order to use new refrigerants (
In response to the March 2022 NOPR, NAMA commented that its members have been working for more than 5 years to adopt new lower global warming potential (GWP) refrigerants. (NAMA, No. 14, p. 8) NAMA further commented that in 2021, DOE requested information on additional equipment or controls that manufacturers might need to mitigate a leak situation, and that in 2021 NAMA was engaged with Oak Ridge National Laboratory and DOE in a Cooperative Research and Development Agreement (CRADA). (NAMA, No. 14, p. 8) NAMA noted that the COVID-19 pandemic caused many delays in the CRADA,
NAMA further commented that the use of additional ventilation, whether all the time or in a leak scenario, is important for product and consumer safety, although at this time NAMA does not know exactly what these mechanisms might be. (NAMA, No. 14, p. 8) NAMA stated that DOE should not impede technology options by assessing an “energy penalty” to BVM manufacturers when the manufacturers deem it necessary to use such safety components.
NAMA further stated that it understands DOE and other branches of the U.S. Government encourage the use of low GWP refrigerants and asked that all measures under the DOE test procedure not increase the time to adopt these refrigerants.
In response to the March 2022 NOPR, the Joint Commenters supported DOE's proposed specifications for refrigerant leak mitigation controls, specifically commenting that if the refrigerant leak mitigation controls are always on, they should be energized and operational for testing. (Joint Commenters, No. 13, p. 2)
In consideration of the feedback provided by commenters, DOE has determined to amend the test procedure to include additional instructions for refrigerant leak mitigation controls; however, DOE has determined to modify the test procedure provisions as originally proposed in the March 2022 NOPR to better address commenters' concerns that refrigerant leak mitigation controls are not a consumer-controllable function. Rather, comments from stakeholders suggest that refrigerant leak mitigation controls, if included in a BVM, would be integral to the function of the unit.
Therefore, DOE is modifying the proposed provisions of section 2.2.5.11 of appendix B to more accurately differentiate between refrigerant leak mitigation controls that are independent from the refrigeration or vending performance of the BVM (rather than describing such controls as a user-controlled function, as proposed in the March 2022 NOPR) from controls that are integrated into the BVM such that they cannot be de-energized without disabling the refrigeration or vending functions of the BVM or modifying the circuitry (rather than describing such controls as not user-controlled and always operational, as proposed in the March 2022 NOPR). The finalized language of section 2.2.5.11 specifies that for refrigerant leak mitigation controls that are independent from the refrigeration or vending performance of the BVM, such controls must be disconnected, disabled, or otherwise de-energized for the duration of testing. For refrigerant leak mitigation controls that are integrated into the BVM cabinet such that they cannot be de-energized without disabling the refrigeration or vending functions of the BVM or modifying the circuitry, such controls must be placed in an external accessory standby mode, if available, or their lowest energy-consuming state.
DOE notes that this provision is similar to DOE's current test procedure provisions for external lighting and displays. Consistent with the March 2022 NOPR, DOE does not expect this amendment to affect current BVM ratings or result in any additional testing costs.
The current DOE test procedure for BVMs does not include specific test requirements regarding connected or smart features, although section 2.2.5 of appendix B provides instructions regarding accessories. Section 2.2.5 of appendix B generally requires all components necessary to provide sufficient functionality for cooling and vending products in field installations (
In the March 2022 NOPR, DOE discussed that based on a review of BVMs available on the market, the types of connected functions identified by commenters in response to the May 2021 RFI did not appear to be common. 87 FR 18936, 18948-18949. Additionally, DOE lacked information on how frequently connected functions would be used on BVMs. 87 FR 18936, 18949. Without such data, DOE had no information to suggest that the current testing approach would produce results that are unrepresentative of an average use cycle or period of use.
In the March 2022 NOPR, DOE requested comment on its tentative determination to maintain the existing test procedure approach in section 2.2.5 of appendix B as applicable to connected functions. 87 FR 18936, 18949. DOE continued to request information and data on the prevalence of connected functions, the BVM functions associated with them, how often they are used, and their corresponding energy use impacts.
NAMA commented that it does not have additional information on the issue of connected functions and the energy impact of these functions at this time. (NAMA, No. 14, pp. 8-9) NAMA noted that its industry is in the early phase of investigating these functions and hopes to have additional information in future years.
Lacking any additional information that would contradict DOE's prior considerations of this issue, DOE has determined to maintain the current test procedure approach in section 2.2.5 of appendix B as applicable to connected functions, consistent with the March 2022 NOPR.
In the March 2022 NOPR, DOE acknowledged that the energy consumption of BVMs can change over the lifetime of the equipment due to
While DOE does not account for lifetime energy consumption in its BVM test procedure, it does consider energy consumption over the lifetime of the equipment in the analysis conducted in support of developing potential amended energy conservation standards for BVMs. In such an analysis, DOE may apply adjustment factors to consider performance degradation over time.
In the March 2022 NOPR, DOE requested any additional information and data on how BVM energy consumption may change over the lifetime of the equipment. 87 FR 18936, 18949. DOE also requested comment on whether any performance degradation occurs consistently for all BVMs, or whether the impacts vary depending on equipment type or specific equipment designs.
NAMA referenced comments submitted in response to the May 2021 RFI by CoilPod, which questioned whether it would be possible for the test procedure to account for the lack of coil cleanings by BVM users. (NAMA, No. 14, p. 9;
DOE has determined to maintain the current test procedure and not amend the test procedure to account for the performance of the condenser over the lifetime of a BVM, consistent with the March 2022 NOPR.
As discussed in section I.B, appendix B is required for testing BVMs manufactured on or after January 8, 2019. As such, appendix A is now obsolete for new units being manufactured. Therefore, in the March 2022 NOPR, DOE proposed to remove appendix A. 87 FR 18936, 18949. DOE did not propose to redesignate appendix B as appendix A in order to avoid confusion regarding the appropriate version of the test procedure required for use.
DOE did not receive comments in response to this topic and has determined to remove appendix A as proposed in the March 2022 NOPR. DOE has determined not to redesignate appendix B as appendix A in order to avoid confusion regarding the appropriate version of the test procedure required for use.
Additionally, the introductory note to appendix B currently explains when manufacturers are required to use either appendix A or B for compliance with energy conservation standards and representations of energy use. DOE proposed to amend the introductory note to remove the obsolete instructions and to instead provide clarifying language regarding application of the payment mechanism provisions, as discussed in section III.C.5 of this document. 87 FR 18936, 18949.
DOE did not directly receive comments on this topic. However, as discussed in section III.C.5 of this final rule, DOE is not amending the current provisions regarding the payment mechanism adder. Therefore, DOE is not including clarifying language in the revised appendix note regarding application of the payment mechanism provisions as proposed in the March 2022 NOPR.
In the March 2022 NOPR, DOE proposed to amend the existing test procedure for BVMs by referencing the most recent industry test standard, providing setup instructions for non-beverage shelves, updating the LAPT definition and instructions, requiring testing of coin and bill payment mechanisms if shipped with the BVM (but not until the compliance date of any amended energy conservation standards), specifying setup instructions for leak mitigation controls, and removing the obsolete appendix A. 87 FR 18936, 18949. DOE tentatively determined that these proposed amendments would not impact testing costs.
NAMA commented that it believes several of the changes discussed and proposed in the NOPR are burdensome and will not assist DOE in ascertaining more accurate energy use of BVMs. (NAMA, No. 14, p. 2)
NAMA commented that at the time of the May 2021 RFI, the industry was struggling during the height of the COVID-19 pandemic.
NAMA commented that it agrees in principle with having tests for energy use and energy efficiency when appropriate, when necessary, and when limited in scope. (NAMA, No. 14, p. 9) NAMA noted, however, that many of the commenters represent organizations that do not have to spend hundreds of person-hours every week conducting tests or incur the cost of using outside laboratories.
Other than the proposed amendment to measure coin and bill payment mechanisms, the proposals in the March 2022 NOPR were generally consistent with requirements under the current DOE test procedure. As discussed in section III.C.5 of this final rule, DOE is not amending the test provisions with regard to payment mechanisms as it proposed to do in the March 2022 NOPR. Instead, DOE has determined to maintain the current test provisions, which specify a default 0.2 kWh/day adder. As a result, the amendments in this final rule harmonize with the industry standard or provide additional test instructions but do not substantively change testing as currently required in appendix B.
As discussed, the amendments improve the clarity of the DOE test procedure while not substantively changing the current test approach. As
DOE's established practice is to adopt relevant industry standards as DOE test procedures unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA), or estimated operating costs of that product during a representative average use cycle or period of use. 10 CFR 431.4; section 8(c) of appendix A of 10 CFR part 430, subpart C. In cases where the industry standard does not meet EPCA statutory criteria for test procedures, DOE will make modifications through the rulemaking process to these standards as the DOE test procedure.
As discussed, the test procedure at appendix B incorporates by reference ANSI/ASHRAE Standard 32.1-2010. This standard provides definitions, test conditions, and test methods for measuring refrigerated volume and energy consumption of BVMs. In the March 2022 NOPR, DOE requested comments on the benefits and burdens of the proposed updates and additions to industry standards referenced in the test procedure for BVMs. 87 FR 18936, 18950.
DOE did not receive comments in response to this topic. Consistent with the March 2022 NOPR, DOE notes that the BVM test procedure at appendix B includes a number of deviations to ANSI/ASHRAE Standard 32.1-2010. Specifically, appendix B refers only to certain sections of ANSI/ASHRAE Standard 32.1-2010, includes additional definitions, provides detailed setup and settings instructions, accounts for operation in low power modes and payment mechanism energy consumption, and provides rounding instructions. These deviations were established to limit test burden (
The effective date for the adopted test procedure amendment will be 30 days after publication of this final rule in the
Executive Order (E.O.) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), 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 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 final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE has concluded that this final rule would not have a significant impact on a substantial number of small entities. The factual basis for this certification is as follows:
For manufacturers of BVMs, the Small Business Administration (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. In 13 CFR 121.201, the SBA sets a threshold of 1,000 employees or fewer for an entity to be considered as a small business for this category. The equipment covered by this rule is classified under North American Industry Classification System (NAICS) code 333310,
DOE used publicly available information to identify small businesses that manufacture BVMs covered in this rulemaking. DOE identified seven companies that are original equipment manufacturers (OEMs) of BVMs covered by this rulemaking. DOE screened out companies that do not meet the definition of a “small business” or are foreign-owned and operated. DOE identified three small, domestic OEMs using subscription-based business information tools to determine the number of employees and revenue of the potential small businesses.
Given that DOE is referencing the prevailing industry test procedure and maintaining a test procedure that is generally consistent with the existing requirements, DOE has determined the test procedure in this final rule would not increase burden for BVM manufacturers, including small businesses, or result in manufacturers needing to rerate BVMs.
Therefore, on the basis of there being no change in compliance burden, DOE certifies that this final rule does not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE transmitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).
Manufacturers of BVMs must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including BVMs. (
DOE is not amending the certification or reporting requirements for BVMs in this final rule. Instead, DOE may consider proposals to amend the certification requirements and reporting for BVMs under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for BVMs. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism 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 examined this final rule and determined that it will 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 products that are the subject of this final 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(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
This regulatory action is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
The modifications to the test procedure for BVMs adopted in this final rule incorporates testing methods contained in certain sections of the following commercial standards: ANSI/ASHRAE Standard 32.1-2022, including reference to AHAM HRF-1-2016. DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
AHAM HRF-1-2016 is referenced by ANSI/ASHRAE Standard 32.1-2022 as the industry-accepted method for determining refrigerated volume for BVMs. By reference to ANSI/ASHRAE
ANSI/ASHRAE Standard 32.1-2022 is an industry-accepted test procedure that measures capacity and efficiency of BVMs. The test procedure adopted in this final rule references various sections of ANSI/ASHRAE Standard 32.1-2022 that address definitions, test setup, instrumentation, test conduct, and calculations. ANSI/ASHRAE Standard 32.1-2022 is readily available at ANSI's website at
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, Incorporation by reference, Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on April 25, 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
For the reasons stated in the preamble, DOE amends part 431 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(a) Certain material is incorporated by reference into this subpart with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the DOE must publish a document in the
(b)
(1) AHAM HRF-1-2016,
(2) [Reserved]
(c)
(1) ANSI/ASHRAE Standard 32.1-2022 (ANSI/ASHRAE 32.1),
(2) [Reserved]
(d)
(1) ASTM E 1084-86 (Reapproved 2009),
(2) [Reserved]
Manufacturers must use the results of testing under this appendix to determine compliance with the relevant standards for refrigerated bottled or canned beverage vending machines at 10 CFR 431.296, revised as of January 1, 2023. Specifically, before October 31, 2023, representations must be based upon results generated either under this appendix as codified on June 5, 2023, or under 10 CFR part 431, subpart Q, appendix B, revised as of January 1, 2023. Any representations made on or after October 31, 2023, must be made based upon results generated using this appendix as codified on June 5, 2023.
DOE incorporated by reference in § 431.293 the entire standard for AHAM HRF-1-2016 and ANSI/ASHRAE Standard 32.1-2022; however, only enumerated provisions of those documents are applicable to this appendix as follows:
(a) Section 4, “Method for Computing Refrigerated Volume of Refrigerators, Refrigerator-Freezer, Wine Chillers, and Freezers” as referenced in section 3.1 of this appendix.
(b) Reserved.
0.2. ANSI/ASHRAE Standard 32.1-2022
(a) Section 3, “Definitions,” as referenced in section 1 of this appendix.
(b) Section 4, “Instruments,” as referenced in section 2 of this appendix.
(c) Section 5, “Vending Machine Capacity,” and Normative Appendix C, “Measurement of Volume,” as referenced in sections 2 and 3.1 of this appendix.
(d) Section 6, “Test Conditions,” as referenced in section 2 of this appendix.
(e) Section 7.1, “Test Procedures—General Requirements” (except Section 7.1.2, “Functionality,” and Section 7.1.5.1, “Beverage Temperature Test Packages”), and Section 7.2, “Energy Consumption Test,” (except Section 7.2.2.6), as referenced in sections 1 and 2 of this appendix.
1.
1.1
(a) For units that operate only at temperatures above the integrated average temperature specified in Table 1 of ANSI/ASHRAE Standard 32.1-2022, the lowest integrated average temperature a given basic model is capable of maintaining so as to comply with the temperature stabilization requirements specified in section 7.2.2.2 of ANSI/ASHRAE Standard 32.1-2022; or
(b) For units that operate only at temperatures below the integrated average temperature specified in Table 1 of ANSI/ASHRAE Standard 32.1-2022, the highest integrated average temperature a given basic model is capable of maintaining so as to comply with the temperature stabilization requirements specified in section 7.2.2.2 of ANSI/ASHRAE Standard 32.1-2022.
1.2 [Reserved]
2.
2.1.
2.2.
2.2.1.
2.2.1.1.
2.2.1.2.
2.2.1.3.
2.2.2.
2.2.3.
2.2.4.
2.2.5.
2.2.5.1.
2.2.5.2.
2.2.5.3.
2.2.5.4.
2.2.5.5.
2.2.5.6.
2.2.5.7.
2.2.5.8.
2.2.5.9.
2.2.5.10.
2.2.5.11.
2.3.
2.3.1.
2.3.1.1.
(a) The following three requirements have been satisfied:
(1) The instantaneous average next-to-vend beverage temperature must reach at least 4 °F above the integrated average temperature or lowest application product temperature, as applicable, within 6 hours.
(2) The instantaneous average next-to-vend beverage temperature must be maintained at least 4 °F above the integrated average temperature or lowest application product temperature, as applicable, for at least 1 hour.
(3) After the instantaneous average next-to-vend beverage temperature is maintained at or above 4 °F above the integrated average temperature or lowest application product temperature, as applicable, for at least 1 hour, the refrigerated beverage vending machine must return to the specified integrated average temperature or lowest application product temperature, as applicable, automatically without direct physical intervention.
(b) The compressor does not cycle on for the entire 6-hour period, in which case the instantaneous average beverage temperature does not have to reach 4 °F above the integrated average temperature or lowest application product temperature, as applicable, but, the equipment must still automatically return to the integrated average temperature or lowest application product temperature, as applicable, after the 6-hour period without direct physical intervention.
2.3.2.
3.
3.1.
3.2.
Consumer Product Safety Commission.
Direct final rule.
In November 2022, the U.S. Consumer Product Safety Commission published a consumer product safety standard for clothing storage units (CSUs) to protect children from tip-over-related death or injury, with an effective date of May 24, 2023. In December 2022, the President signed into law the STURDY legislation, which requires CPSC to either develop and promulgate a new consumer product safety standard for CSUs that meets certain requirements specified in STURDY or determine that a voluntary standard exists that meets STURDY's requirements. If the Commission determines that a timely issued voluntary standard satisfies STURDY's criteria, then STURDY requires the Commission to promulgate a final consumer product safety standard that adopts the applicable performance requirements of the voluntary standard, to supersede any existing CSU rule. On April 19, 2023, the Commission determined that ASTM F2057-23, Standard Safety Specification for Clothing Storage Units, is a voluntary standard that meets the requirements of STURDY. In light of that determination, this direct final rule adopts the requirements of ASTM F2057-23 as required by STURDY. Because STURDY provides that adoption of the ASTM standard will supersede CPSC's current rule, the current CSU rule, which was added in a final rule published on November 25, 2022, is stayed and will not take effect.
You can submit comments, identified by Docket No. CPSC-2023-0015, by any of the following methods:
Will Cusey, Small Business Ombudsman, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7945 or (888) 531-9070; email:
On November 25, 2022, the Commission published a consumer product safety standard to protect children from tip-over-related death or injury from CSUs (the current CSU rule), with an effective date of May 24, 2023. 87 FR 72598.
On December 29, 2022, President Biden signed STURDY into law. Public Law 117-328, 136 Stat. 4459, Div. BB, tit. II, sec. 201. STURDY provides that the Commission must assess whether “a voluntary standard exists that meets” the performance and warning requirements in the statute. STURDY sec. 201(d)(1). Specifically, the standard must protect children from tip-over-related death or injury with “tests that simulate the weight of children up to 60 pounds,” “tests that simulate real-world use and account for impacts on clothing storage unit stability that may result from placement on carpeted surfaces, drawers with items in them, multiple open drawers, and dynamic force,” “testing of all clothing storage units, including those 27 inches and above in height,” and warnings. STURDY sec. 201(c)(2).
If the Commission determines that a voluntary standard exists that was published not later than 60 days after STURDY's enactment, was developed by ASTM International or another similar voluntary standards organization, and meets STURDY's requirements for protecting children from tip-over-related death or injury, then the Commission must, within 90 days of its determination, “promulgate a final consumer product safety standard” that adopts the voluntary standard's relevant performance requirements. STURDY sec. 201(d). Those mandatory requirements “will supersede any other existing standard for clothing storage units to protect children from tip-over related death or injury.” STURDY sec. 201(d)(1).
If, however, no mandatory safety standard has been established for CSUs based on a voluntary standard, then by December 29, 2023, the Commission must “promulgate a final consumer product safety standard for clothing storage units to protect children from tip-over-related death or injury.” STURDY secs. 201(c)(1) and (c)(1)(B).
A consumer product safety standard promulgated under STURDY “shall be treated as a consumer product safety rule promulgated under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058).” STURDY secs. 201(c)(4), (d)(1).
On February 1, 2023, ASTM International approved a revised version of its Standard Safety Specification for Clothing Storage Units, ASTM F2057-23.
Over more than five years, CPSC staff has collaborated extensively and received comments from manufacturers and retailers of CSUs, consumer groups, independent product safety experts, and other stakeholders, both within the ASTM standards-setting process and during CPSC's notice-and-comment rulemaking. This consultation continued through the development and balloting of ASTM F2057-23 and after the adoption of STURDY, including a broadly attended set of meetings hosted at CPSC's laboratory in January 2023.
Following ASTM's adoption of ASTM F2057-23, the Commission received recommendations that it determine that ASTM F2057-23 meets the requirements of STURDY. On February 7, 2023, Parents Against Tip-overs (PAT) and the American Home Furnishings Alliance (AHFA) jointly sent a letter to the Commission, in which they made a “request for prompt agency action to review and consider F2057-23 as a mandatory product safety standard for clothing storage furniture.” Attachment A to the Staff Briefing Package.
• It includes performance tests that simulate “real-world” use of clothing storage furniture;
• It includes performance tests that account for the impact of carpeted flooring on CSU stability, as well as the impact of “loaded” drawers, multiple open drawers, and the dynamic force of a child climbing or playing on the unit; and,
• The performance tests simulate the weight of children up to 60 pounds and apply to all clothing storage units 27 inches and above in height.
PAT and AHFA also cited both STURDY and ASTM F2057-23 as “the result of an extraordinary collaborative effort between parents, industry, consumer advocates and child safety experts,” that “achieved rare bipartisan backing in Congress.”
On February 20, 2023, PAT submitted a second letter to urge “acceptance of ASTM F2057-23 as the final consumer product safety standard for CSUs, according to the guidance provided under The STURDY Act.” Attachment B to the Staff Briefing Package. PAT stated in that letter that “[t]he tip-over problem has gone unresolved for far too long, and adopting the new ASTM standard is the solution that will result in much more stable CSUs” than have historically been sold, and thereby “save lives.” In addition, PAT reiterated its assertion that ASTM F2057-23 was designed to and does meet the requirements of STURDY.
On March 3, 2023, Donald Mays, an independent product safety expert, sent the Commission an assessment of the ASTM standard. Mr. Mays stated that he analyzed the ASTM standard and the requirements of STURDY and concluded that the Commission should “adopt ASTM F2057-23 and incorporate that standard by reference in their rule.” Attachment C to the Staff Briefing Package. On March 6, 2023, Kids in Danger and Consumer Reports jointly sent a letter to the Commission in which they similarly “urge[d] the Commission to promulgate a final consumer product safety standard under the STURDY Act . . . that adopts [ASTM F2057-23's] performance requirements as mandatory.” Attachment D to the Staff Briefing Package. Also on March 6, 2023, the Home Furnishings Association (HFA), which stated that it represents 1,550 members and more than 8,000 storefronts across the country, wrote to the Commission urging adoption of ASTM F2057-23. HFA stated, “We strongly believe that the revised ASTM 2057-2023 safety standard for clothing storage units meets the criteria outlined in the STURDY Act and must be adopted by the CPSC as the federal Safety Standard. It achieves everyone's goals of protecting children.” Attachment E to the Staff Briefing Package.
Staff assessed the voluntary standard in a Staff Briefing Package. Staff noted that STURDY defines a clothing storage unit as “any free-standing furniture item manufactured in the United States or imported for use in the United States that is intended for the storage of clothing, typical of bedroom furniture.” STURDY sec. 201(a). STURDY also provides, however, that CPSC “shall specify the types of furniture items within the scope of subsection (a) as part of a standard promulgated under [STURDY] based on tip-over data as reasonably necessary to protect children up to 72 months of age.” STURDY sec. 201(b). For a standard to satisfy the requirements of STURDY, all types of clothing storage units specified by CPSC, “including those 27 inches and above in height,” must be tested. STURDY sec. 201(c)(2)(C).
ASTM F2057-23 applies to “free-standing clothing storage units, including but not limited to chests, chests of drawers, drawer chests, armoires, [chifforobes], bureaus, door chests, and dressers, which are 27 in. (686 mm) or greater in height, 30 lb (13.6 kg) or greater in mass, and contain 3.2 ft
Although the ASTM voluntary standard does not include all CSUs as defined in section 201(a) of STURDY, staff noted that STURDY contemplates that not all “clothing storage units” would be subject to a mandatory standard and gives CPSC the authority to limit “the types of furniture items” that are within the scope of the rule based on tip-over data. STURDY sec. 201(b). Indeed, STURDY specifies that covered CSUs are limited to those “intended for the storage of clothing, typical of bedroom furniture,” which staff noted could further support a finding that the ASTM standard's exclusion of types of furniture that are not free-standing, not intended for clothing storage, and/or not bedroom
The ASTM standard excludes units weighing less than 30 pounds empty. The Commission has previously noted an absence of known incidents causing death or serious injury for CSUs that weigh less than 30 pounds empty (see 87 FR 72628, Table 1). Therefore, staff assessed that based on known tip-over data, the Commission could find that testing units of less than 30 pounds is not “reasonably necessary” to protect children from injury or death. STURDY sec. 201(b).
Similarly, staff noted that while there are data on nonfatal incidents associated with tip-overs of CSU having a storage volume less than 3.2 cubic feet, ASTM based this volume on the lowest known volume of a fatal incident-involved CSU with a height of 27 inches or above. Staff therefore concluded that the Commission could find that, based on tip-over data, testing units having a storage volume less than 3.2 cubic feet is not “reasonably necessary” to protect children from injury or death. STURDY sec. 201(b).
STURDY section 201(d)(2) establishes a checklist of requirements that a voluntary standard must meet to become a mandatory standard. The first requirement is that the standard “protects children up to 72 months of age from tip-over-related death or injury.” STURDY sec. 201(d)(2)(A). Section 7.1 of the ASTM standard states: “The test methods in this safety specification are intended to simulate the reaction of a clothing storage unit on carpet, loaded drawers, multiple open drawers, and a dynamic force from possible interaction of a child up to 72 months.” Staff therefore assessed that the Commission could conclude that the standard “protects children up to 72 months of age from tip-over-related death or injury,” as further described below.
Section 201(d)(2)(B) of STURDY requires that a voluntary standard must meet requirements described in subsection (c)(2). Subsection (c)(2) in turn requires:
• Tests that simulate the weight of children up to 60 pounds;
• Objective, repeatable, reproducible, and measurable tests, or series of tests, that simulate real-world use and account for impacts on clothing storage unit stability that may result from placement on carpeted surfaces, drawers with items in them, multiple open drawers, and dynamic force;
• Testing of all clothing storage units as specified by the Commission, including those 27 inches and above in height; and
• Warning requirements based on ASTM F2057-19, or its successor at the time of STURDY's enactment, provided that the Commission may strengthen the warning requirements of ASTM F2057-19 or its successor if reasonably necessary to protect children from tip-over-related death or injury.
Staff assessed that the Commission could find that the ASTM standard includes tests that simulate the weight of children up to 60 pounds. Staff noted that STURDY appears to use 72 months and 60 pounds interchangeably; this, and the structure of STURDY, suggest that Congress considered 60 pounds a representative weight for a 72-month-old child. According to the 2000 Centers for Disease Control Clinical Growth Charts, which ASTM members used as a reference for ASTM F2057-23, 60 pounds is the approximate weight of a 95th percentile 72-month-old child.
STURDY requires tests that simulate the weight of children up to 60 pounds, and ASTM F2057-23 has a set of three stability tests to simulate the capability of a child weighing up to 60 pounds interacting with a CSU. The first stability test, Section 9.2.1 Simulated Clothing Load, loads drawers with simulated clothing loads. The CSU must not tip over with all doors and extendible elements (movable load-bearing storage components including, but not limited to, drawers and pullout shelves) open. Staff assessed that it would be reasonable to conclude that a child weighing up to 60 pounds would be able to open loaded drawers and that the Commission could conclude that this is a test that simulates the weight of children up to 60 pounds.
The second stability test, Section 9.2.2 Simulated Horizontal Dynamic Force, applies a 10-pound horizontal force over a period of at least 5 seconds at a “hand-hold” not to exceed a 56-inch height, and then holds the force for at least 10 seconds. The Staff Briefing Package cites a study that found the elbow pull strength of children 2 to 5 years old to be in the range of 6.14 to 26.0 pounds. Staff assessed that the Commission could conclude that this second stability test simulates the pull force of children up to 60 pounds.
The third stability test, Section 9.2.3 Simulating a Reaction on Carpet with Child Weight, uses 60 pounds of weight placed on the edge of an open drawer or pull-out shelf, while the CSU is tilted forward using a 0.43 inch test block to simulate placement on a carpeted surface, with all doors and extendible elements open. Based on the requirements of STURDY, staff assessed that the Commission could conclude that this is a test that simulates the static weight of children up to 60 pounds.
STURDY also requires “objective, repeatable, reproducible, and measurable tests or series of tests that simulate real-world use and account for impacts on clothing storage unit stability that may result from placement on carpeted surfaces, drawers with items in them, multiple open drawers, and dynamic force.” STURDY sec. 201(c)(2)(B). Staff noted that the ASTM F2057-23 test methods describe the steps to take, specifications for test apparatus, load, dimension, and tolerances for dimensions and loads, all of which are consistent with accepted practices. Because all of these test methods are specified in the ASTM standard, staff assessed that the Commission could conclude that the tests in ASTM F2057-23 are objective, repeatable, reproducible, and measurable.
Staff assessed that the ASTM stability tests utilize tests or a series of tests that represent real-world conditions. For example, section 9.2.1 Simulated Clothing Load tests the CSU with multiple open and loaded drawers on a flat surface. Section 9.2.3 of ASTM 2057-23, described above, is a stability test that simulates placement on a carpeted surface with open drawers. The use of a 0.43-inch thick test block (as specified in section 8.2.3) is consistent with the carpet simulation in CPSC's final CSU rule. See 87 FR 72636. Staff assessed that the Commission could, therefore, conclude that ASTM F2057-23 includes a stability test that simulates interaction with a CSU on a carpeted surface, which is a real-world condition.
Section 9.2.1 of the ASTM standard, Simulated Clothing Load, is a test conducted on a hard, level, and flat test surface with extendible elements and doors open and, if 50 percent or more of the storage volume is extended, the unit is to be filled with a “simulated clothing load.” The fill weight in extendible elements is calculated using a density of 8.5 pounds per cubic foot of volume, which is the same density used by the Commission in its November 2022 rule.
STURDY section 201(c)(2)(D) requires warnings based on ASTM F2057-19 (the predecessor standard to ASTM F2057-
Lastly, under STURDY section 201(d)(2)(C) and (D), a voluntary standard must be “developed by ASTM International” or another voluntary standards organization that the Commission deems appropriate, and such standard must be published not later than 60 days after STURDY's enactment,
Based on the Commission's assessment of ASTM F2057-23 and for the reasons stated in the Staff Briefing Package, on April 19, 2023, the Commission determined that ASTM F2057-23 meets the requirements of STURDY. Therefore, as required by STURDY, this direct final rule adopts the requirements of that voluntary standard as a consumer product safety standard. Because STURDY provides that adoption of the voluntary standard “will supersede any other existing standard for clothing storage units,” the current CSU rule would only be in effect for about two months before being superseded by this new standard. Therefore, the Commission finds good cause to stay the current CSU rule from May 4, 2023, through September 1, 2023, so that it will not take effect.
The Commission's determination to adopt ASTM F2057-23 is based on the specific provisions of that standard and the unique history of its adoption in conjunction with the STURDY legislation. The Commission does not anticipate approving through the standard-revision process of STURDY section 201(e) any changes to ASTM F2057-23 that would reduce the level of protection for children up to 72 months of age from tip-over-related death or injury. After December 2027, moreover, STURDY allows the Commission “to modify the requirements of [an adopted voluntary] standard or to include additional provisions if the Commission makes a determination that such modifications or additions are reasonably necessary to protect children from tip-over-related death or injury.” STURDY sec. 201(f)(1).
In accordance with regulations of the Office of the Federal Register (OFR), 1 CFR part 51, section II. of this preamble summarizes ASTM F2057-23. The standard is reasonably available to interested parties in several ways. Until the direct final rule takes effect, a read-only copy is available for viewing on ASTM's website at:
Section 14(a) of the Consumer Product Safety Act (CPSA) includes requirements for certifying that children's products and non-children's products comply with applicable mandatory standards. 15 U.S.C. 2063(a). Section 14(a)(1) addresses required certifications for non-children's products, and sections 14(a)(2) and (a)(3) address certification requirements specific to children's products.
A “children's product” is a consumer product “designed or intended primarily for children 12 years of age or younger.”
• Manufacturer statements about the intended use of the product, including a label on the product if such statement is reasonable;
• Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger;
• Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger; and
• The Age Determination Guidelines issued by CPSC staff in September 2002, available at
This rule requires CSUs that are not children's products to meet the certification requirements under section 14(a)(1) of the CPSA and requires CSUs that are children's products to meet the certification requirements under section 14(a)(2) and (a)(3) of the CPSA. The Commission's requirements for certificates of compliance are codified at 16 CFR part 1110. Section 14(a)(1) of the CPSA requires every manufacturer (which includes importers) of a non-children's product that is subject to a consumer product safety rule under the CPSA or a similar rule, ban, standard, or regulation under any other law enforced by the Commission to certify that the product complies with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a)(1). Section 14(a)(2) of the CPSA requires the manufacturer or private labeler of a children's product that is subject to a children's product safety rule to certify that, based on a third-party conformity assessment body's testing, the product complies with the applicable children's product safety rule.
The Commission published a final rule, codified at 16 CFR part 1112, Requirements Pertaining to Third Party Conformity Assessment Bodies, which established requirements and criteria concerning testing laboratories. Part 1112 includes procedures for CPSC to accept a testing laboratory's accreditation and lists the children's product safety rules for which CPSC has published NORs. The stability standard for CSUs is on the list of children's product safety rules for which CPSC has issued an NOR. 87 FR 72598 (Nov. 25, 2022); 16 CFR 1112.15(b)(54). Testing laboratories that apply for CPSC acceptance to test CSUs that are children's products for compliance with the rule must meet the requirements in
The requirements of ASTM F2057-23 are sufficiently similar to the current CSU rule that firms approved to test to the current rule can also test to ASTM F2057-23. Therefore, the existing NOR will remain in place. CPSC-accepted third party labs are expected to update the scope of their accreditations to reflect the revised standard in the normal course of renewing their accreditations.
The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA), 5 U.S.C. 551-559, generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, section 553 of the APA provides an exception when the agency “for good cause finds” that notice and comment are “impracticable, unnecessary, or contrary to the public interest.”
The purpose of this direct final rule is to adopt the applicable performance requirements of ASTM F2057-23. STURDY requires that once the Commission has determined that ASTM F2057-23 “exists” and “meets the requirements” of STURDY section 201(d)(2), it must adopt the applicable performance requirements of ASTM F2037-23, which “shall be treated as a consumer product safety rule promulgated under section 9 of the Consumer Product Safety Act.” STURDY sec. 201(d)(1). Because the Commission made this determination on April 19, 2023, the adoption of ASTM F2057-23 as a mandatory standard is required by law, and public comments would not lead to substantive changes to the standard or to the effect of the standard as a consumer product safety rule. Under these circumstances, notice and comment are unnecessary.
In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorses direct final rulemaking as an appropriate procedure to expedite rules that are noncontroversial and that are not expected to generate significant adverse comments.
If the Commission receives a significant adverse comment, the Commission will withdraw this direct final rule. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion undermining “the rule's underlying premise or approach,” or a showing that the rule “would be ineffective or unacceptable without change.” 60 FR 43108, 43111. Depending on the comment and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally requires agencies to review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA.
The current CSU rule includes requirements for marking, labeling, and instructional literature that constitute a “collection of information,” as defined in the Paperwork Reduction Act (PRA; 44 U.S.C. 3501-3521). This revised mandatory standard contains similar warning and labeling requirements compared to the current rule, but does not require a hang tag. Therefore, this rule does not increase the burden of these requirements. The Commission took the steps required by the PRA for information collections when it adopted 16 CFR part 1261, including obtaining approval and a control number. Because the warning and labeling burden is similar and there is no increase in the information collection burden but only a reduction, the revision does not affect the information collection requirements or approval related to the standard.
The Commission's regulations provide for a categorical exclusion from any requirement to prepare an environmental assessment or an environmental impact statement where they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.
Section 26(a) of the CPSA provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the Federal standard. 15 U.S.C. 2075(a). Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to CPSC for an exemption from this preemption under certain circumstances. STURDY deems a rule issued under that Act to be a “consumer product safety standard.” Therefore, once this takes effect, it will preempt in accordance with section 26(a) of the CPSA.
Under STURDY, this rule “shall take effect 120 days after the date of the promulgation of the rule, or such a later date as the Commission determines appropriate.” Manufacturers of CSUs have been aware of new stability requirements since the current CSU rule was published in November 2022, and the instant rule is based on a voluntary standard published in February 2023. The Commission accordingly will make this rule effective 120 days after promulgation. Unless the Commission receives a significant adverse comment within 30 days of this direct final rule's publication, the rule will become effective on September 1, 2023. As a consumer product safety standard under the CPSA, this rule applies to CSUs manufactured after the effective date. 15 U.S.C. 2058(g)(1).
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission must indicate whether the rule is a “major rule.” The CRA states
Pursuant to the CRA, OIRA has determined that this rule is a “major rule” as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General.
Consumer protection, Imports, Incorporation by reference, Information, Labeling, Safety.
15 U.S.C. 2058; Div. BB, tit. II, sec. 201, Pub. L. 117-328, 136 Stat. 4459.
(a)
(b)
Each clothing storage unit that is subject to ASTM F2057-23,
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters of the Ohio River from mile marker (MM) 487.0 to MM 489.0. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by Duke Energy's Static Wire Crossing operation taking place on the Ohio River from MM 487.0 to MM 489.0. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port, Sector Ohio Valley.
This rule is effective without actual notice from May 4, 2023, through May 15, 2023. For the purposes of enforcement, actual notice will be used from May 1, 2023, until May 4, 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 Petty Officer Thomas Harp, MSD Cincinnati, U.S. Coast Guard; telephone 513-921-9033, email
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. We must establish this regulation by May 1, 2023, and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule.
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 Sector Ohio Valley (COTP) has determined that potential hazards associated with the Duke Energy Static Wire Crossing operation occurring from May 1, 2023, through May 15, 2023, will be a safety concern for all navigable waters on the Ohio River from MM 487.0 to MM 489.0. The purpose of this rule is to ensure the safety of life and vessels on these navigable waters before, during, and after the event.
This rule establishes a safety zone from May 1, 2023, through May 15,
The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the Duke Energy Static Wire Crossing operation is occurring. No vessel or person will permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of Sector Ohio Valley. They may be contacted on VHF-FM Channel 16 or by telephone at 1-800-253-7465. Persons and vessels permitted to enter this regulated area must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.
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, duration, and time-of-day of the safety zone. This safety zone will be in place on a two mile stretch of the Ohio River between the hours of 7 a.m. through 5 p.m. only for 15 days. The Coast Guard will issue a Local Notice to Mariners via VHF-FM marine channel 16 about the temporary safety zone. This rule allows vessels to seek permission from the COTP or a designated representative to enter the safety 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 Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
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 that prohibits entry on a two mile stretch of the Ohio River between 7 a.m. through 5 p.m. for 15 days. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction
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)
(b)
(2) Persons and vessels permitted to enter the safety zone listed in paragraph (a) of this section must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.
(c)
(d)
National Archives and Records Administration (NARA).
Final rule.
The National Archives and Records Administration (NARA) is amending our records management regulations to add a subpart containing standards for digitizing permanent Federal records so that agencies may dispose of the source records, when appropriate and in accordance with the Federal Records Act amendments of 2014. NARA is also amending our records management regulations to add a subpart containing metadata requirements for transferring permanent digital records to the National Archives of the United States. Finally, NARA is making a revision to our records schedule review provisions to establish a requirement for agencies to review, every five years, all records schedules that are ten years old and older, based on the date NARA approved the schedule.
This rule is effective on June 5, 2023.
Regulatory and External Policy Program (MP); Suite 4100; National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001.
Edward Germino, Strategy and Performance Division, by email at
NARA is amending 36 CFR chapter XII, subchapter B, part 1225, Scheduling Records, to set a timeframe for the required review of existing records schedules. The current regulations state that schedules should be reviewed “regularly.” This rulemaking clarifies the word “regularly” by establishing a timeframe for those periodic reviews. This is based upon a determination that many schedules have not been kept up-to-date or revised when needed. Therefore, NARA is revising the regulations to require that every five years agencies must review records schedules that are ten years old or older, based on the date NARA approved the schedule. Agencies will be required to complete their first review no later than June 5, 2028, which is five years after this rule becomes effective. Any actions to update schedules after the mandatory five-year review is completed will continue to be governed by other records management regulations within 36 CFR chapter XII, subchapter B and implementing NARA records management guidance.
In addition, NARA is amending 36 CFR part 1236, Electronic Records Management, by adding a new subpart that establishes standards for the digitization of permanent paper and photographic print records, including paper and photographs contained in mixed-media records. The standards in this rule apply retroactively to digitized permanent records that have not been transferred to the National Archives. In 2014, Public Law 113-187 amended the Federal Records Act at 44 U.S.C. 3302 to require NARA to issue standards for reproducing records digitally “with a view to the disposal of the original records.” The amendment applies to both temporary and permanent records.
This rulemaking covers only permanent records of the kinds listed above. NARA previously amended 36 CFR part 1236 to add standards for the digitization of temporary records, which constitute the majority of Federal records (RIN 3095-AB98, 84 FR 14265 (April 10, 2019), effective May 10, 2019). NARA plans to issue additional requirements for digitizing other specific media types in future revisions to the rule. In the interim, agencies should contact
These digitization standards for permanent records ensure that agencies can use digital versions for the same business purposes as the source records and ensure that the digital records will be appropriate for preservation in NARA's archival holdings. NARA intends the regulation to be neutral about who performs the digitizing activities for each agency, meaning Federal staff or vendors can perform the activities.
This rule defines the requirements for agencies to digitize source records as a records management activity as required by the 2014 amendments to the Federal Records Act, drawing from principles within the Federal Agencies Digital Guidelines Initiative (FADGI) Technical Guidelines for Digitizing Cultural Heritage Materials Creation of Raster Image Files (2016), and from International Organization for Standardization (ISO) Technical Specifications (TS) and Technical Reports (TR); specifically ISO 19264-1:2021 Photography—Archiving systems—Imaging systems quality analysis—Part 1: Reflective originals (
When managing digitized records, agencies must comply with other records management requirements identified in 36 CFR chapter XII, subchapter B. For example, this rule does not address how to transfer digitized records or what methods of physical destruction apply to source records. In addition, though this rule applies to digitizing classified records, it does not address other standards specific to classified information, such as classified-specific metadata or acquiring secure equipment. These subjects are outside the scope of this regulation.
NARA published this rulemaking in the
NARA received some comments on the proposed revisions to 36 CFR parts 1224 and 1225, which primarily asked questions about when the five-year records schedule review cycle would begin, how it would be calculated, whether it includes the review alone or also any necessary actions flowing from the review, and suggestions for requiring advisory boards and expert consultations as part of each review. Another comment discussed the shift to “big bucket and media neutral” scheduling approaches, which are less granular and provide only very general descriptions of the records.
The new requirements state that every five years, agencies must review all records schedules that are ten years old and older, based on the date NARA approved the schedule. NARA believes that setting the time frame for these review cycles on a regular basis will lead to improvements to Federal records management operations. Agencies will be required to complete their first review five years after the effective date of this rulemaking.
NARA recognizes that there are different ways to approach the cyclical review requirement and we are leaving that up to individual agencies. For example, some agencies may want to annually review the schedules that are ten years old or older on a rotational basis that ensures they are all reviewed every five years, while others may want to review all applicable schedules in a single, comprehensive review every five years. An agency's approach will depend on multiple factors, including the complexity of the schedules, the number of schedules they have, and the frequency of organizational and mission changes, among others. For similar reasons, NARA is also leaving it up to agencies whether to use a fiscal or calendar year review cycle.
The reason NARA is adding a specific review cycle is to ensure agency records schedules are current and relevant for the nature and format of records the agency is actively creating and using. As a result, as long as agencies implement the review cycle and conduct it consistently, they have some options on the details of how they carry out such reviews. The five-year cycle applies only to the review requirement in these regulations. Requirements for submitting new schedules or requesting changes to existing ones are governed by other records management regulations within 36 CFR chapter XII, subchapter B and by implementing NARA records management guidance.
NARA is not planning to request authority from Congress or the White House to create advisory boards for the scheduling process. However, we have been working to improve how the public can participate in the scheduling process. NARA created a new web page to explain how the public can engage in the process at
With the significant increase in the volume of records and information in the Federal Government, agencies have reported that flexible schedules ease the implementation of digital recordkeeping. Our experience over the past decade confirms that position. In 2021, we published an assessment report from NARA's Records Management Oversight and Reporting program on “big bucket schedule
The comments on the new standards for digitizing permanent records in 36 CFR part 1236 covered a wide range of broad records management and oversight topics as well as specific technical topics:
An overarching comment suggested that the regulation be simplified in structure and clarified in substance. NARA revised this part to make the requirements as straightforward as possible while still capturing the necessary level of detail. See edits to § 1236.42. For example, we consolidated all documentation requirements found in different sections into one comprehensive section.
Some commenters said that some technical terms were not always clear and additional definitions were needed. Most of the definitions can be found in the FADGI glossary
Many commenters were concerned about whether NARA would exercise oversight of agency digitization projects, and to what degree. The commenters stressed the importance of preserving source records for legal, evidentiary, and other purposes. They expressed concerns about whether there would be any check on agencies being permitted to destroy source records after digitizing them. They expressed concern that, without oversight, the likelihood that agencies would properly follow the requirements for digitizing before they destroy permanent records “is negligible” because they already do not properly follow existing regulations. They also expressed concern that agencies would not have enough funds to digitize properly and thus might cut corners and digitize in the cheapest and fastest way possible, rather than being concerned about longer-term archival needs. Other commenters suggested NARA include expertise from organizations such as the National Academy of Sciences in developing the digitization standards.
NARA is issuing these regulations to meet a statutory requirement. The 2014 amendments to the Federal Records Act required the Archivist of the United States to promulgate regulations that contain standards for digitizing with a view to disposing of source records.
In 2019, the Office of Management and Budget (OMB) and NARA issued OMB Memorandum M-19-21,
These regulations apply to paper and photographic print records that have not yet been transferred to NARA or stored at a Federal Records Center. In addition to developing the regulatory standards, NARA is also implementing oversight actions. Since 2011, we have increased our capability to conduct records management inspections of all agencies that fall under the Federal Records Act by expanding NARA's records management oversight program. This program performs inspections, assessments, and other related oversight activities. Digital records management, including digitization efforts, is included in these efforts. Agencies that are inspected are also required to create “plans of corrective action” related to any findings and recommendations and to submit progress reports to NARA until all actions have been taken. Agencies are also required to provide information about their digitization projects as part of the annual records management self-reporting cycle. For more information about NARA's oversight program, please see our website at
Although NARA is implementing oversight actions as mentioned above, we will not be conducting direct oversight of all digitization projects in all agencies, nor will we require agencies to share project management and quality management plans with us for approval before beginning a digitization project. NARA will add compliance with these regulations alongside the existing regulations to our inspections, assessments, and other oversight activities. NARA believes that these regulations establish requirements for agencies that will sufficiently increase oversight and quality assurance.
These regulations are clear about the standards agencies must follow and meet. Agencies that do not meet these standards do not have the authority to dispose of the source records. NARA applied its experience with conversion to microfilm when developing these standards. As a result, we have required regular checks of the imaging equipment, precise calibration, and diligent quality control efforts to address many of the lessons of the microfilm era. NARA is confident the new standards contained in this rule will protect the records as they are transformed from analog to digital form. NARA will also communicate clearly that “choosing quick-and-cheap digitization processes” could lead to poor quality digital records that do not meet the agency's business needs or NARA's archival needs.
Section 1236.56 of these regulations also establishes the validation requirements agencies must fulfill. Agencies must not dispose of the source records until they validate that they have followed the requirements in other sections of the regulation for digitization and quality control (among other required assessments during a given digitization project). Once validated, the agency must have an applicable records schedule that addresses disposing of the source records after they have been digitized. If the agency validates that its digitization actions meet these new standards, it will be able to use a General Records Schedule as authority to dispose of the source records.
NARA believes the detailed level of information and the quality assessments and validating requirements in these regulations, as well as implementing guidance products NARA is preparing to issue and our other oversight and inspections, will be sufficient to allow agencies and NARA to jointly conduct required oversight. NARA believes these products will also help other oversight-related organizations, such as inspectors general or chief information security officers, to review and provide oversight to agency programs.
However, we also recognize that sometimes source records have intrinsic value and the very paper itself is a physical object that needs to be
NARA is a leader in archival science and the preservation of records within the Federal Government, and has experts on staff to advise in the creation and preservation of digitized records. NARA regularly consults with the international records management and archival communities as well as with other non-governmental, cultural, and educational institutions on important topics related to records management, including digitization.
We also received many questions about records that agencies digitized before these regulations were issued but which have not yet been transferred to the National Archives of the United States and don't meet the standards in these new regulations.
The standards in these regulations apply to any paper and photographic print records that will be transferred to the National Archives after the deadlines established in OMB/NARA Memoranda. That includes any previously digitized permanent records still in agency control. If those digital versions do not meet the standards in these regulations, the agencies have other options. The first option is to send the paper versions of the previously digitized records to a NARA Federal Records Center by the upcoming digital records deadlines if they aren't scheduled for transfer to the National Archives before then. With this option, agencies would pay for the storage until the records' transfer date to the National Archives' legal custody, but would not have to re-digitize the records to the appropriate standards. Once the records transfer to the National Archives on the scheduled date, we will assume responsibility for digitizing the records for archival access.
The second option is to request an exception to the goals and deadlines established in OMB/NARA Memoranda, and as outlined in NARA guidance, discussed in the oversight comments section above.
The third option is to work with us to update relevant agency-specific records schedules so they address the previously digitized records and provide authority to transfer the digitized records to NARA and destroy the source records. This option would not be available in all cases and will depend in part on the quality and other aspects of the digitized records. NARA recognizes that agencies have been scanning permanent records for decades and that such records will, in many cases, not meet all the standards in this regulation. However, many may meet enough of the requirements for the digitized versions to function effectively as archival records, depending on the kind of records they are. The goal is for agencies, NARA, and the public to have confidence in the previously digitized records and the processes used to digitize them, and to develop a clear understanding of what we will be accepting at the time of transfer. NARA is developing guidance to help agencies update records schedules for this purpose and will work individually with agencies that have previously digitized records. Any records schedules revised for this purpose will be published in the
A fourth option is that if digital records were printed and filed according to agency records management practices and agencies can find the source records—the digital versions—that were used to print and file, then agencies may be able to transfer those original digital versions instead of scanning the paper to re-create digitized versions.
A fifth option is for agencies to re-digitize their source records according to 36 CFR part 1236.
Some agencies might find a combination of these options will be needed to address any issues with previously scanned paper records.
Some commenters expressed a belief that our decision to accept only digital records after the upcoming digital records deadlines will lead to delays in agencies transferring records to the National Archives. They were concerned that NARA's infrastructure and staffing would not be sufficient to accession and then make available such huge volumes of digital records, meaning these regulations could effectively shut down access to records. Instead of delays, we believe agencies will transfer overdue permanent paper records rather than pay to digitize them. OMB/NARA Memo M-19-21 states that agencies can transfer permanent paper records to NARA's Federal Records Centers Program before the upcoming digital records deadlines, and will then not be responsible for digitizing those records. NARA crafted several policies that encourage agencies to transfer overdue permanent records to the National Archives, including not accepting paper records after the deadlines, requiring agencies to stop storing inactive records in agency-operated records centers, and issuing regulations with digitization standards for temporary and permanent records.
NARA agrees that resources are critical for NARA to successfully accomplish our mission. NARA invests in our employees, and in developing and improving our tools, automated processes, and IT infrastructure to accession digital records. NARA's decision to pivot to accessioning digital records is part of a strategy to better manage all records in our holdings. NARA does not think this decision will impede access to records, but instead will help us improve access to born digital and digitized records.
Some commenters noted that we adjusted the DICE target values for the L20 and 21 patches. The relaxed standards for this category are tailored to documents with no content to be captured in those measurement regions. NARA acknowledges that there is a distinction between large scale in terms of size and high speed in terms of time.
Some commenters questioned whether the digitization imaging standards are exacting enough to ensure that handwritten comments or embossed seals will be captured when the records are digitized. The image quality requirements in the regulation are based on FADGI and ISO specifications and define a minimum set of requirements to be met. NARA included instructions, based in part on suggested language from commenters, in 36 CFR 1236.50 to evaluate the characteristics of source records, including those with legibility issues or special characteristics, and to select the imaging specifications that best capture all the information.
Commenters also questioned how to determine the severity of image defects, such as noise, streaks, or dust, and the usability of the resulting image. The image analysis described in § 1236.46 is designed to detect most image defects using objective measurements. That section also includes visual inspection steps to identify defects that cannot be discovered automatically. The agency is responsible for determining the acceptability of subjective factors. The standards in § 1236.46 call for the agency to proactively correct errors due to malfunctioning or improperly
Some commenters questioned the accuracy of the values used for the technical parameters in the regulation. NARA updated the parameters to align with the most recent version of the FADGI guidelines.
NARA reorganized the Quality Management section to reflect suggestions to clarify who performs the various steps for quality management, assurance, control, and inspection. NARA further clarified what was to be inspected and whether to perform visual or automated inspection, and we also explained when to employ sampling ratios from 100% inspection requirements.
NARA revised § 1236.50 in response to requests to better explain what characteristics of records determine their suitability for either of the two imaging specifications.
Commenters asked why the regulations do not require optical character recognition (OCR) scans of records during the digitization process. OCR accuracy can vary widely, and the results can require remedial actions to fix errors. Agencies are not required to OCR when they digitize records because NARA intends to OCR permanent records so that the results are consistent when searching NARA's catalog. However, these regulations do not prevent agencies from performing OCR to meet their own business needs.
Some commenters suggested that we expand the versions of PDF/A to include newer versions such as PDF/A-4. NARA revised § 1236.48 to allow for newer versions of PDF/A but prohibited some new features. Some commenters asked that we allow the use of PDF/A-2 with lossy JPEG2000 compression for use with digitized photographs. NARA determined that our processing and description requirements are best served by having photographs digitized using raster image formats including TIFF, JPEG2000, and PNG. Some commenters pointed out the discrepancy between acceptable formats listed in the appendix to NARA Bulletin 2014-04 and those listed in this regulation. NARA will update the format tables in 2014-04 so that they are consistent with this regulation.
Some commenters pointed out that once saved, PDF/A does not allow metadata to be added or edited. NARA revised language to explain that agencies should develop workflows to produce digital images and capture required metadata so they can be packaged as digital records. This work should be completed before the creation of PDF/A files.
The commenters asked that JPEG, CCITT G3/G4, and other forms of lossy compression be included and suggested that we allow “visually lossless,” or lossy compression. NARA is not including CCITT G3 and G4 compression because these codecs are only appropriate for use with bitonal (black and white) color mode, which is not permitted. With regard to practitioners applying “judicious” lossy compression, we have updated the language in the regulation to allow agencies to apply visually lossless compression during digitization.
Commenters recommended disallowing sRGB as an acceptable color option because it will result in less accurate color representation in the resultant digital records. NARA specifies five color spaces for agencies to choose from depending on the need to convey all information in the source record. sRGB is an acceptable color space for many records such as modern textual paper documents, but not for photographic prints. Color is not mandatory for all records, but the regulation requires that if the original includes color, the document must be scanned in color.
Some commenters asked whether there are safeguards in place to protect against losing digital records entirely if they are compromised or corrupted. They questioned what hash value or algorithm agencies should use to monitor for corruption or alteration; and the frequency, schedule, grouping, and other details of fixity checks. Under the existing regulations at 36 CFR 1236.10, agencies are required to ensure that records are authentic and free of corruption or alteration. While hash values are the industry standard for monitoring digital records, due to the number of algorithms in use, it is impractical for us to specify a single algorithm to be used by all agencies to comply with this regulation. NARA specifies requirements in § 1236.10 for ensuring that records created under this regulation remain authentic, and we will provide additional information in upcoming implementing guidance.
Agencies are already required by other records management regulations in 36 CFR chapter XII, subchapter B to maintain digital records, including protections against loss.
Another commenter explained that many agencies organize scans of multipage documents using PDF files and that textual records might have photo prints interfiled. The commenter stated that not including PDF/A-2 for scanned prints requires agencies to store scanned prints separately from textual records they were interfiled with, creating a higher risk of loss. While we did not add PDF/A-2 as a file format for photographic prints, we clarified language in § 1236.48 to make it clear that when there are interspersed files, specifically a mix of photographic prints and predominately textual records, the agency must scan the photographs according to requirements in § 1236.50 and then may convert the image files to PDF files.
The commenters also raised concerns about workflows, stating that prohibiting reformatting, in general, interferes with acceptable workflows. NARA updated the language to make clear that agencies may develop workflows in which they capture images in one format and assemble them into another format for final output, such as saving image files together in a PDF/A file. However, they must not transcode, or interpolate (upsample) files anywhere in the workflow.
Some commenters raised concerns about metadata requirements labeled “mandatory if access restriction exists” rather than “mandatory if applicable”. They also raised concerns about access and use restrictions, such as why they are included and how they relate to court orders.
For any records subject to the access and use restrictions, agencies must populate the appropriate metadata labels so that the National Archives can manage the records appropriately. Court orders are one of the kinds of restrictions that might apply and would need to be reflected in the metadata. Our regulations at 36 CFR 1226.14 have long accounted for the possibility that a court might order that records be expunged, destroyed, or returned. In these situations, the existing regulations allow an agency to comply with the court order without fear of being in violation of the Federal Records Act. NARA expects that the court has considered all applicable laws when entering such orders and that they are necessary for the administration of justice. Agencies alert us to such a requirement, and other similar ones, by using the metadata labels for access and use restrictions. NARA revised § 1236.54 to provide better instructions for embedding metadata and how it should be structured and labeled, as well as to clarify metadata requirements.
Another commenter was concerned that the metadata requirements did not seem to include a way to disclose that the records are digitized versions of physical records that may have been destroyed. This could be important for evidentiary events, such as eDiscovery or FOIA. While there is not a metadata element that explicitly flags records this way, the descriptive metadata table does include the mandatory data elements “source type” and “source dimensions,” which indicate that the source record was recorded on paper.
The commenters questioned whether the provenance of particular records and file/office arrangement of the source records will be preserved or recorded during digitization. Provenance and file/office records arrangement are aspects of intellectual control and metadata and are addressed in §§ 1236.42 and 1236.44, as well as § 1236.54.
A commenter questioned why NARA requires metadata to be transferred as a CSV file. CSV is the metadata format required by NARA for digital records processing.
The commenters asked for clarifications on transfer metadata guidance. NARA added a new section to clarify that transfer metadata requirements apply to all records—analog, digitized, and born-digital.
Some commenters expressed concern that using improper equipment might damage source records. NARA added additional language in § 1236.50(c) making clear that agencies must use equipment capable of digitizing records without damaging them. Another commenter questioned how to document the required level of detail. NARA revised § 1236.44 to define the requirements that the Project Plan must identify physical characteristics that may influence the level of detail that must be captured. NARA also edited § 1236.50 and included more precise instructions in § 1236.42 directing agencies to evaluate the characteristics of source records and through testing and analysis, select the imaging specifications that best capture the information.
In addition, we received some comments about topics that are beyond the scope of these regulations and are addressed in other statutes, regulations, or guidance. These included questions about the specific equipment and processes for digitizing classified information, and about standards for archiving and transferring “born-digital” records to the National Archives. NARA included language to clarify the fact that agencies have additional requirements outside the scope of these regulations.
Commenters raised concerns that FADGI-specific services do not currently appear on GSA Schedules and asked how NARA and GSA will manage vendors who offer these services. NARA will engage with GSA through NARA's Federal Electronic Records Modernization Initiative (FERMI) program to update the GSA Schedules for Document Conversion and work with GSA to create self-certification opportunities for vendors that offer document conversion or digitizing services.
Some commenters questioned whether NARA exceeded its legal authority by stating that records will be accepted only in digital form. NARA has the legal authority to determine what file formats and media types it will accept for permanent records. When there are multiple versions of a record, it is appropriate to make choices about which version to preserve and which version to destroy. NARA considers digital records to be Federal records and will accept them in place of analog versions.
OMB has reviewed this rulemaking and determined it is not “significant” under section 3(f) of Executive Order 12866. It is not significant because it applies only to Federal agencies, updates the regulations due to a statutory requirement (to incorporate technological developments and to account for changing technology and agency practices), and is not establishing a new program. Although the proposed revisions change existing requirements and add new ones for agencies, the requirements are necessary to keep the existing regulations up-to-date, comply with the statute, and ensure agencies are preserving records for the United States.
This review requires an agency to prepare an initial regulatory flexibility analysis and to publish alongside the proposed rule. This requirement does not apply if the agency certifies that the rulemaking will not, if promulgated, have a significant economic impact on a substantial number of small entities (5 U.S.C. 603). NARA certifies, after review and analysis, that this rulemaking will not have a significant adverse economic impact on small entities.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
Executive Order (E.O.) 13132 requires agencies to ensure that state and local officials have the opportunity for meaningful and timely input when those agencies are developing regulatory policies that may have a substantial, direct effect on the states, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various
The Unfunded Mandates Reform Act requires that agencies determine whether any Federal mandate in the rulemaking may cause state, local, and tribal governments, in the aggregate, or cause the private sector to expend $100 million in any one year. NARA certifies that this rulemaking does not contain a Federal mandate that may result in such an expenditure.
Archives and records, Records management, Records schedules, Scheduling records.
Archives and records, Digitization, Digitized records, Digitizing, Digital records, Metadata, Permanent records, Records management, Quality assurance, Quality control, Quality management, Transfers.
For the reasons discussed in the preamble, NARA amends 36 CFR parts 1224, 1225, and 1236 as follows:
44 U.S.C. 2111, 2904, 3102, and 3301.
(c) * * * Every five years, agencies must review all records schedules that are ten years old and older, based on the date NARA approved the schedule, and in accordance with § 1225.22(a) of this subchapter.
44 U.S.C. 2111, 2904, 2905, 3102, and Chapter 33.
The revisions and additions read as follows:
(a) Every five years, agencies must review all records schedules that are ten years old and older, based on the date that NARA approved the schedule. Agencies may also review their agency records schedules on a more frequent regular basis to determine if they remain accurate.
(b) Agencies must submit a new records schedule to NARA in the following situations:
(1) If an interagency reorganization reassigns functions to an existing department or agency, the gaining organization must submit a new records schedule to NARA within one year of the reorganization. Schedules approved for one department or independent agency do not apply to the records of other departments or agencies.
44 U.S.C. 2904, 3101, 3102, 3105, 3301, 3302, and 3312.
The revision and additions read as follows:
(b) * * *
(a) This subpart establishes processes and requirements to ensure that agencies:
(1) Identify the records the agency will digitize in each project;
(2) Account for all records covered by the project, regardless of media type;
(3) Implement quality management techniques to verify equipment performance and monitor processes to detect and correct errors;
(4) Produce complete and accurate digitized records that the agency can use for all the same purposes as the source records; and
(5) Validate that the resulting digitized records meet the standards in this subpart.
(b) This subpart covers the standards and procedures agencies must apply when digitizing permanent paper records using reflective digitization techniques. Such records include most paper-based documents, regardless of size, such as modern textual documents, maps, posters, manuscripts, graphic arts prints (for example, lithographs or intaglio), drawings, bound volumes, and photographic prints. This subpart also covers any records that may be incorporated into mixed-media records.
(c) This subpart does not cover standards and procedures agencies must apply when digitizing permanent records using transmissive digitization techniques. Such records include photographic negatives, transparencies, aerial film, roll film, and micrographic and radiographic materials. In addition, this subpart does not cover digitizing records on dynamic media. Such records include motion picture film, video, and audio tapes.
(d) For guidance on digitizing out-of-scope media types or non-paper-based portions of mixed-media records, such as dynamic media, radiographic, negative or positive film, or other special media types, please contact the Records Management Policy and Standards Team by email at
(e) This subpart does not require that optical character recognition (OCR) be performed during digitization. However, these regulations do not prevent agencies from performing OCR to meet their business needs.
(f) This subpart does not address other applicable laws and regulations governing documents and digital files, including, but not limited to, proper handling of classified or controlled unclassified information (CUI) and compliance with 36 CFR part 1194 (section 508). Agencies should work with their legal counsel and other officials to ensure compliance with these and other applicable requirements.
(g) This subpart also does not address other business needs or legal constraints that may make it necessary for an agency to retain source records for a period of time after digitizing. Agencies should work with their legal counsel and other officials to determine whether such retention might be necessary because it relates to rights and interests, appeal rights, benefits, national security, litigation holds, or other similar reasons.
In addition to the definitions contained in § 1220.18 of this subchapter and § 1236.2, the following definitions apply to this subpart:
(a) Before starting a digitization project, agencies must establish intellectual control of the records that will be digitized. Intellectual control means having the information necessary to identify and understand the content and context of the records. One traditional records management technique to establish intellectual control is the creation of an inventory. The inventory must identify whether the records are complete, if there are any gaps in coverage or missing records, the presence of any mixed-media records, the disposition schedule under which the records fall, the date range when the records were created, any access or use restrictions that apply to the records, and the records' storage location.
(b) Agencies must identify any relationships between the source records in order to retain these relationships between the digitized versions. For example, are there case files that are associated by case number? Does a folder contain multiple documents that are stapled together? Are there digital components of a mixed-media file stored on removable media (DVD or USB drives)? What is the relationship of the folder to other folders in a box? Any relationships must be captured as part of the digitization process:
(1) Through metadata (See § 1236.54 for metadata requirements);
(2) By organizing the folder structure of a file system;
(3) By using file formats that allow for multi-page files, such as PDF or TIFF; or
(4) Through a combination of these approaches.
(c) In addition, the inventory can be used to identify all the elements of physical control needed for the records to be digitized. Physical control includes understanding the physical characteristics of source records. Physical characteristics determine a project's scope, and the image capture techniques and equipment to be used. For example, the type of paper, the type of printing, or the size of the records can impact what methods and equipment are used to digitize records.
(d) There are additional considerations for managing the source records during the digitization process:
(1) Ensure there are appropriate safeguards for the source records to prevent their loss or damage.
(2) Restrict access to source records while they are being digitized to minimize the risk of unauthorized additions, deletions, or alterations.
(3) Ensure there is a process to identify and document gaps in coverage or missing records.
(e) Agencies must ensure that records are free from unauthorized alteration, destruction, or deletion by complying with the mechanisms and controls specified in §§ 1236.10 and 1236.20:
(1) The agency may generate checksums using the SHA-256 hash algorithm and record them as technical metadata in a recordkeeping system for each image file when digitization is complete and the agency determines that the records are no longer in active use and the metadata are no longer subject to any changes that may result from ongoing business use. Use the checksums to monitor the digitized records for corruption or alteration and capture them as metadata as required in § 1236.54; or
(2) The agency may perform file integrity monitoring or file comparison audits.
(f) If there are born-digital records that are part of the record series within the project, follow the instructions for managing mixed-media records in § 1236.52.
Agencies must create digital documentation when digitizing permanent source records. The agency must retain this documentation alongside the digitized records until the digitized records have been transferred to NARA and NARA has notified the agency that the accessioning process is complete. The agency must dispose of the documentation in accordance with an appropriate General Records Schedule (GRS) or agency records schedule. The required documentation will help the agency populate the Transfer Request instrument (TR) in NARA's Electronic Records Archives (ERA). The following documents are required:
(a) A defined project plan that identifies:
(1) Record series or file units to be digitized;
(2) Method that will be used to name digitized records;
(3) Estimated date range of the source records;
(4) Missing pages;
(5) Gaps or missing records in the series. Depending on the type of gap or missing records, indicate if there will be charge-out cards for skipped or missing records that will be inter-filed if they are transferred at a later date;
(6) Estimated volume, media types, dimensions, physical characteristics, and condition of the source records;
(7) Equipment and software used to digitize records;
(8) Estimated file storage requirements for the digitized records. The file storage needs may affect project decisions, such as compression and file format;
(9) Any access or use restrictions that apply to the records;
(10) Method used to capture the relationships that exist between source records once they are digitized; and
(11) Any metadata element labels that differ from those specified in § 1236.54.
(b) Any information needed to associate the digitized records to the source records' agency records schedule(s) including the item numbers;
(c) Any related finding aids, indexes, inventories, logs, registers, or metadata schemas the agency uses to manage the records that can serve as sources for the metadata required in § 1236.54.
(d) A quality management (QM) plan that ensures the project meets the quality assurance (QA) objectives and quality control (QC) inspection procedures.
(1) The quality management plan must include the policies, functions, roles, responsibilities, requirements, and objectives for the project.
(2) The quality assurance component of the QM plan must include documentation of:
(i) Image quality performance parameters selected to capture the information present in the source records;
(ii) Equipment and device acceptance testing methods and results;
(iii) Design reviews to evaluate if digitization workflows meet the requirements; and
(iv) Training conducted.
(3) The quality control component of the QM plan must document:
(i) The procedures used to inspect image quality;
(ii) The procedures used to inspect metadata quality;
(iii) The corrective actions taken to mitigate deviations throughout all phases of the project; and
(iv) The procedures used to verify that digitized records conform to the requirements.
(a)
(1) The agency must use QA processes to:
(i) Quantify scanner or camera performance before selecting the equipment by scanning a reference target and measuring the results with analytical software to determine if the equipment meets the technical parameters.
(ii) Evaluate internal or external vendor imaging systems against image quality performance parameters;
(iii) Monitor equipment performance by quantifying scanner or camera performance during digitization; and
(iv) Verify that resulting digital files meet project specifications.
(b)
(1) The Federal Agencies Digital Guidelines Initiative (FADGI) Digital Image Conformance Evaluation program (DICE) is a QC inspection and monitoring process that uses image targets and analysis software to verify compliance. Applied properly, this methodology will ensure agencies meet the requirements in § 1236.50.
(2) If the agency does not adopt the FADGI Conformance Evaluation program, it must document both the procedures used and how it verified conformance to the quality parameters.
(c)
(1) Implement an image quality analysis process and use reference targets to verify that digitization devices conform to imaging parameters in this subpart;
(2) Replace reference targets as they fade or accumulate dirt, scratches, and other surface marks that reduce their usability;
(3) Regularly test equipment to ensure scanners and digital cameras/copy systems are performing optimally. It must:
(i) Scan a reference target containing a grayscale, color chart, and accurate dimensional scale at the beginning of each workday;
(ii) Use image quality analysis software to verify that the performance evaluation specifications are being met; and
(iii) Perform additional tests when problems are detected.
(4) Test equipment with the specific software/device driver combination(s), and re-test after any changes to the workflow; and
(5) Ensure that equipment operation, settings, and image processing actions are the same as those used to evaluate
(d)
(i) Can open and be displayed;
(ii) Are encoded with a compression type and in a format specified in § 1236.48; and
(iii) Have the resolution, color mode, bit depth, and color profile specified in § 1236.50.
(2) The agency must perform a visual inspection using a statistically valid technique:
(i) The agency may visually inspect a random sample of a minimum of ten digital records or 10% of each batch of digital records, whichever is larger; or
(ii) The agency may employ a statistically valid sampling plan to verify that the image quality, file quality, metadata quality, and completeness requirements have been met. Agencies that employ their own sampling technique must include documentation of the method used, as specified in § 1236.44(d)(3)(i).
(3) Visual inspection must be conducted using a calibrated graphics workstation and using a monitor set to 100% magnification to check the following image quality characteristics:
(i) Image tone, brightness, contrast, and color accuracy match the specifications in § 1236.50;
(ii) Images are free from clipping (missing detail lost in highlights or shadows);
(iii) Images are free from color channel misregistration, or quantization errors;
(iv) Images are free of any image artifacts that compromise the informational content of the record, such as dust, Newton's rings, missing pixels, scan lines, drop-outs, flare, or over-sharpening; and
(v) Images are not improperly cropped, have the expected dimensions and orientation (landscape/horizontal or portrait/vertical), and images are not flipped, inverted, or skewed.
(e)
(1) If 1% or more of examined records fail to meet any of the criteria in § 1236.50, determine the source and scope of any errors, correct or re-digitize affected records, and reinspect the images by following the requirements in paragraph (d) of this section;
(2) If less than 1% of examined records fail to meet any of the criteria in § 1236.50, determine the source and scope of any errors and correct or re-digitize the affected records.
(f)
(1)
(i) Files are named according to project specifications; and
(ii) Correct administrative, descriptive, and technical metadata are captured in a recordkeeping system and in image files.
(2)
(i) Verify that all records have been accounted for by referring to box lists, folder title lists, or other inventories;
(ii) Compare source records with their digitized versions to verify that 100% of the informational content has been captured;
(iii) Compare source records with their digitized versions to verify the digitized records are in the same order;
(iv) Examine records for related envelopes, notes, or other forms of media to verify that all sources of record information have been digitized;
(v) Verify that any mixed-media records that cannot be digitized are associated with the digitized records using the “Relation” metadata elements in § 1236.54(c); and
(vi) Confirm that missing pages or images have been noted in the project documentation.
(a) The agency must encode, retain, and transfer digitized records in one of the following file formats, either uncompressed or using one of the specified compression codecs in tables 1 and 2 to this section.
(1) Agencies that combine multiple uncompressed TIFF images into PDF/A files using JPEG2000 compression must perform the quality inspection step specified in 1236.46(d) against the resulting PDF/A files.
(2) When using JPEG 2000 visually lossless compression, agencies must determine the amount of compression to apply, not to exceed 20:1, by performing tests and visually evaluating for compression artifacts that obscure or alter the information content.
(b) The agency must encode, retain, and transfer digitized permanent paper records in one of the following file formats, either uncompressed or with one of the compression codecs specified in table 1 to this paragraph (b).
(c) The agency must encode, retain, and transfer digitized photographic print records in one of the following file formats, either uncompressed or with one of the compression codecs specified in the table 2 to this paragraph (c).
(1) For a series of predominantly textual records with interspersed photographic prints, use the formats in table 1 to paragraph (b) of this section for paper records. All photographic prints must be digitized according to the standards in § 1236.50.
(2) For a series of predominantly printed photographs, including those with paper records interspersed, use the
(3) However, the agency must not transcode, or interpolate (upsample) files anywhere in the workflow.
(a)
(b)
(c)
(d)
(1) Records suitable for the specifications in table 1 to this paragraph (d) for modern textual paper records are modern textual documents with a well-defined printed type (such as typeset, typed, laser-printed), and with moderate to high contrast between the ink of the text and the paper background. Performance metric values in table 1 for modern textual paper records conform to the FADGI “Documents (Unbound): Modern Textual Records” category, and are appropriate when source records do not have visible content with L* values darker than 20. Neutral reference patches on the evaluation test target with L* less than 20 are not used for analysis.
(2) For other paper records such as manuscripts, illustrations, graphics, and documents with poor legibility or diffuse characters (such as carbon copies or Thermofax) that have visible content with L* values darker than 20, agencies must evaluate neutral reference patches on the evaluation test target with L* greater than 20. (These values equate to FADGI three-star for “Documents (Unbound): General Collections”).
(3) The agency must digitize in an acceptable RGB color mode if records contain color or other characteristics that are necessary to interpret the information of the source record, or that would be lost when digitizing using grayscale gamma 2.2.
(4) At a minimum, the agency must digitize the paper records covered by this paragraph to the following parameters:
(e)
(1) These specifications apply to records such as photographic prints, graphic-arts prints (for example, lithographs or intaglio), drawings, embossed seals, and records that have information that cannot be captured by the parameters in table 1 to paragraph (d) of this section for modern textual paper records.
(i) For records in which the smallest significant detail is 1.0 mm or smaller, such as aerial photographs and topographic maps (which require a high degree of enlargement and precision to ensure the dimensional accuracy of the scans), the agency must increase the resolution to capture all the information in the source record.
(ii) For many imaging devices, increasing the ppi settings may not increase the actual resolution level or capture the desired detail. The equipment for digitizing records with fine detail must be capable of meeting the higher quality parameters. It may be necessary to exceed the parameters in table 2 to this paragraph (e) to capture all the information inherent in the records.
(2) The agency must digitize photographic prints, including monochrome and black and white, using a color mode.
(3) The agency must digitize in an acceptable color mode if records contain color or other characteristics that are necessary to interpret the information of the source record, or that would be lost when digitizing using grayscale gamma 2.2.
(4) At a minimum, agencies must digitize all records covered by this paragraph to the following parameters:
Mixed-media files are records that belong together or relate to a common topic and are stored on more than one media type. Mixed-media files result from the processes agencies use to create, maintain, and use records. For example, a case file may include paper records, online digital records, and digital records on storage media.
(a) For any non-paper media, agencies must analyze the contents to determine whether any files are records.
(1) If the media contains records that are temporary, manage them according to their appropriate GRS or agency-specific records authority.
(2) If the media contains records that are permanent, but not part of the digitized record series, locate their disposition schedule and capture them in a digital information system that complies with the requirements in
(3) If the media contains born-digital components of mixed-media files that are related to the digitized records series, capture the born-digital records in a recordkeeping system in accordance with § 1222.26 of this subchapter and associate the born-digital records with any related records once they are digitized using the “Relation” metadata elements in § 1236.54.
(4) If they are permanent records stored on a media type that is out of scope for this subpart, document this information according to the instructions in § 1236.44. Agencies must maintain the association between records using the “Relation” metadata elements specified in § 1236.54.
(b) Contact the Records Management Policy and Standards Team at
(a)
(1) If using metadata to capture relationships between source records as required in § 1236.42(b), agencies must use the “Relation” metadata elements in table 1 to paragraph (c)(1) of this section for basic administrative metadata.
(2) If using different metadata labels from the ones required in this section, agencies must document the labels that the agency uses and note this in the Details section of the ERA (Electronic Records Archive) Transfer Request (TR).
(3) Determine the appropriate level to be used as the source of descriptive metadata. Depending on the agency's existing recordkeeping practices and level of intellectual control, use information from the project, record series, file unit, or item level as the source for administrative, technical, and descriptive metadata fields. If the components of a record have not been individually indexed with unique descriptions, apply the series or file unit-level descriptions to all of the image files within that grouping. If the components of the record do not have individual titles, the agency must apply the item Record IDs instead.
(4) Include additional metadata if it is captured. If other metadata elements are provided in addition to the metadata requirements in this subpart, NARA will accept that metadata as part of the transfer process.
(b)
(1) Capture the metadata specified by paragraphs (c) through (e) of this section at the file or item level as part of the digitization project;
(2) Create file names and record IDs that are unique to each image file;
(3) Embed the metadata specified by paragraph (c) of this section in each image file, capture and maintain it in a recordkeeping system, associate it with the records it describes, and keep it consistent and accurate in both places;
(4) Ensure that scanning equipment embeds the system-generated technical metadata specified by table 4 to paragraph (e)(1) of this section for format technical metadata and table 5 to paragraph (e)(2) of this section for processing technical metadata in each image file, and ensure that image processing does not alter or delete it; and
(5) Transfer metadata to NARA in CSV format.
(c)
(2) Capture in a recordkeeping system and embed in each file any of the following access and use restrictions the metadata inherited from the source records:
(d)
(e)
(2) Ensure that the following process metadata elements are recorded for each image file:
(3) Capture the following technical metadata in a recordkeeping system for each image file, and use them to monitor digital records for corruption or alteration:
(a) When a digitization project is complete, the agency must validate that the digitized versions meet the standards in this subpart.
(b) Separate staff must conduct the validation, independent from the staff that performed the digitization QC inspections described in § 1236.46.
(c) Agencies must verify that:
(1) All records identified in the project's scope have either been digitized or have been identified in project documentation as missing or incomplete records (and the agency must note this information in the Details section of the ERA TR when transferring the records);
(2) All required metadata are accurate, complete, and correctly labeled;
(3) All image technical attributes specified in § 1236.50 have been met;
(4) All image files are legible and all physical characteristics necessary to understand and use the records have been captured;
(5) Mixed-media files are digitized appropriately for the material type, or if mixed-media components are retained in their original format, they are associated with digitized components through metadata, per the requirements specified in § 1236.54(c); and
(6) Project documentation has been created according to § 1236.44.
(d) Once validated, the digitized records are permanent records.
(e) After validating, the agency must determine whether the agency has any reasons for retaining the source records for a period of time once digitized, in keeping with § 1236.40(g).
(f) Unless source records will be retained for reasons identified in § 1236.40(g), the agency must dispose of the source records in accordance with an agency records schedule or GRS that addresses disposition after digitization.
(g) Agencies cannot use the GRS to dispose of source records if the digitized records do not meet the requirements in this subpart. In such cases, agencies should contact the Records Management Policy and Standards Team at
(h) Agencies must transfer the digitized records to NARA according to the approved disposition authority and include the transfer metadata as described in § 1236.58.
(i) Agencies must retain the project documentation described in § 1236.44 until the National Archives confirms receipt of the records and legal custody of the records has been transferred.
(j) Agencies must transfer the administrative, technical, and descriptive metadata captured during the digitization project as CSV files, as described in § 1236.54(b)(6), with the resulting digitized records.
When agencies transfer permanent records to the National Archives' legal and physical custody, the agency must provide transfer metadata to NARA. The transfer metadata must be entered into the Electronic Records Archives (ERA) when the Transfer Request (TR) is created to begin transferring the records. Each transfer of digital records must include the following metadata that applies to the transfer as a whole:
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a temporary exemption from the requirement of a tolerance for residues of Ledprona (CAS# 2433753-68-3) in or on potatoes when used in accordance with the terms of Experimental Use Permit (EUP) No. 94614-EUP-1. GreenLight Bioscience, Inc. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA) for a temporary exemption from the requirement of a tolerance for residues of Ledprona on all raw agricultural products and food products. After reviewing the petition and supporting data, the Agency has limited the temporary tolerance exemption to residues of Ledprona on potatoes only. This regulation eliminates the need to establish a maximum permissible level for residues of Ledprona in or on potatoes. This temporary tolerance exemption expires on April 30, 2025.
This regulation is effective May 4, 2023. Objections and requests for hearings must be received on or before July 3, 2023, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-20-2022-0932, is available at
Frank Ellis, Biopesticides and Pollution Prevention Division (7511M), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 328-3074; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2022-0932 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 3, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-20-2022-0932, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the petition and associated data and in accordance with its authority under FFDCA section 408(d)(4)(A)(i) and (r), EPA is establishing a temporary exemption from the requirement of a tolerance for residues of Ledprona in or on potatoes only when used in accordance with the terms of Experimental Use Permit No. 94614-EUP-1. The EUP is authorized for testing on potatoes only; therefore, the Agency has limited the temporary tolerance to potatoes alone.
Section 408(r) of FFDCA authorizes EPA to establish a temporary exemption from the requirement of a tolerance for residues covered by an experimental use permit issued under the Federal Insecticide, Fungicide, and Rodenticide Act. That section states that the provisions of section 408(c)(2) of FFDCA apply to exemptions issued under FFDCA section 408(r). Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”
EPA evaluated the available toxicity and exposure data for Ledprona and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. In summary, dietary risk from the use of Ledprona is considered negligible because dietary exposure to residues of Ledprona in or on food or feed is expected to be negligible and no adverse effects were observed in toxicity testing. A full summary of the data upon which EPA relied and its risk assessments based on that data can be found within the document entitled, “Human health and product characterization for the Experimental Use Permit application for Calantha
Available data have demonstrated that, with regard to humans, Ledprona presents no adverse effects of concern and exposure to the active ingredient will be insignificant. Ledprona consists of double-stranded ribonucleic acid (dsRNA) that induces mortality of the Colorado potato beetle (
Dietary exposure to Ledprona through residues of the active ingredient in or on food or feed as well as in drinking water is expected to be negligible. As detailed in the Human Health Risk Assessment, dietary exposure to Ledprona is anticipated to be limited for the following reasons: (1) The EUP is limited to foliar application on potatoes. Underground tubers would not be directly exposed to Ledprona, so consumption of residues on potatoes is expected to be limited; (2) Once applied, Ledprona is expected to undergo rapid degradation due to microbial activity; (3) Submitted data show that Ledprona rapidly degrades in the mammalian gut; and (4) Mammals possess physiological barriers (
In addition to the lack of exposure described above, submitted acute oral toxicity studies demonstrated a lack of hazard of Ledprona to the mammalian surrogate species, rats,
The potential for residential exposure is highly unlikely because there are no residential uses proposed for the EUP under which Ledprona would be applied. Non-occupational exposure is unlikely because applications will occur in experimental plots generally not accessible to bystanders. However, should bystander exposure occur post-application (
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” No risk of cumulative toxicity/effects from Ledprona have been identified as no toxicity has been shown for Ledprona in the submitted studies. Therefore, EPA has not assumed that Ledprona has a common mechanism of toxicity with other substances.
Although FFDCA section 408(b)(2)(C) provides for an additional tenfold margin of safety for infants and children in the case of threshold effects, EPA has determined that there are no such effects due to the lack of toxicity of Ledprona. As a result, an additional margin of safety for the protection of infants and children is unnecessary.
Based upon its evaluation, EPA concludes that there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Ledprona in or on potatoes. This includes all anticipated dietary exposures for which there is reliable information. The Agency has arrived at this conclusion based on the rapid degradation of the active ingredient in environmental and biological conditions, mammalian physiological barriers limiting the uptake of dsRNA, and the lack of effects observed in toxicity testing.
EPA has determined that an analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
Based upon its evaluation in the Human Health Risk Assessment, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Ledprona in or on potatoes. Therefore, a temporary exemption from the requirement of a tolerance is established for residues of Ledprona in or on potatoes when used in accordance with the terms of Experimental Use Permit No. 94614-EUP-1.
This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR part 180 as follows:
21 U.S.C. 321(q), 346a and 371.
A temporary exemption from the requirement of a tolerance is established for residues of Ledprona in or on potato when used in accordance with the terms of Experimental Use Permit No. 94614-EUP-1. This temporary exemption from the requirement of a tolerance expires on April 30, 2025.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; retention limit adjustment.
NMFS has determined, based on consideration of the regulatory determination criteria regarding inseason adjustments, that the Atlantic bluefin tuna (BFT) daily retention limit that applies to Highly Migratory Species (HMS) Angling and HMS Charter/Headboat permitted vessels (when fishing recreationally for BFT) should be adjusted for the remainder of 2023. NMFS is adjusting the Angling category BFT daily retention limit from the default of one school, large school, or small medium BFT to: two school BFT and one large school/small medium BFT per vessel per day/trip for private vessels with HMS Angling permits; three school BFT and one large school/small medium BFT per vessel per day/trip for charter boat vessels with HMS Charter/Headboat permits when fishing recreationally; and six school BFT and two large school/small medium BFT per vessel per day/trip for headboat vessels with HMS Charter/Headboat permits when fishing recreationally. These retention limits are effective in all areas, except for the Gulf of Mexico, where targeted fishing for BFT is prohibited.
Effective May 3, 2023 through December 31, 2023.
Lisa Crawford,
Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
As described in § 635.27(a), the current baseline U.S. BFT quota is 1,316.14 metric tons (mt) (not including the 25-mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). The Angling category baseline quota is 297.4 mt. This baseline quota is further subdivided into subquotas by size class (see Table 1) as follows: 134.1 mt for school BFT, 154.1 mt for large school/small medium BFT, and 9.2 mt for large medium/giant BFT. Large school and small medium BFT traditionally have been managed as one size class,
Under § 635.23(b)(3), NMFS may increase or decrease the Angling category retention limit for any size class of BFT after considering determination criteria provided under § 635.27(a)(7). Also under § 635.23(b)(3), recreational retention limits may be adjusted separately for specific vessel type, such as private vessels, headboats, or charter boats.
NMFS has considered all of the relevant determination criteria and their applicability to the change in the Angling category retention limit. After considering these criteria, NMFS has decided to adjust the Angling category retention limits as follows:
(1) For private vessels with HMS Angling permits, this action adjusts the limit upwards to two school BFT and one large school/small medium BFT per vessel per day/trip (
(2) For charter boat vessels with HMS Charter/Headboat permits, this action adjusts the limit upwards to three school BFT and one large school/small medium BFT per vessel per day/trip when fishing recreationally for BFT (
(3) For headboat vessels with HMS Charter/Headboat permits, this action adjusts the limit upwards to six school BFT and two large school/small medium BFT per vessel per day/trip when fishing recreationally for BFT (
Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a private vessel (fishing under the Angling category retention limit) takes a 2-day trip or makes two trips in 1 day, the day/trip limit of two school BFT and one large school/small medium BFT applies and may not be exceeded upon landing.
Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(7)(i)), biological samples collected from BFT landed by recreational fishermen continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.
NMFS also considered recent catches of the Angling category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(7)(ii)). Additionally, NMFS considered Angling category landings in 2022, which were approximately 93 percent of the 245.9-mt annual Angling category quota in 2022, including landings of approximately 36 percent of the available school BFT quota in 2022, under the same daily retention limits as implemented in this action. Thus, absent retention limit adjustment, NMFS anticipates that the available 2023 Angling category quota would not be harvested under the default retention limit.
NMFS also considered the effects of the adjustment on the BFT stock and the effects of the adjustment on accomplishing the objectives of the 2006 Consolidated HMS FMP (§ 635.27(a)(7)(v) and (vi)). These retention limits would be consistent with established quotas and subquotas, which are implemented consistent with ICCAT recommendations, (established in Recommendation 21-07), ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. These retention limits are in line with the established management measures and stock status determinations. It is also important that NMFS limit landings to the subquotas both to adhere to the FMP quota allocations and to ensure that landings are as consistent as possible with the pattern of fishing mortality (
NMFS considered input on recreational limits from the HMS Advisory Panel at its May and September 2022 meetings and that ICCAT recommendations and HMS implementing regulations limit the allowance for landings of school BFT to 10 percent of the U.S. baseline quota (
Given that the Angling category landings fell short of the available Angling category quota in 2022, even
NMFS has also concluded that implementation of separate limits for private, charter boat, and headboat vessels is appropriate, recognizing the different nature, social and economic needs, and recent landings results of the two components of the recreational BFT fishery. For example, charter operators historically have indicated that a retention limit greater than the default limit of one fish is vital to their ability to attract customers. In addition, Large Pelagics Survey estimates indicate that charter/headboat BFT landings averaged 43 percent of recent recreational landings for 2022, with the remaining 57 percent landed by private vessels. NMFS has further concluded that a higher limit for headboats (than charter boats) is appropriate, given the limited number of headboats participating in the BFT fishery.
NMFS anticipates that the BFT daily retention limits in this action will result in landings during 2023 that would not exceed the available subquotas. Lower retention limits could result in substantial underharvest of the Angling category subquota, and increasing the daily limits further may risk exceeding the available quota, contrary to the objectives of the 2006 Consolidated HMS FMP and amendments.
NMFS will continue to monitor the BFT fishery closely. HMS Angling and HMS Charter/Headboat permitted vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or the end of each trip, by accessing
Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments or closures are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the
HMS Angling and HMS Charter/Headboat permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.
The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing prior notice and opportunity for public comment on this daily retention limit adjustment for the remainder of 2023 at this time is impracticable. NMFS could not have proposed this action earlier, as it needed to consider and respond to updated landings data from the 2022 Angling category. If NMFS was to offer a public comment period or delay in effective date now, after having appropriately considered that information, it would preclude the fishery from harvesting BFT that are available on the fishing grounds that might otherwise become unavailable during a delay, and/or could result in selection of a retention limit inappropriately high or low for the amount of quota available for the period.
Fisheries under the Angling category daily retention limit are currently underway and thus prior notice would be contrary to the public interest. Delays in increasing daily recreational BFT retention limit would adversely affect those HMS Angling and HMS Charter/Headboat permitted vessels that would otherwise have an opportunity to harvest more than the default retention limit of one school, large school, or small medium BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Analysis of available data shows that adjustment to the BFT daily retention limit from the default level would result in minimal risk of exceeding the ICCAT-allocated quota. Taking this action does not raise conservation and management concerns. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.
For all of the above reasons, the AA finds that pursuant to 5 U.S.C. 553(d), there also is good cause to waive the 30-day delay in effective date.
16 U.S.C. 971
Federal Housing Finance Agency.
Notice of proposed rulemaking.
The Federal Housing Finance Agency (FHFA) is proposing to amend its prudential management and operations standards Rule (rule) to clarify that FHFA may establish prudential management and operations standards (Standards) as regulations as well as guidelines. The proposed amendments to the rule would also revise definitions and make other conforming changes. FHFA is not proposing to establish new Standards or to revise Standards already established. However, FHFA is proposing that the rule and some of the existing Standards in the appendix to the rule be made applicable to the Office of Finance of the Federal Home Loan Bank System (OF).
Comments must be received by July 3, 2023.
You may submit your comments on the proposed rule, identified by regulatory information number (RIN) 2590-AB10, by any one of the following methods:
•
•
•
•
Clinton Jones, General Counsel, (202) 649-3006,
FHFA invites comments on all aspects of the proposed rule and will consider all comments before issuing a final rule. Copies of all comments will be posted without change and will include any personal information provided, such as the commenter's name, address, email address, and telephone number, on the FHFA website at
The Federal Housing Enterprises Financial Safety and Soundness Act (the Safety and Soundness Act) requires the Director of FHFA to establish Standards that address ten subjects relating to the management and operation of the regulated entities, authorizes the Director to establish other Standards in addition to those on the ten listed subjects, and authorizes the Director to establish Standards by regulation or guideline.
Section 4513b requires a regulated entity that fails to meet a Standard to submit a corrective plan if the Standard is established by regulation, and permits FHFA to require a corrective plan if a regulated entity fails to meet a Standard established by guideline.
The proposed rule addresses FHFA's determination that a regulated entity has failed to meet a Standard and FHFA's direction to the regulated entity to submit a corrective plan; the contents of a corrective plan and filing deadlines; FHFA's review of a corrective plan and notification to the regulated entity of FHFA's decision on a plan; and the regulated entity's opportunity to request FHFA to amend an approved plan and FHFA's review of proposed amendments to the plan.
Section 4513b specifies the consequences if a regulated entity fails to submit an acceptable plan within the required time period or fails to implement a corrective plan that the Director has approved.
The proposed rule implements these statutory provisions by setting forth a process for FHFA to notify the regulated entity of its intent to issue an order requiring the regulated entity to correct its failure to submit or implement a corrective plan, which must include FHFA's proposed action and, if applicable, FHFA's determination of “extraordinary growth.”
The proposed rule provides that failure to meet a Standard may constitute an unsafe or unsound practice for purposes of FHFA's enforcement authority.
When FHFA proposed the rule and initial Standards in 2011, FHFA did not propose to apply the rule or the Standards to OF on the grounds that several of the statutorily required standards (such as the standards on relating to interest rate, market and credits risks and investment portfolio growth) would not be relevant to OF and statutory examples of corrective actions for noncompliance also would not be applicable.
FHFA is proposing to amend part 1236 to reflect the scope of FHFA's statutory authority to establish Standards as regulations as well as guidelines and to apply the rule and some Standards to OF.
Currently, the rule addresses “prudential standards as guidelines,”
Taken together, the rule and its appendix imply that the guidelines in the appendix constitute the entirety of the Standards that FHFA has established and that any further Standards adopted by FHFA will similarly be established as guidelines and located in the appendix. That implication is inconsistent with FHFA's statutory authority and recent actions. Specifically, FHFA established Standards by regulation in December 2020 and May 2021.
As amended, the rule would expressly reflect FHFA's statutory authority to establish Standards as either regulations or guidelines and to locate Standards established as regulations outside of the appendix to the rule. If amended as proposed, the rule would make clear that guidelines or regulations adopted by FHFA that FHFA identifies as Standards are to be considered Standards for purposes of section 4513b and part 1236.
As an administrative matter, for convenience and clarity, FHFA plans to continue establishing Standards that are guidelines through a
FHFA is also proposing to amend the rule and the appendix to part 1236 so that the OF would be subject to the rule and identified Standards. The Standards FHFA proposes to apply to OF are the General Responsibilities of the Board of Directors and Senior Management, and Standards 1, 2, 8, and 10. Standard 1 addresses “Internal Controls and Information Systems.” Standard 2 addresses “Independence and Adequacy of Internal Audit Systems.” Standard 8 addresses “Overall Risk Management Processes.” Standard 10 addresses “Maintenance of Adequate Records.” Since adopting the rule in 2012, FHFA has revisited its decision to exclude OF from the rule and has determined that making OF subject to the rule and the identified Standards would further the purposes of section 4513b. Moreover, FHFA could in the future establish Standards by regulation or guideline that would apply only to OF. FHFA welcomes any comments on subjecting OF to the rule and the identified Standards.
Consistent with the foregoing changes, FHFA also proposes to revise and clarify definitions and make conforming changes to part 1236 and its appendix. Proposed changes to the rule are discussed by section and proposed changes to the appendix are discussed by Standard, below.
This section currently states that part 1236 establishes “the” prudential management and operations standards that are required by section 4513b. That construction was appropriate when part 1236 addressed only the 10 Standards specifically required by statute, and when all Standards established by FHFA were located within the appendix to part 1236. FHFA is proposing to remove “the” and to revise “establishes” to “addresses” to reflect the full scope of part 1236, and to add “and authorized” following “required” to reflect the discretion expressly conferred on FHFA to establish other operational and management Standards as the Director determines to be appropriate. These changes also acknowledge that Standards may be located either in the appendix (if they are established as guidelines) or elsewhere in chapter XII of title 12 of the Code of Federal Regulations (if they are established as regulations).
As appropriate throughout the rule, FHFA is also proposing to revise the terms “a regulated entity,” “any regulated entity,” and “entity” to “a regulated entity or the Office of Finance” to bring the OF within the scope of the rule.
This section defines terms used in this part. After the rule was adopted by FHFA in 2012, FHFA adopted part 1201 of the FHFA regulations (12 CFR part 1201), one section of which sets forth definitions that apply to all FHFA regulations. FHFA is now proposing to amend § 1236.2 to include a reference to 12 CFR part 1201 as an aid to users of this part. This amendment is not a substantive change, as definitions in 12 CFR part 1201 already apply to terms used in this part.
In addition, FHFA is proposing one change to the definition of “standard” (which is defined within this part) to remove language that referred to § 1236.3(b), on FHFA's authority to revise Standards established as guidelines. Other changes that FHFA is proposing would cause that reference to become incomplete, as a different section of the rule would now address revisions to Standards established as regulations. On review, FHFA has determined that the reference to § 1236.3(b) is unnecessary; for that reason, instead of expanding on it, FHFA proposes to delete the reference.
FHFA is proposing to revise § 1236.3(a) to remove language that effectively repeated the definition of “Standard” set forth at § 1236.2 and thus is unnecessary, and in its place add a sentence acknowledging that, as expressly authorized by statute, FHFA may establish Standards as guidelines or regulations.
Section 1236.3(b) would be amended to clarify that it applies only to Standards established as guidelines (instead of stating that it covers all Standards, which would include those established as regulations). In keeping with FHFA's prior practice, proposed revisions to § 1236.3(b) would set forth FHFA's commitment to provide public notice of and seek public comment on Standards that it proposes to establish as guidelines, or on any material modification to a Standard established as a guideline. For efficiency, however, FHFA could revoke a Standard adopted as a guideline at any time by order or notice. FHFA requests comment on these proposed processes for establishing, modifying, and revoking Standards established as guidelines.
FHFA proposes to revise § 1236.3(c) to address Standards established as regulations. Although section 4513b expressly authorizes FHFA to establish Standards as regulations, FHFA had not done so when part 1236 was promulgated in 2012. As a result, part 1236 does not currently address Standards that have been established as regulations after part 1236 was promulgated.
As proposed to be amended, § 1236.3(c) acknowledges that the Administrative Procedure Act sets forth the process for establishing Standards as regulations and amending such Standards. FHFA also proposes to clarify that Standards established as regulations may be located in part 1236, may amend existing regulations, or may be undertaken as entirely new rulemakings that would be located outside of part 1236. For example, FHFA may decide to locate a Standard established as a regulation that applies to all of its regulated entities within part 1236, but may locate a Standard established as a regulation that applies only to the Enterprises (including any affiliate of an Enterprise), or only to the Federal Home Loan Banks (including OF), outside of part 1236. Any Standard established as a regulation would be identified as a Standard in that regulation.
FHFA proposes to re-number current § 1236.3(c) as § 1236.3(d), and to amend it to clarify that if there is a direct conflict between a Standard
Consistent with other proposed changes to part 1236, FHFA is proposing to expand the scope of § 1236.4, which addresses the failure to meet a Standard and submission of corrective plans, to cover Standards established as regulations. Other changes are proposed to clarify the application of § 1236.4.
As already noted, FHFA proposes to relocate its authority to determine that failure to meet a Standard is an unsafe or unsound practice, currently addressed in § 1236.3(d), to § 1236.4(a). FHFA believes this authority is more appropriately located in § 1236.4, with other regulatory provisions addressing failure to meet a Standard.
Section 1236.4(b), which addresses the submission of corrective plans, currently implies that FHFA has discretion in all cases to decide whether to require a corrective plan from a regulated entity that fails to meet a Standard. That implication was correct when part 1236 was originally adopted because part 1236 established Standards as guidelines only, and section 4513b provides that FHFA may require a corrective plan if a regulated entity fails to meet a Standard established as a guideline.
As a procedural matter, § 1236.4(b) provides that FHFA will inform a regulated entity or the OF that it is required to submit a corrective plan by written notice, which will also set forth FHFA's determination that the regulated entity or OF has failed a particular Standard or Standards. FHFA may otherwise inform a regulated entity or the OF that it has failed to meet a Standard, but § 1236.4(b) and (c) establish procedural requirements that govern corrective plans. For example, FHFA may provide a regulated entity a report of examination that includes a determination that the regulated entity failed to meet a particular Standard. That determination, without more, is not “written notice” for purposes of § 1236.4(b) and (c), because it does not include the statement that FHFA is requiring the regulated entity to submit a corrective plan. FHFA intends it to be explicitly clear when “written notice” for purposes of § 1236.4(b) has been provided (
Within § 1236.4(c), FHFA is proposing to relocate the requirement that plans be in writing from § 1236.4(c)(2)(i) to § 1236.4(c)(1). FHFA is also proposing to amend § 1236.4(c)(2)(ii), on submitting a corrective plan with another submission such as a capital restoration plan, to clarify that the relevant deadline may be one established by FHFA in accordance with § 1236.4(c)(2) and to expand the sorts of required plans or submissions of which a corrective plan may be a part, as deemed appropriate by FHFA. This last change is intended to reduce burden on a regulated entity or OF, if it is feasible and appropriate to combine a corrective plan under this proposed rule with another type of required plan or submission.
Finally, FHFA is also proposing conforming amendments to § 1236.4(d) and (e) to bring OF within the scope of those provisions.
Section 1236.5 addresses FHFA authority to require a corrective order if a regulated entity fails to submit an acceptable corrective plan or fails in any material respect to implement an approved corrective plan and processes related to such an order. FHFA is proposing to revise the term “regulated entity” in the first clause of § 1236.5(a) to “regulated entity or Office of Finance”. Similarly, FHFA is proposing to revise the term “regulated entity” to “regulated entity or Office of Finance” in § 1236.5(a)(6). However, given that the corrective measures set out in § 1236.5(a)(1) through (5) and § 1236.5(b) are not applicable to the OF, FHFA is not proposing to revise the term “regulated entity” in those provisions. FHFA is also proposing conforming amendments to § 1236.5(c), (d), and (e) to extend the application of those paragraphs to OF.
FHFA is proposing to revise the introductory text of the appendix to be consistent with proposed amendments to the rule. Currently that introductory text states the provisions in the appendix “constitute the prudential management and operations standards established pursuant to 12 U.S.C. 4513b” and thus implies that FHFA has established all Standards as guidelines located in the appendix, even though FHFA has also established Standards as regulations located in different parts of title 12, chapter XII, of the Code of Federal Regulations. Although FHFA intends to continue locating Standards established as guidelines in the appendix, FHFA may locate any additional Standards established as regulations outside of part 1236.
FHFA is also proposing to add a sentence after the introductory text of the appendix stating that the General Responsibilities of the Board of Directors and Standards 1, 2, 8, and 10 in the appendix apply to OF as appropriate. In addition, FHFA is proposing to revise the General Responsibilities of the Board of Directors and Standards 1, 2, 8, and 10 in the appendix so that these Standards would apply to OF as appropriate. In particular, FHFA is proposing to revise the term “regulated entity” in those Standards to “regulated entity and Office of Finance” or some variation thereof.
Section 1313(f) of the Safety and Soundness Act (12 U.S.C. 4513(f)), as amended by section 1201 of the Housing and Economic Recovery Act of 2008, requires the Director, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability. The Director may also consider any other differences that are deemed appropriate. In preparing this proposed rule, the Director considered the differences between the Banks (including OF) and the Enterprises as they relate to the above factors, and determined that the rule is appropriate.
The proposed rule would not contain any information collection requirement that would require the approval of the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Federal home loan banks, Government-sponsored enterprises, Office of Finance, Prudential Management and Operations Standards, Reporting and recordkeeping requirements.
Accordingly, for the reasons stated in the Preamble, FHFA proposes to amend part 1236 of chapter XII of title 12 of the Code of Federal Regulations as follows:
12 U.S.C. 4511, 4513(a) and (f), 4513b, and 4526.
This part addresses prudential management and operations standards that are required and authorized by 12 U.S.C. 4513b, including establishment of Standards by Federal Housing Finance Agency (FHFA) and the processes by which FHFA can notify a regulated entity or the Office of Finance of its failure to operate in accordance with a Standard and can direct the regulated entity or the Office of Finance to take corrective action. This part further specifies the possible consequences if any regulated entity or the Office of Finance fails to operate in accordance with an applicable Standard or otherwise fails to comply with this part.
Unless otherwise indicated, terms used in this part have the meanings that they have in part 1201 of this chapter, in the Safety and Soundness Act, 12 U.S.C. 4501
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(2)
(ii)
(d)
(e)
(a)
(6) Require the regulated entity or the Office of Finance to take any other action that the Director determines will better carry out the purposes of the statute by bringing the regulated entity or the Office of Finance into conformance with the Standards.
(c) * * *
(1)
(i) A statement that the regulated entity or the Office of Finance has failed to submit a corrective plan under § 1236.4, or has not implemented or otherwise has not complied in any material respect with an approved plan;
(2)
(i) An explanation of why the regulated entity or the Office of Finance believes that the action proposed by FHFA is not an appropriate exercise of discretion;
(ii) Any recommended modification of the proposed order; and
(iii) Any other relevant information, mitigating circumstances, documentation or other evidence in support of the position of the regulated entity or the Office of Finance regarding the proposed order.
(3)
(4)
(d)
(e)
The revisions read as follows:
The following provisions constitute the prudential management and operations standards established as guidelines pursuant to 12 U.S.C. 4513b(a). The General Responsibilities of the Board of Directors and Standards 1, 2, 8, and 10 apply to the Office of Finance as appropriate.
The following provisions address the general responsibilities of the boards of directors and senior management of the regulated entities as they relate to the matters addressed by each of the Standards, and the general responsibilities of the board of directors and senior management of the Office of Finance to the extent a particular Standard is applicable to the Office of Finance. The descriptions are not a comprehensive listing of the responsibilities of either the boards or senior management, each of whom have additional duties and responsibilities to those described in these Standards.
With respect to the subject matter addressed by each applicable Standard, the board of directors of each regulated entity and of the Office of Finance is responsible for adopting business strategies and policies that are appropriate for the particular subject matter. The board should review all such strategies and policies periodically. It should review and approve all major strategies and policies at least annually and make any revisions that are necessary to ensure that such strategies and policies remain consistent with the overall business plan of the entity or the Office of Finance.
2. The board of directors is responsible for overseeing management of the regulated entity or the Office of Finance, which includes ensuring that management includes personnel who are appropriately trained and competent to oversee the operation of the regulated entity and the Office of Finance as it relates to the functions and requirements addressed by each applicable Standard, and that management implements the policies set forth by the board.
3. The board of directors is responsible for remaining informed about the operations and condition of the regulated entity or the Office of Finance, including operating consistently with the applicable Standards, and senior management's implementation of the strategies and policies established by the board of directors.
4. The board of directors must remain sufficiently informed about the nature and level of the regulated overall risk exposures of the entity or the Office of Finance, including, as applicable, market, credit, operational, and counterparty risk, so that it can understand the possible short- and long-term effects of those exposures on the financial health of the regulated entity, including the possible short- and long-term consequences, as applicable, to earnings, liquidity, and economic value. The board of directors should: establish the risk tolerances of the regulated entity or the Office of Finance and provide management with clear guidance regarding the level of acceptable risks; review the entire risk management framework of the regulated entity or the Office of Finance, including policies and
5. With respect to the subject matter addressed by each applicable Standard, senior management is responsible for developing the policies, procedures and practices that are necessary to implement the business strategies and policies adopted by the board of directors. Senior management should ensure that such items are clearly written, sufficiently detailed, and are followed by all personnel. Senior management also should ensure that the regulated entity or the Office of Finance has personnel who are appropriately trained and competent to carry out their respective functions and that all delegated responsibilities are performed.
6. Senior management should ensure that the regulated entity or the Office of Finance has adequate resources, systems, and controls available to execute effectively the business strategies, policies, and procedures of the entity or the Office of Finance, including operating consistently with each of the applicable Standards.
7. Senior management should provide the board of directors with periodic reports relating to the condition and performance of the regulated entity or the Office of Finance, including the subject matter addressed by each of the applicable Standards, that are sufficiently detailed to allow the board of directors to remain fully informed about the business of the regulated entity or the Office of Finance.
8. Senior management should regularly review and discuss with the board of directors information regarding the risk exposures of the regulated entity or the Office of Finance that is sufficient in detail and timeliness to permit the board of directors to understand and assess the performance of management in identifying and managing the various risks to which the regulated entity or the Office of Finance is exposed.
10. The board of directors and senior management should ensure that the overall risk profile of the regulated entity or the Office of Finance is aligned with its mission objectives.
1. Regarding internal controls and information systems, the board of directors of each regulated entity and the Office of Finance should adopt appropriate policies, ensure personnel are appropriately trained and competent, approve and periodically review overall business strategies, approve the organizational structure, and assess the adequacy of senior management's oversight of this function.
4. Each regulated entity and the Office of Finance should have an adequate and effective system of internal controls, which should include a board approved organizational structure that clearly assigns responsibilities, authority, and reporting relationships, and establishes an appropriate segregation of duties that ensures that personnel are not assigned conflicting responsibilities.
5. Each regulated entity and the Office of Finance should establish appropriate internal control policies and should monitor the adequacy and effectiveness of its internal controls and information systems on an ongoing basis through a formal self-assessment process.
6. Each regulated entity and the Office of Finance should have an organizational culture that emphasizes and demonstrates to personnel at all levels the importance of internal controls.
7. Each regulated entity and the Office of Finance should address promptly any violations, findings, weaknesses, deficiencies, and other issues in need of remediation relating to the internal control systems.
8. Each regulated entity and the Office of Finance should have an effective risk assessment process that ensures that management recognizes and continually assesses all material risks, including credit risk, market risk, interest rate risk, liquidity risk, and operational risk.
9. Each regulated entity and the Office of Finance should have an effective internal control system that defines control activities at every business level.
10. The control activities of each regulated entity and the Office of Finance should include:
a. Board of directors and senior management reviews of progress toward goals and objectives;
b. Appropriate activity controls for each business unit;
c. Physical controls to protect property and other assets and limit access to property and systems;
d. Procedures for monitoring compliance with exposure limits and follow-up on non-compliance;
e. A system of approvals and authorizations for transactions over certain limits; and
f. A system for verification and reconciliation of transactions.
11. Each regulated entity and the Office of Finance should have information systems that provide relevant, accurate and timely information and data.
12. Each regulated entity and the Office of Finance should have secure information systems that are supported by adequate contingency arrangements.
13. Each regulated entity and the Office of Finance should have effective channels of communication to ensure that all personnel understand and adhere to policies and procedures affecting their duties and responsibilities.
14. Each regulated entity and the Office of Finance should monitor the overall effectiveness of its internal controls and key risks on an ongoing basis and ensure that business units and internal and external audit conduct periodic evaluations.
16. Each regulated entity and the Office of Finance should comply with all applicable laws, regulations, and supervisory guidance (
1. The board of directors of each regulated entity and the Office of Finance should have an audit committee that exercises proper oversight and adopts appropriate policies and procedures designed to ensure the independence of the internal audit function. The audit committee should ensure that the internal audit department includes personnel who are appropriately trained and competent to oversee the internal audit function.
3. The audit committee of the board of directors is responsible for monitoring and evaluating the effectiveness of the internal audit function of each regulated entity and the Office of Finance.
5. Each regulated entity and the Office of Finance should have an internal audit function that provides for adequate testing of the system of internal controls.
6. Each regulated entity and the Office of Finance should have an independent and objective internal audit department that reports directly to the audit committee of the board of directors.
7. The internal audit department of each regulated entity and the Office of Finance should be adequately staffed with properly trained and competent personnel.
11. Each regulated entity and the Office of Finance should comply with applicable laws, regulations, and supervisory guidance (
1. Regarding overall risk management processes, the board of directors is
2. Regarding overall risk management processes, the board of directors and senior management should establish and sustain a culture that promotes effective risk management. This culture includes timely, accurate and informative risk reports, alignment of the overall risk profile of the regulated entity or the Office of Finance with its mission objectives, and the annual review of comprehensive self-assessments of material risks.
3. A regulated entity or the Office of Finance should have an independent risk management function, or unit, with responsibility for risk measurement and risk monitoring, including monitoring and enforcement of risk limits.
7. Each regulated entity and the Office of Finance should measure, monitor, and control its overall risk exposures, reviewing, as applicable, market, credit, liquidity, and operational risk exposures on both a business unit (or business segment) and enterprise-wide basis.
8. Each regulated entity and the Office of Finance should have the risk management systems to generate, at an appropriate frequency, the information needed to manage risk. As applicable, such systems should include systems for market, credit, operational, and liquidity risk analysis, asset and liability management, regulatory reporting, and performance measurement.
9. Each regulated entity and the Office of Finance should have a comprehensive set of risk limits and monitoring procedures to ensure that risk exposures remain within established risk limits, and a mechanism for reporting violations and breaches of risk limits to senior management and the board of directors.
10. Each regulated entity and the Office of Finance should ensure that it has sufficient controls around risk measurement models to ensure the completeness, accuracy, and timeliness of risk information.
11. Each regulated entity and the Office of Finance should have adequate and well-tested disaster recovery and business resumption plans for all major systems and have remote facilitates to limit the impact of disruptive events.
12. As applicable, each regulated entity and the Office of Finance should comply with all applicable laws, regulations, and supervisory guidance (
1. Each regulated entity and the Office of Finance should maintain financial records in compliance with Generally Accepted Accounting Principles (GAAP), FHFA guidelines, and applicable laws and regulations.
2. Each regulated entity and the Office of Finance should ensure that assets are safeguarded and financial and operational information is timely and reliable.
3. Each regulated entity and the Office of Finance should have a records retention program consistent with laws and corporate policies, including accounting policies, as well as personnel that are appropriately trained and competent to oversee and implement the records management plan.
4. Each regulated entity and the Office of Finance, with oversight from its board of directors, should conduct a review and approval of the records retention program and records retention schedule for all types of records at least once every two years.
5. Each regulated entity and the Office of Finance should ensure that reporting errors are detected and corrected in a timely manner.
6. Each regulated entity and the Office of Finance should comply with all applicable laws, regulations, and supervisory guidance (
Securities and Exchange Commission.
Proposed rule; reopening of comment period.
The Securities and Exchange Commission (“Commission”) is reopening the comment period for its proposal,
The comment period for the Proposing Release published March 10, 2022, at 87 FR 13846, is reopened. Comments should be received on or before June 27, 2023.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send paper comments to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the our website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Nicholas Panos, Senior Special Counsel, and Valian Afshar, Special Counsel, in the Office of Mergers and Acquisitions, Division of Corporation Finance, at (202) 551-3440, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
This release relates to the Commission's Proposed Amendments to 17 CFR 240.13d-1 (“Rule 13d-1”), 17 CFR 240.13d-2 (“Rule 13d-2”), 17 CFR 240.13d-3 (“Rule 13d-3”), 17 CFR 240.13d-5 (“Rule 13d-5”), 17 CFR 240.13d-6 (“Rule 13d-6”) and 17 CFR 240.13d-101 (“Rule 13d-101”), under the Securities Exchange Act of 1934
As described more fully in the Proposing Release, the Commission proposed to amend certain rules to modernize the beneficial ownership reporting requirements.
1. Revise the Rule 13d-1(a) filing deadline for the initial Schedule 13D to five days after the date on which a person acquires more than 5% of a covered class of equity securities;
2. Revise the filing deadline under Rule 13d-2(a) for amendments to Schedule 13D to one business day after the date on which a material change occurs;
3. Amend Rules 13d-1(b) and (d) to shorten the deadline for the initial Schedule 13G filing for Qualified Institutional Investors
4. Revise the filing deadline for amendments to Schedule 13G in Rule 13d-2(b) to five business days after the end of the month in which a reportable change occurs;
5. Add new paragraph (e) to Rule 13d-3 to deem holders of certain cash-settled derivative securities as beneficial owners of the reference covered class and amend Item 6 to Schedule 13D to remove any implication that a person is not required to disclose interests in all derivative securities that use a covered class as a reference security;
6. Amend Rule 13d-5 to align the text of that rule, as applicable to two or more persons who act as a group, with the statutory language in Sections 13(d)(3) and (g)(3) of the Exchange Act and add a new provision in Rule 13d-5 that would affirm that if a person, in advance of filing a Schedule 13D, discloses to any other person that such filing will be made with the purpose of causing that other person to acquire securities in the covered class for which the Schedule 13D will be filed and such other person acquires securities in the covered class, then those persons are deemed to have formed a group within the meaning of Section 13(d)(3);
7. Add new Rule 13d-6(c), which would set forth the circumstances under which two or more persons may communicate and consult with one another and engage with an issuer without concern that they will be subject to regulation as a group with respect to the issuer's equity securities;
8. Require that Schedules 13D and 13G be filed using a structured, machine-readable data language.
Since the publication of the Proposing Release, the staff of the Division of Economic and Risk Analysis has prepared a memorandum that provides supplemental data and analysis related to certain economic effects of the Proposed Amendments.
We believe that the information presented in the memorandum has the potential to be informative for purposes of further evaluating the Proposed Amendments. We are, therefore, reopening the comment period to permit interested parties to comment on the staff memorandum, which has been included in the comment file. We encourage any interested person to submit comments, including comments on the data or methodology used in the analysis contained in the memorandum and on how this analysis should inform our consideration of the benefits and costs of the Proposed Amendments. If any commenters who have already submitted a comment letter wish to provide supplemental or updated comments, we encourage them to do so. Comments are of particular assistance if accompanied by supporting data and analysis of the issues addressed in those comments.
By the Commission.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to modify the operating schedule that governs the Charles Berry Bridge, mile 0.6, and the Norfolk Southern Railroad Bridge, mile 1.2, both over the Black River. The regulation has not been updated since 1986. The Coast Guard's proposed revisions will ensure the needs of all modes of transportation are being met.
Comments and relate material must reach the Coast Guard on or before July 3, 2023.
You may submit comments identified by docket number USCG-2023-0187 using Federal Decision-Making Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email If you have questions on this temporary final rule, call or email Mr. Lee D. Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone 216-902-6085, email
The Black River is a tributary of Lake Erie, created at the confluence of the east and west branches of the Black River at Elyria, Ohio. It then travels 12 miles to empty into Lake Erie at Lorain, Ohio. Large commercial vessels and powered and non-powered recreational vessels use the river. Most of the recreational vessels using the waterway moor in the outer harbor basin or launch from one of the two municipal boat ramp locations. The head of navigation is located at approximate river mile 3, just past the former U.S. Steel Dock on the south side of Lorain. The river continues to Elyria, Ohio with water depths reported less than 6-feet based on LWD. There are no detours available for vessels to avoid passing through the bridges.
Three bridges cross the river at Lorain, two drawbridges and one fixed. The Charles Berry Bridge, mile 0.6, is a double leaf bascule bridge that provides a horizontal clearance of 148-feet and a vertical clearance of 33-feet at center above LWD in the closed position and an unlimited clearance in the open position. The Norfolk Southern Railroad Bridge, mile 1.2, is a vertical lift bridge that provides a horizontal clearance of 205-feet and a vertical clearance of 35-feet in the closed position above LWD and 123-feet in the open position above LWD. The Lofton Henderson Memorial Bridge, mile 2, is a fixed bridge that provides a horizontal clearance of 256-feet and a vertical clearance of 97-feet based on LWD.
The Charles Berry Bridge, mile 0.6, is governed by 33 CFR 117.850, allowing the bridge to only open twice an hour and operate in evenings with a 2-hour advance notice. The Norfolk Southern Railroad Bridge, mile 1.2, does not have operating regulations.
On August 7, 1986, we published in the
According to the Ohio Department of Transportation Data Management System, since 1986, vehicle crossings at the Charles Berry Bridge, mile 0.6, have decreased year over year. In 2022, the annual daily average vehicle crossing was 2,161 vehicles, a decline of almost 45% in vehicle crossings since 1986.
The Charles Berry Bridge, mile 0.6, provides 33-feet of vertical clearance above LWD and the current regulation requires the bridge to open on signal for commercial vessels. Accordingly, the only vessels the regulation restricts is the sailing population. Arguably, the Coast Guard should have amended the regulations after the lakeside marina opened in 1989, moving most of the recreational vessels, including sailing vessels, from the docks in the Lorain River to the harbor north of the bridges.
The primary purpose of the current bridge regulation was to prevent vehicle congestion at the bridge. However, with the reduction of vehicles and vessels transiting the river on a regular basis, the calculus has shifted, and the Coast Guard proposes to revise the regulation to remove the burden from the recreational vessels using the waterway.
We are proposing to remove the restricted bridge opening times of on the hour and half hour. We also propose to remove the restrictions of 8 a.m., 3 p.m., 4 p.m., and 5 p.m. because the traffic counts do not support a significant gathering of vehicles at the bridge during those times.
We informally asked local stakeholders for comments, and we received one comment requesting to keep the current winter operations as written.
In 2022, the Coast Guard received three reports of the drawtender delaying the opening of the bridge: two reports against the highway bridge and one against the railroad bridge; all three delays have been attributed to communications problems. The Coast Guard hopes that it can resolve the communications issue by proposing that both movable bridges operate a Radio Telephone and telephone. Both bridges would be required to post these requirements with winter hours at the bridge under § 117.55.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action is not significant since it removes the burdens placed on the boaters.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
Submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at
Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the
We accept anonymous comments. Comments we post to
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; and DHS Delegation No. 00170.1, Revision No. 01.3.
(a) The Charles Berry Bridge, mile 0.6, will open on signal, except from January 1 through March 31 when the bridge will open if a 12-hour advance notice is given. The bridge will operate and maintain a VHF-FM Marine Radio and a telephone number.
(b) The Norfolk Southern Railroad Bridge, mile 1.2, will open on signal, except from January 1 through March 31 when the bridge will open if a 12-hour advance notice is given. The bridge will operate and maintain a VHF-FM Marine Radio and a telephone number.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to revise its regulations for permanent safety zones in the Coast Guard Sector New York Captain of the Port Zone for recurring fireworks displays and swim events. Our proposed revision would update the list of events, alter the means of notification, and clarify the function of these safety zone regulations. The establishment of the proposed safety zones is necessary to protect event participants, waterway users, and vessels from the potential hazards associated with these recurring organized water events. When subject to enforcement, no person is authorized to access the proposed safety zones without permission from the Captain of the Port (COTP) or the COTP's designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before June 5, 2023.
You may submit comments identified by docket number USCG-2023-0075 using the Federal Decision-Making Portal at
If you have questions about this proposed rulemaking contact MSTC Stacy Stevenson, Waterways Management Division, U.S. Coast Guard by telephone at 718-354-4197 or email at
Swim events and fireworks displays are held on an annual recurring basis on the navigable waters within the Coast Guard Sector New York Captain of the Port Zone. The Coast Guard has established safety zones for some of these annually recurring events to ensure the protection of the maritime public and event participants from associated potential hazards.
The current list of annual and recurring safety zones in the Captain of the Port New York Zone (COTP) appears in 33 CFR 165.160 in Tables 1 and 2, for fireworks displays and swim events, respectively. Those tables were established by a final rule entitled “Special Local Regulations and Safety Zones; Recurring Events in Captain of the Port New York Zone” published in the
The Coast Guard proposes to amend and update the safety zone regulations in 33 CFR 165.160 in Tables 1 and 2 to include the most up-to-date list of recurring safety zones for events held on navigable waters within the COTP. These events include fireworks displays and swim events that require a limited access area to restrict vessel traffic for safety purposes. The current lists in Tables 1 and 2 need to be amended to provide new information on existing safety zones, to add new safety zones, and to remove safety zones that are no longer required. The proposed rule would also consolidate all barge-based fireworks displays in Table 1 to section 165.160 to one row encompassing the COTP in its entirety, and replace separate entries for events with fixed locations.
This proposed rule would also change the parameters of the safety zone area for swim events in Table 2 to 33 CFR 165.160 from all navigable waters within a 100-yard radius of each participating swimmer, as listed in the initial rule (76 FR 69613), to geographic coordinates that encompass the entire swim course. The COTP has determined that it is in the interest of safety for participants of swim events and other waterway users to establish a safety zone around the pre-determined course
Lastly, this rulemaking amends section 165.160 to reorganize the text to a more understandable format. The phone number of the Sector New York Command Center is updated. The method to announce the enforcement details of the safety zones in Tables 1 and 2 to 33 CFR 165.160 is proposed to be changed from Notice of Enforcement in the
The purpose of this rulemaking is to ensure the safety of vessels, event participants, and the navigable waters before, during, and after a scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034.
The Coast Guard encourages the public to participate in this proposed rulemaking through the comment process so that any necessary changes can be identified and implemented in a timely and efficient manner. The Coast Guard will address all public comments accordingly, whether through response, additional revision to the regulation, or otherwise.
The revision of Table 1 and Table 2 to section 165.160 would establish recurring safety zones in the COTP that will prohibit entry into those safety zones without permission of the Captain of the Port to protect spectators, mariners, and other persons and property from potential hazards presented during the firework display or swim event associated with the safety zone.
The safety zones in Table 1 to section 165.160 for fireworks displays will be subject to enforcement for approximately 1 hour between 6 p.m. until 1 a.m. when either—
• a barge with a “Fireworks—Stay Away” sign on the port and starboard side is on-scene, or
• a “Fireworks—Stay Away” sign is posted on land adjacent to the shoreline, in a location listed in the Table 1 to section 165.160.
This proposed rule would update Table 1 section 165.160 to consolidate all fireworks displays launched from a barge location to one consolidated row, removing entries 2.1-2.5, 2.8-2.15, 3.1-3.5, 3.7-3.10, 3.12-3.14, 4.1-4.3, 5.1-5.15, 6.1, and 7.1-7.3. This entry is proposed as follows:
This proposed rule also removes the following safety zones from the existing Table 1 to section 165.160: entry 2.6, Coney Island Safety Zone, entry 3.11, Orchard Beach, The Bronx Safety Zone, entry 3.14 Echo Bay, Western Long Island Sound Safety Zone, and entry 4.4 Seaport, East River Safety Zone.
We are proposing to replace Table 1 to section 165.160 with the following Table 1:
This rule would also completely replace Table 2 to section 165.160 with new swim events and their respective locations. The area for these safety zones is also more specifically defined through coordinates to encompass the event course as opposed to a zone within a 100-yard radius of each participating swimmer as it was previously defined in Table 2 to section 165.160. Using coordinates to clearly identify the area in and around the pre-determined courses that the participating swimmers will stay within increases their safety and the safety of others using the waterway by providing sufficient notice of enforced areas.
This proposed regulation would prevent vessels from transiting areas specifically designated as safety zones during the periods they are subject to enforcement. This is to ensure the protection of the maritime public and event participants from the hazards associated with the listed organized water events. Only event sponsors, designated participants of swim events, and official patrol vessels would be allowed to enter safety zones without needing to seek permission. Spectators and other vessels not registered as swim event participants may not enter the safety zones without the permission of the COTP or the Designated Representative.
The proposed rule also reorganizes the text of section 165.160 be more understandable to the reader. The phone number of the Sector New York Command Center is updated to 718-354-4356. Lastly, the prior rule making established that the exact dates and times of the enforcement period for the safety zones in Tables 1 and 2 to 165.160 would be through a Notice of Enforcement in the
The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders as well as discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the ability of other waterway users to safely transit around the safety zones in many cases, and the size and duration of the safety zones would impact a small, designated area of the waterway for a relatively short period of time. Moreover, the Coast Guard would notify mariners of the enforcement via marine broadcasts, local notice to mariners, local news media, distribution in leaflet form, by an on-scene oral notice, or signage as appropriate. The rule would also allow vessels to seek permission to enter the zone if necessary.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule is for the establishment of safety zones located in the immediate vicinity of various marine events and that will each be enforced for a relatively short duration. 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 preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 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) Under the general safety zone regulations in subpart C of this part, no person may enter the safety zone described in Table 1 or 2 of this section unless authorized by the Captain of the Port (COTP) or the COTP's Designated Representative.
(2) To seek permission to enter the designated safety zone, contact the COTP or the COTP's Designated Representative via VHF-FM Marine Channel 16, or by contacting the Coast Guard Sector New York command center at 718-354-4356.
(3) Event organizers must ensure that fireworks barges have signage on their port and starboard side labeled “Fireworks—Stay Away”. This sign will consist of 10- inch-high by 1.5-inch-wide red lettering on a white background.
(4) Shore sites used in these locations will display a sign labeled “Fireworks—Stay Away” with the same dimensions.
(b)
(c)
(2) The regulations in this section will be subject to enforcement for the duration of each event on or about the dates indicated in Table 2 of this section.
(3) For events in Tables 1 and 2 that do not have a date or location listed, or if the event occurs on a date or location other than the one that is listed, then exact dates and times of the enforcement period will be announced via marine broadcast, local notice to mariners, distribution in leaflet form, local news media, or by an on-scene oral notice as appropriate.
(4) Notifications of enforcement times for events listed in Table 1 and 2, including any changes to the enforcement dates or times listed in this section, may be made via marine broadcasts, local notice to mariners, local news media, distribution in leaflet form, or by an on-scene oral notice and signage.
Environmental Protection Agency (EPA).
Proposed rule.
The U.S. Environmental Protection Agency (EPA or Agency) has received a complete Underground Injection Control (UIC) program revision package from the State of Louisiana (State), requesting approval of a revision to the State's Safe Drinking Water Act (SDWA) section 1422 UIC program to include Class VI injection well primary enforcement responsibility (primacy). The proposed revision would allow the Louisiana Department of Natural Resources (LDNR) to issue UIC permits for geologic carbon sequestration facilities as Class VI wells and ensure compliance of Class VI wells under the UIC program. EPA proposes to issue a final rule approving Louisiana's application to implement the UIC program for Class VI injection wells located within the State, except those on Indian lands. EPA proposes amendments to reflect this proposed approval of Louisiana's Class VI primacy application.
Comments must be received on or before July 3, 2023. The application is available for inspection and copying at the address appearing in the
You may send comments, identified by Docket ID No. EPA-HQ-OW-2023-0073, by any of the following methods:
•
•
•
Suzanne Kelly, Drinking Water Infrastructure Development Division, Office of Ground Water and Drinking Water (4606M), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-3887; email address:
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2023-0073, at
A public hearing will be held on June 15, 2023 at Louisiana Department of Natural Resources, LaBelle Hearing Room, 1st Floor, LaSalle Building, 617 North 3rd Street, Baton Rouge, LA 70802. For additional information regarding the public hearing, please contact Lisa Pham at (214) 665-8326 or
EPA will begin pre-registering speakers for the hearing upon publication of this document in the
EPA encourages commenters to provide EPA with a copy of their oral testimony electronically by emailing it to
EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing are posted online at:
EPA will not provide audiovisual equipment for presentations unless we receive special requests in advance. Commenters should notify Lisa Pham when they pre-register to speak that they will need specific equipment. If you require the services of an interpreter or special accommodations such as audio description, please pre-register for the hearing with Lisa Pham and describe your needs by June 8, 2023. EPA may not be able to arrange accommodations without advance notice.
In October 2020, the Louisiana Department of Natural Resources (LDNR) published a notice of intent in the Louisiana Register to adopt Statewide Order No. 29-N-6 providing rules for Class VI injection wells. LDNR held a public comment period from October 20, 2020, to December 1, 2020, and provided the opportunity to request a public hearing. There was no request for a public hearing. LDNR received five comments, which did not result in changes to the proposed rule. LDNR later provided a second public comment period on the State's intent to seek Class VI Primacy from May 28, 2021, to July 13, 2021. LDNR held a public hearing at the LDNR Office in Baton Rouge on July 6, 2021. Notice of the comment period and public hearing was published in six newspapers across Louisiana, through email mailing list, and on LDNR's website to ensure statewide attention of the comment period and public hearing. LDNR received seven oral comments at the hearing and 21 written public comments. Commenters shared general concerns about the role of carbon capture and storage in mitigating climate change, sensitive coastal areas and erosion caused by pipelines, and the current pollution and environmental hazard burden in Louisiana. Commenters were also specifically concerned about whether LDNR had adequate resources to successfully permit and monitor Class VI projects and the State's assumption of liability after completion of projects. Environmental Justice (EJ) was also a major concern, with commenters seeking a clear EJ review process and criteria, as well as a mechanism for Class VI projects to avoid impacts on already overburdened communities with EJ concerns. LDNR responded to all public comments including details about increased staffing and resources for Class VI permitting responsibilities. Documentation of Louisiana's public participation activities, including comments received and responses by the LDNR, can be found in EPA's Docket ID No. EPA-HQ-OW-2023-0073.
The Safe Drinking Water Act (also known as SDWA) was passed by Congress in 1974. It protects public health by regulating the nation's public drinking water supply, including both surface and groundwater sources. The SDWA requires EPA to develop requirements and provisions for the state and tribal Underground Injection Control (UIC) programs. These programs regulate the injection of fluids (such as water, wastewater, brines from oil and gas production, and carbon dioxide) to protect underground sources of drinking water (USDWs). USDWs are aquifers or parts of aquifers that supply a public water system or contain enough groundwater to supply a public water system.
The UIC program regulates various aspects of an injection well project. These include technical aspects throughout the lifetime of the project from site characterization, construction, operation, and testing and monitoring through site closure, as well as permitting, site inspections, and reporting to ensure well owners and operators comply with UIC regulations.
SDWA section 1422 directs EPA to establish requirements that states, territories, and federally recognized tribes (hereafter referred to as applicants) must meet to be granted primary enforcement responsibility or “primacy” for implementing a UIC program, including a Class VI program. An applicant seeking primacy under SDWA section 1422 for a Class VI program must demonstrate to EPA that the applicant's Class VI program is as stringent as the Federal requirements and is protective of USDWs, including jurisdiction over underground injection and provisions for the necessary administrative, civil, and criminal enforcement penalty remedies under SDWA.
EPA conducts a comprehensive technical and legal evaluation of each primacy application to assess and confirm that the proposed program is as stringent as the Federal regulations and to evaluate the effectiveness of the state's proposed program. Louisiana's application included the following elements: Louisiana's Class VI-related UIC statutes and regulations; documents describing the public participation process; a letter from the Governor of Louisiana requesting Class VI primacy; a Program Description that explains how the State intends to carry out its responsibilities; an Attorney General's statement of enforcement authority; and an addendum to the existing Memorandum of Agreement (MOA) between EPA and Louisiana describing the administration, implementation, and enforcement of the Louisiana's Class VI program.
Class VI wells are used to inject carbon dioxide into deep rock formations for the purpose of long-term underground storage, also known as geologic sequestration. Geologic sequestration, when used as a part of carbon capture and storage and carbon dioxide removal projects, is a promising tool for reducing the amount of carbon dioxide in the atmosphere. Class VI injection wells are regulated under an
The UIC Class VI program provides multiple safeguards that work together to protect USDWs and human health. Owners or operators that wish to inject carbon dioxide for the purpose of geologic sequestration must demonstrate that their injection well will meet all regulatory requirements and receive a Class VI permit for each well. The UIC Class VI program requires applicants to meet strict technical, financial, and managerial requirements to obtain a Class VI permit, including:
• Site characterization to ensure the geology in the project area will contain the carbon dioxide within the zone where it will be injected.
• Modeling to delineate the predicted area influenced by injection activities through the lifetime of operation.
• Evaluation of the delineated area to ensure all potential pathways for fluid movement have been identified and addressed through corrective action.
• Well construction requirements that ensure the Class VI injection well will not leak carbon dioxide.
• Testing and monitoring throughout the life of the project, including after carbon dioxide injection has ended. Requirements include, for example, testing to ensure physical integrity of the well, monitoring for seismic activity near the injection site, monitoring of injection pressure and flow, chemical analysis of the carbon dioxide stream that is being injected, and monitoring the extent of the injected carbon dioxide plume and the surrounding area (
• Operating requirements to ensure the injection activity will not endanger USDWs or human health.
• Financial assurance mechanisms sufficient to cover the cost for all phases of the geologic sequestration project including the post injection site care period and until site closure has been approved by the permitting authority.
• Emergency and remedial response plans.
• Reporting of all testing and monitoring results to the permitting authority to ensure the well is operating in compliance with all permit and regulatory requirements.
The permitting authority ensures that these protective requirements are included in each Class VI permit. A draft of each Class VI permit is made available to the public for comment before a final permit is issued.
The State of Louisiana received primacy for Class I, III, IV, and V injection wells under SDWA section 1422, and Class II injection wells under SDWA section 1425 on March 23, 1982. On September 17, 2021, Louisiana applied to EPA under section 1422 of SDWA, 42 U.S.C. 300h-1, for primacy for Class VI injection wells located within the State, except those located on Indian lands.
This regulation is proposed under authority of SDWA sections 1422 and 1450, 42 U.S.C. 300h-1 and 300j-9.
Section 1421 of SDWA requires the Administrator of EPA to promulgate Federal requirements for effective state UIC programs to prevent underground injection activities that endanger USDWs. Section 1422 of SDWA establishes requirements for states and tribes seeking EPA approval of their UIC programs. It also requires that states and tribes seeking approval demonstrate how the applicant (after public notice) will implement a UIC program which meets the requirements set forth under section 1421.
For states and tribes that seek approval for UIC programs under section 1422 of SDWA and those seeking EPA approval of revisions to existing state and tribal UIC programs, EPA has promulgated regulations setting forth the applicable procedures and substantive requirements codified in 40 CFR parts 144, 145 and 146. 40 CFR part 144 outlines general program requirements that each state must meet to obtain primary enforcement authority. 40 CFR part 145 specifies the procedures EPA will follow in approving, revising, and withdrawing state programs and outlines the elements and provisions that a state must include in their application. It also includes requirements for state permitting programs (by reference to certain provisions of 40 CFR parts 124 and 144), compliance evaluation programs, enforcement authority, and information sharing. 40 CFR part 146 contains the technical criteria and standards applicable to each well class, including Class VI wells.
On September 17, 2021, Louisiana submitted to EPA a program revision application to add Class VI injection wells to the State's SDWA section 1422 UIC program. The UIC program revision package from Louisiana includes a description of the State's UIC Class VI program, copies of all applicable rules and forms, a statement of legal authority, a summary and results of Louisiana's public participation activities, and an addendum to the existing MOA between Louisiana and EPA's Region 6 office. EPA reviewed the application for completeness and performed a technical evaluation of the application materials.
People across the country have shared with EPA concerns about the safety of carbon capture and storage and carbon dioxide removal projects as well as their concern that already environmentally overburdened communities may yet again bear a disproportionate environmental burden associated with geologic sequestration. Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to identify and address, as appropriate, disproportionate and adverse human health or environmental impacts on minority (people of color) and low-income populations. On December 9, 2022, EPA sent a letter to state governors recognizing the importance of developing and deploying clean energy technologies that capture and remove carbon from the atmosphere while mitigating impacts on vulnerable communities, and ensuring protection of underground drinking water sources. EPA called for states seeking primacy to incorporate EJ and equity into proposed UIC Class VI programs, including in permitting. EPA outlined a variety of approaches, such as implementing an inclusive public participation process, consideration of EJ impacts on communities, enforcing Class VI regulatory requirements, and incorporating mitigation measures.
As part of developing this proposal, EPA worked with the State of Louisiana to adopt the environmental justice approaches encouraged in the letter, which Louisiana has incorporated into their primacy application. EPA reviewed Louisiana's EJ approach as described in the State's Program Description and MOA addendum and compared it to the EJ elements discussed in the December 9, 2022 letter. Louisiana's committed in its MOA addendum to adopt all the EJ elements described in the letter, including implementing an inclusive public participation process, incorporating EJ and civil rights considerations in permit review processes, enforcing Class VI regulatory protections, and incorporating mitigation measures. More specifically, Louisiana also committed in the MOA addendum to examine the potential
Based on its review of LDNR's MOA addendum and Program Description, EPA concludes that Louisiana has addressed all EJ elements that were discussed in the December 9, 2022, letter. EPA supports LDNR's agreement to adopt these approaches to protecting EJ communities. Louisiana's Class VI Program, as described in LDNR's primacy application, includes approaches to ensure that equity and EJ will be appropriately considered in permit reviews, and in LDNR's UIC Class VI program as a whole.
EPA conducted a comprehensive technical and legal evaluation of Louisiana's Class VI primacy application to assess and confirm that the State's UIC Class VI program is as stringent as the Federal regulations and evaluated the effectiveness of the State's Class VI program. To be approved for Class VI primacy under SDWA section 1422, a state or tribe must have a UIC program that meets Federal requirements (40 CFR parts 124, 144, 145, and 146). EPA evaluated Louisiana's draft and final UIC statutes and Class VI regulations against these Federal requirements. The evaluation involved identifying and resolving any discrepancies between the State and Federal UIC Class VI statutory and/or regulatory provisions. EPA worked with Louisiana to address any stringency issues with their draft and final Class VI regulations prior to submittal of the primacy application. The Agency also evaluated for stringency and effectiveness Louisiana's Class VI Program Description, the Attorney General's statement of enforcement authority, and the addendum to the MOA between EPA and Louisiana, describing the administration, implementation, and enforcement of Louisiana's UIC Class VI program.
EPA evaluated Louisiana's program description against 40 CFR 145.23, which lists all the information that must be submitted as part of the program description. EPA's evaluation of the program description includes reviewing the scope, structure, coverage, processes and organizational structure of the permitting authority. EPA evaluated LDNR's permitting, administrative and judicial review procedures and reviewed the permit application, reporting, and manifest forms. EPA also reviewed the State's compliance tracking and enforcement mechanisms. EPA evaluated LDNR's proposed schedule for issuing permits within the first 2 years after program approval. More specifically, EPA required Louisiana to demonstrate that the State's Class VI program will have adequate in-house staff or access to contractor support for technical areas including site characterization, modeling, well construction and testing, financial responsibility, regulatory and risk analysis expertise.
EPA evaluated Louisiana's Attorney General's statement against 40 CFR 145.24 to ensure it met Federal requirements. The Attorney General's statement is required to ensure that a state's top legal officer affirms that state statutes, regulations and judicial decisions demonstrate adequate authority to administer the UIC Program as described in the program description and consistent with EPA's regulatory requirements for UIC programs. EPA independently evaluates and confirms that the Attorney General's statement certifies that the state either does not have environmental audit privilege and/or immunity laws, or, if there are environmental audit privilege and/or immunity laws, that they will not affect the ability of the state to meet the enforcement and information gathering requirements under SDWA.
EPA evaluated Louisiana's MOA addendum against 40 CFR 145.25 to ensure it met Federal requirements. The MOA is the central agreement setting the provisions and arrangements between the state and EPA concerning the administration, implementation, and enforcement of the state UIC Program. EPA's evaluation includes ensuring that the MOA contains the necessary provisions pertaining to agreements on coordination, permitting, compliance monitoring, enforcement, and EPA oversight. For example, the MOA addendum specifies that LDNR and EPA agree to maintain a high level of cooperation and coordination to assure successful and efficient administration of the UIC Class VI program. EPA is aware that stakeholders have raised concern about Louisiana's long term liability provision in Louisiana Revised Statute (LA R.S.) 30:1109. LDNR agreed in the MOA addendum that LDNR will not issue a certificate of completion pursuant to LA R.S. 30:1109 until the owner or operator submits a site closure report pursuant to 40 CFR 146.93(f) and Louisiana Code (LAC) 43:XVII.3633.A.6 and otherwise fully complies with the site closure requirements in 40 CFR 146.93 and LAC 43:XVII.3633.A. Additionally, EPA and LDNR agree to coordinate prior to LDNR approving any site closure to ensure doing so is consistent with the requirements of the Federal Safe Drinking Water Act. EPA concludes that Louisiana's Class VI Program—implemented consistent with the MOA addendum—meets Federal requirements. EPA will also confirm that specific aspects of LA R.S. 30:1109 are consistent with EPA's interpretation.
Louisiana has demonstrated that it has the legal authority to implement all permit requirements found in 40 CFR 145.11. Louisiana's UIC Class VI permitting provisions are as stringent as EPA's regulations in 40 CFR 124 and 144. The State has incorporated necessary procedures, pursuant to 40 CFR 145.12 to support a robust compliance evaluation program. Additionally, Louisiana has the necessary administrative, civil, and criminal enforcement penalty remedies pursuant to 40 CFR 145.13. Louisiana's Class VI regulations regarding permitting, inspection, operation, and monitoring are at least as stringent as found in 40 CFR parts 145 and 146. Louisiana's reporting and recordkeeping requirements are as stringent as found in 40 CFR 144.54 and 146.91 for Class VI wells. EPA is aware that stakeholders have raised concern that Louisiana's long term liability provision in LA R.S. 30:1109 undercuts the state's ability to meet the enforcement authority requirements at 40 CFR 145.13. EPA's interpretation is that Louisiana's enforcement authority related to Class VI meets Federal requirements if LDNR implements LA R.S. 30:1109 consistent with the MOA addendum. We are working with Louisiana to confirm that specific aspects of LA R.S. 30:1109 are consistent with our interpretation.
As a result of this comprehensive review, EPA is proposing to approve
EPA is proposing to approve a revision to the State of Louisiana's UIC Program for primacy for regulating Class VI injection wells in the State, except for those located on Indian lands. Louisiana's statutes and supporting documentation are publicly available in EPA's Docket No. EPA-HQ-OW-2023-0073. If finalized, this action would amend 40 CFR 147.950 and incorporate by reference EPA-approved state statutes and regulations that contain standards, requirements, and procedures applicable to Class VI owners or operators. EPA will continue to administer the UIC program for Class I, II, III, IV, V and VI injection wells on Indian lands.
If finalized, the provisions of Louisiana's statutes and regulations that contain standards, requirements, and procedures applicable to owners or operators of UIC Class VI wells would be incorporated by reference into 40 CFR 147.950. Provisions of Louisiana's statutes and regulations that contain standards, requirements, and procedures applicable to owners or operators of Class I, III, IV and V injection wells have already been incorporated by reference into 40 CFR 147.950. Any provisions incorporated by reference, as well as all permit conditions or permit denials issued pursuant to such provisions, are enforceable by EPA pursuant to section 1423 of SDWA and 40 CFR 147.1(e).
For clarity, EPA is reformatting the codification of EPA-approved Louisiana SDWA section 1422 UIC Program statutes and regulations for Well Classes I, III, IV, V and VI that are already incorporated by reference. Instead of codifying Louisiana statutes and regulations as separate paragraphs, EPA will be incorporating by reference a compilation that contains “EPA-approved Louisiana statutes and regulations for Well Classes I, III, IV, V and VI.” This notebook compilation will be incorporated by reference into 40 CFR 147.950 and the documents will be available at
Upon approval, EPA would oversee Louisiana's administration of SDWA Class VI program and will continue to oversee Louisiana's administration of the programs for SDWA Class I, II, III, IV, and V wells. EPA will require quarterly reports of non-compliance and annual UIC performance reports pursuant to 40 CFR 144.8. The MOA addendum between EPA and Louisiana, signed by the Regional Administrator on March 3, 2023, articulates that EPA will oversee the State's administration of the UIC Class VI program on a continuing basis to assure that such administration is consistent with the program MOAs, the State UIC grant application, and all applicable requirements embodied in current regulations, policies, and Federal law. In addition, the MOA addendum provides that EPA may request specific information including permits and the accompanying EJ reviews.
Additional information about these statutes and Executive orders can be found at:
This action is exempt from review by the Office of Management and Budget (OMB) because OMB has exempted, as a category, the approval of state UIC programs.
This proposed action will not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2040-0042. Reporting or recordkeeping requirements will be based on Louisiana's UIC Regulations, and the State of Louisiana is not subject to the PRA.
I certify that this proposed action will not have a significant economic impact on a substantial number of small entities under the RFA. This proposed action does not impose any requirements on small entities as this action approves an existing state program.
This proposed 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 proposed action imposes no enforceable duty on any state, local, or tribal governments or the private sector. EPA's proposed approval of Louisiana's Class VI program will not constitute a Federal mandate because there is no requirement that a state establish UIC regulatory programs and because the program is a state, rather than a Federal program.
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 proposed action does not have tribal implications as specified in Executive Order 13175. This proposed action contains no Federal mandates for tribal governments and does not impose any enforceable duties on tribal governments. Thus, Executive Order 13175 does not apply to this proposed action.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that 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 proposed action is not subject to Executive Order 13045 because it approves a state program.
This proposed action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This proposed action 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.
EPA believes that it is not practicable to assess whether the human health or environmental conditions that exist prior to this action result in disproportionate and adverse effects on people of color, low-income populations and/or Indigenous peoples because there currently are no Class VI wells permitted in Louisiana and because this is a procedural action. EPA has reviewed Louisiana's proposed approach to environmental justice, as outlined in the Program Description and MOA, and described in section IV.B of this preamble. EPA considers Louisiana's Class VI primacy application to fully integrate environmental justice and equity considerations into their UIC Class VI program, while ensuring protection of USDWs. This proposed action would provide Louisiana with primacy under SDWA section 1422 for a UIC Class VI program, pursuant to which Louisiana will be implementing a program that is as stringent as an EPA administered UIC Class VI program.
Environmental protection, Incorporation by reference, Indian lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water supply.
For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 147 as follows:
42 U.S.C. 300f
The revisions and additions read as follows.
The UIC program for Class I, II, III, IV, and V wells in the State of Louisiana, except those wells on Indian lands, is the program administered by the Louisiana Department of Natural Resources approved by EPA pursuant to sections 1422 and 1425 of the SDWA. Notice of this approval was published in the
(a)
(b) * * *
(3) Memorandum of Agreement Addendum 3 between the State of Louisiana and EPA, Region VI for the UIC Class VI Program, signed by the EPA Regional Administrator on March 3, 2023.
(4) Letter from Governor of Louisiana to Regional Administrator, EPA Region VI, March 4, 2021.
(c) * * *
(4) Attorney General's Statement “Attorney General's Statement to Accompany Louisiana's Underground Injection Control Program Class VI Primacy Application,” signed by the Attorney General for the State of Louisiana, February 10, 2021.
(d) The Program Description and any other materials submitted as part of the application or amendment thereto, and the Program Description and any other materials submitted as part of the program revision application or amendment thereto.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Availability of proposed fishery management plan amendment; request for comments.
The Mid-Atlantic Fishery Management Council has submitted the Black Sea Bass Commercial State Allocation Amendment (Amendment 23) to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan to NMFS. Amendment 23 proposes to establish commercial state-by-state allocations for black sea bass in the Federal fishery management plan and regulations, change the trigger for the in-season closure accountability measures and change the state-overage payback. Amendment 23 is intended to address the allocation-related impacts of the significant changes in the distribution of black sea bass that have occurred since the original allocations were implemented.
Comments must be received by July 3, 2023.
You may submit comments on this document, identified by NOAA-NMFS-2023-0041 by the following method:
•
Copies of Amendment 23, including the Environmental Assessment, the Regulatory Impact Review, and the Regulatory Flexibility Analysis (EA/RIR/RFA) prepared in support of this action are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. The supporting documents are also accessible via the internet at:
Emily Keiley, Fishery Policy Analyst, (978) 281-9116, or
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each Regional Fishery Management Council transmit any amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an amendment and associated regulations deemed necessary by the Council to implement the amendment, immediately publish notification in the
Amendment 23 considers changes to the management of the commercial black sea bass fishery. Specifically, this amendment proposes to establish the commercial black sea bass state-by-state allocations in the Federal FMP and regulations, while also making changes to those state allocations (previously managed only under the Atlantic States Marine Fisheries Commission's FMP), proposes a change to the Federal in-season closure regulations for the commercial black sea bass fishery, and proposes a change to the provisions that apply when a quota overage occurs to incorporate the potential for a state-level overage. The intended purpose of the proposed state allocation changes is to provide fair and equitable access to the commercial black sea bass fishery among states in the management unit, taking into consideration the historical dependence of the states on the fishery, as well as changes in abundance and stock distribution over time. The purpose of the change to the in-season closure trigger is to continue to prevent commercial annual catch limit (ACL) overages while minimizing potential negative socioeconomic impacts of Federal in-season closures on states that have not fully harvested their allocations.
Under section 304(a)(3) of the Magnuson-Stevens Act, the Secretary of Commerce may disapprove, or partially approve an amendment submitted by the Council if it is determined to be inconsistent with a provision of the Magnuson-Stevens Act or other applicable law. The sections below describe the factors we are considering in making the decision to approve, disapprove, or partially approve Amendment 23. The final decision on Amendment 23 will be announced to the Mid-Atlantic Council within 30 days of the end of the comment period for this notification of availability.
This amendment considers whether the state allocations should remain only in the Commission's Interstate FMP, or if they should be included in both the Council and Commission's FMPs. The stated purposes are to provide fair and equitable access to the commercial black sea bass fishery among states in the management unit, taking into consideration the historical dependence of the states on the fishery, as well as changes in abundance and stock distribution over time; to allow the Council and Commission to determine which management measures are most appropriate for joint management in both FMPs; and to help prevent commercial ACL overages while minimizing potential negative socioeconomic impacts of Federal in-season closures on states that have not fully harvested their allocations. Under the Council's preferred alternative, the state allocations would be added to the Federal FMP. If approved, this change would mean that future changes to the allocations must be considered through a joint action of the Council and Commission. This change would also shift an administrative burden and cost of monitoring state quotas and processing state quota transfers to the Regional Office, similar to what is done for Atlantic bluefish and summer flounder. We are considering disapproving the addition of the state allocations to the Federal FMP, and specifically invite public comment on this. A summary of our rationale is provided below.
Adding the state allocations to the Federal FMP would unnecessarily increase the administrative burden on, and cost to, state agencies and NMFS, and create additional inefficiencies, with no clear direct benefit to either the government, the resource, or the fisheries. This is contrary to the direction of National Standard 5 to consider efficiency in the utilization of fishery resources and National Standard 7's direction to minimize costs and avoid unnecessary duplication. National Standard 7 guidelines, in particular, state that “[m]anagement measures should not impose unnecessary burdens on the economy, on individuals, on private or public organizations, or on Federal, state, or local governments.” The Commission has been successfully managing the black sea bass state commercial quotas since their inception in 2003, while NMFS monitors commercial landings coastwide and tracks total landings against the coastwide quotas. Under the current Commission process, state-to-state quota transfers are processed efficiently without the added administrative burden of the Federal process, which, for summer flounder and bluefish, requires significantly more time and resources and reduces flexibilities for states, including the need to publish state quota transfers in the
Currently, Commission management of this stock includes members from all states and its process will continue to allow equity in representation when making future changes to state allocations. Management by the Mid-Atlantic Council has representation from the states from New York to North Carolina, but does not include membership from the northern states, such as Connecticut, Rhode Island, and Massachusetts, that also have a strong interest in the black sea bass fishery. Given climate change and the northward expansion of the black sea bass stock, this inequity in representation on the Council creates challenges when making decisions regarding future potential allocation changes, by providing the states with seats on the Council a disproportionate role in the decision-making process. The absence of northern states in the Council's membership has important implications for addressing National Standard requirements. For example, while the threshold decision of whether to include the state commercial quotas in the Federal FMP is not an allocation of fishing privileges, it is not clear how this action will provide for National Standard 4's requirement of fair and equitable allocations and National Standard 8's mandate to provide for the sustained participation of all fishing communities along with minimizing adverse economic impacts on such communities to the extent practicable. Given that black sea bass has already become an important commercial and recreational species for fishermen in northern states, it is important that the management body with the authority to change state allocations is inclusive of the states with an interest in the fishery. Continued northward expansion of the stock is expected due to climate change, which is expected to exacerbate the already challenging allocation deliberations of the Council and Commission. Adding the state allocations to the Federal FMP and thus giving the Mid-Atlantic Council jurisdiction over these state allocations without northern states as Council members, while the Commission does include these states, creates management challenges—including potentially inadequate consideration of northern states' fisheries, or even
This joint action considered changes to the distribution of commercial black sea bass quota among the states. Because the state commercial allocations are not currently a part of the Federal FMP, the Commission considered and implemented a new allocation formula in its FMP. The Council is recommending we adopt the same allocation scheme in the Federal FMP.
This new allocation does not specify fixed-allocation percentages, but defines a process for calculating allocations that is partially based on biomass distribution. The allocations would be modified through the specifications process each time new biomass distribution information is available. Specifically, the state allocation percentages will be calculated using the following steps:
(1) Connecticut's baseline allocation was increased from 1 to 3 percent, and New York's baseline allocation was increased from 7 to 8 percent;
(2) Seventy-five percent of the coastwide quota is then allocated according to the new baseline allocations (
(3) Twenty-five percent of the quota is allocated to three regions based on the most recent regional biomass distribution information. The three regions are: Maine-New York, New Jersey, and Delaware-North Carolina; and,
(4) The regional allocations are distributed among states within a region in proportion to their baseline allocations, except Maine and New Hampshire would each receive 1 percent of the northern region quota.
While we are considering disapproving the inclusion of these revised allocations in the Federal FMP due to the unnecessary increase in administrative burden and inefficiencies, and the lack of northern states as members of the Council as described above, we are supportive of the revised approach that was developed by the Council and Commission as it includes consideration of the distribution of the black sea bass stock, and the ability to revise allocations as the stock shifts. As noted, the Commission has already implemented this process for the development of the 2023 commercial quotas and this process will continue to serve as the basis for state-by-state allocations regardless of NMFS's final decision with respect to promulgating the proposed state allocations in Federal regulations.
Currently, the Federal FMP requires a commercial coastwide in-season closure for all federally permitted vessels and dealers, regardless of state, once the coastwide quota is projected to be landed. This amendment considers changing this trigger, so that the closure would occur once landings are projected to exceed the coastwide quota plus an additional buffer of up to 5 percent. The Council and Board would agree to the appropriate buffer for the upcoming year through the specifications process. The Council's Monitoring Committee and the Commission's Technical Committee would provide advice on the appropriate buffer based on considerations such as stock status, the quota level, and recent fishery trends. We are proposing to approve this change to the in-season closure trigger.
Under the Commission FMP, overages of state-specific quotas are only required to be paid back by a state when the coastwide quota has been exceeded. If the state allocations are included in the Federal FMP the Council and Board's preferred alternative is to maintain this payback provision. In years when the annual landings do not exceed the coastwide quota, no state-level or coastwide paybacks would be required. If the annual coastwide quota is exceeded, states with quota overages will be required to pay back those overages in the following year. All black sea bass landed for sale in a state shall be applied against that state's annual commercial quota, regardless of where the black sea bass were harvested. Any landings in excess of the commercial quota in any state, inclusive of any state-to-state transfers, will be deducted from that state's annual quota for the following year in the final rule that establishes the annual state-by-state quotas. The overage deduction will be based on landings for the current year through October 31, and on landings for the previous calendar year that were not included when the overage deduction was made in the final rule that established the annual quota for the current year. Should NMFS disapprove establishing the state-by-state allocation in Federal regulations, as explained above, this provision would also be disapproved as moot in the Federal FMP, though it would continue to apply through the Commission process.
The Magnuson-Stevens Fishery Conservation and Management Act authorizes the Secretary of Commerce to approve, partially approve, or disapprove measures recommended by the Council in an amendment based on whether the measures are consistent with the fishery management plan, plan amendment, the Magnuson-Stevens Act and its National Standards, and other applicable law. As such, we are seeking comment on whether measures in Amendment 23 are consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. Public comments on this amendment and its incorporated documents may be submitted through the end of the comment period stated in this notification of availability.
A proposed rule to implement the amendment, including draft regulatory text, will also be published in the
16 U.S.C. 1801
Rural Housing Service, Department of Agriculture.
Notice of funding of availability (NOFA).
The Rural Housing Service (RHS or the Agency), a Rural Development (RD) agency of the United States Department of Agriculture (USDA), announces the acceptance of applications under the Rural Community Development Initiative (RCDI) program for fiscal year (FY) 2023. These grants will be made to qualified intermediary organizations that will provide financial and technical assistance to recipients to develop their capacity and ability to undertake projects related to housing, community facilities, or community and economic development that will support the community. Congress, in the Consolidated Appropriations Act, 2023 appropriated $6,000,000 in FY 2023 for the RCDI program. Of this amount, $1.6 million will be made available to projects located in Persistent Poverties Counties. Eligible applicants for the Persistent Poverty Counties set aside must demonstrate that 100 percent of the benefits of an approved grant will assist recipients in Persistent Poverty Counties.
Completed applications must be submitted using one of the following methods:
•
•
Prior to official submission of applications, applicants may request technical assistance or other application guidance from the Agency, as long as such requests are made prior to June 23, 2023.
Applicants wanting to apply for assistance may download the application documents and requirements as stated in this Notice from the RCDI website:
Shirley J. Stevenson, Community Programs Specialist, Rural Development, United States Department of Agriculture, 1400 Independence Ave. SW, Washington, DC 20250, Phone: (202) 205-9685, Email:
•
•
• Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities.
• Ensuring all rural residents have equitable access to RD programs and benefits from RD funded projects; and
• Assisting rural communities recover economically through more and better market opportunities and through improved infrastructure.
For further information, visit
1.
2.
(a)
(b)
3.
4.
This exception is applicable for up to 90 days prior to grant closing and only applies to grantees that have received written approval but have not executed the RCDI Grant Agreement.
The Agency cannot retroactively approve reimbursement for expenditures prior to execution of the RCDI Grant Agreement.
Qualified private organizations, nonprofit organizations and public (including Tribal) intermediary organizations proposing to carry out financial and technical assistance programs will be eligible to receive grant funding.
The intermediary will be required to provide matching funds in an amount at least equal to the RCDI grant. In-kind contributions cannot be used as
The intermediary must provide a program of financial and technical assistance to one or more of the following: a private, nonprofit community-based housing and development organization, a low-income rural community or a Federally recognized Tribe. An intermediary proposing to serve one or more federally recognized Tribe(s) must include a resolution of support with its application from the respective Tribe(s) it proposes to serve. If the resolution of support is not submitted for each respective Tribe, the Tribe will be considered ineligible as a recipient. This requirement is being added to ensure collaboration during the application process between intermediaries and all Tribes that they propose to serve.
An intermediary proposing to serve one or more federally recognized Tribes must include a resolution of support with its application from the Tribes it proposes to serve. If the resolution of support is not submitted for each Tribe, the Tribe will be considered ineligible as a recipient. This requirement is being added to ensure collaboration during the application process between intermediaries and all Tribes that they propose to serve.
1.
(a) Qualified private organizations, nonprofit organizations (including faith-based organizations in accordance with 7 CFR part 16, community organizations and philanthropic foundations), and public (including Tribal) intermediary organizations are eligible applicants. Definitions that describe eligible organizations and other key terms are listed below.
(b) The recipient must be a nonprofit community-based housing and development organization, low-income rural community, or Federally recognized Tribe based on the RCDI definitions of these groups.
(c) Private nonprofit, faith, or community-based organizations must provide a certificate of incorporation and a certificate of good standing from the Secretary of State of the State of incorporation, or other similar and valid documentation of current nonprofit status. For low-income rural community recipients, the Agency requires evidence that the entity is a public body and census data verifying that the median household income of the community where the office receiving the financial and technical assistance is located is at, or below, 80 percent of the State or national median household income, whichever is higher. For federally recognized Tribes the Agency needs the page listing their name from the current
(d) Eligible applicants for the Persistent Poverty Counties set aside must demonstrate that 100 percent of the benefits of an approved grant will assist recipients in Persistent Poverty Counties. Eligibility Requirements outlined in Part C of this Notice will also apply to the Persistent Poverty Counties set aside.
2.
(a) Matching funds must be in the form of cash or confirmed funding commitments that, at a minimum, are equal to the grant amount. Matching funds must also be committed for a period of not less than the grant performance period. These funds can only be used for eligible RCDI activities and must be used to support the overall purpose of the RCDI program.
(b) In-kind contributions such as salaries, donated time and effort, real and nonexpendable personal property, and goods and services cannot be used as matching funds.
(c) Grant funds and matching funds must be used in equal proportions. This does not mean funds have to be used equally by line item.
The request for advance or reimbursement and supporting documentation must show that RCDI fund usage does not exceed the cumulative amount of matching funds used.
(d) Grant funds will be disbursed pursuant to relevant provisions of 2 CFR parts 200 and 400 (
(e) The intermediary is responsible for demonstrating that matching funds are available and committed for a period of not less than the grant performance period to the RCDI proposal. Matching funds may be provided by the intermediary or a third party. Other Federal funds may be used as matching funds if authorized by statute and the purpose of the funds is an eligible RCDI purpose.
(f) RCDI funds will be disbursed on an advance or reimbursement basis. Matching funds cannot be expended prior to execution of the RCDI Grant Agreement.
(g) Applicants must provide matching funds in an amount at least equal to the amount of the Federal grant. Successful applications will be selected by the Agency for funding and will be awarded from funds appropriated for the RCDI program.
3.
(a) RCDI grantees that have an outstanding grant over 3 years old, as of the application due date in this Notice, will not be eligible to apply for this round of funding. Grant and matching funds must be utilized in a timely manner to ensure that the goals and objectives of the program are met.
(b) Individuals cannot be recipients.
(c) The intermediary must provide a program of financial and technical assistance to the recipient.
(d) The intermediary organization must have been legally organized for a minimum of three years and have at least three years prior experience working with private nonprofit community-based housing and development organizations, low-income rural communities, or tribal organizations in the areas of housing, community facilities, or community and economic development. The intermediary organization may contract with a nonaffiliated organization for not more than 49 percent of the awarded grant to provide the proposed technical assistance.
(e) Proposals must be structured to utilize the grant funds within 3 years from the date of the award.
(f) Each applicant, whether individually or jointly, may only submit one application for RCDI funds under this Notice. This restriction does not preclude the applicant from providing matching funds for other applications.
(g) Recipients can benefit from more than one RCDI application; however, after grant selections are made, the recipient can only benefit from multiple RCDI grants if the type of financial and technical assistance the recipient will receive is not duplicative. The services described in multiple RCDI grant applications must have separate and identifiable accounts for compliance purposes.
(h) The intermediary and the recipient cannot be the same entity. The recipient can be a related entity to the intermediary, if it meets the definition of a recipient, provided the relationship does not create a Conflict of Interest that cannot be resolved to Rural Development's satisfaction.
(i) If the recipient is a low-income rural community, identify the unit of government to which the financial and technical assistance will be provided (
(j) An intermediary proposing to serve one or more Federally recognized Tribes must include a resolution of support with its application from the Tribes it proposes to serve. If the resolution of support is not submitted for each Tribe, the Tribe will be considered ineligible as a recipient. This requirement is being added to ensure collaboration during the application process between intermediaries and all Tribes that they propose to serve.
(k) Applicants for set aside funds must indicate that they are applying for set aside funds and may not submit a duplicate application for regular RCDI funds.
1.
Applicants may also request paper application packages from the Rural Development office in their state. A list of Rural Development State Office contacts can be found via
2.
A complete application for RCDI funds must include the following:
(a) A summary page, double-spaced between items, listing the following:
(This information should not be presented in narrative form.)
• Applicant's name,
• Applicant's address,
• Applicant's telephone number,
• Name of applicant's contact person, email address and telephone number,
• County where applicant is located,
• Congressional district number where applicant is located,
• Amount of grant request, and
• Number of recipients.
(b) A detailed Table of Contents containing page numbers for each component of the application.
(c) A project overview, no longer than one page, including the following items, which will also be addressed separately and in detail under “Building Capacity and Expertise” of the “Evaluation Criteria.”
• The type of technical assistance to be provided to the recipients and how it will be implemented.
• How the capacity and ability of the recipients will be improved.
• The overall goals to be accomplished.
• The benchmarks to be used to measure the success of the program.
Benchmarks should be specific and quantifiable.
(d) Organizational documents, such as a certificate of incorporation and a current good standing certification from
(e) Verification of source and amount of matching funds, (
The verification must show that matching funds are available for the duration of the grant performance period. The verification of matching funds must be submitted with the application, or the application will be considered incomplete.
The applicant will be contacted by the Agency prior to grant award to verify that the matching funds provided with the application continue to be available. The applicant will have 15 days from the date contacted to submit verification that matching funds continue to be available.
If the applicant is unable to provide the verification within that timeframe, the application will be considered ineligible. The applicant must maintain bank statements on file or other documentation for a period of at least three years after grant closing except that the records shall be retained beyond the three-year period if audit findings have not been resolved.
(f) The following information for each recipient:
• Recipient's entity name,
• Complete address (mailing and physical location, if different),
• County where located,
• Number for Congressional district where recipient is located,
• Contact person's name, email address and telephone number and,
• Form RD 400-4, “Assurance Agreement.” If the Form RD 400-4 is not submitted for each recipient, the recipient will be considered ineligible. No information pertaining to that recipient will be included in the income or population scoring criteria and the requested funding may be adjusted due to the deletion of the recipient.
(g) Submit evidence that each recipient entity is eligible. Documentation must be submitted to verify recipient eligibility. Links to websites are not acceptable. Acceptable documentation varies depending on the type of recipient:
(1)
A nonprofit recipient must provide evidence that it is a valid nonprofit when the intermediary applies for the RCDI grant. Organizations with pending requests for nonprofit designations are not eligible.
(2)
(3)
An intermediary proposing to serve one or more federally recognized Tribes must include a resolution of support with its application from the Tribes it proposes to serve. If the resolution of support is not submitted for each Tribe, the Tribe will be considered ineligible as a recipient. This requirement is being added to ensure collaboration during the application process between intermediaries and all Tribes that they propose to serve.
(4) Applicants for set aside funds must indicate that they are applying for set aside funds. Applicant must identify the Persistent Poverty County for each recipient. All recipients must be located in a Persistent Poverty County to be eligible for the Persistent Poverty County set aside. Counties that are considered to be Persistent Poverty may be found under the map entitled “Persistent Poverty” on the following website:
(h) Each of the “Evaluation Criteria” must be addressed specifically and individually by category. Present these criteria in narrative form. Narrative (not including attachments) must be limited to five pages per criterion. The “Population and Income” criteria for recipient locations can be provided in the form of a list; however, the source of the data must be included on the page(s).
(i) A timeline identifying specific activities and proposed dates for completion.
(j) A detailed project budget that includes the RCDI grant amount and matching funds. This should be a line-item budget, by category. Categories such as salaries, administrative, other, and indirect costs that pertain to the proposed project must be clearly defined. Supporting documentation listing the components of these categories must be included. The budget should be dated: year 1, year 2, and year 3, as applicable.
(k) The indirect cost category in the project budget should be used only when a grant applicant has a federally negotiated indirect cost rate. A copy of the current rate agreement must be provided with the application. Non-federal entities that have never received a negotiated indirect cost rate, except for those non-Federal entities described in Appendix VII to Part 200-States and Local Government and Indian Tribe Indirect Cost Proposals, paragraph (D)(1)(b), may use the de minimis rate of 10 percent of modified total direct costs (MTDC).
(l) Form SF-424, “Application for Federal Assistance.”
(Do not complete Form SF-424A, “Budget Information.” A separate line-item budget should be presented as described in Letter (j) of this section.)
(m) Certification of Non-Lobbying Activities, RD Instruction 1940-Q Exhibit A-1, “Certification for Contracts, Grants and Loans” or equivalent.
(n) Standard Form LLL, “Disclosure of Lobbying Activities,” if applicable.
Applicants must collect and maintain data provided by recipients on race, sex, and national origin and ensure Ultimate Recipients collect and maintain this data. Race and ethnicity data will be collected in accordance with OMB
The applicant and the recipient must comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Americans
(o) Identify and report any association or relationship with Rural Development employees. (A statement acknowledging whether or not a relationship exists is required.)
3.
(a) Applicants must maintain an active SAM registration, with current, accurate and complete information, at all times during which it has an active Federal award or an application under consideration by a Federal awarding agency.
(b) Applicants must ensure they complete the Financial Assistance General Certifications and Representations in SAM.
(c) Applicants must provide a valid UEI in its application, unless determined exempt under 2 CFR 25.110 (
(d) Each applicant must provide documentation that it is registered in SAM and include its UEI number. If the applicant does not provide documentation confirming that it is registered in SAM and its UEI number, the application will not be considered for funding.
(e) The Agency will not make an award until the applicant has complied with all SAM requirements including providing the UEI. If an applicant has not fully complied with the requirements by the time the Agency is ready to make an award, the Agency may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.
4.
•
Applicants may also request paper application packages from the Rural Development office in their state. A list of Rural Development State Office contacts can be found via
•
Technical difficulties applying through
5.
6.
(a) The intermediary must work directly with the recipient, not the ultimate beneficiaries. For example:
The intermediary provides training and technical assistance to the recipients on developing and updating materials related to the prevention, treatment and recovery activities for opioid use disorder and ensures that high-quality training is provided to communities affected by the opioid epidemic.
(b) The intermediary provides training to the recipient on how to conduct homeownership education classes. The recipient then provides ongoing homeownership education to the residents of the community—the ultimate beneficiaries. This “train the trainer” concept fully meets the intent of this initiative. The intermediary is providing technical assistance that will build the recipient's capacity by enabling it to conduct homeownership education classes for the public.
This is an eligible purpose. However, if the intermediary directly provided homeownership education classes to individuals in the recipient's service area, this would not be an eligible purpose because the recipient would be bypassed.
(c) If the intermediary is working with a low-income community as the recipient, the intermediary must provide the technical assistance to the entity that represents the low-income community and is identified in the application. Examples of entities representing a low-income community are a village board or a town council.
If the intermediary provides technical assistance to the Board of the low-income community on how to establish a cooperative, this would be an eligible purpose. However, if the intermediary works directly with individuals from the community to establish the cooperative, this is not an eligible purpose.
The recipient's capacity is built by learning skills that will enable it to support sustainable economic development in its community on an ongoing basis.
(d) The intermediary may provide technical assistance to the recipient on how to create and operate a revolving loan fund. The intermediary may not monitor or operate the revolving loan fund. RCDI funds, including matching funds, cannot be used to fund revolving loan funds.
(e) The intermediary may work with recipients to build their capacity to provide planning and leadership development training. The recipients of this training would be expected to assume leadership roles in the development and execution of regional strategic plans. The intermediary would work with multiple recipients in helping communities recognize their connections to the greater regional and national economies.
(f) The intermediary could provide training and technical assistance to the recipients on developing emergency shelter and feeding, short-term housing, search and rescue, and environmental accident, prevention, and cleanup program plans. For longer term disaster and economic crisis responses, the intermediary could work with the recipients to develop job placement and training programs and develop coordinated transit systems for displaced workers.
7.
(a) Provide technical assistance to develop recipients' capacity and ability to undertake projects related to housing, community facilities, or community and economic development, (
(b) Develop the capacity of recipients to conduct community development programs, (
(c) Develop the capacity of recipients to conduct developmental initiatives (
(d) Develop the capacity of recipients to increase their leveraging ability and access to alternative funding sources by providing training and staffing.
(e) Develop the capacity of recipients to provide the technical assistance component for essential community facilities projects.
(f) Assist recipients in completing pre-development requirements for housing, community facilities, or community and economic development projects by providing resources for professional services,
(g) Improve recipient's organizational capacity by providing training and resource material on developing strategic plans, board operations, management, financial systems, and information technology.
(h) Purchase of computers, software, and printers is limited to $10,000 per award at the recipient level when directly related to the technical assistance program being undertaken by the intermediary.
(i) Provide funds to recipients for training-related travel costs and training expenses related to RCDI.
The following is a list of ineligible uses of grant funds:
• Pass-through grants, and any funds provided to the recipient in a lump sum that are not reimbursements.
• Funding a revolving loan fund (RLF).
• Construction (in any form).
• Salaries for positions involved in construction, renovations, rehabilitation, and any oversight of these types of activities.
• Intermediary preparation of strategic plans for recipients.
• Funding prostitution, gambling, or any illegal activities.
• Grants to individuals.
• Funding a grant where there may be a conflict of interest, or an appearance of a conflict of interest, involving any action by the Agency.
• Paying obligations incurred before the beginning date without prior Agency approval or after the ending date of the grant agreement.
• Purchasing real estate.
• Improvement or renovation of the grantee or recipient's office space or for the repair or maintenance of privately-owned vehicles.
• Any purpose prohibited in 2 CFR part 200 or 400.
• Using funds for recipient's general operating costs.
• Using grant or matching funds for Individual Development Accounts.
• Purchasing vehicles.
• In accordance with 31 U.S.C. 1345, “Expenses of Meetings,” appropriations may not be used for travel, transportation, and subsistence expenses for a meeting. RCDI grant funds cannot be used for these meeting-related expenses. Matching funds may, however, be used to pay for these expenses.
RCDI funds may be used to pay for a speaker as part of a program, equipment to facilitate the program, and the actual room that will house the meeting.
RCDI funds cannot be used for meetings; they can, however, be used for travel, transportation, or subsistence expenses for program-related training and technical assistance purposes. Any training not delineated in the application must be approved by the Agency to verify compliance with 31 U.S.C. 1345. Travel and per diem expenses (including meals and incidental expenses) will be allowed in accordance with 2 CFR parts 200 and 400.
1.
All applications that are complete and eligible will be scored and ranked competitively. The categories for scoring criteria used are the following:
The applicant must demonstrate how it will improve the recipients' capacity, through a program of financial and technical assistance, as it relates to the RCDI purposes.
Capacity—Building financial and technical assistance should provide new functions to the recipients or expand existing functions that will enable the recipients to undertake projects in the
The program of financial and technical assistance that is to be provided, its delivery, and the measurability of the program's effectiveness will determine the merit of the application.
All applications will be competitively ranked and the applications providing the most improvement in capacity development and measurable activities being ranked the highest.
The narrative response must contain the following items. This list also contains the points for each item.
(1) Describe the nature of financial and technical assistance to be provided to the recipients and the activities that will be conducted to deliver the technical assistance (10 Points).
(2) Explain how financial and technical assistance will develop or increase the recipient's capacity. Indicate whether a new function is being developed or if existing functions are being expanded or performed more effectively (7 Points).
(3) Identify which RCDI purpose areas will be addressed with this assistance: Housing, community facilities, or community and economic development (3 Points).
(4) Describe how the results of the technical assistance will be measured and describe the benchmarks to be used to measure effectiveness. Benchmarks should be specific and quantifiable (5 Points).
(5) Demonstrate that the applicant/intermediary has conducted programs of financial and technical assistance and achieved measurable results in the areas of housing, community facilities, or community and economic development in rural areas (10 Points).
(6) Provide in a chart or excel spreadsheet, the organization name, point of contact, address, phone number, email address, and the type and amount of the financial and technical assistance the applicant organization has provided to the following for the last 3 years (5 Points).
• Nonprofit organizations in rural areas.
• Low-income communities in rural areas (also identify the type of entity,
• Federally recognized Tribes or any other culturally diverse organizations.
The applicant can receive up to 15 points for soundness of approach. The overall proposal will be considered under this criterion.
The maximum of 15 points for this criterion will be based on the following:
(1) The proposal fits the objectives for which applications were invited, is clearly stated, and the applicant has defined how this proposal will be implemented (7 Points).
(2) The ability to provide the proposed financial and technical assistance based on prior accomplishments (6 Points).
(3) Cost effectiveness will be evaluated based on the budget in the application. The proposed grant amount and matching funds should be utilized to maximize capacity building at the recipient level (2 Points).
Population is based on the average population from the 2010 census data for the communities in which the recipients are located. The physical address (
The applicant must submit the census data from the following website in the form of a printout to verify the population figures used for each recipient. The data can be accessed on the internet at
The average population of the recipient locations will be used and will be scored as follows in the table illustrated below:
The average of the median household income for the communities where the recipients are physically located will determine the points awarded. The physical address, not mailing address, for each recipient must be used for this criterion. Applicants may compare the average recipient median household income to the State median household income or the national median household income, whichever yields the most points. The national median household income to be used is $51,914.
The applicant must submit the income data in the form of a printout of the applicable information from the following website to verify the income for each recipient. The data being used is from the 2010 American Community Survey (ACS) 5-year estimates (2006-2010 data set). The data can be accessed on the internet at
(1) This criterion will be addressed by the Agency, not the applicant.
(2) The State Director may award up to 10 discretionary points for the highest priority project in each state, up to 7 points for the second highest priority project in each state and up to 5 points for the third highest priority project.
Information on whether your project qualifies for priority points can be found at the following website:
(a) Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities (up to 3 points). Priority will be given to proposals that address climate crisis through projects that:
• reduce climate pollution; promote energy efficiency and clean transportation; increase renewable energy production; revitalize recreation economies and the economies of coal, oil and gas, and power plant communities; increase resilience to the impacts of climate change; protect the public; and conserve our lands, waters, and biodiversity or
• spur well-paying union jobs and economic growth, especially through innovation, commercialization, deployment of clean energy technologies and infrastructure or
• advance environmental justice in historically marginalized and other communities overburdened by pollution where economic hurdles include underinvestment in housing, transportation, water, wastewater, and clean energy infrastructure, as well as workforce development and health care needs.
(b) Priority points (up to 3 points) may be awarded if the project is ensuring all rural residents have equitable access to RD programs and benefits from RD funded projects. Information on whether your project qualifies for priority points can be found at the following website:
(c) Priority points (up to 4 points) may be awarded if the project is assisting rural communities recover economically through more and better market opportunities and through improved infrastructure. Information on whether your project qualifies for priority points can be found at the following website:
• These points may be awarded by the Rural Development State Director to any application(s) that benefits their State regardless of whether the applicant is headquartered in their State.
• When an intermediary submits an application that will benefit a State that is not the same as the State in which the intermediary is headquartered, it is the intermediary's responsibility to notify the State Director of the State which is receiving the benefit of its application. In such cases, State Directors awarding points to applications benefiting their state must notify the reviewing State in writing.
• Assignment of any points under this criterion requires a written justification and must be tied to and awarded based on how closely the application aligns with the Rural Development State Office's strategic goals.
The Administrator may award up to 20 discretionary points for projects to address items such as geographic distribution of funds, emergency conditions caused by economic problems, natural disasters and other initiatives identified by the Secretary. The Administrator may also award points to any application that will advance the following key priorities:
Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities. Priority will be given to proposals that address climate crisis through projects that:
• reduce climate pollution; promote energy efficiency and clean transportation; increase renewable energy production; revitalize recreation economies and the economies of coal, oil and gas, and power plant communities; increase resilience to the impacts of climate change; protect the public; and conserve our lands, waters, and biodiversity or
• spur well-paying union jobs and economic growth, especially through innovation, commercialization, deployment of clean energy technologies and infrastructure or
• advance environmental justice in historically marginalized and other communities overburdened by pollution where economic hurdles include underinvestment in housing, transportation, water, wastewater, and clean energy infrastructure, as well as workforce development and health care needs.
(b) Priority points may be awarded if the project is ensuring all rural residents have equitable access to RD programs and benefits from RD funded projects. Information on whether your project qualifies for priority points can be found at the following website:
(c) Priority points may be awarded if the project is assisting rural communities recover economically through more and better market opportunities and through improved infrastructure. Information on whether your project qualifies for priority points can be found at the following website:
2.
(a) If there is a tied score after the applications have been rated and ranked, the tie will be resolved by reviewing the scores for “Building Capacity and Expertise” and the applicant with the highest score in that category will receive a higher ranking. If the scores for “Building Capacity and Expertise” are the same, the scores will be compared for the next criterion, in sequential order, until the highest score can be determined.
(b)
• Recipients were not located in eligible rural areas based on the definition in this Notice.
• Applicants failed to provide evidence of recipient's status,
• Applicants failed to provide evidence of committed matching funds or matching funds were not committed for a period at least equal to the grant performance period.
• Application did not follow the RCDI structure with an intermediary and recipients.
• Recipients were not identified in the application.
• Intermediary did not provide evidence it had been incorporated for at least three years as the applicant entity.
• Applicants failed to address the “Application Review Information” in this Notice.
• The purpose of the proposal did not qualify as an eligible RCDI purpose.
• Inappropriate use of funds (
• The applicant proposed providing financial and technical assistance directly to individuals.
• The application package was not received by closing date and time.
3.
1.
Successful applicants will receive a selection letter by mail containing instructions on requirements necessary to proceed with execution and performance of the award. This letter is not an authorization to begin performance. In addition, selected applicants will be requested to verify that components of the application have not changed at the time of selection and on the award obligation date, if requested by the Agency.
The award is not approved until all information has been verified, and the awarding official of the Agency has signed Form RD 1940-1, “Request for Obligation of Funds” and the grant agreement.
Unsuccessful applicants will receive notification, including notification of appeal rights, by mail.
2.
3.
(a) SF-425, “Federal Financial Report” and SF-PPR, “Performance Progress Report” will be required on a quarterly basis (due 30 working days after each calendar quarter). The Performance Progress Report shall include the elements described in the grant agreement.
(b) Final financial and performance reports will be due 90 calendar days after the period of performance end date.
(c) A summary at the end of the final report with elements as described in the grant agreement to assist in documenting the annual performance goals of the RCDI program for Congress.
Contact the Rural Development State Office where the applicant's headquarters is located. A list of Rural Development State Offices contacts can be found via
The Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58), requires the following Buy America preference:
(a) All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(b) All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation.
(c) All construction materials are manufactured in the United States. This
Awards under this announcement for infrastructure projects to non-federal entities, defined pursuant to 2 CFR 200.1 as any State, local government, Indian tribe, Institution of Higher Education, or nonprofit organization, shall be governed by the requirements of section 70914 of the Build America, Buy America Act (BABAA) within the IIJA, and its implementing regulations. Infrastructure projects include structures, facilities, and equipment that generate, transport, and distribute fuel or energy, including electric vehicle (EV) charging stations. Infrastructure projects also include structures, facilities, and equipment for roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property.
In accordance with BABAA, however, USDA has determined that de minimis, small grants, and minor components shall be waived from the requirements of BABAA, pursuant to a public interest waiver that was granted to the Department on September 13, 2022. See
1.
2.
3.
4.
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,
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Rural Housing Service, Department of Agriculture (USDA).
Consolidated notice of funding availability.
The Rural Housing Service (RHS or the Agency), a Rural Development (RD) agency of the USDA, announces the availability of funding for Multifamily Housing Nonprofit Transfer Technical Assistance (MFH NP TA) Grants and Off-Farm Labor Housing Technical Assistance (Off-FLH TA) Grants. This funding is available for eligible technical assistance (TA) providers seeking grants to provide technical assistance services to qualified applicants.
Complete applications must be submitted in electronic format via CloudVault and must be received by noon E.T. on July 3, 2023.
All respondents must email a request to create a shared folder in CloudVault at least three (3) business days prior to the application deadline.
The General Section of this consolidated notice provides the application procedures and
All applications made in response to this notice must be submitted electronically to the RHS Production and Preservation Division, Program Support Branch. Entities submitting more than one application must request separate CloudVault folders for each submission. All email requests must be sent to one of the following addresses:
This grant funding opportunity will also be announced on
General questions about this consolidated notice may be directed to Stephanie Vergin, Policy Advisor, Production and Preservation Division, Multi-Family Housing, United States Department of Agriculture; Phone: 651-602-7820; or email at
Persons with disabilities who require alternative means of communication for program information (
This is the first year that MFH is issuing a consolidated notice for its technical assistance grant programs. MFH designed this consolidated notice with the intent to simplify the application process, better coordinate services for applicants, and ensure transparency and predictability in funding cycles. It is the Agency's belief that consolidating the MFH TA notices will avoid duplication of efforts within the communities it serves and better serve its rural stakeholders most in need of these programs. The RHS Production & Preservation Division will host a virtual workshop prior to the application deadline to provide general information and guidance regarding this notice. The workshop will be announced via GovDelivery notice and will also be posted on the MFH Programs website (
This notice is divided into two major sections, the General Section and Program Sections A-B. The standard forms, certifications, assurances, procedures, and requirements applicable to both technical assistance grant programs are included in the General Section of this notice. Program Sections A-B separately outline each technical assistance grant funding opportunity with program specific eligibility, statutory and regulatory requirements, and include the factors used for scoring and ranking applications, the grant award process, and any additional requirements and/or limitations specific to each program.
Please read both the General Section and Program Sections A-B of this notice carefully to ensure all application and program requirements are met. Not all respondents are eligible to receive awards under both funding opportunities identified within this consolidated notice.
• Assisting rural communities to 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.
For further information, visit
RHS administers the Multifamily Housing Programs that provide affordable multifamily rental housing in rural areas by financing projects geared for low-income, elderly, and disabled individuals and families as well as domestic farm laborers. The MFH programs extend their reach by guaranteeing loans for affordable rental housing designed for low to moderate-income residents in rural areas and towns. MFH Programs are administered, subject to appropriations, by the USDA as authorized under sections 514, 515, 516 and 521 of the Housing Act of 1949, as amended.
The section 515 MFH NP TA Grants are intended to provide technical assistance to multifamily housing borrowers and applicants to facilitate the acquisition of section 515 properties by nonprofit organizations and public housing authorities.
The Off-FLH TA Grants are intended to provide technical assistance to qualified section 514 loan and section 516 grant applicants to encourage the development of domestic and migrant Off-FLH projects.
RHS has a strong interest in broad geographic availability of technical assistance services and expanding the pool of technical assistance providers. Respondents will compete in a national funding pool and multiple awards may be made in a single region. However, if there are qualified and eligible respondents, RHS will prioritize awarding at least one MFH NP TA Grant and one Off-FLH TA Grant in each of the following four geographic regions:
Multifamily Housing's four geographic regions may also be found on the following website:
Each entity applying for funding under this notice, whether individually or jointly, is limited to submission of one grant application per technical assistance program, per geographic region. Entities applying in more than one geographic region must submit separate applications for each region in which they apply. Respondents may propose to serve single-State or multi-State areas within geographic regions.
MFH NP TA Grants are authorized under section 764 of the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-94); section 753 of the Consolidated Appropriations Act, 2021 (Pub. L. 116-260); and section 745 of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103), section 745 of the Consolidated Appropriations Act, 2023 (Pub. L. 117-328) and implemented by 7 CFR part 3560.
MFH Off-FLH TA Grants are authorized under section 516(i) of the Housing Act of 1949, as amended; 42 U.S.C. 1486(i); and implemented by 7 CFR part 3560.
To be eligible for funding under this consolidated notice, respondents must meet all statutory and regulatory requirements applicable to the program(s) for which funding is sought. RD program regulations may be found at the following link:
The definitions and acronyms applicable to this notice are published at 7 CFR part 3560.11
The following supplementary definitions and acronyms are applicable to and for the purpose of this notice only.
Awards under these programs will be made on a competitive basis using specific selection criteria contained in Program Sections A and B of this notice.
The Agency advises all interested parties that expenses incurred in applying for this notice will be borne by and be at the respondent's sole risk.
• Multifamily Housing Nonprofit Transfer Technical Assistance Grants: 10.494.
• Farm Labor Housing Technical Assistance Grants: 10.495.
Available funding amounts for the technical assistance programs in this notice may also be found at the following link:
• The minimum and maximum award amounts per funded MFH NP TA Grant application are $100,000 and $500,000, respectively.
• The minimum and maximum award amounts per funded Off-FLH TA Grant application are $50,000 and $250,000, respectively.
Respondents selected for funding will complete a grant agreement suitable to the Agency, which outlines the terms and conditions of the Grant award. The Agency may request changes to the Statement of Work (SOW) which will be incorporated into the grant agreement. If a selected grantee does not accept the terms of the Agency and/or does not deliver an executed Grant Agreement to the Agency within ten (10) business days after receiving the Grant Agreement with the Agency-approved SOW, the Agency may choose to rescind the award and select another grantee based on scoring without further notice.
The grant period of performance is 24 months with an extension allowed for up to an additional 12 months at the Agency's discretion. However, proposals should be structured to utilize all grant funds within 24 months from the date of the award. The grant term will be defined in the Grant Agreement and will become effective once signed by the Grantee and the Agency. Grant funds will be obligated within ten (10) business days after both parties have executed the Grant Agreement.
To be considered eligible for funding under this notice, all respondents are required to meet both the general eligibility requirements outlined below, as well as the program specific requirements outlined in Program Sections A and B of this notice.
Except as may be modified in Program Sections A and B of this notice, the general requirements, procedures, and principles outlined below apply to respondents for both funding opportunities contained in this notice.
(a) All respondents will be screened for eligibility to participate in the grant program using Treasury's Do Not Pay Portal in compliance with the Improper Payments Elimination and Recovery Improvement Act.
(b) Debarment and suspension information is required in accordance with 2 CFR 180 (OMB's Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) supplemented by 2 CFR 417 (Nonprocurement Debarment and Suspension) if it applies. The section heading is “What information must I provide before entering into a covered transaction with a Federal agency?” located at 2 CFR 180.335. It is part of OMB's Guidance for Grants and Agreements concerning Governmentwide Debarment and Suspension. Respondents are not eligible if they have been debarred or suspended or otherwise excluded from, or ineligible for, participation in Federal assistance programs under 2 CFR parts 180 and 417.
(c) Conflicts of Interest. No Grantee funded under this notice or its officers, directors, board members, agents, employees, or partners can participate in conducting or administering the grant award if a real or apparent conflict of interest exists.
Entities applying for funding under this notice and all funded Grantees must disclose in writing any potential conflicts of interest to the Agency, including situations that would create a conflict of interest, potential for conflict of interest, or any appearance of a conflict of interest. Unless approved by the Agency, Grantees may not provide TA for projects in which they or their third-party affiliates have a direct or indirect ownership interest. Respondents must disclose all MFH projects in which they or their third-party affiliates have a direct or indirect ownership interest.
Unless approved by the Agency, neither the Grantee nor any officer, director, board member or partner of the Grantee may accept or share any compensation or remuneration, directly or indirectly, in any form whatsoever, from or with any party interested in the
Unless approved by the Agency, neither the Grantee nor any officer, director, board member, partner or any person employed by the Grantee may accept compensation or remuneration contrary to the intentions of the grant agreement
Unless approved by the Agency, neither the Grantee nor any officer, director, board member or partner of the Grantee may be involved as an officer, director, board member or general partner in a business venture with an officer, director, board member or general partner of any other party interested in the activities performed under the grant agreement.
Grantees funded under this notice must maintain written standards of conduct governing organizational conflicts of interest and conflicts of interest related to the performance of its officers, directors, board members, agents, and employees in conducting/administering Federal grant awards. The standards of conduct must provide for disciplinary actions to be applied for violations of such standards by the Grantee and its directors, board members, officers, employees, and agents.
There are no cost sharing or matching requirements for either program.
Please refer to Program Sections A and B.
Each entity applying for funding under this notice, whether individually or jointly, may submit only one application per program, per geographic region. MFH's geographic regions are listed in the General Section A.1. of this notice.
The use of consultants/contractors for key personnel services (technical assistance service delivery and grant administration) is limited to a maximum of 20% of the total key personnel services budget. This requirement is intended to advance the Agency's goal of increasing the capacity of Agency-funded nonprofit TA providers to deliver technical assistance services directly to recipients.
The total direct and indirect administrative costs associated with the administration of the grant should not exceed 20% of the total technical assistance grant fund.
Any respondent with an open MFH Transfer or Off-FLH technical assistance funding award must demonstrate satisfactory progress toward completion of the work plan identified in their Agency approved grant agreement to be eligible for funding under this notice. In evaluating satisfactory progress, RHS will consider past performance in managing funds including, but not limited to, the ability to account for funds appropriately; timely use of funds received from RHS; meeting performance targets for completion of activities; and receipt of promised matching or leveraged funds.
Applications to this notice must be submitted electronically via CloudVault using the process described below. The electronic application submission process may also be viewed at
(a) All applications made in response to this notice must be submitted electronically to the RHS Production and Preservation Division, Program Support Branch using the following process: All respondents must email a request to create a shared folder in CloudVault at least three (3) business days prior to the application deadline of July 3, 2023. Entities submitting more than one application must request separate CloudVault folders for each submission. All email requests must be sent to one of the following addresses:
(1)
(2)
(3)
A shared CloudVault folder will be created within two (2) business days from the date the emailed request is received by RHS. An email will be sent to the respondent's valid submission email address with a link to the created shared CloudVault folder. All required application documents in accordance with this notice must be uploaded into the respondent's shared CloudVault folder. Respondent's access to the shared CloudVault folder will be removed when the submission deadline is reached. Any document(s) uploaded to CloudVault after the application deadline will not be considered. The Agency will provide responding entities with a written acknowledgement of receipt upon request. Please note: CloudVault is a USDA‐approved cloud‐based file sharing and synchronization system. CloudVault folders are not suitable nor intended for file storage due to agency file retention policies and space limitations. Therefore, the agency will remove all application-related files stored in shared CloudVault folders the latter of either 180 days from the application date, or once the application has been processed and the transaction has been closed.
(b) Forms, Requirements and Procedures for all Respondents.
All respondents are required to electronically submit signed copies of the standard forms, certifications, and assurances listed in this section, unless the requirements in the Program Section specify otherwise. All forms should be completed in their entirety using the most current versions of unexpired Rural Development or OMB-approved forms. All application packages must include a Table of Contents and a separate one-page sheet listing each of the Scoring Criteria from Program Sections A or B, followed by the page numbers of all relevant material and documentation contained within the submitted application materials to support those criteria.
(i) Except as may be modified in the Program Sections A and B, the forms and standard certifications and assurances required for all respondents are:
• SF-424, “Application for Federal Assistance” which can be obtained at:
• Standard Form 424A, “Budget Information-Non-Construction Programs” which can be obtained at:
• Negotiated Indirect Cost Rate Agreement (NICRA), if applicable, or a statement certifying the entity's election to charge the de minimis rate of 10% of the modified total direct costs (MTDC).
• Form SF-LLL, “Disclosure Form to Report Lobbying,” if applicable, or a statement certifying that the organization does not lobby.
• Form RD 3560-30, “Certification of no Identity of Interest (IOI),” if applicable:
• Form RD 3560-31, “Identity of Interest Disclosure/Qualification Certification” if applicable (IOI is defined in 7 CFR 3560.11):
• Form RD 400-4, “Assurance Agreement”:
• Form RD 400-6, “Compliance Statement”:
(ii) All responding entities must include organizational status documents and current (within six months of this notice's deadline date) financial statements to evidence their status as a properly organized private or public nonprofit agency, or public/tribal housing authority, with the financial ability to carry out the approved objectives of the TA grant program under which funding is sought. This requirement includes (at minimum):
(A) Status (
(B) Good standing within the State or Tribe in which the entity is organized.
(C) Legal authority to provide services stated in the application under the applicable laws for the state(s) in which operation is proposed. (Examples of acceptable documentation for this requirement include, but are not limited to, bylaws, organizational charters, and statutes or regulations).
(D) Certification of no current or unresolved default or violation of any other Federal, Tribal, State, or local grant or loan agreement(s).
(E) The requirements above will also apply to all entities performing services on behalf of the respondent.
(a) At the time of application, each respondent must have an active registration in the System for Award Management (SAM) before submitting its application in accordance with 2 CFR 25. In order to register in SAM, entities will be required to obtain a Unique Entity Identifier (UEI). Instructions for obtaining the UEI are available at
(b) Respondent must maintain an active SAM registration, with current, accurate and complete information, at all times during which it has an active Federal award or an application under consideration by a Federal awarding agency.
(c) Respondent must complete the Financial Assistance General Certifications and Representations in SAM.
(d) Respondent must provide a valid UEI in its application, unless determined exempt under 2 CFR 25.110.
(e) The Agency will not make an award until the respondent has complied with all SAM requirements including providing the UEI. If a respondent has not fully complied with the requirements by the time the Agency is ready to make an award, the Agency may determine that the respondent is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another respondent.
Submission dates and times can be found in the
Applications under this notice are not subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.”
Refer to Program Sections A and B for Ineligible Grant Fund Purposes/Costs.
To be eligible for funding under this notice, respondents must meet the criteria set forth in the individual program Sections A and B of this notice, as well as all general eligibility criteria as follows:
a. The application must be complete as specified by this notice;
b. The complete application must be received by the submission deadline specified in this notice;
c. The application proposal must be for authorized purposes; and
d. The respondent must be an eligible entity and must not currently be debarred, suspended, or delinquent on any Federal debt.
No application will be accepted after the specified deadline unless the date and time is extended by another notice published in the
RHS may contact respondents to clarify items and/or to correct curable (correctable) technical deficiencies identified within application packages after the application deadline is reached. RHS will notify respondents of any curable deficiencies and will do so on a uniform basis for all respondents. If deficiencies are not corrected within the period prescribed by RHS, the application will be rejected as incomplete, and will not be considered for funding.
Only applications meeting all the general eligibility criteria above will be scored and ranked. RHS will consider the scoring factors outlined in Program Sections A and B to score and rank application(s) for each TA program respectively. Points will be awarded only for factors that are well-documented in the application package and, in the opinion of the Agency, meet the objectives outlined in each of the evaluation criteria. References to external websites, publications, and/or other information not submitted as part of the application package will not be reviewed or considered. Therefore, full documentation and support of all criteria is recommended and encouraged.
If the Agency determines it is unable to select an application for funding, the respondent will be informed in writing. Such notification will include the reasons the respondent was not selected. The Agency will advise respondents whose applications do not meet eligibility and/or selection criteria of their review rights or appeal rights in accordance with 7 CFR part 11.
Refer to Program Sections A and B for program specific application reviewing, scoring and selection processes.
The Agency will notify in writing respondents whose applications have been selected for funding. At the time of notification, the Agency will advise respondents what additional information and documentation is required along with a timeline for submitting the additional information.
The following additional requirements apply to grantees selected for these TA Grant program awards:
(i) Grantees must complete Form RD 1942-46 “Letter of Intent to Meet Conditions.”
(ii) Grantees must complete Form RD 1940-1, “Request for Obligation of Funds.”
(iii) Grantees must use Form SF 270, “Request for Advance or Reimbursement,” to request reimbursements and provide receipts for expenditures, timesheets, and any other documentation to support the request for reimbursement, as determined by the Agency.
(iv) Grantees must maintain a financial management system that is acceptable to the Agency.
(v) Grantees must certify that the U.S. has not obtained an outstanding judgment against their organization in a Federal Court (other than in the United States Tax Court).
(vi) Awards made under this notice are subject to the provisions contained in the Consolidated Appropriations Act, 2021 (Pub. L. 116-260) Division E, Title VII sections 744 and 745 regarding felony convictions and corporate Federal tax delinquencies.
(vii) Workplace identification is required under the drug-free workplace requirements in 2 CFR 182, which provides guidance on the portion of the Drug-Free Workplace Act applicable to grants, as adopted by 2 CFR 421. Therefore, grantees must identify all organizational known workplaces by including the actual physical addresses of buildings (or parts of buildings) or other sites where work under the award takes place.
(viii) 2 CFR part 182 (Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)) and 2 CFR part 421 (Requirements for Drug Free Workplace (Financial Assistance).
(i) Grantees must comply with reporting requirements of and 2 CFR part 200, and will provide the required financial status and project performance reports for the period after grant approval and throughout the grant period of performance as outlined in the Agency approved grant agreement.
(ii) Grantees must maintain records to document all activities and expenditures utilizing technical assistance grant funds. Receipts for expenditures will be included in this documentation.
(iii) Grantees must provide a final project performance report as outlined in the Agency approved grant agreement.
Stephanie Vergin, Policy Advisor, Production and Preservation Division, Multi-Family Housing, United States Department of Agriculture at
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
RHS has concluded that the reporting requirements contained in this NOFA will involve less than 10 persons and do not require approval under the provisions of the Act.
In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this funding announcement has been reviewed in accordance with 7 CFR part 1970 (Environmental Policies and Procedures). As permitted by 7 CFR 1970.51(b), The Agency has determined that because:
• this action meets the criteria established in 7 CFR 1970.53(f);
• no “extraordinary circumstances exist” as defined at 7 CFR 1970.52(a); and
• the action is not “connected” (see 40 CFR 1508.25(a)(1)) to other actions with potentially significant impacts, is not considered a “cumulative action” and;
• the action is not precluded by 40 CFR 1506.1.
Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required. All recipients under this notice are subject to the requirements of 7 CFR part 1970.
Technical assistance awards for financial and technical assistance under this notice are classified as a Categorical Exclusion according to 7 CFR 1970.53(b), and usually do not require any additional documentation. MFH will review each grant application to determine its compliance with 7 CFR 1970. The respondent may be asked to provide additional information or documentation to MFH with this determination.
All respondents, in accordance with 2 CFR part 25 (
All grants made under this notice are subject to Title VI of the Civil Rights Act of 1964 as required by the USDA (7 CFR part 15, subpart A (eCFR :: 7 CFR part 15 Subpart A—Nondiscrimination in Federally-Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964) and section 504 of the Rehabilitation Act of 1973, Title VIII of the Civil Rights Act of 1968, Title IX of the Education Amendments of 1972, Executive Order 13166 (Limited English Proficiency), Executive Order 11246, the Equal Credit Opportunity Act of 1974, the Americans with Disabilities Act (ADA) of 1990, the Age Discrimination Act of 1975, Executive Order 12250, and 7 CFR part 1901, subpart E.
(i) All respondents must certify to compliance with 7 CFR part 15, subpart A—Nondiscrimination in Federally Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964, by completing the Financial Assistance General Certification and Representations in SAM.
Civil Rights compliance includes, but is not limited to the following:
(a) Collecting and maintaining data provided by ultimate recipients on race, sex, and national origin.
(b) Collection of race and ethnicity data in accordance with Office of Management and Budget (OMB)
This data should not be submitted with the application but should be available upon request by the Agency.
In accordance with Federal civil rights laws and USDA civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
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
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Program Sections A and B of this notice provide descriptions for both of the specific programs. In addition to the requirements set forth in the General section, the following program sections outline additional procedures and requirements applicable to each program.
Both funding opportunities contained in this consolidated notice are identified in the following chart entitled Consolidated Multifamily Housing Technical Assistance Grant Program Funding Chart FY 2023. This chart includes Program Name, the Assistance Listing Number for each program, the Funding Amounts Available, and the Program Section Reference for program-specific application requirements.
The technical assistance (TA) grants offered under this funding opportunity are for the purpose of facilitating the transfer and preservation of existing Rural Rental Housing properties under section 515 of the Housing Act of 1949, as amended (42 U.S.C. 1485). Agency regulations for the section 515 program are published at 7 CFR part 3560. The Agency is authorized to utilize the appropriations from each fiscal year, for a total appropriation of $6.9 million, to provide grants to NPs and PHAs meeting the qualification standards of this Notice, who will then provide technical assistance, including financial and legal services, to MFH borrowers to facilitate the acquisition of section 515 MFH properties by nonprofit organizations and public housing authorities. Public Law 116-94 Sec. 764; Public Law 116-260, Sec. 753, Public Law 117-328, Sec. 745 and Public Law 117-103, Sec. 745. These grants must be provided in areas where the USDA Secretary determines there is a risk of loss of affordable housing in order to keep such properties in the MFH program. Risk of loss of affordable housing may be driven by market conditions or may be due to property-specific factors, including mortgages reaching maturity, owner ability to prepay existing Agency loans, poor physical condition of the property, or failing ownership.
Eligibility for MFH Nonprofit Transfer Technical Assistance Grants is limited to private and public nonprofit organizations and public housing authorities meeting the qualification requirements of this Notice. Potentially qualifying NPs and PHAs include tribally designated housing entities (TDHE) and Tribal housing NPs.
Eligible entities responding to this notice must have the knowledge, ability, technical expertise, practical experience, and capacity necessary to develop and package section 515 property transfer transactions. They must also demonstrate the ability to provide technical assistance to NPs and/or PHAs to facilitate their acquisition of section 515 properties. In addition, all eligible entities must demonstrate the ability to exercise leadership, organize work, and prioritize assignments to meet work demands in a cost-efficient
Grantees awarded under this notice are expected to provide technical assistance services to NPs and/or PHAs who are acquiring section 515 projects in order to increase TA recipients' capacity (knowledge, skills, and abilities) in the following areas: Locating potential section 515 properties for transfer; completing the transfer analysis, negotiation, application, underwriting, and closing processes; and identifying and securing funding from the Agency and/or other sources for the purpose of acquisition, repair and/or rehabilitation.
Costs will be limited to those allowed under 2 CFR 200. Grantees may, with Agency concurrence and approval, utilize MFH NP TA grant funds for the following purposes: Soft costs such as financial analysis, transaction structuring analysis and completion of other transaction details such as Capital Needs Assessments, appraisals, and market surveys or other consultation, advisory and non-construction services required as part of the application process. Grantees may request Agency approval on a case-by-case basis for costs not included in the list.
In addition to costs identified as unallowable by 2 CFR parts 200 and 400, grant funds cannot be used for the following:
(a) Grant funds cannot be used by the grantee for activities that are not directly related to preservation transactions (such as conferences, sponsorships, provider personnel education/training, etc.).
(b) Grant funds cannot be used by the grantee for activities or transactions in which they have any direct or indirect ownership interest (regardless of whether it is an interest as a current or prospective owner).
(c) Grant funds cannot be used to reimburse grantees for technical assistance services provided to another nonprofit or public body applicant in the development and packaging of its loan/grant docket and project when those applicant entities have requested reimbursement for technical assistance expenses as part of their total project development cost (See 7 CFR 3560.553(c) and 7 CFR part 3560.53(o)(3)). Duplication of service costs is not allowed.
(d) Grant funds cannot be used when an identity of interest exists between the technical assistance provider (or any third-party entity acting on their behalf) and the loan/grant applicant. Identity of interest is defined in 7 CFR 3560.11.
(e) Grant funds cannot be used for building materials, labor costs, or expenditures otherwise typically included as any hard costs for actual construction or repairs, prepayment, interest, or principal payments.
All materials must be submitted via CloudVault. The process for submitting electronic application packages to the Agency via CloudVault is outlined above in the General Section of this notice.
In addition to the forms, certifications and assurances required of all respondents as outlined in the General Section of this notice, complete application packages for the MFH NP TA Grant must also contain a written grant proposal that includes the following required information:
(a) Summary page, which must include the following:
a. Responding entity's name, address, telephone number, and complete contact information for the entity's main point of contact;
b. Responding entity's Taxpayer Identification Number;
c. Grant Amount requested;
d. The State(s), area(s), and/or geographic region for which the application is being submitted; and
e. Responding entity's Unique Entity Identifier (UEI) number required for registration in the System for Award Management (SAM) prior to submitting an application pursuant to 2 CFR 25.200(b).
(b) Organizational Expertise and Experience Capabilities Statement. Responding entities must provide a capabilities statement describing their knowledge, demonstrated ability, practical experience, and capacity to develop and package section 515 property transfer transactions. They must also describe their ability to provide technical assistance to NPs and/or PHAs to facilitate the acquisition, repair, and rehabilitation of section 515 MFH properties. In addition, respondents must demonstrate the ability to exercise leadership, organize work, and prioritize assignments to meet work demands in a cost-efficient and timely manner within the 24-month grant term. If the respondent intends to have other entities working on its behalf, those entities must be identified and their abilities to meet the stated eligibility requirements and experience in delivering approved technical assistance services must also be addressed.
(c) Narrative. The responding entity must include a written narrative describing its knowledge, demonstrated ability, and practical experience in completing transfers of section 515 properties and/or providing training and technical assistance to NPs and PHAs for the transfer and rehabilitation of section 515 properties. If the responding entity intends to have other entities working on its behalf, the narrative must identify those entities and address their ability to meet the stated eligibility requirements and experience in delivering approved technical assistance services.
Respondents must identify section 515 transfer transactions completed by the applicant and/or organizations to whom the responding entity and/or other entities working on its behalf has provided technical assistance on applications for the transfer of section 515 projects in the last five years. For the projects and applications noted above, the respondent must provide the section 515 property name and location (city and state), technical assistance recipient organizational name and location (city and state), source of technical assistance funding, and outcome of the transaction (
(d) Key Personnel and Staffing Plan. Proposals must include the resumes of all staff personnel that will perform key personnel services of (1) delivery of technical assistance and (2) administration of the grant. (Capital Needs Assessments (CNAs), appraisals, and market surveys are not considered to be key personnel services). The staffing plan must describe each staff member's ability to perform the proposed activities and/or their experience in successfully managing service delivery of TA grants. The plan must include a staffing chart complete with name, job title, salary, hours, timelines, and descriptions of all proposed employee duties that will achieve the objectives of the grant program. If respondents intend to contract for any key personnel services from outside their organization (not to exceed the 20% limit), the qualifications of all entities acting on behalf of respondents must also be addressed.
(e) Statement of Work (SOW)/Work Plan. Responding entities must submit a
a. Introduction/overview with a description of the organization's proposed plan to provide technical assistance to NPs and PHAs in the acquisition of section 515 properties.
b. The organization's capabilities to execute the proposed plan within the prescribed 24-month grant term.
c. The organization's plan to identify potential sellers of section 515 properties.
d. The organization's plan to identify and provide services to NPs and PHAs interested in acquiring these properties.
e. Types of proposed technical assistance and legal and/or financial services that will enable NPs and/or PHAs to submit successful transfer applications to the Agency within the prescribed 24-month grant term. Clearly explain the services to be provided directly by the respondent's organization and all services that will be provided by third parties. The responding entity must specify the State(s), area(s), and/or geographic region in which they and any proposed third-party subrecipients/contractors/consultants will offer technical assistance services. Respondents must also explain why each targeted service area and/or property is at risk of loss of affordable housing.
f. The organization's experience in identifying and successfully assisting entities in the acquisition, repair, and rehabilitation of section 515 MFH properties.
g. A detailed budget justification that aligns with the key project tasks/activities and a grant funds usage projection that corresponds with a 24-month timeline for service delivery. The grant funds usage projection should illustrate direct and indirect administrative costs in dollars, and as a percentage of the technical assistance services provided (not to exceed 20%).
h. Additional strengths, qualifications, or capabilities not included above that enhance the respondent's capacity to deliver services under this grant.
i. Current working agreements or contracts between the respondent and any entity performing services on its behalf must be submitted as part of the application package and any associated costs must be included in the responding entity's budget.
All application packages will be reviewed to determine eligibility and completeness. All eligible, complete applications will be evaluated and competitively scored using the Application Scoring Criteria outlined below. Points will be awarded only for factors that are well-documented in the application package and, in the opinion of the Agency, meet the objectives outlined in each of the evaluation criteria. References to external websites, publications and/or other information not submitted as part of the application package will not be reviewed. Therefore, full documentation and support of all criteria is encouraged.
The review process designed for this notice will evaluate the degree to which the application sets forth measurable, realistic objectives that are consistent with this notice and can be completed within a 24-month grant period consistent with the application and processing guidance established by Agency transfer regulations.
a. Respondent has successful, verifiable experience completing section 515 transfers during the past five years. Experience must be demonstrated by submitting a list of past 515 project transfers as described in this Notice. To receive points, the respondent must have acted as the developer or technical assistance provider for the project and the transfers must be completed or there must be a submitted transfer application currently pending approval and/or closing with the Agency:
b. Respondent has successful, verifiable experience providing technical assistance that has increased the capacity of NPs and/or PHAs to complete section 515 transfers. Experience must be demonstrated by submitting a list of past instances providing technical assistance as described in this Notice. Points will be awarded according to the number of NP and/or PHA clients to whom the respondent has provided section 515 technical assistance services during the past five years:
a. Respondent has successful, verifiable experience completing other affordable MFH project transfers during the past five years. Experience must be demonstrated by submitting a list of other affordable housing (non 515) past project transfers as described in this Notice. To receive points, the respondent must have acted as the developer or technical assistance provider for the project and projects must have been completed or have at a minimum obtained funding approval:
b. Respondent has successful, verifiable experience providing technical assistance that has increased the capacity of NPs and/or PHAs to complete affordable MFH project transfers. Experience must be demonstrated by submitting a list of past instances of providing technical assistance as described in this Notice. Points will be awarded according to the number of NP and/or PHA clients to whom the respondent has provided affordable MFH project technical assistance during the past five years:
a. Respondent uses technical assistance resources to maximize the number of section 515 projects assisted with grant funding. Scoring is based on the Statement of Work/Work Plan. Points will be awarded according to the number of projects to be assisted under the grant:
b. Respondent uses technical assistance resources to increase the capacity of NPs and PHAs to complete transfers of section 515 properties. Scoring is based on the Statement of Work/Work Plan. Points will be awarded according to the number of NPs or PHAs to be served under the grant:
a. Respondent uses grant resources to maximize the funding available for direct program delivery to TA recipients. Points will be awarded according to the administrative costs as a percentage of grant funds used (not to exceed 20%):
b. Respondent has successful, verifiable experience managing service delivery or technical assistance through the grant lifecycle during the past five years. Experience must be demonstrated by submitting a list of past instances of managing service delivery or providing technical assistance as described in this Notice. Experience considered for scoring purposes includes submitting timely requests for funding, meeting reporting requirements, and closing out awards. Points will be awarded according to the degree of experience:
5.
a.
b. Innovative TA service delivery models (up to 5 points). The agency seeks to test a range of TA delivery models to assess the methods of TA delivery that are most effective to facilitate preservation; therefore, points may be awarded for respondents proposing a TA service delivery model that is different from other proposed models.
6.
(i)
(ii)
(iii)
The minimum score requirement for grants awarded under this funding opportunity is 50 points. Final scores are determined by the Agency. The Agency reserves the right to withhold the awarding of funds for applications that fail to meet the minimum required final score. Meeting the minimum scoring requirement and/or receiving priority funding points or discretionary points from the Administrator does not guarantee a funding award.
The Agency will notify all responding entities whether their application has been accepted or rejected and provide appeal rights under 7 CFR part 11, as appropriate.
The technical assistance grants authorized under this funding opportunity are for the purpose of encouraging off-farm labor housing development under section 516(i) of the Housing Act of 1949, as amended; (42 U.S.C. 1486(i)). RHS regulations for section 514 and section 516 Off-FLH programs and provisions for FLH technical assistance grants are published at 7 CFR part 3560, subpart L. Off-FLH grants are authorized under section 516(i) of the Housing Act of 1949, as amended, 42 U.S.C. 1486(i), and implemented by 7 CFR part 3560.
The primary objective of this funding opportunity is to improve the overall quality of section 514 Off-FLH loan and section 516 Off-FLH grant application packages submitted to the Agency for funding consideration in areas determined to have unmet need and unsatisfied market demand for new off-farm labor housing development.
Eligible entities responding to this notice are expected to have knowledge, experience, and expertise in farm labor housing development, federal grant administration, and technical assistance program development, implementation, and delivery. In addition, eligible entities must possess the ability to exercise leadership, organize work, and prioritize assignments to meet work demands in a timely and cost-efficient manner within a 24-month grant performance period.
Eligibility for Off-FLH Technical Assistance Grants is limited to qualified nonprofit organizations. Nonprofit organizations must meet the definition of nonprofit organization in 7 CFR 3560.11. Potentially qualifying nonprofit organizations include tribal housing nonprofits.
The primary work permitted under these Off-FLH TA grant awards will focus on eligible nonprofit organizations delivering direct technical assistance advisory services to qualified Off-FLH loan/grant applicant groups and organizations who lack the knowledge, experience and/or capacity to develop, package, and submit their own loan and grant dockets to the Agency for funding consideration.
Qualified applicants for section 514 loans and section 516 grants may include broad-based nonprofit organizations, nonprofit organizations of farmworkers, federally recognized Indian tribes, community organizations, agencies or political subdivisions of State, Tribal or local Governments (such
Off-Farm labor housing may be constructed in either urban or rural areas if need and demand for such housing is supported. However, respondents should concentrate their proposed grant activities in areas identified as having unmet need and unsatisfied market demand for new Off-FLH construction projects, as identified by the respondent and verified by the Agency.
Costs will be limited to those allowed under 2 CFR part 200. Grantees may, with Agency concurrence and approval, utilize Off-FLH TA grant funds for the following purposes: Conducting targeted outreach efforts to inform and recruit potential Off-FLH applicants; providing advisory services to eligible Off-FLH applicants for conducting site searches, estimating construction costs, resolving planning, and zoning issues, and negotiating and executing property acquisitions; assisting applicants during the application development, packaging, submission, underwriting and closing processes; and for other transaction details that are considered part of the application process, such as financial analyses, Capital Needs Assessments (CNAs), appraisals, market surveys/studies, and other consultation, advisory and non-construction services. Grantees may request Agency approval on a case-by-case basis for costs not included in the list.
Grantees may also on a case-by-case basis and, with advance approval by the Agency, provide technical assistance to entities approved for Off-FLH funding during the construction and rent-up/lease-up phases of development, and provide training to Agency-funded Off-FLH projects to support successful long-term management of Off-FLH properties.
In addition to costs identified as unallowable by 2 CFR parts 200 and 400, grant funds cannot be used for the following: (a) Construction (in any form) including building materials, labor, and costs or expenditures otherwise typically included as hard costs for actual construction.
(b) To reimburse grantees for technical assistance services provided to another nonprofit or public body applicant in the development and packaging of its loan/grant docket and project when those applicant entities have requested reimbursement for technical assistance expenses as part of their total project development cost (See 7 CFR 3560.553(c) and 7 CFR part 3560.53(o)(3) (Duplication of service costs is not allowed).
(c) In counties with Agency-financed Off-FLH properties currently operating under a “diminished need” occupancy waiver (7 CFR 3560.576(e)), which are listed on RD's website at
(d) When an identity of interest exists between the technical assistance provider (or any third-party entity acting on their behalf) and the loan/grant applicant. Identity of interest is defined in 7 CFR 3560.11.
All materials must be submitted via CloudVault. The process for submitting electronic application packages to the Agency via CloudVault is outlined above in the General Section of this notice.
In addition to the forms, certifications and assurances required of all respondents as outlined in the General Section of this notice, complete application packages for the Off-FLH TA Grant must also contain a written grant proposal that includes the following required information:
(a) Summary page, which must include the following:
1. Responding entity's name, address, telephone number, and complete contact information for the entity's main point of contact;
2. Responding entity's Taxpayer Identification Number;
3. Grant Amount requested;
4. The State(s), area(s), and/or geographic region for which the application is being submitted; and
5. Responding entity's Unique Entity Identifier (UEI) number required for registration in the System for Award Management (SAM) prior to submitting an application pursuant to 2 CFR 25.200(b).
(b) Organizational Expertise and Experience Capabilities Statement. The responding entity must provide a capabilities statement describing overall organizational knowledge, demonstrated ability, and practical experience in developing, packaging, and submitting section 514/516 transactions for Agency funding consideration; developing, implementing, and delivering farm labor housing technical assistance programs; and managing Federal technical assistance grants throughout their lifecycle. In addition, respondents must demonstrate the ability to exercise leadership, organize work, and prioritize assignments to meet work demands in a cost-efficient and timely manner within the 24-month grant term. If the respondent intends to have other entities working on its behalf, those entities must be identified and their abilities to meet the stated eligibility requirements and experience in delivering approved technical assistance services must also be addressed.
(c) Narrative. The responding entity must include a written narrative describing its knowledge, demonstrated ability, and practical experience in farm labor housing development, Federal grant administration, and technical assistance program development, implementation, and delivery. If the respondent intends to have other entities working on its behalf, those entities must be identified and their abilities to meet the stated eligibility requirements and experience in delivering approved technical assistance services must also be addressed.
To demonstrate overall organizational knowledge, experience, and expertise in farm labor housing development, respondents must identify by property name, type, and location, all FLH projects (both section 514/516 and non-RHS) their organization has successfully developed in the past five (5) years. Please specify developments that continue to operate successfully to meet farm labor housing demand in the communities where they were developed. Respondents may also include a list of any successful, verifiable experience in completing or obtaining funding for other affordable Multifamily Housing projects during the past five years.
To demonstrate overall organizational knowledge, experience, and expertise in developing, implementing, and delivering farm labor housing technical assistance programs, respondents must identify by name and location the organizations and communities to which they have provided farm labor housing technical assistance services, the types of TA services provided to these entities, the sources of the technical assistance funding (including any leveraged funding sources), the number of section 514/516 loan/grant packages developed and submitted for Agency funding consideration on behalf of these entities, and a description of how the respondent's technical assistance services contributed to the development of off-farm labor housing that continues to operate successfully to meet off-farm labor housing demand in
To demonstrate overall organizational knowledge, experience, and expertise in managing Federal technical assistance grants throughout their lifecycle (including submitting timely requests for reimbursements, meeting reporting requirements, and closing out awards), respondents must identify the total number and type(s) of Federal technical assistance grants their organization has successfully administered within the past five years, including the awarding Federal agencies involved.
(d) Key Personnel and Staffing Plan. Proposals must include the resumes of all personnel who will perform key personnel services of (1) technical assistance delivery and (2) grant administration (CNAs, appraisals, and market surveys are not considered key personnel services). The staffing plan must describe each staff member's ability to perform the proposed activities and/or their experience in successfully managing service delivery of TA grants. The plan must include a staffing chart complete with name, job title, salary, hours, timelines, and descriptions of all proposed employee duties that will achieve the objectives of the grant program. If respondents intend to contract for any key personnel services from outside their organization (not to exceed the 20% limit), the qualifications of all entities acting on behalf of respondents must also be addressed.
(e) Statement of Work/Work Plan. Responding entities must submit a detailed SOW that includes the following requirements:
1. Introduction/overview with a description of the proposed plan to identify and provide advisory services to eligible groups and organizations applying for section 514/516 Off-FLH loans and grants in underserved market areas.
2. The organization's capabilities to execute the proposed plan within the prescribed 24-month grant period.
3. The organization's plan to identify and recruit qualified groups and organizations who lack the knowledge, experience and/or capacity to package and submit section 514/516 applications for Agency funding consideration. The SOW must provide a projected number of section 514 loan and section 516 grant application packages the respondent intends to submit for Agency funding consideration during the 24-month grant period. The SOW should discuss how the respondent's existing FLH knowledge and expertise, in combination with statistical data analysis, were utilized in identifying potential loan/grant applicants and how those findings provided foundational context to their planning efforts. Respondents should also include a discussion of their organizational ability to effectively serve the targeted applicants based on key personnel, established timeframes, and budget projections. Please include the data utilized to support the proposal, all of which must be current, relevant, and verifiable.
4. The organization's plan to identify areas with unmet need and unsatisfied market demand for new Off-FLH project development. In determining the underserved areas to target for FLH TA services, respondents must consider the total number of farmworkers in the area, the number and percentage of farmworkers who are without adequate housing in the area and projected future housing demand in the area. Consultation with major employers of farm laborers and with farmworker organizations in each market area under consideration is strongly encouraged prior to determining which areas to target for services. The SOW should discuss how the respondent's existing FLH knowledge and expertise, in combination with statistical data analysis, were utilized in identifying underserved market areas and how those findings provided foundational context to their planning efforts. Also include a discussion of the respondent's organizational ability to effectively serve the targeted market areas based on key personnel, established timeframes, and budget projections. Respondents should include the data utilized to support their proposals, all of which must be current, relevant, and verifiable.
5. Types of proposed technical assistance and legal and/or financial services that will enable qualified applicants in underserved areas to submit successful section 514/516 applications to the Agency within the prescribed 24-month grant period. Respondents must clearly explain the services to be provided directly by their organization and all services that will be provided by third parties. The responding entity must specify the State(s) and/or geographic regions in which they and any proposed third-party contractors, consultants or subrecipients will offer technical assistance services. Respondents must specify why each applicant and targeted service area needs the proposed technical assistance services.
6. A detailed budget justification that aligns with the key project tasks/activities and a grant funds usage projection that corresponds with a 24-month timeline for service delivery. The grant funds usage projection should illustrate direct and indirect administrative costs in dollars, and as a percentage of the technical assistance services provided (not to exceed 20%).
7. Additional strengths, qualifications, or capabilities not discussed above that may enhance the respondent's capacity to deliver services under this grant.
All application packages will be reviewed to determine eligibility and completeness. All eligible, complete applications will be evaluated and competitively scored using the Application Scoring Criteria outlined below. Points will be awarded only for factors that are well-documented in the application package and, in the opinion of the Agency, meet the objectives outlined in each of the evaluation criteria. References to external websites, publications and/or other information not submitted as part of the application package will not be reviewed. Therefore, full documentation and support of all criteria is encouraged.
The review process designed for this notice will evaluate the degree to which the application sets forth measurable realistic objectives that are consistent with this notice and can be completed within a 24-month grant term consistent with the application and processing guidance established by Agency regulations.
a. Respondent has successful, verifiable experience completing section 514/516 transactions during the past five years. Experience must be demonstrated by submitting a list of past section 514/516 transactions as described in this Notice. To receive points, the respondent must have acted as the developer or technical assistance provider and transactions must have been completed within the past five years or there must be a submitted application currently pending approval and/or closing with the Agency:
b. Respondent has successful, verifiable experience providing technical assistance to qualified borrowers in completing section 514/516 transactions. Experience must be demonstrated by submitting a list of past instances providing technical assistance as described in this Notice. Points will be awarded according to the number of qualified borrowers to whom the respondent has provided successful section 514/516 technical assistance during the past five years:
a. Respondent has successful, verifiable experience completing or obtaining funding for non-RHS FLH or other affordable MFH projects during the past five years. Experience must be demonstrated by submitting a list of past project transactions as described in this Notice. To receive points, the respondent must have acted as the developer or technical assistance provider and the projects must have been completed or have (at a minimum) obtained funding approval during the past five years:
b. Respondent has successful, verifiable experience providing technical assistance to non-RHS FLH or MFH borrowers. Experience must be demonstrated by submitting a list of past instances of providing technical assistance as described in this Notice. Points will be awarded according to the number of non-RHS FLH or MFH borrowers to whom the respondent has provided technical assistance in the past five years:
a. Respondent uses technical assistance resources to maximize the number of areas assisted (based on the proposed Statement of Work/Work Plan). Points will be awarded according to the proposed number of areas with unmet need/unsatisfied market demand targeted for services under the TA grant:
b. Respondent uses technical assistance resources to identify and assist qualified section 514/516 applicant groups and organizations (based on the Statement of Work/Work Plan). Points will be awarded according to the proposed number of qualified 514/516 applicant groups/organizations to be served under the grant:
c. Respondent uses technical assistance resources to increase the number of successful section 514/516 applications submitted for Agency funding consideration (based on the Statement of Work/Work Plan). Points will be awarded according to the proposed number of section 514/516 loan/grant application packages to be submitted for Agency funding consideration during the 24-month grant period of performance:
a. Respondent uses grant resources to maximize the funding available for direct program delivery to TA recipients. Percentage of grant funds used for direct and indirect administrative costs (not to exceed 20% of total projected costs):
b. Respondent has successful, verifiable experience managing service delivery or technical assistance throughout the grant lifecycle during the past five years. Experience must be demonstrated by submitting a list of past instances of managing service delivery or providing technical assistance as described in this Notice. Experience considered for scoring purposes includes submitting timely requests for funding, meeting reporting requirements, and closing out awards. Points will be awarded according to the degree of experience:
5.
a. Geographic coverage (up to 10 points): Respondent proposes to serve geographic areas that are underserved by other technical assistance providers, as identified by the respondent and verified by the Agency.
b. Innovative TA service delivery models (up to 5 points): The agency seeks to test a range of TA delivery models to assess the methods of TA delivery that are most effective to facilitate successful Off-FLH development. Describe any supporting innovative delivery approaches associated with implementation of the outlined key personnel tasks, including contingencies for delivering TA services remotely/virtually in order to avoid service delays and disruptions.
6.
(i) Market Opportunities (up to 5 points): Priority points may be awarded if the project is located in or serving one of the top 10% of counties or county equivalents based upon county risk score in the United States. Information on whether your project qualifies for priority points can be found at the following website:
(ii) Equity (up to 5 points): Priority points may be awarded if the project is located in or serving a community with score 0.75 or above on the CDC Social
(iii) Climate Impacts (up to 5 points): Priority points may be awarded if the project is located in or serving coal, oil and gas, and power plant communities whose economic well-being ranks in the most distressed tier of the Distressed Communities Index. Information on whether your project qualifies for priority points can be found at the following website:
The minimum score requirement for grants awarded under this funding opportunity is 50 points. Final scores are determined by the Agency. The Agency reserves the right to withhold the awarding of funds for applications that fail to meet the minimum required final score. Meeting the minimum scoring requirements and/or receiving priority funding points or discretionary points from the Administrator does not guarantee a funding award.
The Agency will notify all responding entities whether their application has been accepted or rejected and provide appeal rights under 7 CFR part 11, as appropriate.
Rural Housing Service, USDA.
Notice of Funds Availability (NOFA); correction.
The Rural Housing Service (RHS), a Rural Development agency of the United States Department of Agriculture (USDA), is correcting a notice of funding availability (NOFA) that was published in the
May 4, 2023.
Nathan Chitwood, Asset Risk Management Specialist at email address
In the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that the producers/exporters subject to this administrative review made sales of subject merchandise at prices less than normal value during the period of review (POR), December 1, 2020, through November 30, 2021.
Applicable May 4, 2023.
Benjamin A. Luberda or Alice Maldonado, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2185 or (202) 482-4682, respectively.
This review covers five producers/exporters of the subject merchandise. Commerce selected two mandatory respondents for individual examination: Ajmal Steel Tubes & Pipes Ind. L.L.C./Ajmal Steel Tubes & Pipes Ind. L.L.C.-Branch-1 (collectively, Ajmal)
On December 28, 2022, Commerce published the
Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The merchandise subject to the
All issues raised by interested parties to this administrative review are addressed in the Issues and Decision Memorandum. For a list of issues raised by parties,
Based on a review of the record and comments received from interested parties regarding the
The Act and Commerce's regulations do not address the establishment of a weighted-average dumping margin to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a less-than-fair-value (LTFV) investigation, for guidance when calculating the weighted-average dumping margin for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding rates that are zero,
For the final results, Commerce calculated weighted-average dumping margins for Ajmal and Universal that are not zero,
We calculated the following weighted-average dumping margins for the companies listed below for the period December 1, 2020, through November 30, 2021:
We intend to disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding, in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject
Pursuant to 19 CFR 351.212(b)(1), because Ajmal and Universal reported the entered value of their U.S. sales, we calculated importer-specific
Commerce's “automatic assessment” will apply to entries of subject merchandise during the POR produced or exported by Ajmal or Universal for which the company did not know that the merchandise they sold to the intermediary (
For the companies that were not selected for individual review, the assessment rate for antidumping duties will be equal to the weighted-average dumping margin determined in these final results.
We intend to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for each company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that sales of drawn stainless steel sinks (sinks) from the People's Republic of China (China) were made below normal value (NV) during the period of review. Additionally, Commerce is rescinding this review with respect to multiple companies. Interested parties are invited to comment on these preliminary results of review.
Applicable May 4, 2023.
Ajay Menon or Paul Gill, AD/CVD Operations, Office IX, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0208 or (202) 482-5673, respectively.
On June 9, 2022, based on timely requests for review, in accordance with
The products covered by the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if a party who requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. On September 7, 2022, the petitioner
Commerce is conducting this review in accordance with section 751(a)(1)(B) of Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
Because Shenzhen Kehuaxing Industrial Ltd. (Shenzhen Kehuaxing) did not demonstrate that it is entitled to a separate rate, Commerce preliminarily finds this company to be part of the China-wide entity. Because no party requested a review of the China-wide entity, the entity is not under review. Thus, the rate previously established for the China-wide entity,
We preliminarily determine that the following weighted-average dumping margins exist for the period April 1, 2021, through March 31, 2022, for the mandatory respondents:
Upon issuing the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
For Guangdong Dongyuan Kitchenware Industrial Co., Ltd. (Dongyuan) and Guangdong Yingao Kitchen Utensils Co., Ltd. (Yingao), Commerce calculated importer- (or customer-) specific per-unit duty assessment rates based on the ratio of the total amount of dumping calculated for the importer's (or customer's) examined sales to the total sales quantity associated with those sales, in accordance with 19 CFR 351.212(b)(1). Where either a respondent's weighted-average dumping margin is zero or
For the final results, if we continue to treat Shenzhen Kehuaxing as part of the China-wide entity, we will instruct CBP to apply an
In accordance with section 751(a)(2)(C) of the Act, the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the review and for future deposits of
Finally, for the companies for which we are rescinding this administrative review, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions directly to CBP no earlier than 35 days after the date of publication of this notice in the
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of subject merchandise from China entered, or withdrawn from warehouse, for consumption on, or after, the publication date of the final results of review, as provided for by section 751(a)(2)(C) of the Act: (1) for Dongyuan and Yingao, the cash deposit rates will be equal to the weighted-average dumping margins established in the final results of this review (except, if the dumping margin is zero or
Commerce intends to disclose the calculations performed in connection with these preliminary results to interested parties within five days after the date of publication of this notice in the
Interested parties may submit case briefs to Commerce no later than seven days after the date of the last verification report issued in this administrative review.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS within 30 days after the date of publication of this notice.
As provided in section 782(i)(3) of the Act, Commerce intends to verify the information relied upon for its final results.
Commerce intends to issue the final results of this administrative review, including the results of its analysis raised in any written briefs, not later than 120 days after the publication of these preliminary results in the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties, and/or an increase in the amount of antidumping duties by the amount of the countervailing duties.
We are issuing and publishing these preliminary results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, 19 CFR 351.213, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that producers/exporters of
Applicable May 4, 2023.
Benito Ballesteros, AD/CVD Operations, Office IX, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4725.
On April 27, 2021, Commerce published the countervailing duty order on aluminum sheet from India.
For a complete description of the events that followed the initiation of this review,
Pursuant to 19 CFR 351.213(d)(3), Commerce's practice is to rescind an administrative review of a countervailing duty order when there are no reviewable entries of subject merchandise during the POR for which liquidation is suspended.
According to the CBP import data, one company, Virgo Aluminum Limited (Virgo), did not have a reviewable entry of subject merchandise during the POR for which liquidation is suspended.
The merchandise covered by this
Commerce is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found to be countervailable, Commerce preliminarily determines that there is a subsidy,
As a result of this review, we preliminarily determine that, for 2020 and 2021, the following estimated countervailable subsidy rates exist:
Consistent with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(2), upon issuance of the final results, Commerce shall determine, and CBP shall assess, countervailing duties on all appropriate entries covered by this review. Commerce intends to issue assessment instructions to CBP no earlier than 35
For Virgo, the company for which we are rescinding this administrative review, Commerce will instruct CBP to assess countervailing duties on all appropriate entries at a rate equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period August 14, 2020, through December 31, 2021, in accordance with 19 CFR 351.212(c)(l)(i). Commerce intends to issue appropriate assessment instructions directly to CBP no earlier than 35 days after the date of publication of this notice in the
Pursuant to section 751(a)(1) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts calculated for the year 2021 for Hindalco with regard to shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, CBP will continue to collect cash deposits of estimated countervailing duties at the all-others rate or the most recent company-specific rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
Commerce intends to disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results, in accordance with 19 CFR 351.224(b).
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the date of publication of the preliminary results. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must do so within 30 days after the publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance using ACCESS. Requests should contain the party's name, address, and telephone number, and a list of the issues to be discussed. Issues addressed at the hearing will be limited to those raised in the briefs. If a request for a hearing is made, Commerce will inform parties of the scheduled date for the hearing.
Unless the deadline is extended, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, no later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1).
These preliminary results are issued and published pursuant to sections 751(a) and 777(i) of the Act and 19 CFR 351.221(b)(4) and 351.213(d)(4).
Pursuant to section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before May 24, 2023. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Please also email a copy of those comments to
The grant was awarded to the University of Wisconsin Stout, a primarily undergraduate, public university. The equipment will be housed in the university Fabrication Lab which is accessible to all students on campus. It will also be used to support curriculum in courses for the Game Design and Development (GDD) Program, the Professional Communication and Emerging Media (PCEM) Program, and other design programs. Justification for Duty-Free Entry: According to the applicant, there are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: December 13, 2022.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that four companies under review made no shipments of the subject merchandise during the period of review (POR). Commerce also determines that no other companies under review qualify for a separate rate, and that these companies are, therefore, considered part of the Vietnam-Wide entity. The period of review (POR) is February 1, 2021, through January 31, 2022.
Applicable May 4, 2023.
Jonathan Schueler or Katie Marksberry, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-9175, or (202) 482-7906, respectively.
On January 3, 2023, Commerce published in the
The merchandise subject to the
In the
As no parties submitted comments regarding the
Because no party requested a review of the Vietnam-wide entity, and we did not self-initiate a review, the Vietnam-wide entity rate (
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise covered by this review. Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
We have not calculated any assessment rates in this administrative review. With regard to the 96 companies identified in the Appendix as part of the Vietnam-wide entity, we will instruct CBP to apply an
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from Vietnam entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) for previously investigated or reviewed Vietnamese and non-Vietnamese exporters that are not under review in this segment of the proceeding but have separate rates, the cash deposit rate will continue to be the exporter's existing cash deposit rate; (2) for all Vietnam exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the existing rate for the Vietnam-wide entity of 25.76 percent; and (3) for all non-Vietnam exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Vietnam exporter that supplied that non-Vietnam exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
These final results are issued and published in accordance with sections 751(a)(1)(B) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) is amending the final results of the administrative review of the antidumping duty order on certain lined paper products from India to correct one ministerial error. The period of review (POR) is September 1, 2020, through August 31, 2021.
Applicable May 4, 2023.
Samuel Brummitt, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7851.
On April 12, 2023, the Commerce published its
A ministerial error, as defined in section 751(h) of the Tariff Act of 1930, as amended (the Act), includes “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the {Commerce} considers ministerial.”
In the final results of the review, Commerce made an inadvertent error within the meaning of section 751(h) of the Act and 19 CFR 351.224(f) with respect to standardizing the variable length for the product characteristic variables in Cellpage Ventures Private Limited's (Cellpage) sales and cost databases. Accordingly, Commerce determines that, in accordance with section 751(h) of the Act and 19 CFR 351.224(f), it made a ministerial error in the
For a complete description and analysis of the specific inadvertent error, and the petitioners' ministerial error allegation,
Pursuant to 19 CFR 351.224(e), Commerce is amending the
In addition to the ministerial error described above, we are also including SGM Paper Products among the companies not selected for individual examination in these amended final results. SGM Paper Products was inadvertently excluded from the list of companies not selected for individual examination in the
As a result of correcting this ministerial error, Commerce determines that, for the period September 1, 2020, through August 31, 2021, the following weighted-average dumping margins exist:
We intend to disclose the calculations performed for these amended final results to parties in this review within five days of the date of publication of this notice in the
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with these amended final results of the administrative review.
Pursuant to 19 CFR 351.212(b)(1), where the respondent reported the entered value of its U.S. sales, we calculated importer-specific
For the companies that were not selected for individual examination, we will assign an assessment rate based on the cash deposit rates calculated for the mandatory respondents in this review,
Commerce's “automatic assessment” will apply to entries of subject merchandise during the POR produced by companies included in these amended final results of review for which the individually-examined companies did not know that the merchandise they sold to the intermediary (
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the amended final results of this review in the
The following cash deposit requirements will be effective retroactively for all shipments of subject merchandise that entered, or were withdrawn from warehouse, for consumption on or after April 12, 2023, the date of publication of the
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties, and/or an increase in the amount of antidumping duties by the amount of the countervailing duties.
This notice also serves as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return or destruction of APO materials or conversion to judicial
The amended final results and notice are issued and published in accordance with sections 751(h) and 777(i) of the Act and 19 CFR 351.224(e).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that certain refractory brick samples tested by U.S. Customs and Border Protection (CBP) do not reflect the chemical composition of magnesia alumina carbon (MAC) bricks and are covered by the antidumping duty (AD) and countervailing duty (CVD) orders on certain magnesia carbon bricks (bricks) from the People's Republic of China (China). Additionally, Commerce finds that it is unable to determine whether certain other samples tested by CBP have the chemical composition of a bricks subject to the AD and CVD orders on bricks from China.
Applicable May 4, 2023.
Brittany Bauer, AD/CVD Operations Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3860.
On February 17, 2023, Commerce published in the
The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
The merchandise covered by the
The products subject to this inquiry are certain refractory bricks which were imported by Fedmet. CBP's laboratories tested 11 samples from these bricks and provided the results of chemical composition tests for the merchandise in its referral to Commerce.
All issues raised in the case and rebuttal briefs that were submitted by parties in this inquiry are addressed in the Issues and Decision Memorandum. For a list of the issues raised by interested parties and addressed in the Issues and Decision Memorandum,
We determine, pursuant to 19 CFR 351.227(e)(2), that certain bricks tested by CBP laboratories do not constitute (non-subject) MAC bricks and, thus, are subject to the scope of the
As stated above, Commerce has made an affirmative finding that certain of the bricks tested by CBP, which were the subject of this referral from CBP, are subject to the scope of the
In accordance with section 517(b)(4)(B) of the Act, we will notify CBP of the final determination in this covered merchandise inquiry. Commerce will direct CBP to assess, upon further instruction by Commerce, AD and CVD duties on all imports of certain refractory bricks having less than
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published pursuant to section 517 of the Act and 19 CFR 351.227(e)(2).
Comment 1: Whether Commerce Has Impermissibly Modified the Fedmet Ruling
Comment 2: Whether Commerce Should Find That None of the Brick Samples
Constitute Subject Merchandise
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that producers and exporters of certain aluminum foil (aluminum foil) from the People's Republic of China (China) received countervailable subsidies during the period of review (POR), January 1, 2021, through December 31, 2021.
Applicable May 4, 2023.
Natasia Harrison, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1240.
On June 9, 2022, Commerce published a notice of initiation of an administrative review of the order,
For a complete description of the events that followed the initiation of this review, see the Preliminary Decision Memorandum.
The product covered by the
Commerce is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy,
Commerce notes that, in making these findings, it relied, in part, on facts available and, because it finds that the Government of China did not act to the best of its ability to respond to Commerce's requests for certain information, it drew an adverse inference, where appropriate, in selecting from among the facts otherwise available. For further information,
The subsidy rate calculated in these preliminary results for the mandatory respondent reflects an entered value adjustment.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an
Because no other party requested a review of these 15 companies, and in accordance with 19 CFR 351.213(d)(1), we are rescinding the review with respect to these companies (see appendix II).
Commerce preliminarily determines that, during the POR, the following countervailable subsidy rates exist:
Consistent with section 751(a)(2)(C) of the Act, upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
For the companies for which this review is rescinded with these preliminary results, Commerce will instruct CBP to assess countervailing duties on all appropriate entries at a rate equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period January 1, 2021, through December 31, 2021, in accordance with 19 CFR 351.212(c)(l)(i). Commerce intends to issue appropriate assessment instructions directly to CBP no later than 35 days after publication of this notice in the
Pursuant to section 751(a)(1) of the Act, upon issuance of the final results, Commerce intends to instruct CBP to collect cash deposits of estimated countervailing duties for each of the companies listed above on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, except where the rate calculated in the final results is zero or
We will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results. Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs) within seven days after the time limit for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice.
Parties are reminded that all briefs and hearing requests are to be filed electronically using ACCESS and received successfully in their entirety by 5:00 p.m. Eastern Time on the due date.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213 and 351.221(b)(4).
(1) Alcha International Holdings Limited;
(2) Baotou Alcha Aluminum Co., Ltd.
(3) Granges Aluminum (Shanghai) Co., Ltd.;
(4) Guangxi Baise Xinghe Aluminum Industry Co., Ltd.;
(5) Hunan Suntown Marketing Limited;
(6) Jiangyin Dolphin Pack Ltd. Co.;
(7) Shandong Yuanrui Metal Material Co., Ltd.;
(8) Shanghai Huafon Aluminium Corporation;
(9) SNTO International Trade Limited;
(10) Suntown Technology Group Corporation Limited;
(11) Xiamen Xiashun Aluminum Foil Co., Ltd.;
(12) Yantai Donghai Aluminum Co., Ltd.;
(13) Yantai Jintai International Trade Co., Ltd.;
(14) Yinbang Clad Material Co., Ltd.;
(15) Zhejiang Zhongjin Aluminum Industry Co., Ltd.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that the producers/exporters subject to this administrative review made sales of subject merchandise at prices less than normal value during the period of review (POR), December 1, 2020, through November 30, 2021.
Applicable May 4, 2023.
Benjamin A. Luberda or Alice Maldonado, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2185 or (202) 482-4682, respectively.
This review covers five producers/exporters of the subject merchandise. Commerce selected two mandatory respondents for individual examination: Ajmal Steel Tubes & Pipes Ind. L.L.C./Ajmal Steel Tubes & Pipes Ind. L.L.C.-Branch-1 (collectively, Ajmal)
On December 28, 2022, Commerce published the
Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The merchandise subject to the
All issues raised by interested parties to this administrative review are addressed in the Issues and Decision Memorandum. For a list of issues raised by parties,
Based on a review of the record and comments received from interested parties regarding the
The Act and Commerce's regulations do not address the establishment of a weighted-average dumping margin to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a less-than-fair-value (LTFV) investigation, for guidance when calculating the weighted-average dumping margin for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding rates that are zero,
For the final results, Commerce calculated weighted-average dumping margins for Ajmal and Universal that are not zero,
We calculated the following weighted-average dumping margins for the companies listed below for the period December 1, 2020, through November 30, 2021:
We intend to disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding, in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.
Pursuant to 19 CFR 351.212(b)(1), because Ajmal and Universal reported the entered value of their U.S. sales, we calculated importer-specific
Commerce's “automatic assessment” will apply to entries of subject merchandise during the POR produced or exported by Ajmal or Universal for which the company did not know that the merchandise they sold to the intermediary (
For the companies that were not selected for individual review, the assessment rate for antidumping duties will be equal to the weighted-average dumping margin determined in these final results.
We intend to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for each company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that Nippon Steel Corporation (NSC), producer and exporter of hot-rolled steel flat products (hot-rolled steel) from Japan, sold subject merchandise in the United States at prices below normal value during the period of review (POR) October 1, 2020, through September 30, 2021.
Applicable May 4, 2023.
Jun Jack Zhao AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1396.
On November 2, 2022, Commerce published the
On February 13, 2023, we extended the deadline for the final results, in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(h)(2).
These final results cover two producers and/or exporters of subject merchandise.
The merchandise covered by the
We addressed all issues raised in the case and rebuttal briefs in the Issues and Decision Memorandum, which is hereby adopted with this notice. The issues are identified in Appendix I to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our review and analysis of the comments received from parties, we made certain changes to NSC's margin calculations. For a discussion of these changes,
The statute and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
In this review, we have calculated a weighted-average dumping margin for NSC that is not zero,
We are assigning the following weighted-average dumping margins to the firms listed below for the period October 1, 2020, through September 30, 2021:
Consistent with its recent notice,
Where the respondent reported reliable entered values, we calculated importer—(or customer-) specific
For the company which were not selected for individual review, we will assign an assessment rate based on the methodology described in the “Rates for Non-Examined Companies” section, above.
Consistent with Commerce's assessment practice, for entries of subject merchandise during the POR produced by NSC, or the non-examined companies for which the producer did not know that its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) the cash deposit rates for the companies listed in these final results will be equal to the weighted-average dumping margins established in the final results of this review; (2) for merchandise exported by producers or exporters not covered in this review but covered in a prior segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment in which the company was reviewed; (3) if the exporter is not a firm covered in this review or the original less-than-fair-value (LTFV) investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be 5.58 percent,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h) and 351.221(b)(5) of Commerce's regulations.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that carbon and alloy steel threaded rod (steel threaded rod) from India was sold in the United States at below normal value. The period of review (POR) is April 1, 2021, through March 31, 2022. Interested parties are invited to comment on these preliminary results.
Applicable May 4, 2023.
Nicolas Mayora or Samuel Frost, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3053 or (202) 482-8180, respectively.
On April 9, 2020, Commerce published in the
On December 16, 2022, Commerce extended the time limit for completing the preliminary results of this review until April 28, 2023.
The merchandise covered by the scope of this
Commerce is conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). We calculated export price in accordance with section 772(a) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying these preliminary results,
The Act and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
Where the dumping margin for individually examined respondents are all zero,
In this review, we have preliminarily calculated a weighted-average dumping margin of 2.37 percent for RKF and zero percent for Kanika. Therefore, in accordance with section 735(c)(5)(A) of the Act, we are preliminarily applying RKF's weighted average dumping margin of 2.37 percent to the non-examined companies (
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist during the period April 1, 2021, through March 31, 2022:
Commerce intends to disclose to interested parties the calculations performed for these preliminary results within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs no later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than seven days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically via ACCESS within 30 days of the date of publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. An electronically-filed hearing request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time on the established deadline.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in the case briefs, no later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act, unless otherwise extended.
Upon issuance of the final results of this administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess,
In accordance with Commerce's “automatic assessment” practice, for entries of subject merchandise during the POR produced by Kanika or RKF for which these companies did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate those entries at the all-others rate established in the original less-than-fair-value (LTFV) investigation,
We intend to issue instructions to CBP no earlier than 35 days after the publication date of the final results of this review in the
The following cash deposit requirements will be effective upon publication in the
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
Commerce is issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of phosphate fertilizers from the Russian Federation (Russia). The period of review (POR) is November 30, 2020, through December 31, 2021.
Applicable May 4, 2023.
Shane Subler or William Horn, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6241 and (202) 482-4868, respectively.
On June 9, 2022, Commerce published a notice of initiation of an administrative review of the countervailing duty (CVD) order on phosphate fertilizers from Russia.
For a complete description of the events that followed the initiation of this review,
The merchandise covered by the order is phosphate fertilizers. For a complete description of the scope of the order,
On July 22, 2022, Commerce notified interested parties that we intended to rescind this administrative review with respect to Industrial Group Phosphorite LLC because it did not have reviewable entries of subject merchandise during the POR for which liquidation is suspended.
Commerce is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found to be countervailable, we preliminarily determine that there is a subsidy,
As a result of this review, we preliminarily determine the following net countervailable subsidy rate for the period November 30, 2020, through December 31, 2021:
We intend to disclose to interested parties the calculations performed for these preliminary results within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Unless the deadline is extended, we intend to issue the final results of this administrative review, which will include the results of our analysis of the issues raised in the case briefs, within 120 days of publication of these preliminary results in the
In accordance with 19 CFR 351.221(b)(4)(i), we preliminarily assigned a subsidy rate in the amount shown above for the producer/exporter shown above. Upon completion of the administrative review, consistent with section 751(a)(1) of the Act and 19 CFR 351.212(b)(2), Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review.
For the company for which this review is rescinded, we will instruct CBP to assess countervailing duties on all appropriate entries at a rate equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period November 30, 2020, through December 31, 2021, in accordance with 19 CFR 351.212(c)(l)(i). We intend to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this notice in the
For the company remaining in the review, we intend to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
In accordance with section 751(a)(1) of the Act, Commerce intends, upon publication of the final results, to instruct CBP to collect cash deposits of estimated countervailing duties in the amount shown for the company (and its cross-owned affiliates) listed above on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most recent company-specific or all others rate applicable to the company. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results are issued and published pursuant to sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
National Institute of Standards and Technology, Department of Commerce.
Notice.
The National Institute of Standards and Technology (NIST or Institute) and the National Technical Information Service (NTIS) invite and request nomination of individuals for appointment to eleven existing Federal Advisory Committees (Committees): Advisory Committee on Earthquake Hazards Reduction; Board of Overseers of the Malcolm Baldrige National Quality Award; Industrial Advisory Committee; Information Security and Privacy Advisory Board; Internet of Things Advisory Board; Judges Panel of the Malcolm Baldrige National Quality Award; Manufacturing Extension Partnership Advisory Board; National Artificial Intelligence Advisory Committee; National Construction Safety Team Advisory Committee; National Technical Information Service Advisory Board; and Visiting Committee on Advanced Technology. NIST and
Nominations for all Committees will be accepted on an ongoing basis and will be considered as and when vacancies arise.
See below.
The Advisory Committee on Earthquake Hazards Reduction (Committee) was established in accordance with the National Earthquake Hazards Reduction Program Reauthorization Act of 2004, Public Law 108-360 (42 U.S.C. 7704(a)(5)) and the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Committee will act in the public interest to assess trends and developments in the science and engineering of earthquake hazards reduction; effectiveness of the National Earthquake Hazards Reduction Program (Program) in carrying out the activities under section (a)(2) of the Earthquake Hazards Reduction Act of 1977, as amended (42 U.S.C. 7704(a)(2)); the need to revise the Program; and the management, coordination, implementation, and activities of the Program.
2. The Committee will function solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. The Committee shall report to the Director of NIST at least once every two years on its findings of the assessments and its recommendations for ways to improve the Program. In developing recommendations, the Committee shall consider the recommendations of the United States Geological Survey (USGS) Scientific Earthquake Studies Advisory Committee (SESAC).
1. The Committee shall consist of not fewer than 11, nor more than 17 members. Members shall reflect the wide diversity of technical disciplines, competencies, and communities involved in earthquake hazards reduction. Members shall be selected on the basis of established records of distinguished service in their professional community and their knowledge of issues affecting the National Earthquake Hazards Reduction Program.
2. The Director of NIST shall appoint the members of the Committee. Members shall be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
3. The term of office of each member of the Committee shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy and that members shall have staggered terms such that the Committee will have approximately one-third new or reappointed members each year.
1. Members of the Committee shall not be compensated for their services, but may, upon request, be allowed travel and per diem expenses in accordance with 5 U.S.C. 5701
2. Members of the Committee shall serve as Special Government Employees (SGEs) and will be subject to the ethics standards applicable to SGEs and are required to file an annual Executive Branch Confidential Financial Disclosure Report.
3. The Committee members shall meet face-to-face at least once per year. Additional meetings may be called whenever requested by the NIST Director; such meetings may be in the form of telephone conference calls and/or videoconferences.
4. Committee meetings are open to the public.
1. Members will be drawn from industry and other communities having an interest in the Program, such as, but not limited to, research and academic institutions, industry standards development organizations, state and local government, and financial communities, who are qualified to provide advice on earthquake hazards reduction and represent all related scientific, architectural, and engineering disciplines.
2. Any person who has completed two consecutive full terms of service on the Committee shall be ineligible for appointment for a third term during the two-year period following the expiration of the second term.
3. Nominees should have established records of distinguished service. The field of expertise that the candidate represents should be specified in the nomination letter. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment.
4. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad based and diverse Committee membership.
The Board of Overseers of the Malcolm Baldrige National Quality Award (Board) was established in accordance with 15 U.S.C. 3711a(d)(2)(B), pursuant the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Board shall review the work of the private sector contractor(s), which assists the Director of NIST in administering the Malcolm Baldrige National Quality Award (Award). The Board will make such suggestions for the improvement of the Award process as it deems necessary.
2. The Board shall make an annual report on the results of Award activities to the Director of NIST, along with its recommendations for the improvement of the Award process.
3. The Board will function solely as an advisory committee under the Federal Advisory Committee Act, 5 U.S.C. 1001
4. The Board will report to the Director of NIST.
1. The Board will consist of at least five and approximately 12 members selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance, and for their preeminence in the field of organizational performance excellence. There will be a balanced representation from U.S. service, manufacturing, nonprofit, education, and health care industries. The Board will include members familiar with the quality, performance improvement operations, and competitiveness issues of manufacturing companies, service companies, nonprofits, health care providers, and educational institutions.
2. Board members will be appointed by the Secretary of Commerce for three-year terms and will serve at the discretion of the Secretary. All terms will commence on March 1 and end on the last day of February of the appropriate years.
1. Members of the Board shall serve without compensation, but may, upon request, be reimbursed travel expenses, including per diem, as authorized by 5 U.S.C. 5701
2. The Board will meet at least annually, but usually two times a year. Additional meetings may be called as deemed necessary by the NIST Director.
3. Board meetings are open to the public. Board members do not have access to classified or proprietary information in connection with their Board duties.
1. Nominations are sought from the private and public sector as described above.
2. Nominees should have established records of distinguished service and shall be familiar with the quality improvement operations and competitiveness issues of manufacturing companies, service companies, educational institutions, health care providers, and nonprofit organizations. The relevant expertise of the candidate should be specified in the nomination letter. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. Besides participation at meetings, it is desired that members be able to devote the equivalent of seven days between meetings to either developing or researching topics of potential interest, and so forth, in furtherance of their Board duties.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Board membership.
The Secretary of Commerce (Secretary), in consultation with the Secretary of Defense, the Secretary of Energy, and the Secretary of Homeland Security, established the Industrial Advisory Committee (the Committee) in accordance with the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Committee shall act in the public interest to provide advice to the Secretary of Commerce through the National Institute of Standards and Technology (NIST) on matters relating to microelectronics research, development, manufacturing, and policy.
2. The Committee will function solely as an advisory body, in accordance with the provisions of FACA. The Committee shall assess and provide guidance to the Secretary of Commerce, through NIST, on—
a. science and technology needs of the nation's domestic microelectronics industry;
b. the extent to which the strategy developed under section 9906(a)(3) of the Act is helping maintain United States leadership in microelectronics manufacturing;
c. assessment of the research and development programs and activities authorized under section 9906 of the Act; and
d. opportunities for new public-private partnerships to advance microelectronics research, development, and domestic manufacturing.
The Committee shall not participate in selecting recipients of Federal financial assistance.
Members of the Committee shall be appointed by the Secretary of Commerce. The Committee shall be composed of not fewer than 12 members who are qualified to provide advice to the United States Government on matters relating to microelectronics research, development, manufacturing, and policy. The membership shall be fairly balanced among representatives of the semiconductor industry, representatives of Federal laboratories and academia, and other members. Members of the Committee shall serve as representative members or as regular government employee (RGE) members.
1. The Committee members serve three-year terms and may serve two consecutive terms at the discretion of the Secretary, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy and that members shall have staggered terms such that the Committee will have approximately one-third new or reappointed members each year. Members who are not able to fulfill the duties and responsibilities of the Committee will have their membership terminated. A member who has served two consecutive full terms is ineligible to serve a third term for a period of one year following the expiration of the second term. Vacancies are filled as soon as highly qualified candidates in needed areas are identified and available to serve.
2. The Secretary of Commerce shall appoint the Committee Chair and Vice-Chair from among the Committee membership. The tenures of the Chair and Vice-Chair shall be two years and
3. Committee members will be reimbursed for travel and per diem as it pertains to official business of the Committee in accordance with 5 U.S.C. 5701
4. Members shall not reference or otherwise utilize their membership on the Committee in connection with public statements made in their personal capacities without a disclaimer that the views expressed are their own and do not represent the views of the Committee, NIST, or the Department of Commerce.
5. NIST, when necessary and consistent with the Committee's mission and Departmental policies and procedures, may establish subcommittees, task forces, and working groups, drawn in whole or in part from the Committee, pursuant to the provisions of FACA, the FACA implementing regulations, and applicable Departmental guidance. The Department of Commerce requires that each subcommittee include at least one member of the Committee. Subcommittees must report back to the Committee and must not provide advice or work products directly to NIST or the Secretary, and any recommendations based on their work will be deliberated and adopted by the Committee prior to dissemination
NIST uses a nomination process to identify candidates for the Committee. Nominations are requested through annual announcements in the
The ISPAB (Committee or Board) was originally chartered as the Computer System Security and Privacy Advisory Board by the Department of Commerce pursuant to the Computer Security Act of 1987 (Pub. L. 100-235). The E-Government Act of 2002 (Pub. L. 107-347, Title III), amended section 21 of the National Institute of Standards and Technology Act (15 U.S.C. 278g-4), including changing the Committee's name, and the charter was amended accordingly.
1. The Board will identify emerging managerial, technical, administrative, and physical safeguard issues relative to information security and privacy.
2. The Board will advise NIST, the Secretary of Homeland Security, and the Director of the Office of Management and Budget (OMB) on information security and privacy issues pertaining to Federal Government information systems, including through review of proposed standards and guidelines developed by NIST.
3. The Board shall report to the Director of NIST.
4. The Board reports annually to the Secretary of Commerce, the Secretary of Homeland Security, the Director of OMB, the Director of the National Security Agency, and the appropriate committees of the Congress.
5. The Board will function solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Director of NIST will appoint the Chairperson and the members of the ISPAB, and members serve at the discretion of the NIST Director. Members will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
2. The ISPAB will consist of a total of 12 members and a Chairperson, for a total of 13.
• The Board will include four members from outside the Federal Government who are eminent in the information technology industry, at least one of whom is representative of small or medium sized companies in such industries.
• The Board will include four members from outside the Federal Government who are eminent in the fields of information technology, or related disciplines, but who are not employed by or representative of a producer of information technology.
• The Board will include four members from the Federal Government who have information system management experience, including experience in information security and privacy, at least one of whom shall be from the National Security Agency.
1. Members of the Board, other than full-time employees of the Federal Government, will not be compensated for their services, but will, upon request, be allowed travel expenses pursuant to 5 U.S.C. 5701
2. Meetings of the ISPAB are usually two to three days in duration and are usually held quarterly. ISPAB meetings are open to the public, including the press. Members do not have access to classified or proprietary information in connection with their ISPAB duties.
1. Nominations are being accepted in all three categories described above.
2. Nominees should have specific experience related to information security or privacy issues, particularly as they pertain to Federal information technology. Letters of nomination should include the category of membership for which the candidate is applying and a summary of the candidate's qualifications for that specific category. Also include (where applicable) current or former service on Federal advisory boards and any Federal employment. Each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the ISPAB, and that they will actively participate in good faith in the tasks of the ISPAB.
3. Besides participation at meetings, it is desired that members be able to devote a minimum of two days between meetings to developing draft issue papers, researching topics of potential interest, and so forth in furtherance of their ISPAB duties.
4. Selection of ISPAB members will not be limited to individuals who are nominated. Nominations that are received and meet the requirements will be kept on file to be reviewed as ISPAB vacancies occur.
5. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse ISPAB membership.
The Secretary of Commerce (Secretary) established the Internet of Things Advisory Board (IoTAB) in accordance with the requirements of 9204(b)(5) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283), and in accordance with the Federal Advisory Committee Act, 5 U.S.C. 1001
The Board shall advise the Internet of Things Federal Working Group convened by the Secretary pursuant to section 9204(b)(1) of the Act on matters related to the Federal Working Group's activities, as specified below.
The Board shall advise the Federal Working Group with respect to—
a. the identification of any Federal regulations, statutes, grant practices, programs, budgetary or jurisdictional challenges, and other sector-specific policies that are inhibiting, or could inhibit, the development of the Internet of Things;
b. situations in which the use of the Internet of Things is likely to deliver significant and scalable economic and societal benefits to the United States, including benefits from or to—
i. smart traffic and transit technologies;
ii. augmented logistics and supply chains;
iii. sustainable infrastructure;
iv. precision agriculture;
v. environmental monitoring;
vi. public safety; and
vii. health care;
c. whether adequate spectrum is available to support the growing Internet of Things and what legal or regulatory barriers may exist to providing any spectrum needed in the future;
d. policies, programs, or multi-stakeholder activities that—
i. promote or are related to the privacy of individuals who use or are affected by the Internet of Things;
ii. may enhance the security of the Internet of Things, including the security of critical infrastructure;
iii. may protect users of the Internet of Things; and
iv. may encourage coordination among Federal agencies with jurisdiction over the Internet of Things;
e. the opportunities and challenges associated with the use of Internet of Things technology by small businesses; and
f. any international proceeding, international negotiation, or other international matter affecting the Internet of Things to which the United States is or should be a party.
The Board shall submit to the Internet of Things Federal Working Group a report that includes any of its findings or recommendations. The report will be administratively delivered to the Internet of Things Federal Working Group through the Director of the National Institute of Standards and Technology (NIST).
The Board shall set its own agenda in carrying out its duties. The Federal Working Group may suggest topics or items for the Board to study, and the Board shall take those suggestions into consideration in carrying out its duties.
The Board will function solely as an advisory body, in accordance with the provisions of FACA.
Members of the Board shall be appointed by the Secretary. The Board shall consist of 16 members representing a wide range of stakeholders outside of the Federal Government with expertise relating to the Internet of Things, including: (i) information and communications technology manufacturers, suppliers, service providers, and vendors; (ii) subject matter experts representing industrial sectors other than the technology sector that can benefit from the Internet of Things, including the transportation, energy, agriculture, and health care sectors; (iii) small, medium, and large businesses; (iv) think tanks and academia; (v) nonprofit organizations and consumer groups; (vi) security experts; (vii) rural stakeholders; and (viii) other stakeholders with relevant expertise, as determined by the Secretary.
The Board members shall serve terms of two years (unless the Board terminates earlier). Vacancies are filled as soon as highly qualified candidates in a needed area of stakeholder interest are identified and available to serve. Members of the Board shall serve as representative members. Full-time or permanent part-time Federal officers or employees will not be appointed to the Board. Members must be citizens of the United States of America.
Members of the Board shall not be compensated for their services. Members of the Board, while attending meetings of the Board away from their homes or regular place of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of Title 5, United States Code, for individuals intermittently serving in the Government without pay.
Members shall not reference or otherwise utilize their membership on the Board in connection with public
The Secretary will appoint the Board's Chair from among the approved members in accordance with policies and procedures and, in doing so, shall determine the term of service for the Board's Chair.
Meetings will be conducted at least twice each year.
NIST uses a nomination process to identify candidates for the Board. Nominations are requested through an announcement in the
The Board members shall serve terms of two years (unless the Board terminates earlier). Vacancies are filled as soon as highly qualified candidates in a needed area of stakeholder interest are identified and available to serve.
The Department of Commerce seeks a broad-based and diverse IoTAB membership.
The Judges Panel of the Malcolm Baldrige National Quality Award (Panel) was established in accordance with 15 U.S.C. 3711a(d)(1) and the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Panel will ensure the integrity of the Malcolm Baldrige National Quality Award (Award) selection process. Based on a review of results of examiners' scoring of written applications, Panel members will vote on which applicants' merit site visits by examiners to verify the accuracy of quality improvements claimed by applicants. The Panel will also review results and findings from site visits, and recommend Award recipients.
2. The Panel will ensure that individual judges will not participate in the review of applicants as to which they have any real or perceived conflict of interest.
3. The Panel will function solely as an advisory body, and will comply with the provisions of the Federal Advisory Committee Act, 5 U.S.C. 1001
4. The Panel will report to the Director of NIST.
1. The Panel will consist of no less than 9, and not more than 12, members selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance. There will be a balanced representation from U.S. service, manufacturing, nonprofit, education, and health care industries. The Panel will include members familiar with the quality improvement operations and competitiveness issues of manufacturing companies, service companies, nonprofits, health care providers, and educational institutions.
2. Panel members will be appointed by the Secretary of Commerce for three-year terms and will serve at the discretion of the Secretary. All terms will commence on March 1 and end on the last day of February of the appropriate year.
3. Members who are not Federal employees will serve as Special Government Employees (SGEs) and will be subject to the ethical standards applicable to SGEs.
1. Members of the Panel shall serve without compensation, but may, upon request, be reimbursed travel expenses, including per diem, as authorized by 5 U.S.C. 5701
2. The Panel will meet three times per year. Additional meetings may be called as deemed necessary by the NIST Director or by the Chairperson. Meetings are usually one to four days in duration. In addition, each Judge must attend an annual three-day Examiner training course.
3. When approved by the Department of Commerce Chief Financial Officer and Assistant Secretary for Administration, Panel meetings are closed or partially closed to the public.
1. Nominations are sought from all U.S. service and manufacturing industries, education, health care, and nonprofits as described above.
2. Nominees should have established records of distinguished service and shall be familiar with the quality improvement operations and competitiveness issues of manufacturing companies, service companies, health care providers, educational institutions, and nonprofit organizations. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. Besides participation at meetings, it is desired that members be either developing or researching topics of potential interest, reading Baldrige applications, and so forth, in furtherance of their Panel duties.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Panel membership.
The MEP Advisory Board (Board) is authorized under section 501 of the American Innovation and Competitiveness Act (Pub. L. 114-329); codified at 15 U.S.C. 278k(m), as amended, in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Board will provide advice on MEP activities, plans, and policies.
2. The Board will assess the soundness of MEP plans and strategies.
3. The Board will assess current performance against MEP program plans.
4. The Board will function solely in an advisory capacity, and in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. 1001
5. The Board shall transmit through the Director of NIST an annual report to the Secretary of Commerce for transmittal to Congress not later than 30 days after the submission to Congress of the President's annual budget request each year. The report shall address the status of the MEP program.
1. The Board shall consist of not fewer than 10 members, appointed by the Director of NIST and broadly representative of stakeholders. At least 2 members shall be employed by or on an advisory board for a MEP Center, at least 5 members shall be from U.S. small businesses in the manufacturing sector, and at least 1 member shall represent a community college. No member shall be an employee of the Federal Government.
2. The Director of NIST shall appoint the members of the Board. Members shall be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance. Board members serve at the discretion of the Director of NIST.
3. The term of office of each member of the Board shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy. Any person who has completed two consecutive full terms of service on the Board shall thereafter be ineligible for appointment during the one-year period following the expiration of the second term.
1. Members of the Board will not be compensated for their services but will, upon request, be allowed travel and per diem expenses as authorized by 5 U.S.C. 5701
2. The Board will meet at least biannually. Additional meetings may be called by the Director of NIST or the Designated Federal Officer (DFO).
3. Committee meetings are open to the public.
1. Nominations are being accepted in all categories described above.
2. Nominees should have specific experience related to manufacturing and industrial extension services. Letters of nomination should include the category of membership for which the candidate is applying and a summary of the candidate's qualifications for that specific category.
3. Nominations that are received and meet the requirements will be kept on file to be reviewed as Board vacancies occur.
4. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse MEP Advisory Board membership.
The Secretary of Commerce established the National Artificial Intelligence Advisory Committee (the NAIAC or the Committee) pursuant to section 5104 of the National Artificial Intelligence Initiative Act of 2020 (Pub. L. 116-283), hereinafter referred to as the Act, and the Federal Advisory Committee Act, 5 U.S.C. 1001
The Committee shall provide advice to the President and the National Artificial Intelligence Initiative Office on matters related to the National Artificial Intelligence Initiative (Initiative). The purposes of the Initiative are: (1) ensuring continued United States leadership in artificial intelligence research and development; (2) leading the world in the development and use of trustworthy artificial intelligence systems in the public and private sectors; (3) preparing the present and future United States workforce for the integration of artificial intelligence systems across all sectors of the economy and society; and (4) coordinating ongoing artificial intelligence research, development, and demonstration activities among the civilian agencies, the Department of Defense, and the Intelligence Community to ensure that each informs the work of the others.
The Committee shall advise the President and the Initiative Office on matters related to the Initiative, including recommendations related to:
a. The current state of United States competitiveness and leadership in artificial intelligence, including the scope and scale of United States investments in artificial intelligence research and development in the international context;
b. The progress made in implementing the Initiative, including a review of the degree to which the Initiative has achieved the goals according to the metrics established by the Interagency Committee under section 5103(d)(2) of the Act;
c. The state of the science around artificial intelligence, including progress toward artificial general intelligence;
d. Issues related to artificial intelligence and the United States workforce, including matters relating to the potential for using artificial intelligence for workforce training, the possible consequences of technological displacement, and supporting workforce training opportunities for occupations that lead to economic self-sufficiency for individuals with barriers to employment and historically
e. How to leverage the resources of the Initiative to streamline and enhance operations in various areas of government operations, including health care, cybersecurity, infrastructure, and disaster recovery;
f. The need to update the Initiative;
g. The balance of activities and funding across the Initiative;
h. Whether the strategic plan developed or updated by the Interagency Committee established under section 5103(d)(2) of the Act is helping to maintain United States leadership in artificial intelligence;
i. The management, coordination, and activities of the Initiative;
j. Whether ethical, legal, safety, security, and other appropriate societal issues are adequately addressed by the Initiative;
k. Opportunities for international cooperation with strategic allies on artificial intelligence research activities, standards development, and the compatibility of international regulations;
l. Accountability and legal rights, including matters relating to oversight of artificial intelligence systems using regulatory and nonregulatory approaches, the responsibility for any violations of existing laws by an artificial intelligence system, and ways to balance advancing innovation while protecting individual rights; and
m. How artificial intelligence can enhance opportunities for diverse geographic regions of the United States, including urban, Tribal, and rural communities.
In addition, pursuant to section 5104(e) of the Act, the Committee's Chairperson shall establish a subcommittee that shall provide advice to the President, through the Committee, on matters related to the development of AI relating to law enforcement, including advice on the following:
A. Bias, including whether the use of facial recognition by government authorities, including law enforcement agencies, is taking into account ethical considerations and addressing whether such use should be subject to additional oversight, controls, and limitations.
B. Security of data, including law enforcement's access to data and the security parameters for that data.
C. Adoptability, including methods to allow the United States Government and industry to take advantage of artificial intelligence systems for security or law enforcement purposes while at the same time ensuring the potential abuse of such technologies is sufficiently mitigated.
D. Legal standards, including those designed to ensure the use of artificial intelligence systems are consistent with the privacy rights, civil rights and civil liberties, and disability rights issues raised by the use of these technologies.
Members of the Committee shall be appointed by the Secretary of Commerce. The Committee shall consist of not less than 9 members, who represent broad and interdisciplinary expertise and perspectives, including from academic institutions, companies across diverse sectors, nonprofit and civil society entities, including civil rights and disability rights organizations, and Federal laboratories, who represent geographic diversity, and who are qualified to provide advice and information on science and technology research, development, ethics, standards, education, technology transfer, commercial application, security, and economic competitiveness related to artificial intelligence.
In selecting the members of the Committee, the Secretary of Commerce shall seek and give consideration to recommendations from Congress, industry, nonprofit organizations, the scientific community (including the National Academies of Sciences, Engineering, and Medicine, scientific professional societies, and academic institutions), the defense and law enforcement communities, and other appropriate organizations.
Meetings will be conducted at least twice each year.
1. Generally, Committee meetings are open to the public.
2. Meeting may be held in-person in selected locations across the country and/or virtually.
1. Nominations are sought from all fields, sectors, and perspectives described above.
2. Nominees should represent broad and interdisciplinary expertise and perspectives, including from academic institutions, companies across diverse sectors, nonprofit and civil society entities, including civil rights and disability rights organizations, and Federal laboratories, who represent geographic diversity, and who are qualified to provide advice and information on science and technology research, development, ethics, standards, education, technology transfer, commercial application, security, and economic competitiveness related to artificial intelligence. The field of eminence for which the candidate is qualified should be specified in the nomination letter. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state whether the candidate seeks to serve on the Committee, the Subcommittee, or both; and that the candidate acknowledges the responsibilities of serving and will actively participate in good faith in the tasks of the Committee or Subcommittee, as appropriate. Third-party nomination letters should state that the candidate agrees to the nomination.
3. The Department of Commerce seeks a broad-based and diverse Committee and subcommittee membership.
The NCST Advisory Committee (Committee) was established in accordance with the National Construction Safety Team Act, Public Law 107-231, and the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Committee shall advise the Director of NIST on carrying out the National Construction Safety Team Act (Act), review the procedures developed under section 2(c)(1) of the Act, and review the reports issued under section 8 of the Act.
2. The Committee functions solely as an advisory body, in accordance with
3. The Committee shall report to the Director of NIST.
4. On January 1 of each year, the Committee shall transmit to the Committee on Science, Space, and Technology of the House of Representatives and to the Committee on Commerce, Science, and Transportation of the Senate a report that includes: (1) an evaluation of National Construction Safety Team (Team) activities, along with recommendations to improve the operation and effectiveness of Teams, and (2) an assessment of the implementation of the recommendations of Teams and of the Committee.
1. The Committee shall consist of no less than 4 and no more than 12 members. Members shall reflect the wide diversity of technical disciplines and competencies involved in the National Construction Safety Teams investigations. Members shall be selected on the basis of established records of distinguished service in their professional community and their knowledge of issues affecting the National Construction Safety Teams.
2. The Director of NIST shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
1. Members of the Committee shall not be compensated for their services but may, upon request, be allowed travel and per diem expenses in accordance with 5 U.S.C. 5703.
2. Members of the Committee shall serve as Special Government Employees (SGEs), will be subject to the ethics standards applicable to SGEs, and are required to file an annual Executive Branch Confidential Financial Disclosure Report.
3. The Committee shall meet at least once per year. Additional meetings may be called whenever requested by the NIST Director or the Designated Federal Officer (DFO); such meetings may be in the form of telephone conference calls and/or videoconferences.
1. Nominations are sought from industry and other communities having an interest in the National Construction Safety Teams investigations.
2. Nominees should have established records of distinguished service. The field of expertise that the candidate represents should be specified in the nomination letter. Nominations for a particular field should come from organizations or individuals within that field. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Committee membership.
The National Technical Information Service Advisory Board (NTIS or Advisory Board) was established in accordance with section 3704b(c) of Title 15 of the United States Code, and the Federal Advisory Committee Act, 5 U.S.C. 1001
1. The Advisory Board shall review and make recommendations to improve NTIS programs, operations, and general policies in support of NTIS' mission to advance Federal data priorities, promote economic growth, and enable operational excellence by providing innovative data services to Federal agencies through joint venture partnerships with the private sector.
2. The Advisory Board shall act in the public interest to:
a. Provide advice on the optima data services business and operating model to best implement NTIS' joint venture authority.
b. Provide advice on the means, including infrastructure and process improvements, to make Federal data easier to find, access, analyze, and combine.
c. Assess progress in evolving NTIS programs toward a focus on Federal data priorities.
d. Assess the use of merit-based criteria and processes to plan, conduct, and oversee programs and projects, including the selection of joint venture partners.
e. Assess policies in connection with fees and charges for NTIS services in order for the agency to operate on a substantially self-sustaining basis, as required by law.
f. Assess organizational capabilities required to carry out NTIS's mission, including capabilities in data science and for operational management of its project portfolio.
3. The Committee will function solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. 1001
4. The Committee shall report to the Secretary of Commerce and to the Under Secretary of Commerce for Standards and Technology through the Director of NTIS.
a. The NTIS Advisory Board shall be composed of a Chairperson appointed by the Secretary and four other members appointed by the Secretary. In the event of a vacancy in the Chairperson position, the NTIS Director may designate a member to serve as acting Chairperson until a Chairperson is appointed by the Secretary.
b. Members shall be selected solely on the basis of established records of distinguished service and objectivity; shall have recognized expertise in data collection, compilation, analysis, use, and dissemination, as well as data science, information technology, cybersecurity, and privacy. Members will be selected from the business, academic, non-profit, and state and local government communities. Reasonable efforts will be made to ensure members represent the entire spectrum of Federal data interests including demographic, economic, trade, health, scientific, patent, environmental, geospatial, cybersecurity, and transactional data. No Federal Government employee shall serve as a member of the Board.
c. The term of office of each member of the Board shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy. All appointments shall automatically terminate if the charter is terminated or not renewed. All members serve at the pleasure of the Secretary.
d. Any person who has completed two consecutive full terms of service on the Board shall be ineligible for
e. Members shall serve as Special Government Employees (SGEs) and will be subject to all ethical standards and rules applicable to SGEs.
2. Members shall not reference or otherwise utilize their membership on the Board in connection with public statements made in their personal capacities without a disclaimer that the views expressed are their own and do not represent the views of the Board, the National Technical Information Service, or the Department of Commerce.
3. Subcommittees: NTIS may establish such subcommittees of its members as may be necessary, pursuant to the provisions of FACA, the FACA implementing regulations, and applicable Department of Commerce guidance. Subcommittees will report to the NTIS Advisory Board and may not provide advice or work products directly to the Department of Commerce or NTIS.
1. The Board shall meet at the call of the Secretary or the Secretary's designee, but not less often than once every six months.
2. Generally, Committee meetings are open to the public.
1. Nominations are sought from all fields described above.
2. Nominees should have established records of distinguished service and shall be eminent in fields. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse NTIS membership.
The VCAT (Committee) was established in accordance with 15 U.S.C. 278 and the Federal Advisory Committee Act, 5 U.S.C. 1001
5. The Committee shall review and make recommendations regarding general policy for NIST, its organization, its budget, and its programs, within the framework of applicable national policies as set forth by the President and the Congress. 15 U.S.C. 278(a).
6. The Committee shall provide an annual report, through the Director of NIST, to the Secretary of Commerce for submission to the Congress not later than 30 days after the submittal to Congress of the President's annual budget request in each year. Such report shall deal essentially, though not necessarily exclusively, with policy issues or matters which affect NIST, or with which the Committee in its official role as the private sector policy adviser of NIST is concerned. Each such report shall identify areas of research and research techniques of the Institute of potential importance to the long-term competitiveness of United States industry, in which the Institute possesses special competence, which could be used to assist United States enterprises and Untied States industrial joint research and development ventures. 15 U.S.C. 278(h)(1). The Committee shall submit, through the Director of NIST, to the Secretary and the Congress such additional reports on specific policy matters as it deems appropriate. 15 U.S.C. 278(h)(2).
7. The Committee will function solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
8. The Committee shall report to the Director of NIST.
4. The Director of NIST shall appoint the members of the Committee. Members shall be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance. 15 U.S.C. 278(a). Members shall be selected solely on the basis of established records of distinguished service; shall provide representation of a cross-section of traditional and emerging United States industries; and shall be eminent in fields such as business, research, new product development, engineering, labor, education, management consulting, environment, and international relations. No employee of the Federal Government shall serve as a member of the Committee. 15 U.S.C. 278(b).
5. Members of the Committee shall serve as Special Government Employees (SGEs) and will be subject to the ethics standards applicable to SGEs.
6. The Committee shall consist of not fewer than nine members appointed by the Director of NIST, a majority of whom shall be from United States industry. 15 U.S.C. 278(a). The term of office of each member of the Committee shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy. 15 U.S.C. 278(c)(1). Members shall serve at the discretion of the Director of NIST.
7. Any person who has completed two consecutive full terms of service on the Committee shall be ineligible for appointment for a third term during the one-year period following the expiration of the second term. 15 U.S.C. 278(c)(1).
8. Pursuant to 15 U.S.C. 278(f), the Committee chairperson and vice chairperson shall be elected by the members of the Committee at each annual meeting occurring in an even-numbered year. The vice chairperson shall perform the duties of the chairperson in his or her absence. In case a vacancy occurs in the position of the chairperson or vice chairperson, the Committee shall elect a member to fill such vacancy.
9. Members of the Committee will not be compensated for their services, but will, upon request, be allowed travel expenses in accordance with 5 U.S.C. 5701
10. Pursuant to 15 U.S.C. 278(g), the Committee may, with the concurrence of a majority of its members, permit the appointment of a staff consisting of not more than four professional staff members and such clerical staff members as may be necessary. Such staff members shall be appointed by the Director after consultation with the chairperson of the Committee and assigned at the direction of the Committee.
11. Subcommittees: Pursuant to 15 U.S.C. 278(e), the Committee shall have an executive committee, and may delegate to it such powers and functions
3. Meetings of the VCAT usually take place at the NIST headquarters in Gaithersburg, Maryland. The Committee will meet at least twice each year at the call of the chairperson or whenever one-third of the members so request in writing. The Committee shall not act in the absence of a quorum, which shall consist of a majority of the members of the Committee not having a conflict of interest in the matter being considered by the Committee. 15 U.S.C. 278(d).
4. Generally, Committee meetings are open to the public.
4. Nominations are sought from all fields described above.
5. Nominees should have established records of distinguished service and shall be eminent in fields such as business, research, new product development, engineering, labor, education, management consulting, environment and international relations. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the candidate agrees to the nomination, acknowledges the responsibilities of serving on the VCAT, and will actively participate in good faith in the tasks of the VCAT.
6. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse VCAT membership.
National Institute of Standards and Technology (NIST), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites 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. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before July 3, 2023.
Interested persons are invited to submit written comments by mail to Bureau Elizabeth Reinhart, Management Analyst, NIST, 100 Bureau Drive, Gaithersburg, MD 20899, or by email to
Requests for additional information or specific questions related to collection activities should be directed to Bethany Loftin, Interagency and iEdison Specialist, 100 Bureau Drive, Gaithersburg, MD 20899, 202-941-7750,
The Bayh-Dole Act (35 U.S.C. 18) and its implementing regulations (37 CFR 401) allow for recipients of federal research funding (Contractors) to retain ownership of inventions developed under federal funding agreements. In exchange, the government retains certain rights to the invention, including a world-wide right to use by or on behalf of the U.S. government. The law also requires the Contractor to obtain permission for certain actions and fulfill reporting requirements including:
a. Initial reporting of invention.
b. Decision to retain title to invention.
c. Filing of patent protection.
d. Evidence of government support clause within patents.
e. Submission of a license confirming the government's rights.
f. Notice if the Contractor is going to discontinue the pursuit or continuance of patent protection.
g. Information related to the development and utilization of invention.
h. Permission to assign to a third party; and
i. Permission to waive domestic manufacturing requirements.
This information is used for a variety of reasons. It allows the government to identify technologies to which the government has rights to use without additional payment or licensing. This acts as a time and cost-saving mechanism to avoid unnecessary negotiating and payment. It also provides data for calculation of return on investment (ROI) from federal funding and identifies successful research programs. Thirdly, it allows the government the opportunity to timely protect inventions which the Contractor declines title or discontinues patent protection. Many agencies utilize the iEdison system, managed by NIST, to collect this information. Agencies that do not register with iEdison are required to collect this information independently.
Historically, only NIH and DOE regularly requested that Contractors submit requests for reports on the development and utilization of an invention (utilization reports) within iEdison. However, there has been an increased interest across the government in the impact of federally funded research and resulting inventions as well as compliance with the Bayh-Dole requirements, especially as it relates to domestic manufacturing requirements. As a result, the interagency working group for Bayh-Dole decided that all agencies would begin to request this information, and the questions would be amended and expanded upon so that the agencies could get a clear picture of the commercialization plans for subject inventions, what the licensing landscape looked like, what products were resulting, and where those products were being manufactured.
Another data point of particular interest across government relates to gender, and specifically how gender disparity may be present within the inventing and commercialization space. Collecting gender of the inventors within iEdison provides agencies previously unavailable data that they may use to conduct assessments under
Information will be electronically collected through the online system iEdison.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. 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 may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the United States Navy (Navy) to incidentally harass, by Level B harassment only, marine mammals during pile driving training exercises at Naval Base Ventura County, Port Hueneme (NBVC). The Navy's activities are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
This authorization is effective from May 1, 2023 through April 30, 2024.
Reny Tyson Moore, 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 2004 NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as applied to a “military readiness activity.” The NDAA also amended the process as it relates to military readiness activities and the incidental take authorization process such that “least practicable impact” on such species or stock shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Before making the required determination, the Secretary shall consult with the Department of Defense regarding personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. The activity for which incidental take of marine mammals is being requested, addressed here, qualifies as a military readiness activity. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
NMFS received a request from the U.S. Navy on August 18, 2021, for an IHA to take marine mammals incidental to pile driving training exercises at NBVC. NMFS provided comments on the application and the Navy resubmitted a revised application on May 11, 2022. On May 25, 2022, the Navy notified NMFS of the need to update the application to include additional activities. NMFS received the updated application on October 26, 2022. NMFS provided comments on the updated application and received a revised application from the Navy on December 5, 2022. NMFS provided additional comments on the application on December 8, 2022, and received an updated application on January 6, 2023, which was deemed adequate and complete on January 12, 2023. The Navy's request is for take of California sea lions (
Changes were made between the publication of the notice of the proposed IHA and this notice of the final IHA. Specifically, two proposed mitigation measures were removed from the final IHA that were included in the notice of the proposed IHA (see Changes from the Proposed IHA to Final IHA for more details).
The primary mission of NBVC is to provide a home port and to furnish training, administrative, and logistical support for the Naval Construction Battalions. Naval Construction Group ONE (NCG-1) is planning to execute pile driving training exercises at NBVC that are essential to construction battalion personnel prior to deployment. The specific components of each exercise may vary based on the specific training requirements for each battalion, but could include vibratory and impact pile driving, temporary pier construction, and subsequent removal of all installed materials. These are military readiness activities, as defined under the National 7 Defense Authorization Act (NDAA) of Fiscal Year 2004 (Pub. L. 108-136).
Up to four training exercises will take place during the authorization period. Each training exercise will last up to 24 days, and will include installation (12 days) and removal (12 days) of a sheet pile wall and round pile pier (see Table 1 for a summary of pile details and the estimated effort required for pile installation and removal), for a total of up to 96 days over the four training exercises. The sheet pile wall and pier construction/removal will occur during the same training evolution, but will not occur at the same time. The U.S. Navy is requesting an IHA for Level B harassment of California sea lions and harbor seals related to these activities. Level A harassment is not anticipated or requested. The IHA will be effective from May 1, 2023 through April 30, 2024.
Each training event will occur at either Wharf 4 or Wharf D at NBVC. Wharf 4 contains two potential pile driving sites. The Wharf 4 South site is located directly in front of the Naval Facilities Engineering and Expeditionary Warfare Center Dive Locker, while the Wharf 4 East site is located along the side of the Naval Facilities Engineering and Expeditionary Warfare Center Dive Locker (Figure 1). The Wharf D site is located near the mouth of the harbor (Figure 2). The Wharf 4 locations are open to the majority of the harbor, whereas the Wharf D location is almost entirely self-contained, with only one access point from the channel leading to the harbor itself. No part of the Navy's training exercises will occur outside of Port Hueneme Harbor in the Pacific Ocean.
A detailed description of the Navy's planned training exercises is provided in the
A notice of NMFS' proposal to issue an IHA to the Navy was published in the
NMFS received no public comments.
Changes were made between the publication of the notice of the proposed IHA and this notice of the final IHA. Two proposed mitigation measures were removed from the final IHA that were included in the notice of the proposed IHA: (1) NMFS will approve resumes of Navy biologists who provide the training to lookouts, and (2) Lead lookouts will be selected by Navy biologists among the best performing lookouts. The Navy has indicated that due to the military structure of the Navy's planned training exercises, it is not appropriate for NMFS to approve resumes and for Navy civilians to assign active duty personnel as lookouts. Lookouts will be assigned through the proper chain of command. In addition, some typos were corrected and some minor clarifying language was added to more accurately describe the Navy's monitoring and reporting requirements.
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 2 lists all species or stocks for which take is expected and authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. 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 authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Pacific SARs (
As indicated above, the two species (with two managed stocks) in Table 2 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 training exercises, 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 (2018) for a review of available information.
The effects from underwater noise from the Navy's training activities have the potential to result in Level B harassment only of marine mammals in the vicinity of the project area. The
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform the negligible impact determinations.
Harassment is the only type of take expected to result from these activities. For this military readiness activity, the MMPA defines “harassment” as (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where the behavioral patterns are abandoned or significantly altered (Level B harassment).
Authorized takes will be by Level B harassment only, in the form of disruption of behavioral patterns and/or temporary threshold shifts (TTS) for individual marine mammals resulting from exposure to the pile driving activities. 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 authorized for this activity. Below we describe how the 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 will be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shifts (PTS) of some degree (equated to Level A harassment).
The Navy's training activities includes the use of continuous (vibratory pile installation/removal) and impulsive (impact pile installation) sources, and therefore the RMS SPL thresholds of 120 and 160 dB re 1 μPa are applicable.
These thresholds are provided in Table 4. 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.
Vibratory or impact data is not available for 16-inch timber piles. Therefore, the Navy proposed, and NMFS agrees, that source levels for impact driving of 14-inch timber piles at the Ballena Bay in Alameda, California be used as a proxy values for impact driving 16-inch timber piles (CALTRANS, 2020) (Table 5). For vibratory driving of 16-inch timber piles, the Navy proposed, and NMFS concurs, to use source level data from vibratory driving of unknown sized timber piles used at the Norfolk Naval Station in Norfolk, Virginia (CALTRANS, 2020; Illingworth & Rodkin, 2015) as proxy values for the training exercises (Table 5).
Source level data for the installation and removal of 14-inch steel H-beam piles is limited. The Navy proposed, and NMFS agrees, that source levels for 15-inch steel H-been piles installed at Ballena Isle Marina in Alameda, California be used as proxy values for
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 will lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for the Navy's training exercises in the absence of specific modelling.
All Level B harassment isopleths are reported in Table 7 considering RMS source levels for impact and vibratory pile driving, respectively. It should be noted that based on the geography of the NBVC and the surrounding land masses, port infrastructure, and the shoreline, the Level B harassment isopleths will reach a maximum of 790 m (2,592 ft) for Wharf 4 South, 795 m (2,601 ft) for Wharf 4 East, and 655 m (2,149 ft) for Wharf D (See Figure 6-1, 6-2, and 6-3 in the Navy's application). Although it is known that there can be leakage or diffraction around such barriers, the assumption herein is that any impervious barriers will contain all pile driving noise associated with the Navy's planned training exercises.
In this section we provide information about the occurrence of marine mammals, including density or other relevant information that will inform the take calculations. Here, we also describe how the occurrence information provided is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and which is authorized.
No density or abundance numbers exist for California sea lions in the action area. Therefore, to quantitatively assess exposure of marine mammals to noise from pile driving conducted as part of the Navy's training exercises, the Navy used estimates derived from recent monitoring efforts to determine the number of animals potentially exposed in the Level A and Level B harassment zones in any one day of pile driving or extraction.
NBVC biologists have been conducting opportunistic surveys of California sea lions hauled out at Wharf D somewhat regularly since 2010. California sea lions have been observed regularly hauling out on structures (
Since the fall of 2020, there have also been efforts to count pinnipeds in the water near Wharf 4; however, these monitoring efforts have been sporadic, taking place for an hour at a time from a boat launch just south of Wharf 4. Monitoring efforts have observed anywhere from 0 to 85 sea lions in an hour (see Figure 6-4 in the Navy's application). Additionally, the same individuals may have been observed multiple times within the survey period. Therefore, the number of California sea lions assumed to be present in the action area at Wharf 4 is variable.
Based on these data, the Navy conservatively estimates that 342 California sea lions (
No density or abundance numbers exist for harbor seals in the action area. Harbor seals have only been observed by NBVC biologists near Wharf 4; no harbor seals have been detected at Wharf D. The maximum number of harbor seals seen over the course of an hour of observation was five seals. This was 5.88 percent of the maximum number of California sea lions observed at Wharf D (N = 85). Therefore, to account for the potential for harbor seals in the action area, the Navy assumes that 5.88 percent of the maximum number of California sea lions observed animals at Wharf D (5.88 percent of 342, or 20.1 [rounded up to 21] animals per day) are harbor seals.
Based on these data, the Navy conservatively estimates that 21 harbor seals may be present in the action area each day and be behaviorally harassed during the 96 days of pile driving schedule as part of the Navy's training
In summary, the total amount of Level A harassment and Level B harassment authorized for each marine mammal stock is presented in Table 8.
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 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, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The Navy must employ the following standard mitigation measures, as included in the IHA:
• Conduct briefings between supervisors and trainees, the marine mammal monitoring team, and Navy staff prior to the start of all in-water pile driving activity, and when new personnel join the work, to ensure that responsibilities, communication procedures, marine mammal monitoring protocols, and operational procedures are clearly understood.
• During all in-water work other than pile driving (
• The Navy must establish shutdown zones for all for in-water pile driving activities. The purpose of a shutdown zone is generally to define an area within which shutdown of activity will occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones will vary based on the type of pile installation/removal activity (See Table 9). Here, shutdown zones are larger than the calculated Level A harassment isopleths shown in Table 7. The placement of lookouts during all pile driving activities (described in detail in the Monitoring and Reporting section) will ensure that the entirety of all shutdown zones and Level A harassment zones are visible during pile installation and removal.
• The Navy must delay or shutdown all in-water pile driving activities should an animal approach or enter the appropriate shutdown zone. The Navy may resume in-water pile driving activities after one of the following conditions has 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 lookouts trained in marine mammal identification and behaviors to monitor marine mammal presence in the action area. Requirements for numbers and locations of observers will be based on hammer type, pile material, and Seabees training location as described in Section 5 of the IHA. Lookouts must track marine mammals observed anywhere within their visual range relative to in-water training activities, and estimate the amount of time a marine mammal spends within the Level A or Level B harassment zones while pile driving activities are underway. The Navy must monitor the project area, including the Level B harassment zones, to the maximum extent possible based on the required number of lookouts, required monitoring locations, and environmental conditions. For all pile driving and removal activities, at least one lookout must be used.
• The placement of the lookouts during all pile driving and removal activities must ensure that the entire applicable shutdown zones are visible during all in-water pile installation and removal. One observer must be placed in a position to implement shutdown/delay procedures, when applicable, by notifying the hammer operator of a need for a shutdown of pile driving or removal.
• Prior to the start of pile driving or removal, the shutdown zone(s) must be monitored for a minimum of 30 minutes to ensure that they are clear of marine mammals (
• If in-water work ceases for more than 30 minutes, the Navy must conduct pre-clearance monitoring of both the Level B harassment zone and shutdown zone.
• Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead lookout to determine that the shutdown zones indicated in Table 9 are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.
• The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30 second waiting period, then two subsequent reduced energy strike sets. A soft start must 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 starts will not be used for vibratory pile installation and removal. Lookouts shall begin observing for marine mammals 30 minutes before “soft start” or in-water pile installation or removal begins.
• For any marine mammal species for which take by Level B harassment has not been requested or authorized, in-water pile installation/removal will shut down immediately when the animals are sighted.
• If take by Level B harassment reaches the authorized limit for an authorized species, pile installation will be stopped as these species approach the Level B harassment zone to avoid additional take of them.
Based on our evaluation of the applicant's described 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 IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present 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.
Monitoring must be conducted by qualified lookouts with support from Navy biologists, in accordance with the following:
• Navy biologists will train and certify lookouts in accordance with the mitigation, monitoring and reporting requirements of the issued IHA;
• All lookouts will maintain contact via either handheld communication devices or flags to signal sightings and shutdowns;
• Lookouts shall be placed at vantage points to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator;
• The Lead lookout will be located within auditory range of the pile driving team and will have primary responsibility for calling activity shutdowns;
• Lookouts shall use a hand-held global positioning device (GPS) device, rangefinder, visual reference points, or marker buoy to verify the required monitoring distance from the project site;
• Monitoring shall occur in all-weather until training has concluded for the day;
• Lookouts must scan the waters within the Level A harassment and Level B harassment zones using binoculars (10x42 or similar) and or the naked eye and make visual observations of marine mammals present; and
• Lookouts must record all observations of marine mammals as described in the Section 5 of the IHA, regardless of distance from the pile being driven. Lookouts shall document any behavioral reactions in concert with distance from piles being driven or removed.
Lookouts must 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;
• 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 must submit a draft marine mammal monitoring report to NMFS within 90 days after the completion of pile driving training activities, or 60 days prior to a requested date of issuance of any future IHAs for projects at the same location, whichever comes first. NMFS will provide comments within 30 days after receiving the draft report, and the Navy will address the comments and submit revisions within 30 days of receipt. If no comments are received from NMFS within 30 days, the draft report will be considered as final.
The draft and final marine mammal monitoring reports must be submitted to
• Dates and times (begin and end) of all marine mammal monitoring;
• Training activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method (
• Lookout locations during marine mammal monitoring;
• Environmental conditions during monitoring periods (at beginning and end of lookout 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;
• Description of any deviation from initial proposal in pile numbers, pile types, average driving times,
• Brief description of any impediments to obtaining reliable observations during training periods; and
• Description of any impediments to complying with the aforementioned mitigation measures.
Lookouts must record all incidents of marine mammal occurrence in the area in which take is anticipated regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Specifically, lookouts must record the following:
• Name of lookout who sighted the animal(s) and lookout location and activity at time of sighting;
• Time of sighting;
• Identification of the animal(s) (
• Distance and bearing of each marine mammal observed relative to the pile being driven for each sighting (if pile driving was occurring at time of sighting);
• Estimated number of animals (min/max/best estimate);
• Estimated number of animals by cohort (adults, juveniles, neonates, group composition, sex class,
• Animal's closest point of approach and estimated time spent within the harassment zone;
• Description of any marine mammal behavioral observations (
• Number of marine mammals detected within the harassment zones and shutdown zones, by species; and
• Detailed information about any implementation of any mitigation triggered (
In the event that personnel involved in the activities discover an injured or dead marine mammal, the IHA-holder must immediately cease the specified activities and report the incident to the 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 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 the IHA. The Navy must 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, the discussion of our analysis applies to both California sea lions and harbor seals, 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 structure of any of these species or stocks that will lead to a different analysis for this activity.
NMFS has identified key factors which may be employed to assess the level of analysis necessary to conclude whether potential impacts associated with a specified activity should be considered negligible. These include (but are not limited to) the type and magnitude of taking, the amount and importance of the available habitat for the species or stock that is affected, the duration of the anticipated effect to the species or stock, and the status of the species or stock.
NMFS does not anticipate that serious injury or mortality will occur as a result of the Navy's planned activity given the nature of the activity, even in the absence of required mitigation. Pile driving activities associated with the Navy's pile driving training exercises, 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 B harassment, incidental to underwater sounds generated from pile driving. Potential takes could occur if individuals are present in zones ensonified above the thresholds for Level B harassment, identified above, while activities are underway. Level A harassment is not anticipated or authorized, as described in the Estimated Take section, given the construction method and the implementation of the planned mitigation measures, including soft start measures during impact pile driving and shutdown zones.
Vibratory and impact hammers will be the primary methods of installation. Vibratory pile driving produces lower SPLs than impact pile driving and will be the predominant construction method used during training (Table 1). The rise time of the sound produced by vibratory pile driving is slower, reducing the probability and severity of injury. Impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks. When impact pile driving is used, implementation of soft start and shutdown zones will significantly reduce any possibility of injury. Given sufficient “notice” through use of soft starts (for impact driving), marine mammals are expected to move away from a sound source prior to it becoming potentially injurious. The Navy will use at least one lookout stationed strategically to increase detectability of marine mammals, enabling a high rate of success in implementation of shutdowns to avoid injury.
Exposures to elevated sound levels produced during pile driving and removal in NBVC may cause behavioral disturbance of some individuals, however behavioral responses of marine mammals are expected to be mild, short term, and temporary. The Navy's activities and associated impacts will occur within a limited, confined area of the stocks' range. The project area is concentrated within two wharfs and the Level B harassment zones will be truncated by land. Given that pile driving and removal will occur for only short durations (
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, and as noted previously, some subset of the individuals that are behaviorally harassed could also simultaneously incur some small degree of TTS for a short duration of time. Because of the small degree anticipated, though, any TTS potentially incurred here will not be expected to adversely impact individual fitness, let alone annual rates of recruitment or survival.
More generally, there are no known calving or rookery grounds within the project area. Because the Navy's activities could occur during any season, takes may occur during important feeding times. However, the project area represents a small portion of available foraging habitat and impacts on marine mammal feeding for all species should be minimal.
The project also is not expected to have significant adverse effects on affected marine mammal habitat. The project activities will not modify existing marine mammal habitat for a significant amount of time. 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. Any impacts on marine mammal prey that will occur during the Navy's planned activity will have, at most, short-term effects on foraging of individual marine mammals, and likely no effect on the populations of marine mammals as a whole. The activities may cause some fish to temporarily leave the area of disturbance, thus temporarily impacting marine mammal foraging opportunities in a limited portion of the foraging range. However, because of the short duration of the activities and the 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. Indirect effects on marine mammal prey during the construction are expected to be minor, and these effects are unlikely to cause substantial effects on marine mammals at the individual level, with no expected effect on annual rates of recruitment or survival. Overall, the area impacted by the project is very small compared to the available surrounding habitat, and does not include habitat of particular importance.
It is unlikely that minor noise effects in a small, localized area of habitat will have any effect on the stocks' annual rates of recruitment or survival. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will, therefore, not result in population-level impacts.
In summary and as described above, the following factors primarily support negligible impact determinations for the affected stocks of California sea lions and harbor seals 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;
• Take by Level A harassment of California sea lions and harbor seals is not anticipated or authorized;
• The Navy will implement mitigation measures including soft starts for impact pile driving and shutdown zones to minimize the numbers of marine mammals exposed to injurious levels of sound, and to ensure that take by Level A harassment does not occur;
• The anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior or TTS that will not result in fitness impacts to individuals;
• The specified activity and ensonification area is very small relative to the overall habitat ranges of all species and does not include habitat areas of special significance (Biologically Important Areas or ESA-designated critical habitat);
• The intensity of anticipated takes by Level B harassment is relatively low for all stocks and will not be of a duration or intensity expected to result in impacts on reproduction or survival; and
• The presumed efficacy of the mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact.
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 activity will have a negligible impact on all affected marine mammal 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.
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.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
NMFS has issued an IHA to the Navy for the potential harassment of two marine mammal species incidental to pile driving training exercises at NBVC, which includes the previously explained mitigation, monitoring, and reporting.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments.
NMFS announces the availability of the Draft Atlantic Highly Migratory Species (HMS) Essential Fish Habitat (EFH) 5-Year Review (Draft HMS EFH 5-Year Review). The purpose of the Draft HMS EFH 5-Year Review is to gather relevant new information and determine whether modifications to existing EFH descriptions and designations are warranted, in compliance with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and implementing regulations. If EFH modifications are warranted, an amendment to the 2006 Consolidated Atlantic HMS Fishery Management Plan (2006 Consolidated HMS FMP) may be initiated.
Written comments must be received by July 3, 2023.
Comments may be submitted electronically via the Federal e-Rulemaking Portal. Go to
Electronic copies of information related to the Draft HMS EFH 5-Year Review, including the Draft HMS EFH 5-Year Review, may be obtained on the HMS Management Division website at:
Jennifer Cudney,
Atlantic HMS fisheries (tunas, billfish, swordfish, and sharks) are managed under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801
The Magnuson-Stevens Act includes provisions concerning the identification and conservation of EFH (16 U.S.C. 1801
Under the current FMP, NMFS uses a two-phase process to update HMS EFH. Phase 1 includes the development of a draft 5-year review, the public comment process, and the publication of a final 5-year review. Phase 1 is initiated approximately 5 years after publication of the most recent EFH action. This draft document constitutes the first part of Phase 1. If there is no new information that warrants updating EFH, then we may choose to retain the previously designated HMS EFH. However, if new information warrants updates, we would initiate Phase 2 of this process, which may include a follow-up action that implements the recommended updates to HMS EFH. The type of follow-up action depends on the outcomes of the 5-year review (
EFH 5-year reviews evaluate published scientific literature, unpublished scientific reports, information solicited from interested parties, and previously unavailable or inaccessible data. NMFS announced the initiation of this review and solicited information for this review from the public in a
The draft document, developed as part of Phase 1, considers fishing effects, non-fishing effects, environmental changes, and management changes for all HMS, which include tunas (bluefin, bigeye, albacore, yellowfin, and skipjack), sharks, swordfish, and billfishes (blue marlin, white marlin, sailfish, roundscale spearfish, and longbill spearfish). It analyzes new information and data that was not previously included in recent updates to Atlantic HMS EFH, or has become available since publication of our previous EFH action (Amendment 10 to the 2006 Consolidated HMS FMP (82 FR 42329, September 7, 2017)). Upon completion of the Draft HMS EFH 5-Year Review, NMFS will analyze the information gathered through the EFH review process and determine if subsequent revision or amendment of EFH is warranted.
Each section of the Draft HMS EFH 5-Year Review provides topic-specific guidance on feedback that would be helpful from the public to complete this 5-year review. In general, NMFS invites the public to submit comments, information, and data pertaining to the 10 components of EFH for HMS. In particular, NMFS is seeking:
• New data or information that should be incorporated into future analyses to redefine EFH boundaries for HMS;
• New information on methodologies appropriate for the delineation of HMS EFH;
• New data or information to support new or modifications to existing habitat areas of particular concern (HAPCs) for HMS (or whether existing HAPCS are still needed);
• Information pertaining to the role of prey in HMS EFH designations;
• Information on the adverse effects of fishing and non-fishing activities on EFH; and
• Information or feedback on the inclusion of new actions to promote the conservation and enhancement of HMS EFH that may be adversely affected by certain non-fishing activities.
Council on Environmental Quality.
Request for information.
The Council on Environmental Quality (CEQ) is issuing this request for information (RFI) to solicit feedback on Columbia River salmon and other native fish restoration and other relevant information to an ongoing mediation.
The agency requests comments by July 3, 2023, and must receive comments on or before August 31, 2023.
You may submit comments, identified by docket number CEQ-2023-0002, using the Federal eRulemaking Portal at
All submissions received must include the agency name, “Council on Environmental Quality,” and the docket number, CEQ-2023-0002, for this RFI. Comments received will be posted without change to
All submissions are voluntary. You may respond to some or all of the questions listed in the RFI. You may include references to academic literature or links to online material (such as datasets) but please ensure all links are publicly available. Each response should include:
• The name of the individual(s) or entity responding.
• A brief description of the responding individual(s) or entity's mission or areas of expertise.
• A contact for questions or other follow-up on your response.
Issues regarding submission or questions on this RFI can be sent to De'Marcus Robinson, Ocean Policy Fellow, 202-395-5750 or
The Columbia River and its tributaries were once among the most productive salmon and steelhead ecosystems in the world with an estimated 7.5 to 16 million adult salmon and steelhead returning to Pacific Northwest tributaries each year and sustaining the cultures and economies of Tribal Nations since time immemorial. From the 1930s to the 1970s, the Federal government constructed a series of 14 multipurpose dams in the Columbia River Basin to address a myriad of economic challenges, and, additionally, more than 100 non-Federal dams were constructed.
Communities across the Northwest have come to rely on these dams for reliable and affordable electricity, flood risk management, water supply, irrigation, navigation, and recreation. The dams also altered free-flowing rivers, affected juvenile fish as they migrate out to sea, impeded adult fish returning to spawn, inundated Tribal fishing areas and sacred sites, and forever displaced people from their homes. The construction of the Grand Coulee and Chief Joseph dams without fish passage eradicated salmon and steelhead from the Upper Columbia River Basin. In the 1990s, 13 of the Columbia River Basin's remaining salmon populations required the protection of the Endangered Species Act to survive.
The Federal Government has spent tens of billions of dollars, in partnership with Tribes, states, and non-governmental organizations, on efforts that contribute to fish survival and recovery. States and Tribes have also funded and implemented fish recovery programs. Despite hard work, ingenuity, great expense, and commitment across all levels of Federal, state, Tribal and local governments and a wide range of stakeholders, many fish populations in the Columbia River Basin—salmon, steelhead, and others—have not recovered, some continue to decline, and many areas remain inaccessible to them.
Litigation over the impact of the operation of certain Federal dams in the Columbia River System on salmon and other native fish has been ongoing for decades and the courts have consistently ruled that the Federal Government has fallen short of its legal obligations. Currently, several ongoing cases are pending in the U.S. District Court for the District of Oregon and in the U.S. Court of Appeals for the Ninth Circuit.
In the Fall of 2021, the plaintiffs and petitioners in the litigation and the Federal Government agreed to a temporary stay in the litigation to create an opportunity for the Federal Government to develop a long-term plan to restore Columbia River salmon and other native fish. Shortly thereafter, the Council on Environmental Quality (CEQ) convened an interagency group with leaders from: the Department of the Interior, including the Bureau of Indian Affairs, Bureau of Reclamation, and Fish and Wildlife Service; the Department of Commerce, including the National Oceanic and Atmospheric Administration; the Department of the Army, including the Army Corps of Engineers; and the Department of Energy, including the Bonneville Power Administration. This interagency group is intended to build on existing analyses to identify a durable path forward that ensures a clean energy future, supports local and regional economies, and restores ecosystem function, while honoring longstanding commitments to Tribal Nations.
In March 2022, CEQ Chair Brenda Mallory, Secretary of the Interior Deb Haaland, Secretary of Energy Jennifer Granholm, Assistant Secretary of the Army for Civil Works Michael Connor, and Under Secretary of Commerce for Oceans and Atmosphere Dr. Richard Spinrad convened a consultation with Tribal Nations of the Columbia River Basin and published a blog post reflecting on what the Tribes shared at the consultation and the Administration's values that inform its effort to restore healthy and abundant salmon and steelhead to the Columbia River Basin.
In April 2022, the Federal Government engaged the Federal Mediation and Conciliation Service (FMCS) to mediate and facilitate between the parties in the litigation and the regional sovereigns, including Tribal Nations and states. In August 2022, the plaintiffs, petitioners, and the Federal government agreed to an additional stay in litigation through August 2023.
Through the stay agreement, the Federal Government committed to supporting development of a durable
The first listening session occurred on March 31, 2023. FMCS gave speakers slots in the order that they registered. Because of the number of people who registered to speak (250 people), the first session was extended in an overflow session on April 3. Fifty-five people offered comments on March 31, and forty-eight on April 3. Across both days, everyone in attendance who had registered to speak had an opportunity to do so; some persons who registered to speak did not attend and others attended but chose not to speak. FMCS has scheduled another listening session for May 25. CEQ is publishing this RFI and opening a publicly accessible docket to provide an additional opportunity for public input on the key questions below or any other information and views relevant to the task of identifying a durable path forward for salmon and other native fish that honors longstanding commitments to Tribal Nations, ensures a clean energy future, supports local and regional economies, and restores ecosystem function. Through this RFI, CEQ also encourages the parties to the FMCS process to review the comments received on the docket to inform discussions in the mediation. This RFI does not serve as a substitute for other public engagement that may be required for any specific action that the Federal government undertakes.
In March 2022, CEQ established an email address,
CEQ requests comments under this RFI within 60 days to provide timely information for consideration, however, the public docket will remain open until August 31, 2023, the date the stay agreement is set to expire. CEQ will continue to monitor the docket through August 31, 2023, and will encourage all parties to the mediation to do the same.
In securing the current stay of litigation, the Federal Government agreed to explore lower Snake River habitat restoration opportunities, “including but not limited to migration corridor restoration through breaching the four lower Snake River dams,” which would require Congressional authorization. The Federal Government would welcome views on:
• What constitutes “restoration” of the lower Snake River and what steps should the Federal Government take to restore the lower Snake River?
• What considerations should inform the Federal Government's approach to restoring the lower Snake River?
• What information should the Federal government develop to support discussions in the Northwest and in Congress on the restoration of the lower Snake River?
In securing the current stay of litigation, the Federal Government agreed to explore providing full support for and funding of a plan developed by the Upper Columbia River Tribes to reintroduce salmon into the Upper Columbia River Basin. The Federal Government would welcome views on:
• What considerations should inform the Federal Government's approach to supporting the Upper Columbia River Tribes' reintroduction plan?
In securing the current stay of litigation, the Federal Government agreed to explore actions and funding to address “unmitigated Tribal needs, avoiding future issues with respect to creating inequities, and actions supporting salmon and other fisheries and fish and wildlife programs and infrastructure.” The Federal Government would welcome views on:
• What steps should the Federal Government take in response to this commitment?
• What considerations should inform the Federal Government's approach to funding and actions to restore fish populations throughout the Columbia River Basin?
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a new information collection request (ICR).
Interested persons are invited to submit comments on or before June 5, 2023.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
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
In June of 2020, the U.S. Department of Education (ED) established a collection of information, Foreign Gifts and Contracts Disclosures, 1801-0006, through ED's Partner Enterprise Business Collaboration (PEBC) system. That collection is under an OMB control number for ED's Office of the General Counsel (OGC), which has worked closely with FSA in recent years with respect to administration of Section 117.
With this request for a new collection, the Department would be returning the collection of this information to FSA, which is the office with primary responsibility for the administration of Section 117 within the Department going forward. At present, the Department plans to continue to collect this data through its PEBC system with only slight modifications based on public comment.
Take notice that the Commission received the following electric rate 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 SFE Energy Massachusetts, Inc.'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 May 18, 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
As first announced in the Notice of Technical Conference issued in this proceeding on February 7, 2023, Commission staff will convene a technical conference on June 27, 28, and 29, 2023 to discuss opportunities for increasing real-time and day-ahead market and planning efficiency of the bulk power system through improved software. Attached to this Second Supplemental Notice is the agenda for
While the intent of the technical conference is not to focus on any specific matters before the Commission, some conference discussions might include topics at issue in proceedings that are currently pending before the Commission, including topics related to capacity valuation methodologies for renewable, hybrid, or storage resources. These proceedings include, but are not limited to:
The conference will take place in a hybrid format, with presenters and attendees allowed to participate either in-person or virtually. Further details on both in-person and virtual participation will be available on the conference web page.
The Commission will accept comments following the conference, with a deadline of July 28, 2023.
There is an “eSubscription” link on the Commission's website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
For further information about these conferences, please contact:
On December 23, 2021, Green Mountain Power Corporation filed a relicense application for the 275-kilowatt Center Rutland Hydroelectric Project No. 2445 (project). The project is located on Otter Creek in Rutland County, Vermont.
In accordance with the Commission's regulations, on February 17, 2023, Commission staff issued a notice that the project was ready for environmental analysis (REA Notice). Based on the information in the record, including comments filed on the REA Notice, staff does not anticipate that licensing the project would constitute a major federal action significantly affecting the quality of the human environment. Therefore, staff intends to prepare an Environmental Assessment (EA) on the application to relicense the project.
The EA will be issued and circulated for review by all interested parties. All comments filed on the EA will be analyzed by staff and considered in the Commission's final licensing decision.
The application will be processed according to the following schedule. Revisions to the schedule may be made as appropriate.
Any
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.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
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:
This is a supplemental notice in the above-referenced proceeding of SFE Energy, Inc.'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 May 18, 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
Take notice that the Commission received the following electric rate 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:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a Supplemental Environmental Assessment (EA) for the Port Arthur LNG Expansion Project, proposed by Port Arthur LNG Phase II, LLC and PALNG Common Facilities Company, LLC (collectively referred to as Applicant) in the above-referenced docket. The Applicant requests approval to expand the previously authorized Port Arthur Liquefaction Terminal in Jefferson County, Texas by siting, constructing, and operating additional liquefied natural gas (LNG) facilities to increase the terminal's capability to liquefy natural gas for export by 13.46 million tonnes per annum (MTPA). The Port Arthur LNG Expansion Project would increase the terminal's total liquefaction capacity from 13.46 MTPA to 26.92 MTPA.
The Supplemental EA includes a summary of the project's impacts and responds to comments that were received on the Commission's January 15, 2021 Environmental Assessment (EA).
The U.S. Environmental Protection Agency, U.S. Department of Energy, U.S. Coast Guard, and U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration participated as a cooperating agencies in the preparation of the Supplemental EA. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the National Environmental Policy Act (NEPA) analysis.
The Supplemental EA incorporates the Commission's January 15, 2021 EA, which addresses the potential environmental effects of the construction and operation of the following project facilities:
• two liquefaction trains (Trains 3 and 4) each with a maximum LNG production capacity of 6.73 MTPA (13.46 MTPA total);
• one new low-pressure ground flare;
• new flare knockout drums;
• one new boil-off gas (BOG) compressor unit to compress BOG and deliver as fuel to gas turbines;
• two new utility and instrument air compressor packages to deliver air to two new air drier packages;
• one new 3.675 megawatt capacity diesel powered standby generator; and
• shifting location of some equipment from Base Project and modifications and additions to approved utilities, fire and gas detection systems, control system, firewater system, spill containment, tertiary berm, and infrastructure needed to accommodate the two additional liquefaction trains.
The Commission mailed a copy of the
The Supplemental EA is not a decision document. It presents Commission staff's independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding. Any person wishing to comment on the Supplemental EA may do so. Your comments should focus on the Supplemental EA's disclosure and discussion of potential environmental effects and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that the Commission receive your comments on or before 5:00 p.m. Eastern Time on May 30, 2023.
For your convenience, there are four methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
• You can file your comments electronically using the
• You can file your comments electronically by using the
• You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the Project docket number (CP20-55-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
• In lieu of sending written comments, the Commission invites you to attend the virtual public comment sessions its staff will conduct by telephone, scheduled as follows:
The primary goal of the comment sessions is to have stakeholders identify specific environmental issues and concerns with the Supplemental EA. Note that the comment sessions will end once all participants wishing to comment have had the opportunity to do so, or after two hours, whichever comes first. Individual oral comments will be taken one at a time with a court reporter present on the line.
There will be a brief introduction by Commission staff when the session opens, so please attempt to call in at the beginning of the session. All participants will be able to hear the comments provided by other participants; however, all lines will remain closed during the comments of others and then opened one at a time for providing comments. Once you call in, the operator will provide directions on how to indicate you would like to provide a comment. A time limit of 5 minutes may be implemented for each commentor.
Your oral comments will be recorded by the court reporter and become part of the public record for this proceeding. Transcripts of all comments received during the session will be publicly available on FERC's eLibrary system (see page 2 of this notice for instructions on using eLibrary).
It is important to note that the Commission provides equal consideration to all comments received, whether filed in written form or provided orally at a comment session.
Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission's decision. At this point in the proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission's Rules of Practice and Procedures (18 CFR part 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission and/or Commission staff may attend the following meetings:
Further information regarding these meetings may be found at:
The discussions at the meetings, which are open to the public, may address matters at issue in the following Commission proceedings:
For further information, please contact Leigh Anne Faugust (202) 502-6396 or
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) hereby announces its final cancellation order for the cancellations and amendments voluntarily requested by the registrants and accepted by the Agency, of the products in Table 1 and Table 2 of Unit I, pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). This final cancellation order follows a December 13, 2022,
The cancellations and amendments are effective May 4, 2023.
Patricia Biggio, Pesticide Re-Evaluation Division (7508M), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-0700; email address:
This action is directed to the public in general and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2022-0223, is available at
This document announces the cancellations and amendments through termination of certain uses, as requested by registrants, of products registered under FIFRA section 3 (7 U.S.C. 136a). These registrations are listed in sequence by registration number in Table 1 and Table 2 of this Unit.
In August 2021, EPA issued a rule in the
As a result, chlorpyrifos tolerances expired on February 28, 2022 per the Final Rule. Once the tolerances expired, use of pesticide products containing chlorpyrifos on food or feed crops would result in adulterated food, which cannot be sold in interstate commerce. After EPA alerted registrants of chlorpyrifos products of the lack of tolerances and the options for their products, several registrants submitted requests to voluntarily cancel their chlorpyrifos pesticide products. The notice for this action was published for comment in the
During the public comment period, EPA received three comments in response to the December 13, 2022 notice. The comments can be found in the docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2022-0223, available at
The comment from the American Sugarbeet Growers Association, U.S. Beet Sugar Association, and the Beet Sugar Development Foundation opposed the voluntary cancellation of the products in the December 13, 2022 notice of receipt for this action. In particular, these commenters specified concerns that the voluntary cancellation of chlorpyrifos registrations and termination of certain uses is premature while there is ongoing litigation regarding the Final Rule and Denil Order in the United States Court of Appeals for the Eighth Circuit,
The comment from the private citizen specified concerns about allowing the export of chlorpyrifos outside of the
Regarding the comments submitted by the American Sugarbeet Growers Association, U.S. Beet Sugar Association, and the Beet Sugar Development Foundation, the cancellations and amendments requested by the registrants listed in Table 3 are appropriate at this time because registrants have a right under section 6(f)(1) of FIFRA to at any time request that EPA cancel or amend their registrations to terminate one or more uses. 7 U.S.C. 136d(f)(1)(A). The registrant may request voluntary cancellation of a pesticide product registration at any time for many reasons, including lack of interest in maintaining the registration or the pesticide no longer being marketed.
EPA cannot compel registrants to maintain a registration indefinitely if they request to voluntarily cancel it. The resolution and timing of the litigation in the Eighth Circuit is unknown, and therefore, retention of the registrations could subject registrants to additional maintenance fees and responsibilities for those registrations, for which the registrants requested cancellation or amendment. See,
Moreover, retention of these registrations will not make chlorpyrifos products available for use as the commenters desire. EPA issued a rule in the
Regarding the comment from the private citizen, EPA regulates both the import and export of pesticides, but the Agency does not have jurisdiction over the use of pesticides outside of the United States. FIFRA Section 17(a) allows for the distribution of unregistered pesticides produced solely for export, as long as certain conditions are met (7 U.S.C. 136o(a)). Otherwise, all registered pesticides that are exported to other countries must bear the product label approved by EPA. For additional information on importing or exporting chlorpyrifos, please consult EPA's web page on Importing and Exporting Pesticides at
Any pesticide residues in or on food that is imported into the United States must be covered by a tolerance or exemption from the requirement of a tolerance, just the same as any pesticide residues applied to food in the United States. Since there are no current tolerances for residues of chlorpyrifos in or on food, food containing chlorpyrifos residues cannot be imported into the United States, unless the chlorpyrifos residues on that food fall within the Channels of Trade guidance for chlorpyrifos residues that the U.S. Food and Drug Administration (FDA) released last year. This guidance is available at:
For the reasons above, EPA has determined that these comments do not merit further review or a denial of the cancellations and amendments described in Tables 1 and 2 of Unit I.
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)(1)), EPA hereby approves the requested cancellations and amendments of the registrations identified in Table 1 and Table 2 of Unit I. Accordingly, the Agency hereby orders that the product registrations identified in Table 1 of Unit I. are cancelled.
The cancellations and amendments addressed in this Order are effective May 4, 2023. Any distribution, sale, or use of existing stocks of the products identified in Tables 1 and 2 of Unit I. in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit V. will be a violation of FIFRA.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be cancelled or amended to terminate one or more registered uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA (7 U.S.C. 136d(f)(1)(B)) requires that before acting on a request for voluntary cancellation, EPA must provide a 30-day public comment period on the request for voluntary cancellation or use termination. Following the public comment period, the EPA Administrator may approve such a request. The notice for this action was published for comment in the
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the cancellation action.
Because all chlorpyrifos tolerances expired on February 28, 2022, use of chlorpyrifos in or on food will result in adulterated food, which cannot be delivered into interstate commerce. Such use would be inconsistent with the provisions of FIFRA. EPA is allowing use of existing stocks of chlorpyrifos products identified in Tables 1 and 2 until those existing stocks are exhausted, only for non-food uses identified on the existing labels, as long as such use is consistent with the label. All other use of existing stocks of these chlorpyrifos products are prohibited.
None of the registrants listed in this order have requested any continued sale of existing stocks of the registrations subject to this cancellation order; however, Adama and Corteva have requested that EPA allow for the return of existing stocks that are in the hands of end users and distributors to the respective registrant. Because sale and distribution of chlorpyrifos products for use on food is inconsistent with the purposes of FIFRA, all sale and distribution of the chlorpyrifos products identified in Table 1 and Table 2 of Unit
Additional information regarding chlorpyrifos return programs for Adama and Corteva may be found in
Environmental Protection Agency (EPA).
Notice.
The Toxic Substances Control Act (TSCA) requires EPA to publish in the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2023-0098, is available online at
This action provides information that is directed to the public in general.
This document lists the statements of findings made by EPA after review of submissions under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the reporting period.
TSCA section 5(a)(3) requires EPA to review a submission under TSCA section 5(a) and make one of several specific findings pertaining to whether the substance may present unreasonable risk of injury to health or the environment. Among those potential findings is that the chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment per TSCA section 5(a)(3)(C).
TSCA section 5(g) requires EPA to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
No.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
The following list provides the EPA case number assigned to the TSCA section 5(a) submission and the chemical identity (generic name if the specific name is claimed as CBI).
• P-22-0051, 2,5-Furandione, dihydro-, monopolyisobutylene derivs., reaction products with substituted alkylamine (Generic Name).
To access EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C), look up the specific case number at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Information Collection Request for the Greenhouse Gas Reporting Program” (EPA ICR No. 2300.20, OMB Control No. 2060-0629) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, 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 March 31, 2024. 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 July 3, 2023.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2022-0883, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Joe Ford, Climate Change Division, Office of Atmospheric Protection, Office of Air and Radiation (MAIL CODE 6207A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-7659; fax number: 202-343-2342; 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, 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,
Subsequent rules have promulgated requirements for additional facilities, suppliers, and mobile sources; provided clarification and corrections to existing requirements; finalized confidentiality business information (CBI) determinations, amended recordkeeping requirements, and implemented an alternative verification approach. Collectively, the GHG Reporting Rule and its associated rulemakings are referred to as the Greenhouse Gas Reporting Program (GHGRP).
The purpose for this ICR is to renew and revise the GHG Reporting Rule ICR to update and consolidate the burdens and costs imposed by the current ICR under the GHGRP.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before July 3, 2023. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
47 CFR 74.784(b) states that a licensee of a low power television or TV translator station shall not rebroadcast the programs of any other TV broadcast station without obtaining prior consent of the station whose signals or programs are proposed to be retransmitted. Section 74.784(b) requires licensees of low power television and TV translator stations to notify the Commission when rebroadcasting programs or signals of another station. This notification shall include the call letters of each station rebroadcast. The licensee of the low power television or TV translator station shall certify that written consent has been obtained from the licensee of the station whose programs are retransmitted. This notification shall be provided by email to
The information collection requirements contained in 47 CFR 73.1207 and 74.1284 remain the same. They are as follows:
47 CFR 73.1207 requires that licensees of broadcast stations obtain written permission from an originating station prior to retransmitting any program or any part thereof. A copy of the written consent must be kept in the station's files and made available to the FCC upon request. Section 73.1207 also specifies procedures that broadcast stations must follow when rebroadcasting time signals, weather bulletins, or other material from non-broadcast services.
47 CFR 74.1284 requires that the licensee of a FM translator station obtain prior consent to rebroadcast programs of any broadcast station or other FM translator. The licensee of the FM translator station must notify the Commission of the call letters of each station rebroadcast and must certify that written consent has been received from the licensee of that station. Also, AM stations are allowed to use FM translator stations to rebroadcast the AM signal. FM translator stations are low power facilities licensed for the limited purpose of retransmitting the signals of either a full power radio station or another translator station.
47 CFR 74.703(h) requires in each instance where suspension of operation is required, the licensee shall submit a full report to the FCC via a Resumption of Operations notice in the Commission's Licensing and Management System (LMS) after operation is resumed, containing details of the nature of the interference, the source of the interfering signals, and the remedial steps taken to eliminate the interference.
The Commission is reinstating OMB control number 3060-0236 back into the Office of Management and Budget's (OMB) inventory. However, the Commission adopted on October 25, 2021, the Order (
47 CFR 74.751(a) requires licensees of low power TV or TV translator stations to send written notification to the FCC of equipment changes which may be made at licensee's discretion without the use of a formal application.
47 CFR 74.751(b)(4) requires low power TV or TV translator stations to file an application in the Commission's Licensing and Management System (LMS) on FCC Form 2100, Schedule C, requesting authorization for all antenna relocations.
47 CFR 74.751(c) provides that notwithstanding the requirement in 47 CFR 74.751(b)(4), a station may file in LMS a correction of geographic coordinates where the change is 3 seconds or fewer in latitude and/or 3 seconds or fewer in longitude, provided there is no physical change in location and no other licensed parameters are changed. An exhibit should be attached to the application(s) specifying it is a coordinate correction. Stations seeking to correct coordinates by less than 3 seconds of latitude and/or longitude may do so without paying a filing fee.
47 CFR 74.751(d) requires that licensees of low power TV or TV translator stations place in the station records a certification that the installation of new or replacement transmitting equipment complies in all respects with the technical requirements of this section and the station authorization.
47 CFR 74.734(a)(4) requires that a notification must be made with the Commission via a Change of Control Point Notice in the Commission's Licensing and Management System (LMS) providing the name, address, and telephone number of person(s) who may be called to secure suspension of operation of a transmitter promptly should the FCC deem such action necessary.
47 CFR 74.735(c)(4) requires that all azimuth plane patterns be plotted in a PDF attachment to the application in LMS in a size sufficient to be easily viewed. 47 CFR 74.735(c)(6) requires that all azimuth plane patterns be plotted in a PDF attachment to the application in LMS in a size sufficient to be easily viewed. 47 CFR 74.735(c)(7) requires that if a matrix pattern is submitted in the LMS application form, similar tabulations must be provided as necessary in the form of a spreadsheet attachment to the application in LMS to accurately represent the pattern.
47 CFR 74.763(b) provides that in the event that causes beyond the control of the low power or translator station licensee make it impossible to continue operating, the licensee may discontinue operation for a period of not more than 30 days without further authority from the FCC. 47 CFR 74.763(b) requires that no later than the tenth day of discontinued operation, notification must be sent electronically via a Suspension of Operations Notice filing in the Commission's LMS database. In the event normal operation is restored before the end of the 30 day period, the licensee must notify the FCC of the date that normal operations resumed by filing a Resumption of Operations Notice filing in LMS. Finally, Section 74.763(b) requires that if causes beyond the control of the licensee make it impossible to comply within the allowed period, a licensee may make a request for Special Temporary Authority via LMS no later than the 30th day for such additional time as may be necessary.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before July 3, 2023. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
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 request to renew the existing information collections described below (OMB Control No. 3064-0140 and -0175). The notices of the proposed renewal for these information collections were previously published in the
Comments must be submitted on or before June 5, 2023.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Manny Cabeza, Regulatory Counsel, 202-898-3767,
1.
The disclosure requirements in this information collection apply to all FDIC-supervised IDIs that sell insurance products. According to recent Reports of Condition and Income (Call Report), there are currently 3,068 FDIC-supervised IDIs.
As of September 30, 2022, 321 FDIC-supervised IDIs reported non-zero values of income from annuity sales, underwriting income from insurance and reinsurance activities, or income from other insurance activities on Call Report forms 031 or 041. Another 780 FDIC-supervised IDIs reported non-zero values of income from insurance activities on Call Report form 051.
2.
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 institution effective as of the Date Closed as indicated in the listing.
This list (as updated from time to time in the
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” 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 February 6, 2023, to obtain comments from the public and affected agencies. CDC received one comment 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 functions of the agency, including whether the information will have practical utility;
(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
Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery (OMB Control No. 0920-1027, Exp. 8/31/2023)—Extension—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
CDC is requesting a three-year Extension for the Generic ICR titled Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery. During the past three-year approval period, CDC has submitted eight GenICs consisting of 750 responses. The collections included web-based surveys, focus groups, and assessments. The information collection activities conducted under this extension will continue to garner qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration's commitment to improving service delivery. By qualitative feedback we mean information that provides useful insights on perceptions and opinions but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training, or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative, and actionable communications between CDC and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
Feedback collected under this Generic Clearance will continue to provide useful information, but it will not yield data that can be generalized to the overall population. This type of Generic Clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: (1) the target population to which generalizations will be made; (2) the sampling frame; (3) the sample design (including stratification and clustering); (4) the precision requirements or power calculations that justify the proposed sample size; (5) the expected response rate; (6) methods for assessing potential non-response bias; (7) the protocols for data collection; and 8) any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other Generic mechanisms that are designed to yield quantitative results.
Respondents will be screened and selected from Individuals and Households, Businesses, Organizations, and/or State, Local or Tribal Government. Below we provide CDC's projected annualized estimate for the next three years. There is no cost to respondents other than their time. The estimated annualized burden hours for this data collection activity are 9,690.
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 National Survey of Syringe Services Programs (NSSSP). This data collection which proposes assess and monitor SSP operational characteristics and services, funding resources, community relations, and key operational and programmatic successes and challenges, and support timely analysis and dissemination of national program evaluation survey findings.
CDC must receive written comments on or before July 3, 2023.
You may submit comments, identified by Docket No. CDC-2021-0034 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
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.
The National Survey of Syringe Services Programs (NSSSP) (OMB Control No. 0920-1359, Exp. 12/31/2024)—Revision—National Center for HIV, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention, Centers for Disease Control and Prevention (CDC).
The primary purpose of the National Survey of Syringe Services Programs (NSSSP) is to strengthen and improve the ability of CDC and local and state partners to monitor and evaluate syringe services programs (SSPs) nationally, with the overall goal of supporting, sustaining, and improving SSPs nationwide and reducing infectious disease and other harms related to drug use. Findings from the 2020-2021 survey successfully characterized operational characteristics and services, funding resources, community relations, and key operational successes and challenges. The 2022 survey is currently being implemented. Revisions are being requested to address the increasing number of SSPs nationwide, the changing landscape of drug use nationally, additional SSP supplies and services provided, and ways in which SSPs are developing strategies to address the needs of PWUD.
The project will include all SSPs that are listed in a publicly available directory of all known SSPs in the United States maintained by the North American Syringe Exchange Network (NASEN;
Approximately 800 SSPs will be able to participate in the survey. We anticipate that approximately 20% of SSPs will decline to complete the survey, yielding approximately 640 completed surveys per year. However, given that it is challenging to predict future response rates, we are requesting enough burden hours to allow 100% of SSPs to respond to the survey. We estimate that it will take 35 minutes to complete the survey, regardless of how the respondent chooses to complete it (
CDC requests OMB approval for an estimated 494 annual burden hours. There is no cost to respondents other than their time to participate.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
On May 28, 2010, the Office of Management and Budget (OMB) issued Paperwork Reduction Act (PRA) guidance related to the “generic” clearance process. Generally, this is an expedited process by which agencies may obtain OMB's approval of collection of information requests that are “usually voluntary, low-burden, and uncontroversial collections,” do not raise any substantive or policy issues, and do not require policy or methodological review. The process requires the submission of an overarching plan that defines the scope of the individual collections that would fall under its umbrella. On October 23, 2011, OMB approved our initial request to use the generic clearance process under control number 0938-1148 (CMS-10398). It was last approved on April 26, 2021, via the standard PRA process which included the publication of 60- and 30-day
Comments must be received by May 17, 2023.
When commenting, please reference the applicable form number (CMS-10398 #59) and the OMB control number (0938-1148). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development, Attention: CMS-10398 #59/0938-1148, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William N. Parham at (410) 786-4669.
Following is a summary of the use and burden associated with the subject information collection(s). More detailed information can be found in the collection's supporting statement and associated materials (see
1.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by June 5, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Existing § 424.67 outlines a number of enrollment requirements for opioid treatment programs (OTPs). One requirement, addressed in § 424.67(b)(1)(i), is that OTPs must maintain and submit to CMS a list of all physicians, other eligible professionals, and pharmacists who are legally authorized to prescribe, order, or dispense controlled substances on the OTP's behalf; the list must include the person's first and last name and middle initial, social security number, National Provider Identifier, and license number (if applicable). This reinstatement request will add these data elements to the CMS-855A, which OTPs must complete if they wish to bill for OTP services via an institutional claim form (specifically, the 837I).
On November 23, 2022, CMS published in the
As part of this request, and as described in the supporting statement, we also seek approval for additional changes to the CMS-855A. These changes principally (though not exclusively) involve the collection of information related to the provider's ownership.
2.
The primary purpose of the Medicare CAHPS surveys is to provide information to Medicare beneficiaries to help them make more informed choices among health and prescription drug plans available to them. Survey results are reported by CMS in the Medicare &
3.
1. What aspects of patient dialysis care do patients report as a priority?
2. How, if at all, do dialysis facilities evaluate the quality of care they provide?
3. What strategies do providers and dialysis facilities use to improve access to care for underserved populations?
4. What do patients, providers, and stakeholder organizations believe contributes to high quality of life for patients with ESRD? Do perceptions vary by respondent type or respondent characteristics?
5. How do dialysis facilities measure patient satisfaction and quality of life?
6. How do dialysis providers and stakeholder organizations think quality of life for dialysis patients has changed over time? What was the impetus for that change?
We are requesting to collect information through in depth interviews with stakeholders of the CMS end-stage renal disease (ESRD) Quality Incentive Program (QIP). The interviews will collect data from individuals with ESRD, dialysis facility administrators, dialysis social workers, transplant center administrators, corporate representatives from dialysis organizations, and patient advocacy organizations.
This data collection seeks to answer several research questions specific to health outcomes for dialysis patients, as measured by the QIP, that are not available through current literature or secondary data collection. In preparation for this study, the evaluation team conducted a scan of peer-reviewed literature and document review of previous ESRD QIP monitoring and evaluation reports and policy documents describing CMS priorities. Based on the results from this scan, the study team identified persistent knowledge gaps and opportunities for primary data collection. Drawing on high-quality data, empirical rigor, and knowledge of nonprogrammatic factors, the evaluation will benefit CMS by providing data-driven findings and recommendations to improve patient care, reduce health disparities, and promote health equity.
This primary data collection will allow CMS to more comprehensively understand the data being compiled and analyzed quantitatively and will provide more context related to dialysis quality, quality of life of individuals with ESRD, access to dialysis care, and the patient experience, which are current CMS priorities.
Office of Planning, Research, and Evaluation, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is proposing a data collection activity as part of the 2024 National Survey of Early Care and Education (NSECE) to be conducted October 2023 through July 2024. The objective of the 2024 NSECE is to document the nation's use and availability of early care and education (ECE) services, building on the information collected in 2012 and 2019 to describe the ECE landscape in the U.S. The 2024 NSECE will collect information on families with children under age 13 years, on ECE providers that serve families with children from birth to 13 years in the U.S., and on the workforce providing these services.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
1. a survey of households with at least one resident child under the age of 13 (Household Interview),
2. a survey of individuals providing care for children under the age of 13 in a residential setting (Home-based Provider Interview) including individuals appearing on state and national lists of ECE providers (listed) and individuals not appearing on such lists (unlisted),
3. a survey of center-based ECE providers offering care for children age 5 years and under, not yet in kindergarten, in a non-residential setting (Center-based Provider Interview), and
4. a survey conducted with individuals employed in center-based ECE programs working directly with children in classrooms serving children age 5 years and under, not yet in kindergarten (Workforce Interview).
The household, home-based provider, and center-based provider surveys will require a screener to determine eligibility for the specific survey.
The 2024 NSECE data collection efforts will provide urgently needed information about the use and supply of ECE available to families across all income levels, including providers serving low-income families of various racial, ethnic, language, and cultural backgrounds, in diverse geographic areas. The household data will include characteristics of households with children under age 13, such as parental employment status and schedules, preferences and choices of non-parental care, and other key factors that affect their need for and access to ECE. The provider data will include home-based or center-based ECE providers (
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA, Agency, or we) is announcing the establishment of a docket to solicit public comments on the identification, assessment, and control of N-nitrosamine (nitrosamine) drug substance-related impurities (NDSRIs) that may be considered by the Agency in its regulation of these types of impurities in drug products. This notice identifies scientific and regulatory considerations regarding the identification, assessment, and control of NDSRIs, including areas that may benefit from collaborative efforts, and requests comments on these topics. This notice is not intended to communicate FDA's regulatory expectations on these issues but is instead intended to seek input from the public to inform scientific and/or regulatory approaches as appropriate.
Either electronic or written comments must be submitted by July 3, 2023.
You may submit comments as follows. Please note that late,
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 information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Jason Bunting, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6366, Silver Spring, MD 20993-0002, 301-796-1292,
FDA has been investigating the presence of nitrosamine impurities in certain drug products since June 2018. Nitrosamines are common in water and foods, including cured and grilled meats, dairy products, and vegetables. Nitrosamines may increase the risk of cancer if people are exposed to them above acceptable levels. The acceptable intake (AI) limit is a level that approximates an increased cancer risk of one additional case in 100,000 people based on a conservative assumption of daily exposure to the impurity or impurities over a lifetime (70 years) (See FDA guidance for industry “Control of Nitrosamine Impurities in Human Drug Drugs” (Nitrosamine Guidance) at 10, available at
When FDA was informed of the presence of an impurity identified asN-nitrosodimethylamine (NDMA) in valsartan, an angiotensin II receptor blocker (ARB), it began an investigation in which it determined that numerous lots of valsartan and a few other ARB drug products from different manufacturers contained unacceptable levels of nitrosamines. The drug product manufacturers voluntarily recalled the affected batches of these drug products, which led to a drug shortage in some of the affected products. In addition, FDA evaluated processes used in synthesis of the active pharmaceutical ingredient (API) and learned that common synthetic pathways could also introduce other types of nitrosamine impurities besides NDMA. FDA has continued to learn of the existence of nitrosamine impurities such as NDMA in drug products in several drug classes (see Ref. 3 at 2-3).
FDA originally published the Nitrosamine Guidance on September 3, 2020 (85 FR 55017), and updated the guidance on February 24, 2021 (Ref. 3). The guidance provides recommendations for industry regarding nitrosamines, and NDSRIs are a subcategory of these impurities that share structural similarity with the active pharmaceutical ingredient in drug products. In the Nitrosamine Guidance, FDA recommends manufacturers of APIs and drug products should take steps to detect and prevent unacceptable levels of nitrosamine impurities in drug products, or avoid their presence when feasible.
More recently, and often in response to the risk assessment recommended in the Nitrosamine Guidance, FDA has received an increasing number of reports of certain types of nitrosamine impurities that have formed in drug products across multiple drug classes. These NDSRIs are a class of nitrosamines sharing structural similarity to the API, and thus, differ in certain respects from small molecule nitrosamine impurities (
In November 2021, FDA alerted the public regarding the presence of NDSRIs and indicated that manufacturers could ascertain the presence of NDSRIs using the same three-step process identified in the Nitrosamine Guidance (Ref. 4). As discussed further below, FDA also conveyed possible mitigation strategies, and encouraged applicants to develop control strategies or design approaches to reduce NDSRIs to acceptable levels or eliminate them (where feasible).
NDSRIs present unique scientific and regulatory challenges for FDA because each NDSRI is unique to the API, and there is limited compound-specific data that is available to inform safety assessments. Additionally, design of validated test methods for identification of NDSRIs and modification of existing test methods for assessment of their mutagenic potential may raise novel scientific considerations.
In the Nitrosamine Guidance, FDA recognizes that nitrosamine compounds are potent genotoxic agents in several animal species, and some have been classified as probable or possible human carcinogens by the World Health Organization's International Agency for Research on Cancer (see Ref. 3 at 5). The framework for identifying, categorizing, qualifying and controlling DNA reactive (mutagenic) impurities to limit potential carcinogenic risk is provided in FDA and International Council for Harmonisation guidance for industry entitled “M7(R1) Assessment and Control of DNA Reactive (Mutagenic) Impurities in Pharmaceuticals To Limit Potential Carcinogenic Risk” (ICH M7(R1) Guidance), available at
The ICH M7(R1) Guidance provides guidance to derive AI limits for some chemicals that are considered mutagens and carcinogens and are also commonly used in the synthesis of pharmaceuticals or are useful examples to illustrate the principles for deriving compound-specific intakes otherwise described in the ICH M7(R1) Guidance (see the
FDA typically requests that applicants assess the potential for an impurity to be mutagenic by conducting a standard in vitro bacterial reverse mutation test (Ames test). If this in vitro mutagenicity testing is negative for a nitrosamine impurity, FDA has requested further testing because standard methods used for the Ames test may not be adequate to characterize the mutagenic potential of nitrosamines, in some cases producing negative results with known mutagenic nitrosamines. Information in published scientific literature suggests that some Ames tests (
In some circumstances in which the results of an enhanced Ames test are negative, the mutagenic potential of the impurity was further assessed in an in vivo transgenic gene mutation test to confirm the in vitro findings. If further in vivo testing is to be conducted, the selection of the in vivo mutagenicity tests should be scientifically justified based on knowledge of the mechanism of action of the impurity and expected target tissue exposure (see Ref. 5 at 11 and at (Note 3) 21-22). To avoid potentially duplicative nonclinical in vitro or in vivo testing of NDSRIs by manufacturers of drug products containing the drug substance, FDA is interested in exploring the feasibility of collaborative efforts among applicants and manufacturers of affected drug products.
In general, (Q)SAR models are accepted as a scientific tool for predicting and classifying the biological activities of untested chemicals. A computational toxicology assessment using (Q)SAR methodologies can predict, with acceptable confidence, the outcome of an Ames test by using two complementary, validated modeling methodologies (statistical-based and expert rule-based) and can be used to classify an impurity as mutagenic or non-mutagenic (see Ref. 5 at 10). The methodology uses statistical and/or manual approaches to correlate and rationalize variations in the biological activity of a series of chemicals with variations in their molecular structures, which are often represented by a set of quantities commonly known as “structural descriptors.” Because (Q)SAR models can generate a prediction of a chemical's biological activity from structural descriptors more rapidly than in vitro or in vivo testing can be conducted, they provide a means to efficiently assess nitrosamine toxicity when experimental data are unavailable. However, the predictive performance of (Q)SAR models depends on many factors, particularly on the quality of biological training data, descriptor selection, and modeling algorithm. Therefore, FDA has been working with model developers and stakeholders to advance predictive toxicology, with a focus on the use of (Q)SAR methodologies in assessing potential mutagenicity and carcinogenicity of NDSRIs.
A recommended AI limit is based on a safety assessment that includes evaluation of the mutagenic and carcinogenic potential of the impurity and represents the level at or below which FDA has determined that the impurity or impurities would not pose a safety concern for patients taking the drug product. The AI limit is a level that approximates an increased cancer risk of 1:100,000 based on a conservative assumption of daily exposure to the impurity or impurities over a lifetime (70 years) (see Ref. 3 at 10 and Appendix B “FDA Determination of Acceptable Intake Limits”). The AI limit is generally described in nanograms per day, and each applicant establishes specifications to control for the level of impurity or impurities in their drug products (in parts per million) based on the maximum daily dose of the drug product under the labeled conditions of use. Once a recommended AI limit has been established, applicants and manufacturers would generally be expected to control impurities within the recommended AI limit (see Ref. 3 at 14, 15). Applicants or manufacturers should contact FDA regarding drug products with unacceptable levels of nitrosamine impurities that are already in distribution (see Ref. 3 at 14, 15). Additionally, applicants and manufacturers may need to modify the manufacturing processes or reformulate their drug products to control impurities within the recommended AI limit
Calculating a recommended AI limit for NDSRIs is often more challenging than calculating recommended AI limits for small molecule nitrosamines, primarily because NDSRIs are unique to each API and there is usually limited or no existing safety data (
If mutagenic potential is identified through toxicological testing or computational toxicology models, FDA and applicants have used (Q)SAR methods to identify and select a data-rich surrogate that is similar in structure and reactivity to the data-poor NDSRI to generate an estimate of carcinogenic potency from which an AI limit can be determined. In this scenario, surrogates are compounds containing an N-nitroso structural alert in the same chemical environment as an NDSRI and for which robust carcinogenicity data are available (see Ref. 5 at 11-12). The rationale for the choice of surrogate (similar in structure and reactivity) is significant because test data from the identified surrogate is then used to generate an estimate, either quantitatively or qualitatively, for the data-poor compound (commonly referred to as a “read-across analysis”).
The nitrosamine structural alert environment is an important factor when selecting appropriate reference compounds for a read-across analysis and may include consideration of the degree of substitution, steric bulk, electronic influences, potential for metabolic activation, stability/reactivity of the resulting metabolites, and overall molecular weight. Additionally, the quality of carcinogenicity studies in the published scientific literature can be quite variable; however, use of less robust data can sometimes be considered acceptable when no more complete data exist, given the highly conservative nature of the risk assessment (see Ref. 5 at 36).
Since the issuance of the Nitrosamine Guidance, FDA has continued to work to better understand the root causes of nitrosamines, develop mitigation strategies that can eliminate or minimize the presence of nitrosamines in drug products, and improve approaches to risk assessment (mutagenicity and carcinogenicity) of NDSRIs in drug substances and drug products that can inform recommended AI limits.
As FDA learned more about NDSRI formation and received increasing numbers of reports from industry on the presence of NDSRIs, the Agency identified on its web page two examples of mitigation strategies related to formulation design to assist
The identification of a new impurity, such as an NDSRI, may have implications for a cohort of pending or approved NDAs (including applications submitted pursuant to section 505(b)(2) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(b)(2))) and ANDAs and also creates unique challenges from a regulatory perspective. For example, a generic drug applicant typically may qualify the level of an impurity that does not have a limit in an applicable U.S. Pharmacopeia monograph or that does not otherwise have a recommended AI limit (
Moreover, information on impurities in drug products that may reveal an aspect of an applicant's manufacturing method or process generally has been protected from public disclosure, unless such information has been previously disclosed by the applicant or is otherwise publicly available. Thus, FDA may be limited in the impurity information that it can disclose to facilitate efficient evaluation of other products and to inform applicants of actions they can take to mitigate nitrosamine risk. In addition, there are considerations that may constrain FDA's ability to disclose certain information provided by an applicant in FDA's evaluation of other applicants' submissions to FDA, which can lead to potentially duplicative nonclinical tests (which may include animal testing) to characterize the risk and inform a recommended AI limit. This can be a significant concern when a newly identified NDSRI may have implications for a cohort of pending or approved marketing applications. For example, there are circumstances in which potential constraints regarding disclosure could hamper FDA's ability to quickly and publicly identify a compound-specific recommended AI limit for an NDSRI that may be applicable to all drug products that contain the API. Potential constraints related to disclosure of certain information regarding impurities could also lead to delays in providing applicants, including follow-on and generic drug products, with information to develop drug products with acceptable impurity profiles. Additionally, uncertainty about the presence and/or acceptability of the level of an impurity raises additional regulatory challenges and could lead to some applicants conducting unnecessary studies or even discontinuing drug products from the market, potentially resulting in drug shortages. These difficulties can impact patient access to medications, including drugs that are considered medically necessary.
To avoid these potential issues, at times, FDA generates and makes publicly available information or research to support the development of recommended AI limits by conducting additional studies, developing enhanced Ames testing, or using (Q)SAR methodology to identify appropriate surrogates from which read-across can be used to estimate carcinogenic potency. Applicants can use this FDA-generated information to set individual drug product specifications. The absence of publicly available data to support a recommended AI limit for an NDSRI can result in potentially duplicative studies to support a recommended AI limit. Moreover, if in vivo animal studies are necessary to assess the risk of a particular NDSRI, such potentially duplicative testing may not align with FDA's policy to replace, reduce, and refine the use of animals for safety testing (the 3R principles), where possible (see,
FDA has encouraged collaborative efforts by applicants and other stakeholders, together with the Agency as appropriate, to help address the challenges presented by NDSRIs. FDA also has collaborated with international regulatory agencies through the Nitrosamines International Strategic Group and the Nitrosamines International Technical Working Group, which were formed to share scientific knowledge and current thinking on technical safety and quality topics related to nitrosamines and to promote technical convergence among member jurisdictions, where possible. In other areas, FDA is collaborating on multi-laboratory projects being organized by the Health and Environmental Sciences Institute's Genetic Toxicology Technical Committee that include industry stakeholders and regulatory agencies such as Health Canada and European Medicines Agency. Additionally, FDA has been actively engaged with model developers and stakeholders to advance predictive toxicology with a focus on the use of (Q)SAR methodologies in assessing potential mutagenicity and carcinogenicity of NDSRIs.
Development of laboratory test methods to identify NDSRIs is an area that could benefit from collaborative efforts. In the Nitrosamine Guidance, FDA encourages manufacturers or laboratories to make validated test methods publicly available (
FDA is requesting comments from the public regarding the identification, assessment, and control of NDSRIs in drug product development and regulatory review to provide interested parties an opportunity to comment on scientific and regulatory considerations, including areas that may benefit from collaborative efforts. FDA is also interested in any challenges preventing industry from identifying, assessing, and controlling NDSRIs that may assist FDA in its analysis.
The questions posed below are not meant to be exhaustive. FDA is interested in other pertinent information that stakeholders would like to provide on issues and challenges related to addressing NDSRIs. FDA is particularly interested in comments on the following topics:
1. What additional topics related to the evaluation of nitrosamines should be a priority for the Agency to address through guidance documents?
2. What factors should FDA consider in prioritizing its evaluation of NDSRIs on a compound-specific basis?
3. What additional mitigation strategies should be considered for reducing NDSRI formation or eliminating these impurities (where feasible)?
1. What scientific and technical factors should FDA consider in developing best practices for conducting testing for NDSRIs (
a. Are there other tests recommended for assessing mutagenic potential of NDSRIs, and how supportable are these methods?
b. Would “short-term” carcinogenicity testing (
c. If so, what are the advantages and disadvantages to such testing?
d. Are there other types of studies that may further inform FDA about the risk associated with NDSRI (
2. FDA recommended in the Nitrosamine Guidance that confirmatory testing of drug products and submission of required changes in drug applications be concluded on or before October 1, 2023 (see Ref. 3 at 17). Would an extension of the recommended timeline for submission of changes in drug applications as described in the guidance to June 1, 2024, allow for additional assessment of NDSRIs and enable collaborative efforts among affected applicants? How can FDA further support manufacturers' efforts toward completion of confirmatory testing?
1. How can FDA facilitate collaborative efforts to generate reliable compound-specific data on NDSRIs and reduce the need for additional and potentially duplicative testing?
2. Are there obstacles that industry has encountered when engaging in collaborative efforts that could allow companies to share data to assess the safety of NDSRIs, particularly with the intent of reducing redundant testing and integrating the 3R principles? Such examples of collaboration may include enhancing (Q)SAR methods and models, conducting in vitro mutagenicity testing and/or in vivo transgenic gene mutation tests. If there are such obstacles, are there ways that FDA could facilitate collaboration?
1. In implementing recommendations for controlling nitrosamines, including NDSRIs, have manufacturers or suppliers experienced difficulties with meeting recommended AI limits that has led to discontinuation of manufacturing or distribution?
The following references are on display at the Dockets Management Staff (see
1. Food and Drug Administration (FDA) guidance for industry “ANDAs: Impurities in Drug Substances,” June 2009, available at
2. FDA guidance for industry “ANDAs: Impurities in Drug Products,” November 2010, available at
3. FDA guidance for industry “Control of Nitrosamine Impurities in Human Drugs,” February 2021, available at
4. FDA, “Updates on Possible Mitigation Strategies To Reduce the Risk of Nitrosamine Drug Substance-Related Impurities in Drug Products,” available at
5. FDA and International Council for Harmonisation guidance for industry “M7(R1) Assessment and Control of DNA Reactive (Mutagenic) Impurities in Pharmaceuticals To Limit Potential Carcinogenic Risk,” March 2018, available at
6. FDA and International Council for Harmonisation guidance for industry, “M3(R2) Nonclinical Safety Studies for the Conduct of Human Clinical Trials and Marketing Authorization for Pharmaceuticals” January 2010, available at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a
JonnaLynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794,
The following is a list of FDA information collections recently approved by OMB under section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The OMB control number and expiration date of OMB approval for each information collection are shown in table 1. Copies of the supporting statements for the information collections are available on the internet at
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Vaccines and Related Biological Products Advisory Committee (VRBPAC). The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. On June 15, 2023, the committee will meet in open session to discuss and make recommendations on the selection of strain(s) to be included in the periodic updated COVID-19 vaccines for the 2023-2024 vaccination campaign. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held virtually on June 15, 2023, from 8:30 a.m. to 5 p.m. Eastern Time.
Please note that all meeting participants will be joining this advisory committee meeting via an online teleconferencing platform. The online web conference meeting will be available at the following link on the day of the meeting:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2023-N-1553. The docket will close on June 14, 2023. Either electronic or written comments on this public meeting must be submitted by June 14, 2023. Please note that late, untimely filed comments will not be considered. The
Comments received on or before June 7, 2023, will be provided to the committee. Comments received after June 7, 2023, and by June 14, 2023, will be taken into consideration by FDA. In the event that the meeting is canceled, FDA will continue to evaluate any relevant applications or information, and consider any comments submitted to the docket, as appropriate. You may submit comments 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
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 information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Sussan Paydar or Prabhakara Atreya, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Silver Spring, MD 20993-0002, 202-657-8533,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the time of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Sussan Paydar or Prabhakara Atreya (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance for industry entitled “Q9(R1) Quality Risk Management.” The guidance was prepared under the auspices of the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use (ICH). The guidance is a targeted revision of the 2006 guidance for industry “Q9 Quality Risk Management” and addresses product availability risks due to manufacturing quality issues, lack of understanding as to what constitutes formality in Quality Risk Management (QRM) work, lack of clarity on risk-based decision-making, and high levels of subjectivity in risk assessments and QRM outputs. The revision is intended to provide guidance on quality risk management principles and tools that can be applied to different aspects of pharmaceutical quality. The guidance replaces the draft guidance “Q9(R1) Quality Risk Management” issued on June 15, 2022.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances 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 information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
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 guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002, or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. The guidance may also be obtained by mail by calling the Center for Biologics Evaluation and Research at 1-800-835-4709 or 240-402-8010. See the
FDA is announcing the availability of a guidance for industry entitled “Q9(R1) Quality Risk Management.” The guidance was prepared under the
By harmonizing the regulatory requirements in regions around the world, ICH guidelines enhance global drug development, improve manufacturing standards, and increase the availability of medications. For example, ICH guidelines have substantially reduced duplicative clinical studies, prevented unnecessary animal studies, standardized the reporting of important safety information, and standardized marketing application submissions.
The six Founding Members of the ICH are the FDA; the Pharmaceutical Research and Manufacturers of America; the European Commission; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labour, and Welfare; and the Japanese Pharmaceutical Manufacturers Association. The Standing Members of the ICH Association include Health Canada and Swissmedic. ICH membership continues to expand to include other regulatory authorities and industry associations from around the world (refer to
ICH works by engaging global regulatory and industry experts in a detailed, science-based, and consensus-driven process that results in the development of ICH guidelines. The regulators around the world are committed to consistently adopting these consensus-based guidelines, realizing the benefits for patients and for industry.
As a Founding Regulatory Member of ICH, FDA plays a major role in the development of each of the ICH guidelines, which FDA then adopts and issues as guidance for industry. FDA's guidance documents do not establish legally enforceable responsibilities. Instead, they describe the Agency's current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited.
In the
After consideration of the comments received and revisions to the guideline, a final draft of the guideline was submitted to the ICH Assembly and endorsed by the regulatory agencies on January 18, 2023.
This guidance finalizes the draft guidance of the same title issued on June 15, 2022. The final guidance includes: (1) updated references, (2) a dedicated section to the subjectivity of QRM, (3) clarification on the application of risk management in the use of digitalization and emerging technologies, (4) an emphasis on root cause analysis, (5) a clearer definition of “risk-based decision-making,” and (6) an improved distinction between hazards, harms, and associated risks. The final guidance further addresses detection controls' link to reducing the probability of the occurrence of harm, situations which call for higher levels of QRM formality, and the importance of QRM regarding distribution practices.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Q9(R1) Quality Risk Management.” 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 parts 210 and 211 relating to current good manufacturing practice requirements have been approved under OMB control number 0910-0139.
Persons with access to the internet may obtain the guidance at
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA is submitting a request for public comment on redesigned Maternal and Child Health Bureau (MCHB) Performance Measures for Discretionary Grant Information System (DGIS) forms. The purpose of the redesigned DGIS forms is to facilitate higher quality data collection and develop streamlined, clear DGIS metrics to support communications about the range of HRSA's maternal and child health (MCH) programs. Proposed revisions include eliminating 52 forms, adding 25 new forms, and revising 23 existing forms. In addition, three forms have not undergone substantive revisions since the previously approved Office of Management and Budget (OMB) package and are included in the time burden estimate. HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the Information Collection Request (ICR).
Comments on this ICR must be received no later than July 3, 2023.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email Samantha Miller, the HRSA Information Collection Clearance Officer, at
When submitting comments or requesting information, please include the information request collection title for reference.
The revised forms are grouped into two general categories: central measures and program specific measures. Central measures include basic, topical, activity, and outcome forms. There are also four sets of program-specific forms. Grant programs are assigned forms based on their activities and individual grantees respond to only a limited number of forms that are relevant to their specific program. Many of these forms are specific to certain types of programs and are not required of all grantees.
Forms are proposed to be added, removed, or revised beyond what was specified in the
The following 3 forms are included with no substantive changes from the prior approved OMB package: Training 14 (Medium-Term Trainees Skill and Knowledge), EMSC 08 (Established Permanence of EMSC), and EMSC 09 (Established Permanence of EMSC by Integrating EMSC Priorities into Statutes/Regulations).
Additional non-substantive revisions include updates to terminology, goals, benchmark data sources, and significance sections included in the measures' detail sheets. A performance measure detail sheet defines and describes each performance measure. Forms and detail sheets showing the proposed revisions are available upon request.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Institute on Minority Health and Health Disparities Special Emphasis Panel.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The National Heart, Lung, and Blood Institute (NHLBI) of the National Institutes of Health (NIH) will host a public hearing to enable discussion of the Institute's proposal to reorganize the Division of Lung Disease (DLD). The proposed reorganization aims to ensure effective oversight, alignment of expertise, and translation of knowledge within and across research areas in the lung disease field. It establishes a new branch structure that will strategically position leadership over DLD programs, balance workload, and enhance depth/succession planning for ingrained operational sustainability. There will be no impact on the National Center on Sleep Disorders Research as a result of the restructuring. The online forums will allow members of the public to review the reorganization proposals and submit comments.
The first public hearing will take place June 6, 2023, at approximately 11:30 a.m. E.T. during the open session of the National Heart, Lung, and Blood Institute Advisory Committee meeting. The second public hearing will take place on June 7, 2023, from 12:00 p.m. to 1:00 p.m. E.T. using the NHLBI DLD Director's Twitter account. Any interested person may also file written comments by sending an email to
The following email address may be used for comments on the reorganization:
The link to the videocast for the first public hearing to occur during the open session of the NHLBI Advisory Council meeting will be posted online at:
The second public hearing will be held via Twitter using
Tony Jackson, Chief of Staff, Division of Lung Disease, National Heart, Lung, and Blood Institute, National Institutes of Health, Rockledge Center I, 6705 Rockledge Drive, 4th Floor, Bethesda 20817, 301-435-0233,
The NIH Reform Act of 2006 (42 U.S.C. 281(d)(4)) requires public notice of proposed reorganization plans. This announcement and the public forum serve as that notice.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
In accordance with title 41 of the U.S. Code of Federal Regulations, section 102-3.65(a), notice is hereby given that the Charter for the Center for Scientific Review Advisory Council was renewed for an additional two-year period on March 31, 2023.
It is determined that the Center for Scientific Review Advisory Council is in the public interest in connection with the performance of duties imposed on the National Institutes of Health by law, and that these duties can best be performed through the advice and counsel of this group.
Inquiries may be directed to Claire Harris, Director, Office of Federal Advisory Committee Policy, Office of the Director, National Institutes of Health, 6701 Democracy Boulevard, Suite 1000, Bethesda, Maryland 20892 (Mail code 4875), Telephone (301) 496-2123, or
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration (SAMHSA), Department of Health and Human Services (HHS).
Notice.
The Secretary of Health and Human Services (Secretary) announces a meeting of the Interdepartmental Substance Use Disorders Coordinating Committee (ISUDCC). The ISUDCC is open to the public and members of the public can attend the meeting via telephone or webcast only, and not in person. Agenda with call-in information will be posted on the SAMHSA website prior to the meeting at:
June 5, 2023, 9:30 a.m.-12:30 p.m. EST/Open.
The meeting will be held virtually.
The meeting can be accessed via Zoom.
Tracy Goss, ISUDCC Designated Federal Officer, Substance Abuse and Mental Health Services Administration, 5600 Fishers Lane, Rockville, MD 20857; telephone: 240-276-0759; email:
The Interdepartmental Substance Use Disorders Coordinating Committee is required under section 7022 of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act, Pub. L. 115-271) to accomplish the following duties: (1) identify areas for improved coordination of activities, if any, related to substance use disorders, including research, services, supports, and prevention activities across all relevant federal agencies; (2) identify and provide to the Secretary recommendations for improving federal programs for the prevention and treatment of, and recovery from, substance use disorders, including by expanding access to prevention, treatment, and recovery services; (3) analyze substance use disorder prevention and treatment strategies in different regions of and populations in the United States and evaluate the extent to which federal substance use disorder prevention and treatment strategies are aligned with State and local substance use disorder prevention and treatment strategies; (4) make recommendations to the Secretary regarding any appropriate changes with respect to the activities and strategies described in items (1) through (3) above; (5) make recommendations to the Secretary regarding public participation in decisions relating to substance use disorders and the process by which public feedback can be better integrated into such decisions; and (6) make recommendations to ensure that substance use disorder research, services, supports, and prevention activities of the Department of Health and Human Services and other Federal agencies are not unnecessarily duplicative.
Not later than one year after the date of the enactment of this Act, and annually thereafter for the life of the Committee, the Committee shall publish on the internet website of the Department of Health and Human Services, which may include the public information dashboard established under section 1711 of the Public Health Service Act, as added by section 7021, a report summarizing the activities carried out by the Committee pursuant to subsection (e), including any findings resulting from such activities.
This ISUDCC consists of federal members listed below or their designees, and non-federal public members.
The ISUDCC is required to meet at least twice per calendar year.
To attend virtually, submit written or brief oral comments, or request special accommodation for persons with disabilities, contact Tracy Goss. Individuals can also register on-line at:
The public comment section will be scheduled at the conclusion of the meeting. Individuals interested in submitting a comment, must notify Tracy Goss on or before May 26, 2023, via email to:
Up to two minutes will be allotted for each approved public comment as time permits. Written comments received in advance of the meeting will be considered for inclusion in the official record of the meeting.
Substantive meeting information and a roster of Committee members is available at the Committee's website:
Advisory Council on Historic Preservation.
Notice of issuance.
The Advisory Council on Historic Preservation has issued a program comment for the U.S. Department of the Army that sets forth the way in which the Army complies with the National Historic Preservation Act for its inventory of Vietnam War Era historic housing management actions, including: maintenance, repair, rehabilitation, renovation, abatement of hazardous materials, mothballing, cessation of maintenance, demolition, new construction, lease, transfer, conveyance, and the use of modern readily available industry standard building materials and methods in the implementation of management actions.
The Program Comment went into effect on March 17, 2023.
Address any questions concerning the Program Comment to Megan Borthwick, Office of Federal Agency Programs, Advisory Council on Historic Preservation, 401 F Street NW, Suite 308, Washington, DC 20001,
Megan Borthwick, (202) 517-0221,
Section 106 of the National Historic Preservation Act, 54 U.S.C. 306108 (section 106), requires federal agencies to consider the effects of projects they carry out, license, or assist (undertakings) on historic properties and to provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. The ACHP has issued the regulations that set forth the process through which federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 (section 106 regulations).
Under section 800.14(e) of those regulations, agencies can request the ACHP to provide a “program comment” on a particular category of undertakings in lieu of conducting individual reviews of each individual undertaking under such category, as set forth in 36 CFR 800.4 through 800.7. An agency can meet its Section 106 responsibilities with regard to the effects of those undertakings by taking into account an applicable program comment and following the steps set forth in that comment.
The U.S. Department of the Army (Army) sought a program comment for its management actions related to its inventory of approximately 7,800 Vietnam War Era historic housing units. Actions could include maintenance, repair, rehabilitation, renovation, abatement of hazardous materials, mothballing, cessation of maintenance, demolition, new construction, lease, transfer, conveyance, and the use of modern readily available industry standard building materials and methods in the implementation of management actions. These actions present a potential for adverse effects to historic properties.
The ACHP issued the Program Comment for Army Vietnam War Era Historic Housing, Associated Buildings and Structures, and Landscape Features (1963-1975) (Program Comment) on March 17, 2023. The section 106 regulations require that such program comments be published in the
The need for this Program Comment is based on the Army's obligation to provide safe, healthy, quality housing to Soldiers and their families, and the unique challenges the Army has in managing NHPA Section 106 compliance for its large and growing inventory of historic housing. Housing and associated living conditions are critical factors for military families. A direct connection exists between poor housing conditions and military readiness. In 2019, the Secretary of the Army declared an Army Housing Crisis due primarily to widespread deficiencies and significant quality of life, health, and safety issues affecting military families living in historic Army housing.
To address the Army Housing Crisis and meet its housing obligations to military families, the Army must quickly and efficiently implement management actions to improve Army Vietnam War Era housing conditions affecting the quality of life for Soldiers and their families. The section 106 project-by-project review process under existing installation-level Programmatic Agreements (PAs) may contribute to delays in completing historic housing maintenance, repairs, and improvements needed for the transition in occupancy. Those delays could directly impact the ability of reassigned military families to move-in and occupy historic housing.
The compliance process efficiencies created by the Program Comment allows the Army to quickly and efficiently address the health and safety risks from certain hazardous historic building materials, ensure cost efficient, effective, and consistent management of the overall inventory, and implement climate adaptations and use modern resilient materials.
The Army has the largest housing mission in the Federal Government, managing over 100,000 total housing units for Soldiers and their families. Over 7,800 of these historic units are from the Vietnam War Era (1963-1975). The Army's inventory of Vietnam War Era housing is located at 18 installations in 13 states.
The intent of the Program Comment is to provide the Army with NHPA section 106 compliance for repetitive, recurring property management actions on all privatized and non-privatized Army housing, associated buildings and structures, and landscape features constructed from 1963 through and including 1975. The property management actions addressed by the Program Comment are maintenance, repair, rehabilitation, renovation, abatement of hazardous materials, mothballing, cessation of maintenance, demolition, new construction, lease, transfer, conveyance, and the use of modern readily available industry standard building materials and methods. The Army's Vietnam War Era housing property type is historically significant under National Register of Historic Places Criterion A based on its historical association with the Vietnam War. These management actions may result in adverse effects.
The Vietnam War was a major event in American history from the early 1960s through the mid-1970s. The heightened warfighting requirements and costs had direct implications for military activities at installations in the United States, including the Army family housing construction program. The 1964 DoD Design Folio objectives dictated the development of a family housing development plan that would provide reduced costs in siting, construction, and maintenance. A proposed solution included the townhouse design developments. Multi-story, row-unit townhouses, closely sited within large open areas were recognized as creating the required economies of scale. While ranch style single family and duplex housing designs for senior officers were included in the DoD Design Folio and continued
The Army identified a subset of eligible properties that retain the highest degree of integrity and designated them as Properties of Particular Importance (PPI). PPI, located exclusively at Schofield Barracks, Oahu, Hawaii, make up over 7% of the total inventory of Army Vietnam War Era Housing. The Program Comment includes a consultation process to follow when PPI are proposed for cessation of maintenance or demolition. The Army completed additional documentation of the PPI as mitigation included in the Historic Context Report.
Additional mitigation includes development of Neighborhood Guidelines in coordination with ACHP. The guidelines will set clear parameters for all management actions including new construction. The Army will complete the guidelines within one year of Program Comment issuance.
The Army formally submitted this Program Comment to the ACHP twice, resulting in two rounds of consultation for both the Army and the ACHP. The Army sought participation from the public, State Historic Preservation Officers (SHPOs), Indian tribes, Native Hawaiian Organizations (NHOs), and other interested parties in the Program Comment's development prior to formally submitting its request for a Program Comment to the ACHP.
In accordance with 36 CFR 800.14(e)(2)(3)(4), the ACHP conducted consultation with State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers, Indian Tribes, and Native Hawaiian organizations and provided for public participation.
During the first round of consultation in September 2022, outreach consisted of broadcast emails, social media posts, and a dedicated website for the Program Comment. The ACHP conducted two government-to-government consultations with Indian Tribes with a total of four participants. Additionally, the ACHP conducted two SHPO meetings with a total of eleven participants. Nine written comments were received. Written comments included support for the efficiencies provided in the program comment, requests to receive notification as appropriate in the case of unanticipated discoveries, and substantive comments addressed below. During consultation, the ACHP received comments regarding new construction in the context of this Program Comment, identification of Properties of Particular Importance the review process for these properties of particular importance, and inclusion of demolition and conveyance in program comments.
The ACHP received comments regarding the definition of new construction within the context of the Program Comment. ACHP Staff worked with the Army to refine the definition of new construction in the context of this Program Comment which now clarifies that new construction is limited to the boundaries of the previously disturbed areas in the Vietnam War Era neighborhoods. The definition was adjusted to differentiate between disturbed and undisturbed areas and clarifies that new housing construction only occurs within the boundaries of existing Vietnam War Era housing neighborhoods. Any impacts to known archaeological resources or unanticipated discoveries are outside of the scope of this Program Comment.
Some consulting parties argued that the process proposed for review of cessation of maintenance and demolition of properties of particular importance provided limited opportunities for substantive consultation. The Army agreed to replace that Program Comment based review process with the standard process for resolving adverse effects within the Section 106 regulations at 36 CFR 800.6-800.7, which would allow for individual reviews and consultation.
Some consulting parties commented that provisions within the Program Comment for identifying PPI were very general and, if implemented, may not result in the identification of any such properties. The Army identified and designated PPI prior to resubmitting the Program Comment.
Inclusion of Cessation of Maintenance, Demolition, New Construction, and Conveyance in Program Comments continued to be a concern to some during consultation. The ACHP has consistently maintained demolition may be considered an appropriate management action within a program comment, which is why the ACHP has frequently issued program comments that include demolition and new construction as management actions. The purpose of the overall Program Comment is to manage the entire inventory of Vietnam War Era housing. Demolition is just one of many management actions (category of undertakings) within the scope of the Program Comment which is largely focused on maintenance actions. ACHP staff further noted that demolition as a management action has typically been used sparingly by Federal agencies that implement similar program comments. For example, the Capehart-Wherry Program Comment includes demolition as a management action and only 3% of the units have been demolished since 2002.
The second round of consultation conducted in February 2023, consisted of broadcast email, social media posts, and a dedicated website for the program comment. The ACHP conducted one virtual government-to-government consultation with Indian Tribes and NHOs for which no one called in and one virtual SHPO consultation meeting with four participants. The ACHP also hosted a special Membership meeting.
During the consultation period, the ACHP received four responses from Tribes with no concerns, one response from a SHPO office with no concerns and five substantive comments from preservation organizations. Substantive comments included concerns regarding use of terminology such as Properties of Particular Importance that are unique to this Program Comment; consideration of the neighborhood characteristics; and appropriate digital retention of documentation. Additional concerns included the inclusion of cessation of maintenance, demolition, new construction, and conveyance in the Program Comment.
ACHP Staff worked with the Army to address these comments and concerns. Army incorporated additional justification for inclusion of cessation of maintenance and demolition into the Program Comment and provided information on the installation specific programmatic agreements which cover housing at the affected installations. Opportunities for SHPO and consulting party review and comment are built into the process for cessation of maintenance or demolition of Properties of Particular Importance. The Army added a mitigation measure to develop neighborhood design guidelines which will address neighborhood characteristics and cover the management actions included in the Program Comment. The guidelines will be developed in coordination the ACHP and completed within one year of the program comment issuance. The Army also appended the two-volume historic context report by reference to the Program Comment. Survey information,
For further information on the Program Comment and the Army's Vietnam War Era Historic Context Report Volumes 1 and 2 incorporated as appendices by reference, see
The ACHP interprets the Program Comment to allow the Army to ensure compliance with its terms regarding privatized housing by imposing such requirements on its housing partners.
What follows is the text of the issued Program Comment:
Section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, requires Federal agencies to take into account the effects of projects they carry out, license, or assist (undertakings) on historic properties, and to provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment regarding such undertakings. The ACHP has issued the regulations that set forth the process through which Federal agencies comply with these responsibilities. Those regulations are codified under 36 CFR 800 (Section 106 regulations).
Under 36 CFR 800.14(e), federal agencies can request the ACHP provide Program Comments on a category of undertakings, in lieu of conducting individual reviews of those undertakings under 36 CFR 800.3-800.7. An agency can meet its NHPA Section 106 responsibilities regarding the effects of a category of undertakings on historic properties by following the steps set forth by the ACHP in a Program Comment.
The Army's real property is a vital component of its national defense mission, and many of the buildings and structures constructed by the Army over its 247-year history are now historic properties. Among those historic properties, historic housing is a significant concern; it is a large part of the Army's total housing inventory, is critical to the readiness mission and well-being of thousands of Soldiers and their families, and it requires extensive financial resources and process time for compliance with NHPA Section 106 and 36 CFR 800.
The Army has a unique and significant challenge among federal agencies in managing NHPA Section 106 compliance for its inventory of historic housing. The Army manages the largest inventory of historic housing in the federal government with over 30,000 historic homes currently over 50 years old and subject to NHPA Section 106 requirements. The Army's historic housing inventory includes examples that span from the early 19th century through the modern historic housing of the late 20th century that is subject of this Program Comment. The Army's historic housing represents a diverse inventory of American domestic architectural styles with highly varied levels of architectural integrity and historic significance. The Army will have an additional 70,000 modern historic homes added to its historic housing inventory over the next 50 years and will in this century have an unprecedented total of over 100,000 historic homes subject to NHPA Section 106 requirements.
This Program Comment for Department of the Army (Army) Vietnam War Era Historic Housing, Associated Buildings and Structures, and Landscape Features (1963-1975) (Program Comment) provides the Army with an alternative means to comply with NHPA Section 106 regarding the category of undertakings termed management actions for its inventory of Vietnam War Era housing, associated buildings and structures, landscapes, and landscape features (Vietnam War Era housing). The Army has over 7,800 modern historic homes constructed during the 13-year Vietnam War Era from 1963-1975. Management actions required for this housing include maintenance, repair, rehabilitation, renovation, abatement of hazardous materials, mothballing, cessation of maintenance, demolition, new construction, lease, transfer, conveyance, and the use of modern, readily available industry standard building materials and methods in the implementation of management actions.
The need for this Program Comment is found in the Army's obligation to provide safe, healthy, quality housing to Soldiers and their families, and the unique challenges the Army has in managing NHPA Section 106 compliance for its large and growing inventory of historic housing. In 2019, the Secretary of the Army declared an Army Housing Crisis due primarily to widespread deficiencies and significant quality of life, health, and safety issues effecting military families living in historic Army housing.
To address the Army Housing Crisis and meet its housing obligations to military families, the Army must implement management actions to improve Army Vietnam War Era housing conditions effecting the quality of life for Soldiers and their families; address the health and safety risks from certain hazardous historic building materials; ensure cost efficient, effective, and consistent management of the overall inventory; implement climate adaptations and use modern resilient materials; and improve the NHPA Section 106 compliance processes times for actions intended to preserve Vietnam War Era housing.
Housing and associated living conditions are critical factors for military families in the context of the challenges and stressors Soldiers and their families must cope with in their daily lives. A direct connection exists between poor housing conditions and military readiness. Concerns among service members about poor housing conditions have been found to make it difficult to focus on the military mission, some service members are leaving the military because of poor housing conditions, and the issue is also impacting the ability to recruit new service members (GAO Report 20-281, Military Housing, March 2020).
Housing during the Vietnam War Era was constructed with single-pane windows, asbestos containing shingles and siding, minimal wall and attic insulation, galvanized steel pipes for water supply, cast iron drainpipes, 100-amp circuit breakers, obsolete HVAC components, and lead-based paint and asbestos containing building materials. Most original building materials in Army Vietnam War Era housing have been replaced. The housing is smaller, and floorplans are obsolete relative to the modern standards expected by military families. While improvements to Army Vietnam War Era housing have been made in the past, many requirements remain, and many continue to arise and create a continuous need for implementation of the management actions addressed in this Program Comment.
The Army must address both its current historic housing challenges and emerging 21st century challenges. Emergent 21st century challenges include the unprecedented growth in
The Army must address the extensive recurring maintenance, repair, and rehabilitation requirements for Vietnam War Era housing and seek to control those costs using industry standard building materials. The Army must abate the historic building materials used in housing from this period that present lead-based paint, asbestos, and other hazards to housing occupants; implement renovations that address the need for additional bedrooms and expanded living space; provide kitchen and bathroom improvements; implement climate change adaptations through the use of modern, climate resilient, energy efficient building materials and other energy efficiency measures; modernize heating, cooling and ventilation systems; modernize plumbing and electrical systems; and address NHPA compliance processes that impact the rapid turnaround and occupancy of housing by reassigned military families.
The Army also has the need to lease, transfer, or convey Vietnam War Era housing to facilitate housing operations by its housing privatization partners under the Army's Residential Communities Initiative (RCI). RCI operates under Army authority on Army installations nationwide through legal partnerships between the Army and private sector developers. Lease, transfer, and conveyance involves the execution of lease, transfer, and other conveyance documents for the purposes of transfer of Vietnam War Era housing to and between RCI partners, between RCI partners and the Army, and out of RCI partner or government ownership.
The Army must holistically manage its total inventory of Vietnam War Era housing to make certain the housing is preserved and maintained as a viable real property asset into the future. Managers of large inventories of real property understand that total inventory management includes the recurring need to at times cease maintenance and demolish certain properties that are no longer viable real property assets. For Army Vietnam War Era housing, cessation of maintenance and demolition are inventory management tools that reduce the excessive costs associated with maintaining certain homes that are no longer viable real property assets. The resulting cost savings are reinvested to maintain and preserve the remaining housing inventory as viable property assets. Cessation of maintenance and demolition may be required for certain Army Vietnam War Era housing when deterioration effects the structural integrity of homes, the habitability of homes, or the quality of life of military family occupants; when the homes are no longer needed, stand vacant and are expected to remain vacant into the foreseeable future; where hazardous materials and unsafe conditions exist that could affect the health and safety of occupants; and when new replacement housing is needed to improve the overall quality of life for military families. The majority of Program Comments issued by the ACHP over the past 20 years recognize the necessity for and include demolition as an accepted inventory management tool.
The role of demolition and reinvestment in the long-term preservation of modern historic Army housing is confirmed by 20 years of information from the Program Comment for Army Capehart-Wherry housing (1949-1962). In 2002, when ACHP issued the Program Comment for Army Capehart-Wherry housing allowing demolition and other total inventory management actions, there were 19,036 Army Capehart-Wherry homes. In 2022 there were 18,483 Army Capehart-Wherry homes. With an average of 28 Capehart-Wherry homes demolished each year during the 20-year Program Comment period, the Army has removed 553 or 3% of deteriorated, excess, vacant, and unsafe Capehart-Wherry homes, meaning it has preserved 97% of its Capehart Wherry housing through reinvestment and continued improvement to maintain the housing as a viable asset for military families. The Program Comment for Army Capehart-Wherry housing states that Capehart-Wherry housing will be preserved through its continued use as housing, and it has been. With a 97% preservation rate over the past 20 years of implementation, the Program Comment for Army Capehart-Wherry housing demonstrates how the total inventory management capability including demolition provided by a Program Comment ensures the long-term preservation of modern historic Army housing.
The Army is also implementing a Program Comment for Army Inter-War Era housing (1919-1940) issued by the ACHP in 2020. The Program Comment for Army Inter-War Era housing authorized the programmatic use of modern industry standard building materials that have maintained the historic character of the housing, improved its climate resiliency, and have saved millions of dollars in the rehabilitation of Inter-War Era housing. The cost savings resulting from the use of modern industry standard building materials are reinvested to further preserve and improve the housing for military families. More information on these and other outcomes of the Program Comment for Army Inter-War Era housing may be found in the Annual Reports for 2021 and 2022 that are located at
The effectiveness of Program Comments in delivering consistent and positive preservation outcomes for modern historic Army housing is demonstrated by the ongoing implementation of the Program Comment for Army Capehart Wherry housing and the Program Comment for Army Inter-War Era housing. These Program Comments demonstrate that the best means to ensure long-term preservation of the Army's large inventory of modern historic housing is to sustain the housing as a viable mission-supporting real property asset through the holistic inventory management capabilities provided by Program Comments. The Program Comments for Army Capehart Wherry housing and Army Inter-War Era housing continue to deliver tangible historic preservation benefits and consistent outcomes, improve the quality of life, health, and safety of Army families residing in the housing, and create significant NHPA-related cost efficiencies and process improvements. Similar benefits, outcomes, improvements, and efficiencies are required for the Army's large inventory of Vietnam War Era housing.
This Program Comment is intended to provide the Army compliance with NHPA Section 106 for the management actions occurring on all privatized and non-privatized Army housing, associated buildings and structures, and landscape features constructed from 1963 through and including 1975. Management actions will be implemented under this Program Comment in lieu of conducting individual project reviews under 36 CFR 800.3-800.7, with an exception provided in section 5.2.4.3 regarding the
This Program Comment acknowledges that among federal agencies, the Army faces a unique and significant NHPA Section 106 compliance challenge due to its large and growing inventory of historic housing.
This Program Comment addresses a category of undertakings termed management actions and recognizes that implementation of those management actions directly improves the material living conditions for thousands of military families living in Army Vietnam War Era housing while ensuring the housing is preserved as a real property asset.
This Program Comment prioritizes the quality of life, health, and safety of military families in harmony with the preservation of Army Vietnam War Era housing. It is focused on preservation of this modern historic housing while addressing the effects that the historic preservation process may have on the people who live in and manage the housing. The material living conditions, financial impacts, and wellbeing of people are in the forefront as prevailing concerns in the preservation of modern historic Army housing.
This Program Comment recognizes that intensifying climate risks require the use of modern resilient building materials and that the implementation of climate adaptation measures are needed to ensure Army Vietnam War Era housing remains a sustainable real property asset.
This Program Comment recognizes that standardized plans developed by civilian sector architects were used in the construction of Army Vietnam War Era housing and that similar designs, plans, building materials, and construction methods were used in the construction of over 20 million comparable homes built in the private sector during this same 13-year period.
This Program Comment recognizes that the Army's inventory of Vietnam War Era housing is eligible for the National Register of Historic Places (NRHP) under Criterion A, due to its association with the history of the Vietnam War. Army Vietnam War Era housing is not eligible for the NRHP under Criteria B, C, or D. The Army's Vietnam War Era housing has been extensively altered to the degree that the inventory overall lacks architectural integrity.
This Program Comment includes mitigation measures and recognizes that any adverse effects of management actions on Army Vietnam War Era housing are addressed and resolved through those mitigation measures.
This Program Comment ensures positive historic preservation outcomes resulting from its flexible, efficient, consistent, and cost-effective management process that preserves the continuity of historical use of Army Vietnam War Era housing.
This Program Comment is calibrated to the conditions, significance, and ubiquity of the Army Vietnam War era housing property type; is holistic in its scope and effect; and will provide long-term preservation by ensuring that the housing will be a mission-supporting real property asset into the future.
The scope of this Program Comment includes and addresses all privatized and non-privatized Army housing constructed from 1963 through and including 1975. The Army's best available information indicates there are 7,843 Vietnam War Era homes on 18 Army installations in 13 states. The Army's current information on Vietnam War Era homes indicates the following locations and numbers of homes: Fort Hood, TX—2,032 Vietnam War Era homes; Fort Benning, GA—1,292; Fort Carson, CO—839; Fort Gordon, GA—740; Fort Meade, MD—675; Fort Bragg, NC—615; USAG-Hawaii, HI—555; Fort Campbell, KY—230; Fort Riley, KS—211; Fort Sill, OK—199; Fort Polk, LA—182; Fort Jackson, SC—119; Fort Leavenworth, KS—44; Fort Detrick, MD—40; Fort Stewart, GA—38; Redstone Arsenal, AL—18; Joint Base Lewis McChord (JBLM), WA—10; Aberdeen Proving Ground, MD—4. This information represents the best available Army Vietnam War Era housing inventory information as of the date of this Program Comment.
The Army Vietnam War Era housing property type includes military housing constructed on Army installations during the period 1963-1975 to house the increased number of military personnel required to support the Vietnam conflict. This property type is comprised of residential buildings including ranch houses, duplexes, multiplexes, townhouses, and apartment buildings along with associated structures, such as carports and storage sheds, and landscape features concentrated in distinct neighborhoods within residential areas of Army installations. Reflecting expediently constructed and cost-effective examples of housing types popular in the civilian sector during this time, this military housing is characterized by a functional contemporary architectural character, minimal ornamentation, and high degree of standardization in design, materials, and construction. The Vietnam War Era homes in these military neighborhoods have collectively undergone significant modifications from active use over the years and no longer retain architectural design integrity. The property type does retain a significant historical association with the Vietnam War.
During the Vietnam War Era, the DoD looked to the civilian housing market and adopted popular Modern house designs from the civilian sector and applied those in constructing military housing. While the DoD sought to adopt modern design principles for Vietnam War Era housing, size limitations and cost criteria established by Congress for military family housing influenced the resulting housing stock in terms of architectural expression and interior design.
The US Army Corps of Engineers (USACE) managed the contracting and construction of Army family housing for the Department of the Army during the Vietnam War Era. Beginning in 1964, USACE used new standardized housing design plans developed for DoD by civilian architectural firms as a basis for Army housing construction contracts (DoD Design Folio, 1964). The standardized plans in the DoD Design Folio reflect housing designs that the architects were already using in the private sector. USACE hired local and regional architectural and engineering firms from the private sector to construct the Army family housing at each installation. Due to wartime financial constraints, the standardized design plans in the DoD Design Folio were subject to extensive site-specific design modifications, and the actual housing constructed was much more modest, stripped-down versions of the housing depicted in the DoD Design Folio.
Army homes from this period fall within the category of modern housing (see: A Field Guide to American Houses, Virginia Savage McAlester, 2017). Starting in 1964, townhouses began to be constructed by the Army in significant numbers. While townhouses and apartments became a predominate type of Army family housing constructed during the Vietnam War Era, single family homes, duplex homes, and apartment buildings also continued to be constructed following the same designs, building materials, and construction methods that were used in millions of homes constructed in the private sector during this period. The Army Vietnam War Era neighborhoods
The Army's Vietnam War Era housing property type is historically significant under NRHP Criterion A based on its historical association with the Vietnam War. The Vietnam War was a major event in American history from the early 1960s through the mid-1970s. The heightened warfighting requirements and costs had direct implications for military activities at installations in the United States, including the Army family housing construction program. The Vietnam War had a significant fiscal impact on Army housing construction appropriations, influencing the types and numbers of housing built. The 1964 DoD Design Folio states that DoD objectives dictated the development of a family housing development plan that would provide reduced costs in siting, construction, and maintenance. A proposed solution included the townhouse design developments. Multi-story, row-unit townhouses, closely sited within large open areas was recognized as creating the required economies of scale. While ranch style single family and duplex housing designs for senior officers were included in the DoD Design Folio and continued to be constructed, townhouse and apartment construction on Army installations predominated during the Vietnam War Era. Army Vietnam War Era housing illustrates the historical progression of Army housing policy, the influence of wartime policies and their financial implications as reflected in the housing construction program.
Army Vietnam War Era housing is not significant under NRHP Criteria B, C, or D. Army Vietnam War Era is not associated with the productive lives of significant architects, military figures, or real estate developers from this period (Criterion B (Persons)). Regarding Criterion C (Design/Construction), this property type does not represent distinctive characteristics of type, period, and method of construction, does not represent the work of a master; possess high artistic value; or represent a significant and distinguishable entity whose components lack individual distinction. Standardized plans developed by civilian sector architects were used in the construction of Army Vietnam War Era housing, and the same plans, designs, building materials, and construction methods were used in the construction of 20.4 million comparable homes in the private sector during this period (
The Army's public website for the Program Comment contains extensive information on the history, architecture, and the NRHP significance of Army Vietnam War Era housing, see
The category of undertaking addressed by this Program Comment is management actions. Management actions are defined as maintenance, repair, rehabilitation, renovation, abatement of hazardous materials, mothballing, cessation of maintenance, demolition, new construction, lease, transfer, conveyance, and the use of modern industry standard building materials and methods in the implementation of management actions.
This category of undertakings is defined based on both the Army's Vietnam War Era housing management needs and on two previous Program Comments for modern historic Army housing. The definition of management actions as the category of undertaking for Army Vietnam War Era housing follows the definition of management actions established in the Program Comment for Army Capehart-Wherry housing and the Program Comment for Army Inter-War Era housing.
The Army's management actions will have an adverse effect on Army Vietnam War Era housing. An adverse effect occurs when an action may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the NRHP in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. The characteristic that qualifies Army Vietnam War Era housing for inclusion in the NRHP is its historical association with the Vietnam War under NRHP Criterion A.
The Army's mitigation measures focus on addressing the adverse effects of management actions on the housing's historical association with the Vietnam War and include professional research and public education regarding the history of the housing within the historic context of the Vietnam War; inventory and documentation regarding the housing's location, design, setting, materials, workmanship, and feeling; the identification and treatment of properties of particular importance; and the development and implementation of Neighborhood Design Guidelines among other measures. The mitigation measures ensure that any adverse effects of management actions are taken into account in consideration of the NRHP significance of the Army Vietnam War Era housing property type.
NHPA Section 106 mitigation measures address and resolve the adverse effects of undertakings on historic properties and the qualities that make the properties historically significant. Since the Army's inventory of Vietnam War Era housing is significant based on its historical association with the Vietnam War, the mitigation measures for Army Vietnam War Era housing are properly focused on mitigating adverse effects to the significance of Army Vietnam War Era housing under NRHP Criterion A.
The Army has existing documentation on the history and historic context of Vietnam War Era housing, installation-specific inventory and evaluation reports of Vietnam War Era housing recording its design and architectural style, interior designs and floorplans, factors influencing design variations, and its associated buildings and structures, and landscape features. This existing set of prior Army documentation serves as a Program
The prior documentation includes the overarching DoD-wide historic context Vietnam and the Home Front: How DoD Installations Adapted, 1962-1975, June 2014; the Department of Defense Housing Design Folio, 1964; Fort Gordon Cold War Architectural Survey, April 2005; Architectural Survey Conelly Duplex Units, Hawthorne Army Depot, NV, September 2014; and Architectural Inventory and Evaluation of 1970s-Era Family Housing at U.S. Army Garrison Fort Carson, CO, August 2019.
Unless otherwise specified, all additional mitigation measures in this section will be completed in three calendar years from the date of ACHP
The Army will maintain a public website containing information about the history of the Army Vietnam War Era housing for public educational purposes. The Army will provide relevant public documentation regarding Vietnam War Era housing and make that information available via the website, thereby providing the public a single and readily accessible source of information on the history of this housing. The Army will also use social media to distribute information on Vietnam War Era historic housing and other Army historic preservation information.
New scholarly information on the history of Vietnam War Era housing through in-depth professional research and presentation of additional Army Vietnam War Era housing historic context information was developed by the Army for this Program Comment. The Army conducted archival research and assessed historical information relevant to the nation-wide historic context of the housing, address the history and characteristics of the military construction program for Vietnam War Era housing, and other important aspects pertaining to the history of Army Vietnam War Era housing in the context of the Vietnam War. The two-volume historic context documentation is published on the Army's Vietnam War Era Housing public website
An Army-wide inventory and evaluation of Vietnam War Era housing was developed by the Army for this Program Comment. This includes the inventory of representative Vietnam War Era housing architectural styles, associated buildings and structures, and landscape features, and information and evaluation of the housing's location, design, setting, materials, workmanship, and feeling, provide information. The report also provides the identification and evaluation of properties of particular importance. The documentation is published on the Army's Vietnam War Era Housing public website
Army Vietnam War era housing properties of particular importance are defined as: Army Vietnam War era housing that retains a high degree of integrity, represents particularly important historical aspects of the Army Vietnam War Era housing program, and that represent particularly important building types or methods of construction. To be considered properties of particular importance Army Vietnam War Era housing must retain original location, scale, mass, proportion, materials, and ornamentation from the period of construction.
A total of 555 Army Vietnam War era homes equivalent to 7.1% of the total Army inventory of 7,843 Vietnam War era homes are designated as properties of particular importance. The 555 Army Vietnam War era homes designated as properties of particular importance are in the Akolea, Aloala, and Ralston neighborhoods, at Schofield Barracks, Hawaii (HI).
Unlike all other Army installations with Vietnam War era housing, the housing in these three neighborhoods at Schofield Barracks has had minimal exterior modifications in terms of materials, additions, and new construction. This housing not undergone the significant redesign and extensive replacement of original building materials and ornamentation that has occurred throughout the rest of the Army inventory of Vietnam War Era housing. The original building designs and building materials such as jalousie windows and concrete block and wood board-and-batten siding are original, roof modifications are minimal. Interior modifications are also minimal to maintain the livability of the units and consist of replacement finishes, fixtures, and appliances. In select cases, some housing units were combined, and those original interior floor plans were modified.
Despite some minimal modifications over time, Army Vietnam War era housing in the Akolea, Aloala, and Ralston neighborhoods retains sufficient integrity of association, feeling, location, and setting to convey their historical association with the Vietnam War. The buildings retain a high degree of integrity of design, materials, and workmanship. The housing is however not distinctive or distinguishable in its design and construction relative to the national inventory of housing from this period. Additionally, research has not identified any association with persons important in the past, and the housing is unlikely to yield information important to history because it is not the principal source of information representing housing constructed during the Vietnam War Era.
The inventory conducted at Schofield Barracks confirmed that the military followed civilian-sector housing trends and did not construct housing that was unique or distinctive from the 20 million civilian sector homes constructed in the US during this period. Through the retention of original building materials and design, the housing in the Aloala, Akolea, and Ralston neighborhoods maintains the domestic design principles popularized during the period. The Vietnam War Era housing in the Aloala, Akolea, and Ralston neighborhoods retains original location, scale, mass, proportion, materials, and ornamentation from the period of construction. The neighborhood designs are cohesive and visually convey original suburban residential design from the Vietnam War Era. Therefore, the 555 Army Vietnam
The Army has recorded and documented the designated properties of particular importance. The recordation and documentation include site-specific archival research of primary and secondary source materials and review of previous studies to develop a specific history and statement of significance for the designated properties of particular importance at Scofield Barracks. Research includes a review of drawings, historic photographs, and written documents, as available. Fieldwork investigations documented the current appearance of the buildings with digital images of individual building types including elevations and exterior details of the housing. The digital photographs follow National Park Service digital photography standards and show the respective housing in context. The documentation of the designated properties of particular importance is published on the Army's Vietnam War Era Housing website
Inventory management requirements for Army Vietnam War Era housing may necessitate the cessation of maintenance and demolition of properties of particular importance designated in section 5.2.4.1. The Army will follow the consultation process in 36 CFR 800.6-800.7 to address adverse effects when designated Vietnam War Era housing properties of particular importance are proposed for cessation of maintenance and demolition. Memoranda of Agreement (MOAs) or Programmatic Agreements (PAs) prepared in accordance with 36 CFR 800 to resolve the adverse effects of cessation of maintenance and demolition on the designated properties of particular importance are subject to the following requirements of this Program Comment: (a) properties of particular importance have been identified, evaluated, and designated under this Program Comment and no further actions under 36 CFR 800 or any MOA or PA shall be stipulated or required to identify, evaluate, or designate additional Army Vietnam War Era housing properties of particular importance and, (b) the documentation of properties of particular importance prepared in section 5.2.4.2 will be incorporated as a mitigation measure in any MOA or PA prepared to address cessation of maintenance and demolition of Army Vietnam War Era housing properties of particular importance. The procedures in this section for treatment of properties of particular importance apply over the duration of this Program Comment.
The Army will: (i) Prepare Army Vietnam War Era Housing Neighborhood Design Guidelines in coordination with the ACHP within one year of issuance of this Program Comment, (ii) Use a qualified professional and the information in the historic context study referenced in section 5.2.2 to prepare the Neighborhood Design Guidelines, (iii) Address the design and setting of Vietnam War Era neighborhoods and landscape features in the Neighborhood Design Guidelines, (iv) Ensure the Neighborhood Design Guidelines are available to those installations with Vietnam War Era housing, and (v) Implement the Neighborhood Design Guidelines to the maximum extent practicable in planning management actions that affect the overall design of Vietnam War Era neighborhoods.
The Army FPO will advise its Residential Communities Initiative (RCI) privatized housing partners that Vietnam War Era housing may be eligible for Federal and State historic preservation tax credits upon ACHP issuance of this Program Comment. The Army FPO will provide supplemental tax credit information on request from RCI housing partners including offices and website locations that provide information on applicable tax credits.
On or before January 31st of each reporting year, the Army will provide an Annual Report on the Program Comment to the ACHP for the preceding year. The Annual Report will provide the status of the Army's implementation of the mitigation measures. The Annual Report will include a summary of final Army decisions made during the reporting year for demolition of Vietnam War era housing. The Annual Report will identify significant issues that may have arisen while implementing the Program Comment, how those were addressed, and how they may be avoided in the future. The Annual Report will include an assessment of the overall effectiveness of the Program Comment in meeting its intent.
After its submission of the Annual Report and upon the ACHP's request, the Army will schedule a meeting with the ACHP, and invite the National Conference of State Historic Preservation Officers (NCSHPO), the National Association of Tribal Historic Preservation Officers (NATHPO), the National Trust for Historic Preservation (NTHP), and any other ACHP identified invitees to discuss implementation of the Program Comment. Prior to the Annual Meeting, the Army will provide an Annual Report on the Vietnam War Era Housing Program Comment to the meeting invitees relating the status of completion of the mitigation measures in section 5.2. The Annual Meeting provides an opportunity for attendees to provide their views on the overall effectiveness of the Program Comment in meeting its intent and purpose. The Army will document the occurrence of the meeting and participants, and its response to recommendations made by the ACHP. Annual Meetings may take place in-person, by phone, by videoconference, or any combination of such methods.
This Program Comment applies to all Army Vietnam War Era housing, associated buildings and structures, landscapes and landscape features, and neighborhoods built from 1963 through and including 1975. Over 99% of Army's Vietnam War Era housing is privatized housing operated under the Army's RCI program. The Program Comment applies to all Army Vietnam War Era housing, both privatized and non-privatized.
The Program Comment does not apply when a management action may cause physical damage, destruction, or change the physical features of other historic properties including properties of traditional religious and cultural importance to Federally recognized Indian tribes or NHOs; human remains, funerary objects, sacred objects, and cultural patrimony as defined in the Native American Graves Protection and Repatriation Act (NAGPRA).
The Army reviewed its National Historic Landmarks (NHL) documentation to confirm there are no
The Program Comment for Army Vietnam War Era housing includes all privatized and non-privatized Army housing constructed from 1963-1975. By adhering to the terms of the Program Comment, the Army meets its responsibilities for compliance with Section 106 of the NHPA for management actions effecting Army Vietnam War Era housing.
The Army will implement the management actions under the Program Comment in lieu of conducting any individual project reviews under 36 CFR 800.3-800.7 for Army Vietnam War Era housing. One exception is under section 5.2.4.3 whereby the Army will follow the resolution of adverse effect process in 36 CFR 800.6-800.7 and resulting PAs or MOAs when Vietnam War Era housing properties of particular importance designated in section 5.2.4.1 are subject to cessation of maintenance and demolition.
This Program Comment supersedes and replaces any requirements for Army Vietnam War Era housing in all preceding Section 106 PAs, MOAs, or Army Alternate Procedures. The Army will implement the Program Comment in lieu of all PA, MOA, Army Alternate Procedure requirements and procedures previously applicable to Army Vietnam War Era housing. PAs, MOAs, or Army Alternate Procedures prepared after ACHP issuance of this Program Comment will identify this Program Comment and indicate that the Program Comment meets all Army responsibilities for compliance with Section 106 of the NHPA for management actions associated with Army Vietnam War Era housing. PAs, MOAs, Army Alternate Procedures, any other agreements, procedures, plans, standards, or guidelines shall not in any way modify, effect, or alter the terms of this Program Comment. The terms of this Program Comment may only be modified through amendments made in accordance with Section 9.0 of this Program Comment.
The Army will implement the Program Comment in lieu of any procedures, development agreements, lease and conveyance documents, environmental management plans, guidelines, reporting requirements, Integrated Cultural Resources Management Plans, and all other documents, standards, procedures, or guidelines pertaining to the historic preservation of Vietnam War Era housing.
The Army will ensure that RCI housing privatization entities to which it leases or otherwise coveys Vietnam War Era housing for the purposes of possession, management, and operation as housing and associated ancillary purposes follow this Program Comment for all management actions associated with these properties. This provision also applies to the reversion of leased or otherwise conveyed Vietnam War Era housing from a management entity back to the Army, whereby the Army will follow this Program Comment for all management actions associated with these properties.
The Program Comment will remain in effect from the date of issuance by the ACHP through December 31, 2055. This duration serves to integrate NHPA compliance with the ongoing real property management requirements in place for privatized Army housing. The duration of the Program Comment synchronizes with the term of the ground leases that have been executed with the Army's privatized housing partners under the RCI program. Upon termination of Army RCI program ground leases, ownership of all RCI partnership owned improvements including all housing that is located within the boundaries of the ground lease is conveyed back to the Army.
The Program Comment will remain in effect from the date of ACHP issuance through December 31, 2055, unless prior to that time the Army determines that such comments are no longer needed and notifies the ACHP in writing, or the ACHP withdraws the Program Comment in accordance with 36 CFR 800.14(e)(6), or the ACHP amends the Program Comment to change its duration per Section 9.0. Following withdrawal or expiration of this Program Comment, the Army will be required to comply with Section 106 through the process in 36 CFR 800.3-800.7, or an applicable program alternative under 36 CFR 800.14, for each individual undertaking formerly covered by this Program Comment.
The Army's Vietnam War Era housing has been extensively identified, evaluated, and documented by existing information and by information developed under section 5.0. of this Program Comment. The Army will not implement any further historic property identification, evaluation, and mitigation efforts in connection with the management actions covered by the Program Comment other than those efforts specified as additional mitigation measures in Section 5.2 of this Program Comment.
Army Vietnam War Era housing areas are the equivalent of suburban tract housing developments in the private sector. As such, there is significant prior ground disturbance in Vietnam War Era housing areas and neighborhoods resulting from the original construction of the housing including overall grading of the entire housing development area, housing construction, construction of associated buildings and structures, road and sidewalk construction, installation of above and below ground utilities, landscaping, construction of recreational structures, and subsequent ground disturbing actions that have occurred after the original construction. Such areas of extensive ground disturbance associated with housing tract developments are considered to have a low probability for the presence of NRHP eligible archeological properties. Therefore, no further efforts to identify or evaluate archeological properties in Vietnam War Era housing areas and neighborhoods are required for the implementation of Program Comment management actions other than those actions identified in section 8.0.
Army installation NHPA agency officials including installation commanders, garrison commanders, or their designees, and installation cultural resource managers shall ensure that RCI partners, contractors, and installation staff involved in implementing management actions in Vietnam War Era housing neighborhoods are provided information regarding any known undistributed areas within those neighborhoods; the presence of known archeological properties, Native American or Native Hawaiian human remains, funerary objects, sacred objects, and cultural patrimony within those neighborhoods; and the installation's procedures in the event of discovery of or effects to archeological properties, human remains, and cultural items. RCI partners, contractors, installation staff, and others involved in implementing management actions in Vietnam War Era housing neighborhoods will exercise caution in
If a previously known NRHP eligible archeological property will be adversely affected by a Program Comment management action, mitigation measures to resolve the adverse effect to that archeological property will be developed following the procedures in 36 CFR 800.3-800.7, or by following the archeological property mitigation procedures in an applicable installation NHPA PA, MOA, or Army Alternate Procedures, as appropriate. The discovery of a NRHP eligible archeological property or human remains of non-Native American and non-Native Hawaiian origin during the implementation of management actions for Vietnam War Era housing will be addressed following the procedures in 36 CFR 800.13 regarding post review discoveries, or by following the archeological property discovery procedures in an applicable installation NHPA PA, MOA, or Army Alternate Procedures, as appropriate. Archeological properties associated with the Vietnam War Era (1963-1975) located in Army Vietnam War Era neighborhoods are addressed under this Program Comment as landscape features.
The Army acknowledges that the respectful treatment of Native American and Native Hawaiian human remains are a paramount concern and that an appropriate treatment is to protect and preserve Native American or Native Hawaiian human remains in situ, wherever possible. If Native American or Native Hawaiian human remains, funerary objects, sacred objects, and cultural patrimony may be affected by or are discovered during the implementation of management actions under this Program Comment, the Army installation agency official will implement the appropriate statutory provisions of NAGPRA and the regulatory compliance procedures in 43 CFR 10, a NAGPRA Comprehensive Agreement, or a NAGPRA Plan of Action, as appropriate.
The ACHP may formally amend this Program Comment after consulting with the Army and other parties as it deems appropriate.
The Chairman of the ACHP, after notice to the rest of the ACHP membership and the Army may amend this Program Comment to extend its duration. The ACHP will notify the Army and will publish notice in the
The Executive Director of the ACHP, after notice to the ACHP membership and the Army may amend this Program Comment to adjust due dates and make corrections of grammatical and typographical errors. The ACHP will notify the Army and will publish notice in the
If the ACHP determines that consideration of Army Vietnam War Era housing is not being carried out in a manner consistent with this Program Comment, the ACHP may withdraw the Program Comment. The Chairman will notify the Army and will publish notice in the
Appendix—Historic Context for Army Vietnam War Era Historic Housing, Associated Structures, and Landscape Features (1963-1975), Volume 1 and Volume 2. [see
The following definitions apply to and are implemented by this Program Comment:
U.S. Immigration and Customs Enforcement; Department of Homeland Security.
Notice.
This notice announces that the Secretary of Homeland Security (Secretary) is suspending certain regulatory requirements for F-1 nonimmigrant students who are Hong Kong residents, regardless of country of birth, and who are experiencing severe economic hardship as a direct result of the current crisis in Hong Kong. The Secretary is taking action to provide relief to those Hong Kong residents who were in lawful F-1 nonimmigrant student status as of January 26, 2023, so the students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 nonimmigrant student status. DHS will deem an F-1 nonimmigrant student who receives employment authorization by means of this notice to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.
This action is effective from January 26, 2023, through February 5, 2025.
Sharon Snyder, Unit Chief, Policy and Response Unit, Student and Exchange Visitor Program, MS 5600, U.S. Immigration and Customs Enforcement, 500 12th Street SW, Washington, DC 20536-5600; email:
The Secretary is exercising the authority under 8 CFR 214.2(f)(9) to temporarily suspend the applicability of certain requirements governing on-campus and off-campus employment for F-1 nonimmigrant students who are residents of Hong Kong,
This notice applies exclusively to F-1 nonimmigrant students who meet all of the following conditions:
(1) Are Hong Kong residents, regardless of country of birth;
(2) Were lawfully present in the United States in F-1 nonimmigrant status on January 26, 2023, under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F-1 nonimmigrant students;
(4) Are currently maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current crisis in Hong Kong.
This notice applies to F-1 nonimmigrant students in an approved private school in kindergarten through grade 12, public school grades 9 through 12, and undergraduate and graduate education. An F-1 nonimmigrant student covered by this notice who transfers to another SEVP-certified academic institution remains eligible for the relief provided by means of this notice.
On January 26, 2023, President Biden issued a memorandum to the Secretary of State and the Secretary of DHS to defer for 24 months the removal of certain Hong Kong residents present in the United States.
By unilaterally imposing on Hong Kong the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) in June 2020, the PRC has undermined the enjoyment of rights and freedoms in Hong Kong, including those protected under the Basic Law and the Sino-British Joint Declaration. The PRC has continued its assault on Hong Kong's autonomy, undermining its remaining democratic processes and institutions, imposing limits on academic freedom, and cracking down on freedom of expression, including for members of the press. Since June 2020, at least 150 opposition politicians, activists, and protesters have been taken into custody on politically motivated NSL-related charges including secession, subversion, terrorist activities, and collusion with a foreign country or external elements. Over 1,200 political prisoners are now behind bars, and over 10,000 individuals have been arrested for other charges in connection with anti-government protests.
Previously DHS took action to provide temporary relief to F-1 nonimmigrant students who are Hong Kong residents, regardless of country of birth, and who experienced severe economic hardship because of the crisis in Hong Kong,
As of March 2, 2023, approximately 5,863 F-1 nonimmigrants students who are Hong Kong residents were physically present in the United States and enrolled in SEVP-certified academic institutions. Many of these students are impacted by the current crisis in Hong Kong because their primary means of financial support comes from Hong Kong. Without employment authorization, these students may lack the means to meet basic living expenses. Therefore, in support of affected F-1 nonimmigrant students who may be unable to return to Hong Kong for the foreseeable future, the Secretary is exempting them from the normal student employment requirements so that they may support themselves as they continue their program of study in the United States.
Undergraduate F-1 nonimmigrant students who receive on-campus or off-campus employment authorization under this notice must remain registered for a minimum of six semester or quarter hours of instruction per academic term. Undergraduate F-1 nonimmigrant students enrolled in a term of different duration must register for at least one half of the credit hours normally required under a “full course of study.”
In addition, an F-1 nonimmigrant student (either undergraduate or graduate) granted on-campus or off-campus employment authorization under this notice may count up to the equivalent of one class or three credits per session, term, semester, trimester, or quarter of online or distance education toward satisfying this minimum course load requirement, unless their course of
Yes. An F-1 nonimmigrant student who is a Hong Kong resident, regardless of country of birth, who already has on-campus or off-campus employment authorization and is otherwise eligible may benefit under this notice, which suspends certain regulatory requirements relating to the minimum course load requirement under 8 CFR 214.2(f)(6)(i) and certain employment eligibility requirements under 8 CFR 214.2(f)(9). Such an eligible F-1 nonimmigrant student may benefit without having to apply for a new Form I-766, Employment Authorization Document (EAD). To benefit from this notice, the F-1 nonimmigrant student must request that their designated school official (DSO) enter the following statement in the remarks field of the student's Student and Exchange Visitor Information System (SEVIS) record, which the student's Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, will reflect:
Approved for more than 20 hours per week of [DSO must insert “on-campus” or “off-campus,” depending upon the type of employment authorization the student already has] employment authorization and reduced course load under the Special Student Relief authorization from [DSO must insert the beginning date of the notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert either the student's program end date, the current EAD expiration date (if the student is currently authorized for off-campus employment), or the end date of this notice, whichever date comes first].
No. DHS will deem an F-1 nonimmigrant student who receives and comports with the employment authorization permitted under this notice to be engaged in a “full course of study”
No. An F-2 spouse or minor child of an F-1 nonimmigrant student is not authorized to work in the United States and, therefore, may not accept employment under the F-2 nonimmigrant status.
No. The suspension of the applicability of the standard regulatory requirements only applies to certain F-1 nonimmigrant students who meet the following conditions:
(1) Are Hong Kong residents, regardless of country of birth;
(2) Were lawfully present in the United States in F-1 nonimmigrant status on January 26, 2023, under section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i);
(3) Are enrolled in an academic institution that is SEVP-certified for enrollment of F-1 nonimmigrant students;
(4) Are maintaining F-1 nonimmigrant status; and
(5) Are experiencing severe economic hardship as a direct result of the current crisis in Hong Kong.
An F-1 nonimmigrant student who does not meet all these requirements is ineligible for the suspension of the applicability of the standard regulatory requirements (even if experiencing severe economic hardship as a direct result of the current crisis in Hong Kong).
Yes. This notice applies to such an F-1 nonimmigrant student, but only if the DSO has properly notated the student's SEVIS record, which will then appear on the student's Form I-20. The normal rules for visa issuance remain applicable to a nonimmigrant who needs to apply for a new F-1 visa to continue an educational program in the United States.
Yes. However, this notice does not by itself reduce the required course load for F-1 nonimmigrant students who are Hong Kong residents enrolled in kindergarten through grade 12 at a private school, or grades 9 through 12 at a public high school. Such students must maintain the minimum number of hours of class attendance per week prescribed by the academic institution for normal progress toward graduation, as required under 8 CFR 214.2(f)(6)(i)(E). The suspension of certain regulatory requirements related to employment through this notice is applicable to all eligible F-1 nonimmigrant students regardless of educational level. Eligible F-1 nonimmigrant students who are Hong Kong residents enrolled in an
Yes. For an F-1 nonimmigrant student covered in this notice, the Secretary is suspending the applicability of the requirement in 8 CFR 214.2(f)(9)(i) that limits an F-1 nonimmigrant student's on-campus employment to 20 hours per week while school is in session. An eligible F-1 nonimmigrant student has authorization to work more than 20 hours per week while school is in session if the DSO has entered the following statement in the remarks field of the student's SEVIS record, which will be reflected on the student's Form I-20:
Approved for more than 20 hours per week of on-campus employment and reduced course load, under the Special Student Relief authorization from [DSO must insert the beginning date of this notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert the student's program end date or the end date of this notice, whichever date comes first].
To obtain on-campus employment authorization, the F-1 nonimmigrant student must demonstrate to the DSO that the employment is necessary to avoid severe economic hardship directly resulting from the current crisis in Hong Kong. An F-1 nonimmigrant student authorized by the DSO to engage in on-campus employment by means of this notice does not need to file any applications with U.S. Citizenship and Immigration Services (USCIS). The standard rules permitting full-time employment on-campus when school is not in session or during school vacations apply, as described in 8 CFR 214.2(f)(9)(i).
Yes. DHS will deem an F-1 nonimmigrant student who receives on-campus employment authorization under this notice to be engaged in a “full course of study”
For an F-1 student covered by this notice, as provided under 8 CFR 214.2(f)(9)(ii)(A), the Secretary is suspending the following regulatory requirements relating to off-campus employment:
(a) The requirement that a student must have been in F-1 nonimmigrant student status for one full academic year to be eligible for off-campus employment;
(b) The requirement that an F-1 nonimmigrant student must demonstrate that acceptance of employment will not interfere with the student's carrying a full course of study;
(c) The requirement that limits an F-1 nonimmigrant student's employment authorization to no more than 20 hours per week of off-campus employment while the school is in session; and
(d) The requirement that the student demonstrate that employment under 8 CFR 214.2(f)(9)(i) is unavailable or otherwise insufficient to meet the needs that have arisen as a result of the unforeseen circumstances.
Yes. DHS will deem an F-1 nonimmigrant student who receives off-campus employment authorization by means of this notice to be engaged in a “full course of study”
An F-1 nonimmigrant student must file a Form I-765, Application for Employment Authorization, with USCIS to apply for off-campus employment authorization based on severe economic hardship directly resulting from the current crisis in Hong Kong.
(1) This employment is necessary to avoid severe economic hardship; and
(2) The hardship is a direct result of the current crisis in Hong Kong.
If the DSO agrees that the F-1 nonimmigrant student is entitled to receive such employment authorization, the DSO must recommend application approval to USCIS by entering the following statement in the remarks field of the student's SEVIS record, which will then appear on that student's Form I-20:
Recommended for off-campus employment authorization in excess of 20 hours per week and reduced course load under the Special Student Relief authorization from the date of the USCIS authorization noted on Form I-766 until [DSO must insert the program end date or the end date of this notice, whichever date comes first].
The F-1 nonimmigrant student must then file the properly endorsed Form I-20 and Form I-765 according to the instructions for the Form I-765. The F-1 nonimmigrant student may begin working off-campus only upon receipt of the EAD from USCIS.
(a) The F-1 nonimmigrant student is in good academic standing and is carrying a “full course of study”
(b) The F-1 nonimmigrant student is a resident of Hong Kong, regardless of country of birth, and is experiencing severe economic hardship as a direct result of the current crisis in Hong Kong, as documented on the Form I-20;
(c) The F-1 nonimmigrant student has confirmed that the student will comply with the reduced course load requirements of this notice and register for the duration of the authorized employment for a minimum of six semester or quarter hours of instruction per academic term if at the undergraduate level or for a minimum of three semester or quarter hours of instruction per academic term if at the graduate level;
(d) The off-campus employment is necessary to alleviate severe economic hardship to the individual as a direct result of the current crisis in Hong Kong.
(a) Ensure that the application package includes all of the following documents:
(1) A completed Form I-765 with all applicable supporting evidence;
(2) The required fee or properly documented fee waiver request as defined in 8 CFR 103.7(c) (Oct. 1, 2020); and
(3) A signed and dated copy of the student's Form I-20 with the appropriate DSO recommendation, as previously described in this notice; and
(b) Send the application in an envelope which is clearly marked on the front of the envelope, bottom right-hand side, with the phrase “SPECIAL STUDENT RELIEF.”
If USCIS approves the student's Form I-765, USCIS will send the student a Form I-766 EAD as evidence of employment authorization. The EAD will contain an expiration date that does not exceed the end of the granted temporary relief.
Yes. Although they are not required to apply for a DED-related EAD, if an eligible F-1 nonimmigrant student wants to obtain such an EAD, the student must file Form I-765 and pay the related fee (or request a fee waiver). The F-1 student may also apply for Special Student Relief under this notice by requesting that the DSO notate on their Form I-20 in SEVIS that the student has been authorized to carry a reduced course load and is permitted to work an increased number of hours under Special Student Relief while school is in session. The DSO should also notate on the Form I-20 that the student is working pursuant to a DED-related EAD. As long as the F-1 nonimmigrant student maintains the minimum course load described in this notice, does not otherwise violate the student's nonimmigrant status, including as provided under 8 CFR 214.1(g), and remains covered under DED, then the student maintains F-1 nonimmigrant status and DED concurrently.
The F-1 nonimmigrant student must maintain normal course load requirements for a “full course of study”
There is no further application process with USCIS if a student has been approved for a DED-related EAD. However, the F-1 nonimmigrant student must demonstrate and provide documentation to the DSO of severe economic hardship as a direct result of the current crisis in Hong Kong. The DSO will then verify and update the student's SEVIS record to enable the F-1 nonimmigrant student with DED to reduce their course load without any further action or application. No other EAD needs to be issued for the F-1 nonimmigrant student to have employment authorization.
This notice grants temporary relief through February 5, 2025,
An F-1 nonimmigrant student seeking off-campus employment authorization due to severe economic hardship resulting from the current crisis in Hong Kong must demonstrate to the DSO that this employment is necessary to avoid severe economic hardship. A DSO who agrees that a nonimmigrant student should receive such employment authorization must recommend an application approval to USCIS by entering information in the remarks field of the student's SEVIS record. The authority to collect this information is in the SEVIS collection of information currently approved by the Office of Management and Budget (OMB) under OMB Control Number 1653-0038.
This notice also allows an eligible F-1 nonimmigrant student to request employment authorization, work an increased number of hours while the academic institution is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status.
To apply for employment authorization, certain F-1 nonimmigrant students must complete and submit a currently approved Form I-765 according to the instructions on the form. OMB has previously approved the collection of information contained on the current Form I-765, consistent with the PRA (OMB Control No. 1615-0040). Although there will be a slight increase in the number of Form I-765 filings because of this notice, the number of filings currently contained in the OMB annual inventory for Form I-765 is sufficient to cover the additional filings. Accordingly, there is no further action required under the PRA.
U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security.
Notice of employment authorization for individuals covered by Deferred Enforced Departure (DED).
On January 26, 2023, President Joseph Biden issued a memorandum to the Secretary of State and the Secretary of Homeland Security (Secretary) determining that it was in the foreign policy interest of the United States to extend and expand the deferral of removal of certain Hong Kong residents present in the United States through February 5, 2025, and to provide them with employment authorization documentation. The memorandum directed the Secretary to make provision for immediate allowance of employment authorization for such individuals. This Notice provides information about Deferred Enforced Departure (DED) for eligible Hong Kong residents and provides information on how eligible individuals may apply for DED-based Employment Authorization Documents (EADs) with USCIS. Through this notice, DHS is providing employment authorization, including procedures for obtaining related documentation, for covered individuals through February 5, 2025, and automatically extending the validity of DED-based EADs bearing a Category Code of A11 and a “Card Expires” date of February 5, 2023 through February 5, 2025. Finally, this Notice provides instructions for DED-eligible Hong Kong residents on how to file for advance travel authorization. For the purposes of this Notice, a Hong Kong resident is defined as an individual of any nationality, or without nationality, who has met the requirements for, and been granted, a Hong Kong Special Administrative Region Passport, a British National Overseas Passport, a British Overseas Citizen Passport, a Hong Kong Permanent Identity card, or a Hong Kong Special Administrative Region (HKSAR) Document of Identity for Visa Purposes.
DED and employment authorization for noncitizens covered by DED for Hong Kong residents is effective January 26, 2023, through February 5, 2025. Employment authorization and the procedures for obtaining EADs in this Notice apply to any of the following individuals (except those who are subject to any of the ineligibilities described in President Biden's memorandum to the Secretaries of State and Homeland Security): noncitizens who are Hong Kong residents, who were covered by DED until February 5, 2023; as well as Hong Kong residents, who have been continuously physically present in the United States since January 26, 2023. Hong Kong residents must meet all eligibility criteria for DED described below.
• You may contact Rená Cutlip-Mason, Chief, Humanitarian Affairs Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by mail at 5900 Capital Gateway Drive, Camp Springs, MD 20746, or by phone at 800-375-5283.
• For further information on DED, including additional information on eligibility, please visit the USCIS DED web page at
• If you have additional questions about DED, please visit
• Applicants seeking information about the status of their individual cases may check Case Status Online, available on the USCIS website at
• Further information will also be available at local USCIS offices upon publication of this Notice.
Pursuant to the President's constitutional authority to conduct the foreign relations of the United States, President Biden has concluded that it is in the foreign policy interest of the United States to defer through February 5, 2025, the removal of certain Hong Kong residents, who were present in the United States since January 26, 2023.
• DED is an administrative deferral of removal ordered by the President. The authority to extend DED arises from the President's constitutional authority to conduct the foreign relations of the United States. The President can authorize DED for any reason related to this authority. DED has been authorized in situations where foreign nationals or other groups of noncitizens may face danger if required to return to countries or any part of such foreign countries experiencing political instability, conflict, or other unsafe conditions, or when there are other foreign policy reasons for allowing a designated group of noncitizens to remain in the United States.
• Although DED is not a specific immigration status, individuals covered by DED are not subject to removal from the United States, usually for a designated period of time. Furthermore, the President may direct that certain benefits, such as employment authorization or advance travel authorization, be available to the noncitizens covered by the DED directive.
• If the President provides for employment or advance travel authorization, USCIS administers those benefits. USCIS publishes a
• The President issues directives regarding DED and who is covered via presidential memorandum. The qualification requirements for individuals who are covered by DED are based on the terms of the President's directive regarding DED and any relevant implementing requirements established by DHS. Since DED is a directive to defer removal of an individual, rather than a specific immigration status like Temporary Protected Status (TPS), there is no DED application form required for an individual to be covered by DED. Form I-765, Application for Employment Authorization, may be filed if a DED-covered individual wants an EAD.
The President has determined that there are compelling foreign policy reasons to extend and expand DED for certain Hong Kong residents. In his January 26, 2023 memorandum, he explained that “[t]he United States is committed to a foreign policy that unites our democratic values with our foreign policy goals, which is centered on the defense of democracy and the promotion of human rights around the world. Offering safe haven to Hong Kong residents who have been deprived of their guaranteed freedoms in Hong Kong furthers United States interests in the region.”
The procedures for employment authorization in this Notice apply to non-U.S. citizens who are Hong Kong residents (regardless of their country of birth), who are present in the United States and who were covered by DED until February 5, 2023, as well as Hong Kong residents, who have been continuously physically present in the United States since January 26, 2023, except for noncitizens:
• Who have voluntarily returned to Hong Kong or other parts of the People's Republic of China (PRC) after January 26, 2023;
• Who have not continuously resided in the United States since January 26, 2023;
• Who are inadmissible under section 212(a)(3) of the Immigration and Nationality Acct (INA) (8 U.S.C. 1182(a)(3)) or deportable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));
• Who have been convicted of any felony or two or more misdemeanors committed in the United States, or who meet any of the criteria set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));
• Who are subject to extradition;
• Whose presence in the United States the Secretary of Homeland Security has determined is not in the interest of the United States or presents a danger to public safety; or
• Whose presence in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign
If you are covered by DED for Hong Kong and want a DED-based EAD, you must file Form I-765, Application for Employment Authorization. Please carefully follow the Form I-765 instructions when completing the application for an EAD. When filing the Form I-765, you must:
• Indicate that you are eligible for DED by entering “(a)(11)” in response to Question 27 on the Form I-765; and
• Submit the fee for the Form I-765 (or request a fee waiver).
The regulations require individuals covered by DED who request an EAD to pay the fee prescribed in 8 CFR 103.7 (Oct. 1, 2020) for the Form I-765.
If you currently have a DED-based EAD bearing a Category Code of A11 and a “Card Expires” date of February 5, 2023 and are covered by DED under the January 26, 2023 Presidential Memorandum, your EAD is automatically extended through February 5, 2025, even though the expiration date stated on the front of the card has passed.
The filing instructions on Form I-765 list all the documents needed. You may also find information on the initial required documents on the USCIS website at
If biometrics are required to produce your EAD, you will be notified by USCIS and scheduled for an appointment at a USCIS Application Support Center.
For a DED-based EAD, mail your completed Form I-765 and supporting documentation to the proper address in Table 1.
You may file Form I-765 and Form/I-131, Application for Travel Document together or separately. More information on filing a Form I-131 appears below.
No. Electronic filing is not available when filing a DED-based Form I-765.
This DED authorization is set to end on February 5, 2025. After that date, employers can no longer accept EADs with a Category Code of A11 and a “Card Expires” date of February 5, 2023 or February 5, 2025. Employees will need to present other evidence of continued work authorization.
In its discretion, DHS may provide advance travel authorization as a benefit of DED for eligible Hong Kong residents. You must file for advance travel authorization if you wish to travel outside of the United States. If granted, advance travel authorization gives you permission to leave the United States and return during a specific period. To request advance travel authorization, you must file Form I-131, Application for Travel Document, available at
• Select Item Number 1.d. in Part 2 on the Form I-131; and
• Submit the fee for the Form I-131.
If you leave the United States without first receiving advance travel authorization, you may no longer be eligible for DED and may not be permitted to reenter the United States. Please also be advised that if you return to Hong Kong or other parts of the PRC, you may not be permitted to resume DED in the United States since the presidential memorandum extending and expanding eligibility for DED for certain Hong Kong residents excludes individuals who have voluntarily returned to Hong Kong or other parts of the PRC after January 26, 2023.
Mail your completed Form I-131 to the proper address provided in Table 1.
The filing instructions for Form I-131 list all the documents you need to include with your application. You may also find information on the acceptable documentation and DED eligibility on the USCIS website at
To get case status information about your DED-based EAD request, you can check Case Status Online at
Yes. Regardless of your country of birth, if you are a resident of Hong Kong, you were covered by DED for Hong Kong until February 5, 2023, and you are covered by DED under the January 26, 2023 Presidential Memorandum, this notice automatically extends your DED-based EAD bearing a February 5, 2023 “Card Expires” date and an A11 Category Code through February 5, 2025. This means that your EAD is valid through February 5, 2025,
You can find the Lists of Acceptable Documents on the third page of FormI-9, Employment Eligibility Verification, as well as the Acceptable Documents web page at
You may present any documentation from List A (which provides evidence of both identity and employment authorization) or documentation from List B (which provides evidence of your identity) together with documentation from List C (which provides evidence of employment authorization), or where applicable you may present an acceptable receipt. Receipts may not be accepted if employment will last less than three days. Additional information on receipts is available at
Yes, if you are covered by DED, you can obtain a new DED-based EAD, regardless of whether you have an EAD based on another immigration status. If you want to obtain a DED-based EAD valid through February 5, 2025, you must file Form I-765 and pay the associated fee (or request a fee waiver).
No. When completing Form I-9, employers must accept any documentation that appears on the Form I-9 Lists of Acceptable Documents that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Therefore, employers may not request other documentation, such as a FormI-797, Form I-797C or proof of Hong Kong residency, when completing Form I-9. Refer to the “Note to Employees” section of this
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This
For general questions about the employment eligibility verification process, employees may call USCIS at 888-897-7781 (TTY 877-875-6028) or email USCIS at
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt. Employers may not require extra or additional documentation beyond what is required for Form I-9 completion. Further, employers participating in E-Verify who receive an E-Verify case result of Tentative Non-confirmation (mismatch) must promptly inform employees of the mismatch and give such employees an opportunity to resolve the mismatch. A mismatch case result means that the information entered into E-Verify from Form I-9 differs from records available to DHS.
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any adverse action against an employee because of the mismatch while the case is still pending with E-Verify. A Final Non-confirmation (FNC) case result is received when E-Verify cannot confirm an employee's employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). For more information about E-Verify-related discrimination or to report an employer for discrimination in the E-Verify process based on citizenship, immigration status, or national origin, contact IER's Worker Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Form I-9 and E-Verify procedures is available on the IER website at
For Federal purposes, if you present an automatically extended DED-based EAD referenced in this
• Your current EAD with a DED Category Code of A11, even if your country of birth noted on the EAD does not reflect the DED designation for Hong Kong; or
• Your Form I-797, Notice of Action, reflecting approval of your Form I-765; or
• Your Form I-797 or Form I-797C, Notice of Action, reflecting approval or receipt of a past or current Form I-765.
Check with the government agency requesting documentation regarding which documentation the agency will accept.
Some state and local government agencies use the Systematic Alien Verification for Entitlements (SAVE) program to confirm the current immigration status of applicants for public benefits. While SAVE can verify that an individual is covered by DED, each state and local government agency's procedures govern whether they will accept an unexpired EAD, Form I-797, or Form I-797C. If an agency accepts the type of DED-related document you present, such as a DED-based EAD, the agency should accept your automatically extended EAD, regardless of the country of birth listed on the EAD. It may assist the agency if you:
a. Give the agency a copy of the relevant
b. Explain that SAVE will be able to verify the continuation of DED using this information; and
c. Ask the agency to submit a SAVE verification request with your information and follow through with additional verification steps, if necessary, to obtain a final SAVE response verifying your coverage under DED.
You can also ask the agency to look for SAVE notices or contact SAVE if they have any questions about your immigration status or automatic extension of DED-related documentation. In most cases, SAVE provides an automated electronic response to benefit-granting agencies within seconds, but occasionally verification can be delayed.
You can check the status of your SAVE verification by using CaseCheck at
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond—including through the use of appropriate automated collection techniques or other forms of information technology, such as permitting electronic submission of responses.
(5) Ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Public and Indian Housing (PIH), HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal.
Written comments and recommendations for the proposed information collection can be sent within 60 days of publication of this notice to
Interested persons are also invited to submit comments regarding this proposal by name and/or OMB Control Number and can be sent to: Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Room 8210, Washington, DC 20410-5000; or email at
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This leaves a gap in HUD's information collection of PBVs between the individual tenant data and the aggregated PHA data. HUD does not systematically collect information on the development or project level, including the number of units at PBV projects, what exceptions apply, their rents, the terms of contract, and numerous other potential data points. This creates a challenge for monitoring, tracking and analyzing PBV projects, and limits HUD's ability to respond to requests for information on the PBV program from Congress and other sources. Additionally, it prevents HUD from having data with which to make informed decisions on risk-mitigation strategies with respect to PBVs.
Potential risks are particularly heightened in the case of RAD PBV where a PHA-owned property is required to have an independent entity that performs inspections and determines rent adjustments. Currently, HUD has limited information about RAD PBV properties after conversion and is unable to adequately monitor their long-term viability. Through this collection, HUD is requiring the submission of project-level data on all
Field Changes:
This data collection will be renewing the following fields of collection for PBV:
In addition to the data fields previously reviewed and approved by OMB, this PRA renewal includes new fields specific for RAD PBV projects that will need to be completed for each project with a RAD PBV HAP Contract annually.
The new fields of collection for RAD PBV projects include:
Within the PRA renewal the following fields will be discontinued and deleted from the form:
HUD recognizes that some of this information may be submitted to HUD, for instance as part of the initial subsidy layering review process, however, these submissions are insufficient to give HUD a universal and currently accurate picture of the PBV universe. Therefore, HUD is proposing this information collection.
This is a unique number generated by the system when a new HAP Contract is entered into the HIP.
The name of the project as determined by the PHA as used in public or property records (where such records contain a name of the property as a whole) or the commonly used name of the project (such as the name on a sign at the property entrance). If no such name exists, a name for the project designated by the PHA for use in the system. “Project” is defined consistent with 24 CFR 983.3(b) as “a single building, multiple contiguous buildings, or multiple buildings on contiguous parcels of land.”
The street address (including text fields for city, state, and zip code) of the building or buildings covered by the HAP contract and all units covered under the HAP contract.
The most closely matching description of the project from among this list: Single-Family and Non-Single-Family. Single-family is defined in the 24 CFR 983.3(b) as “a building with no more than four dwelling units (assisted or unassisted).”
Effective date listed in § 1(d) of Part 1 of the HAP contract. A single-stage project will have the same effective date for all contract units. For a multi-stage project, include the effective date of the first stage of the HAP contract. If the HAP contract has multiple stages, enter the effective date of the first stage.
The HAP contract term end date, as determined by adding the length of the HAP contract term (initial and any extensions) to the effective date listed in § 1(d) of Part 1 of the HAP contract (for a multi-stage project, use the effective date of the first stage). The length of the initial and extension HAP contract terms shall be those listed in the HAP contract (for existing projects: § 1(d) of Part 1 of the Form HUD-52530-B HUD and associated exhibits; for newly constructed and rehabilitated projects: § 1(e) of Part 1 of the Form HUD-52530-A and associated exhibits).
The following definitions apply consistent with 24 CFR 983.3(b), as amended by 82 FR 5458 (Jan. 18, 2017), 82 FR 32461 (Jul. 14, 2017):
a.
b.
c.
Provide an answer (yes/no) to the question of whether the PHA has included the vacancy payment provision in this HAP contract (for existing projects: § 1(e)(2) of Part 1 of the Form HUD-52530-B HUD; for
The following definitions apply consistent with 24 CFR part 983, as amended by 82 FR 5458 (Jan. 18, 2017), 82 FR 32461 (Jul. 14, 2017):
a. PHA-owned:
“Controlling interest” means:
i. Holding more than 50 percent of the stock of any corporation;
ii. Having the power to appoint more than 50 percent of the members of the board of directors of a non-stock corporation (such as a non-profit corporation);
iii. Where more than 50 percent of the members of the board of directors of any corporation also serve as directors, officers, or employees of the PHA;
iv. Holding more than 50 percent of all managing member interests in an LLC;
v. Holding more than 50 percent of all general partner interests in a partnership; or
vi. Having equivalent levels of control in other ownership structures. Most ownership structures are already covered in the categories listed above. This last category is meant to cover any ownership structure not already listed in the categories above. Also, under this category (f), a PHA must have more than 50 percent control in that ownership structure (an equivalent level of control) for the project to be considered PHA-owned.
b.
c.
Upon amendment of 24 CFR part 983, the new definitions therein will supersede the definitions listed above.
If the project is PHA-Owned, the independent entity or entities which perform the following functions consistent with 24 CFR part 983: 1. Review the PHA's PBV selection process. 2. Establish PBV contract rents (initial rent to owner and redetermined rent to owner). 3. Determine rent reasonableness. 4. Provide a copy of the rent reasonableness determination to the PHA and the HUD field office where the project is located. 5. Establish term of initial and any renewal HAP contract as required in 24 CFR 983.205. 6. Inspect units. 7. Provide a copy of the inspection report to PHA and HUD field office where the project is located.
MTW PHAs with waivers may write in themselves as the independent entity.
Total number of units (PBV and non-PBV units) in the project, including those covered by an AHAP or HAP contract and non-contract units.
Total number of contract units in the project covered by the HAP contract, broken out by each bedroom size (0, 1, 2, 3, 4, 5+).
This field captures the number of PBV-assisted units for each category listed below, broken out by each bedroom size (0, 1, 2, 3, 4, 5+), at the project that are accessible for persons with mobility impairments in accordance with Section 504 of the Rehabilitation Act of 1973 and HUD's implementing regulations at 24 CFR part 8.
Such units must meet either the Uniform Federal Accessibility Standards (UFAS) or 2010 Americans with Disabilities Act (ADA) Standards (in accordance with HUD's Deeming Notice published in the
Provide an answer (yes/no) to the question of whether the project qualifies for an exception to the income-mixing requirement under 24 CFR 983.56, and applicable guidance. Applicable program guidance includes, but is not limited to: 82 FR 5458 (Jan. 18, 2017), 82 FR 32461 (Jul. 14, 2017); 86 FR 53207 (Sept. 27, 2021); 87 FR 3570 (Jan. 24, 2022).
Choose the applicable exception from among those allowed by 24 CFR 983.56, as amended by 82 FR 5458 (Jan. 18, 2017), 82 FR 32461 (Jul. 14, 2017). The definitions of the exception categories are found in the following locations:
a. Units that are exclusively made available to households eligible for supportive services: PIH Notice 2017-21, Attachment E.
b. Units that are specifically made available for families receiving supportive services: PIH Notice 2017-21, Attachment E, for grandfathered projects as described therein.
c. Units that are exclusively made available to elderly families: PIH Notice 2017-21, Attachment E.
d. Units that are specifically made available for disabled families: PIH Notice 2017-21, Attachment E, for grandfathered projects as described therein.
e. Units located in a census tract with a poverty rate of 20 percent or less: PIH Notice 2017-21, Attachment E.
f. Units that were previously subject to certain federal rent restrictions or receiving another type of long-term housing subsidy provided by HUD: PIH Notice 2017-21, Attachment F, for projects that meet the additional requirements as described therein.
g. Units that are exclusively made available to eligible youth receiving FUP/FYI assistance: FR-6284-N-01.
h. HUD-VASH vouchers: 86 FR 53207 (Sept. 27, 2021). Upon amendment of 24 CFR part 983, the new definitions therein will supersede the definitions listed here.
i.
Provide an answer (yes/no) to the question of whether the project qualifies for an exception to the program cap under 24 CFR 983.6, as amended by 82 FR 5458 (Jan. 18, 2017), 82 FR 32461 (Jul. 14, 2017).
Enter the number of excepted units from those allowed by 24 CFR 983.6, as amended by 82 FR 5458 (Jan. 18, 2017), 82 FR 32461 (Jul. 14, 2017). The definitions of the exception categories are found in the following locations:
○ Units that are specifically made available to house homeless individuals and families: PIH Notice 2017-21.
○ Units that are specifically made available to house families that are comprised of or include a veteran: PIH Notice 2017-21.
○ Units that provide supportive housing to persons with disabilities or to elderly persons: PIH Notice 2017-21.
○ Units located in a census tract with a poverty rate of 20 percent or less: PIH Notice 2017-21.
○ Units that were previously subject to certain federal rent restrictions or receiving another type of long-term housing subsidy provided by HUD: PIH Notice 2017-21, for projects that meet the additional requirements as described therein.
○ Units that house eligible youth receiving FUP/FYI assistance: FR-6284-N-01.
○ HUD-VASH vouchers specifically awarded by HUD for project-based assistance: PIH Notice 2017-21. Upon amendment of 24 CFR part 983, the new definitions therein will supersede the definitions listed here.
○ MTW Waiver Authority: MTW agencies may increase PBV program caps under certain provisions of section 8(o)(13)(B) of the 1937 Act and 24 CFR 983.6(a)-(b), as superseded by the Housing Opportunity through Modernization Act of 2016 (HOTMA) Implementation Notices at 82 FR 5458 and 82 FR 32461 (see implementation guidance in Notice PIH 2017-21). The standard agreement may also provide additional PBV flexibilities, including the ability to waive provisions in 2.
Specified in the RCC, this is the required annual amount that is to be deposited into the project's replacement reserve account.
The total amount of funds withdrawn from the project's replacement reserve account within a given year (12-month period) to fund capital repairs.
The ending balance of the replacement reserve account after all transactions (withdrawals and deposits) in a given 12-month period are accounted for.
Provide an answer (yes/no) to the question of whether a request to suspend/waive deposits to the replacement reserve was submitted by the Owner and approved by HUD for a given project.
If the response to “Replacement Reserve Deposits Suspended/Waived Indicator” is “yes”, provide the date HUD approved the request for replacement reserve deposits to be suspended/waived.
Our burden estimate for the number of respondents is based on a recent VMS total of the number of PHAs reporting PBVs in VMS and accounting for the subset of PBVs that are RAD. Specific to projects with a RAD PBV HAP Contract, the RAD Notice requires Project Owners to establish and maintain a replacement reserve in an interest-bearing account. At this time, there are approximately 1,200 projects with a RAD PBV HAP contract for which this requirement is applicable. To track the replacement reserve requirement, HUD is requesting PHA response to 3-5 questions for each project with a RAD PBV HAP Contract.
It is assumed PHAs will have to do a one-time submission for all the projects and potentially make updates when changes occur to the PBV projects (frequency of responses). It is anticipated that this cost will decline in subsequent years as PHAs will only need to make the following updates:
• Changes to HAP contract information already entered into the system for PBV projects; and
• Responses to 3-5 questions (as applicable) regarding the replacement reserve account for each RAD project where the PHA serves as a contract administrator.
The “responses per annum” represents an estimate of the amount of PBV projects that will need to be entered into the system. This number is multiplied by the frequency of responses to arrive at an annual estimate of burden hours. This is then multiplied by median average wage of a “Management Analyst” according to the Bureau of Labor Statistics for 2021 to arrive at a total annual cost.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The Section 184 Indian Housing Loan Guarantee program (“Section 184 program”) is a home mortgage program specifically designed for American Indian and Alaska Native families, Alaska villages, Tribes, or Tribally Designated Housing Entities. Congress established this program in 1992 to facilitate homeownership and increase access to capital in Native American communities. Based on the Section 184 program's strong performance and low default rate, HUD has determined that the fees charged to the borrower can be reduced without risk to the overall performance of the program. HUD is hereby exercising its authority to decrease the upfront loan guarantee fee from 1.50 to 1.00 percent and the annual loan guarantee fee from 0.25 to 0.00 percent for all new or updated Section 184 Firm Commitments as of the effective date of this Notice, including refinances.
Heidi J. Frechette, Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW, Room 4108, Washington, DC 20410; telephone number 202-401-7914 (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
Section 184 of the Housing and Community Development Act of 1992 (Pub. L. 102-550, approved October 28, 1992), as amended, established the Section 184 program to provide access to sources of private mortgage financing to Indian families, Indian housing authorities, and Indian tribes. Congress established this program in 1992 to facilitate homeownership and increase access to capital in Native American Communities. The Section 184 program addresses obstacles to mortgage financing on trust land and in other Indian and Alaska Native areas by giving HUD the authority to guarantee loans to eligible persons and entities to construct, acquire, refinance, or rehabilitate one- to four-family dwellings in these areas.
The Section 184 program is funded by a combination of annual appropriations and upfront and annual fees collected from the borrower. Program costs include amounts for claims, contracts, and other expenses related to foreclosure. To ensure the program has enough funding, pursuant to 12 U.S.C. 1715z-13a(d) and 24 CFR 1005.109, HUD has the authority to establish an upfront loan guarantee fee in an amount not exceeding 3.00 percent of the principal obligation of the loan and an annual loan guarantee fee in an amount not exceeding 1.00 percent of the remaining guaranteed balance.
On March 5, 2014, HUD issued a Notice increasing the upfront loan guarantee fee from 1.00 to 1.50 percent. (79 FR 12520). The new loan guarantee fee became effective on April 4, 2014.
On October 7, 2014, HUD issued a Notice exercising its statutory authority to implement an annual loan guarantee fee to the borrower in the amount of 0.15 percent. (79 FR 60492). The new annual loan guarantee fee became effective on November 15, 2014.
On November 1, 2016, HUD issued a second Notice increasing the annual loan guarantee fee from 0.15 to 0.25 percent. (81 FR 75836). The new annual loan guarantee fee became effective on December 1, 2016.
Since 2016, the Section 184 program has consistently experienced a very low default rate. Lenders are doing a better job of underwriting and servicing the loans, and Tribes continue to proactively provide housing counseling and support in an effort to keep Native American families in their homes. These factors have strengthened the financial performance of the Section 184 program. As a result, the program can support a reduction of loan guarantee fees to Native American borrowers without increasing financial risk to the Fund.
The reduction in fees will make Section 184 loans more affordable to Native American families and help remove barriers to private financial capital. Reducing the upfront and annual loan guarantee fees will have a positive financial impact on a typical borrower. Under the revised fee structure, the average family could save almost $5,700 over the course of the loan, which is a meaningful savings for an average Native American family.
This Notice reduces the Section 184 program upfront loan guarantee fee from 1.50 to 1.00 percent and the annual loan guarantee fee from 0.25 to 0.00 percent. This reduction will apply to all Section 184 program applicants receiving a new or updated Section 184 Firm Commitment as of the applicable date of this Notice, including refinances. This reduction will not apply to loans currently guaranteed by this program.
This Notice involves the establishment of a rate or cost determination that does not constitute a development decision affecting the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this Notice is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (U.S.C. 4321).
Office of Policy Development and Research, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal.
Written comments and recommendations for the proposed information collection can be sent within 60 days of publication of this notice to
Anna Guido, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected, and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
Office of the Secretary, Interior.
Rescindment of a system of records notice.
The Department of the Interior (Interior, Department) is issuing a public notice of its intent to rescind the Privacy Act system of records notice (SORN) for INTERIOR/DOI-88, Travel Management: FBMS, because agency travel program records are covered by two government-wide SORNs published by the General Services Administration (GSA). This rescindment will promote the overall streamlining and management of Interior's Privacy Act systems of records.
These changes take effect on May 4, 2023.
You may send comments identified by docket number [DOI-2023-0004] by any of the following methods:
•
•
•
You should be aware your entire comment including your personally identifiable information, such as your address, phone number, email address, or any other personal information in your comment, may be made publicly available at any time. While you may request to withhold your personally identifiable information from public review, we cannot guarantee we will be able to do so.
Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C
Pursuant to the provisions of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, Interior is rescinding the INTERIOR/DOI-88, Travel Management: FBMS, SORN and removing it from its inventory. During a routine review, the Department determined that agency travel program records are covered under two government-wide SORNs issued by the GSA: GSA/GOVT-3, Travel Charge Card Program, 78 FR 20108 (April 3, 2013); and GSA/GOVT-4, Contracted Travel Services Program, 74 FR 26700 (June 3, 2009), modification published June 12, 2009 (74 FR 28048). A government-wide system of records is a system of records where one agency has regulatory authority over the records in the custody of multiple agencies and that agency has the responsibility for publishing a SORN that applies to all of the records regardless of their custodial location. The two GSA government-wide SORNs cover all federal travel service programs and apply to the travel records maintained by the Department pursuant to federal travel regulations. Therefore, Interior will manage its travel program records under the GSA government-wide notices and is rescinding the INTERIOR/DOI-88, Travel Management: FBMS, SORN to avoid duplication of the existing government-wide SORNs in accordance with the Office of Management and Budget Circular A-108,
Rescinding the INTERIOR/DOI-88, Travel Management: FBMS, SORN will have no adverse impacts on individuals as the records are covered under the GSA/GOVT-3, Travel Charge Card Program, and GSA/GOVT-4, Contracted Travel Services Program, SORNs. This rescindment will also promote the overall streamlining and management of Interior's Privacy Act systems of records.
Interior, DOI-88, Travel Management: FBMS.
73 FR 43769 (July 28, 2008), modification published 86 FR 50156 (September 7, 2021).
Bureau of Land Management, Interior.
Notice of official filing.
The plats of survey of lands described in this notice are scheduled to be officially filed in the Bureau of Land Management (BLM), Alaska State Office, Anchorage, Alaska. The surveys, which were executed at the request of the Fish and Wildlife Service (FWS), Bureau of Indian Affairs (BIA), and BLM, are necessary for the management of these lands.
The BLM must receive protests by June 5, 2023.
You may buy a copy of the plats from the BLM Alaska Public Information Center, 222 W. 7th Avenue, Mailstop 13, Anchorage, AK 99513. Please use this address when filing written protests. You may also view the plats at the BLM Alaska Public Information Center, Fitzgerald Federal Building, 222 W. 7th Avenue, Anchorage, Alaska, at no cost.
Thomas O'Toole, Chief, Branch of Cadastral Survey, Alaska State Office, Bureau of Land Management, 222 W. 7th Avenue, Anchorage, AK 99513; 907-271-4231;
The lands surveyed are:
A person or party who wishes to protest one or more plats of survey identified above must file a written notice of protest with the State Director for the BLM in Alaska. The protest may be filed by mailing to BLM State Director, Alaska State Office, Bureau of Land Management, 222 W. 7th Avenue, Anchorage, AK 99513 or by delivering it in person to BLM Alaska Public Information Center, Fitzgerald Federal Building, 222 W. 7th Avenue, Anchorage, Alaska. The notice of protest must identify the plat(s) of survey that the person or party wishes to protest. You must file the notice of protest before the scheduled date of official filing for the plat(s) of survey being protested. The BLM will not consider any notice of protest filed after the scheduled date of official filing. A notice of protest is considered filed on the date it is received by the State Director for the BLM in Alaska during regular business hours; if received after regular business hours, a notice of protest will be considered filed the next business day. A written statement of reasons in support of a protest, if not filed with the notice of protest, must be filed with the State Director for the BLM in Alaska within 30 calendar days after the notice of protest is filed.
If a notice of protest against a plat of survey is received prior to the scheduled date of official filing, the official filing of the plat of survey identified in the notice of protest will be stayed pending consideration of the protest. A plat of survey will not be officially filed until the dismissal or resolution of all protests of the plat.
Before including your address, phone number, email address, or other personally identifiable information in a notice of protest or statement of reasons, you should be aware that the documents you submit, including your personally identifiable information, may be made publicly available in their entirety at any time. While you can ask the BLM to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before April 22, 2023, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by May 19, 2023.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before April 22, 2023. Pursuant to section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
A request for removal has been made for the following resources:
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the U.S. Department of the Interior, Bureau of Reclamation (USBR) has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice. The human remains were removed from Caddo County, OK.
Repatriation of the human remains in this notice may occur on or after June 5, 2023.
Kate Ellison, USBR, 5924 NW 2nd Street, Suite 200, Oklahoma City, OK 73127, telephone (405) 470-4816, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the USBR. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Museum of the Great Plains (MGP), a repository for the USBR.
Between 1964 and 1972, human remains representing, at minimum, one individual were removed from Caddo County, OK. The human remains were found by a local person (Mr. Voerster) along the shoreline of Fort Cobb Reservoir and in proximity to archeological site 34CD697. The human remains were taken to the Oklahoma Archeological Survey in Norman, OK, where they were examined by archeologist Dr. Richard Drass and identified as part of a human cranium. The human remains are reasonably believed to have come into the possession of the Bureau of Reclamation around January 12, 2012, based on notes from the local collector. Since November 15, 2016, the human remains have been in the custody of the Museum of the Great Plains in Lawton, OK. On January 8, 2021, skeletal inventory and analysis were conducted by Rachel Perash, a contractor working for the Bureau of Reclamation. On July 6, 2022, additional analysis was conducted, by Dr. Peer Moore-Jansen, Chair and Professor of Anthropology at Wichita State University, who confirmed that the remains were human and archeological. No known individual was identified. No associated funerary objects are present.
The human remains in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: geographical and historical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the USBR has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• There is a relationship of shared group identity that can be reasonably traced between the human remains described in this notice and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco, & Tawakonie), Oklahoma.
Written requests for repatriation of the human remains in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after June 5, 2023. If competing requests for repatriation are received, the USBR must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. The USBR is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of Florida, Florida Museum of Natural History (FLMNH) intends to repatriate certain cultural items that meet the definition of unassociated funerary objects and sacred objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural items were removed from near Big Cypress Swamp, Collier County, FL.
Repatriation of the cultural items in this notice may occur on or after June 5, 2023.
Catherine Smith, University of Florida, Florida Museum of Natural History, 1659 Museum Road, Gainesville, FL 32611, telephone (352) 273-1921, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of FLMNH. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by FLMNH.
The 29 cultural items were removed from near Big Cypress Swamp in Collier County, FL. These cultural items originally belonged to an unidentified Seminole warrior but were taken by Captain Winston J.T. Stephens, commander of a company of Florida Mounted Volunteers, in the Big Cypress Swamp on December 3, 1857, after he shot and killed the man in a skirmish between his company and a group of “Indians” during the Third Seminole War. The account was both orally passed down through the Stephens family and documented in a journal kept by Captain Stephens. FLMNH (called the Florida State Museum at the
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: historical, oral tradition, and geographical location.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the FLMNH has determined that:
• The six cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• The 23 cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and the Seminole Tribe of Florida.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after June 5, 2023. If competing requests for repatriation are received, FLMNH must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. FLMNH is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Illinois State Museum has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from northwest Arkansas.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after June 5, 2023.
Brooke M. Morgan, Illinois State Museum Research & Collections Center, 1011 East Ash Street, Springfield, IL 62701, telephone (217) 785-8930, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Illinois State Museum. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Illinois State Museum.
Sometime prior to 1940, human remains representing, at minimum, one individual were removed from a dry bluff shelter in northwest Arkansas. These human remains were purchased by Ralph Foster and subsequently donated to the Ralph Foster Museum at College of the Ozarks. In 1990, the human remains were transferred to the Illinois State Museum. The four associated funerary objects are two twined garments or blankets, one lot of plant remains, and one lot of sorted burial matrix. Based on similar sites, this interment might date to the Late Woodland or Mississippian period (A.D. 500-1400).
On an unknown date, human remains representing, at minimum, one individual were removed from a bluff shelter in northwest Arkansas. In 1971, these human remains were donated to the Ralph Foster Museum at College of the Ozarks, and in 1998, they were transferred to the Illinois State Museum. No associated funerary objects are present.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, geographical, historical, and oral traditional.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the Illinois State Museum has determined that:
• The human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• The four objects described in this notice are reasonably believed to have
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and The Osage Nation.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after June 5, 2023. If competing requests for repatriation are received, the Illinois State Museum must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The Illinois State Museum is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of Wyoming Human Remains Repository has completed an inventory of human remains and associated funerary objects and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any Indian Tribe. The human remains and associated funerary objects were removed from Bighorn, Campbell, Carbon, Fremont, Hot Springs, Johnson, Park, Sheridan, and Washakie Counties and other unknown locations in Wyoming or possibly southern Montana.
Disposition of the human remains and associated funerary objects in this notice may occur on or after June 5, 2023.
Dr. Rick L. Weathermon, University of Wyoming Human Remains Repository, 1000 E. University Avenue, Dept 3431, Laramie, WY 82071, telephone (307) 766-5136, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University of Wyoming Human Remains Repository. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the University of Wyoming (UW) Human Remains Repository.
In the 1960s, human remains representing, at minimum, one individual were removed from site 48WA11, west of the No Wood River in Washakie County, WY, by a private individual. The human remains were transferred to the UW Anthropology Department in 1967. The fragmentary human remains (HR003) represent a female Native American 40-50 years of age. No associated funerary objects were recovered.
In the 1980s, human remains representing, at minimum, one individual were removed from the Laddie Creek site 48BH345 on private ground in Bighorn County, WY, by personnel of the UW Department of Anthropology during backhoe trenching. The fragmentary human remains (HR054) represent a Native American adult male. The human remains are probably Late Plains Archaic (3,500-1,500 years RCYBP), based on stratigraphic information. No associated funerary objects were recovered.
In 1989, human remains representing, at minimum, one individual were removed from private ground at the Shamrock Hills site 48CR4865 in the Great Divide Basin of Carbon County, WY, by the State Archaeologist's Office at the request of the landowner. The fragmentary human remains (HR153) represent a 60+ year old Native American male. No associated funerary objects were recovered.
In the 1980s, human remains representing, at minimum, one individual were removed from the D.O. Bead site 48CR4805 in Carbon County, WY, by personnel of the State Archaeologist's Office at the request of the landowner. The fragmentary human remains represent a probable Native American of unknown age and sex (HR154). The human remains are protohistoric in age based on the associated trade goods. The one associated funerary object is one lot of glass trade beads.
In 1972, human remains representing, at minimum, one individual were removed from an unknown location along Sand Creek in the Rawlins Uplift in Carbon County, WY, by a private individual. The human remains were later given to the UW Anthropology Department. The fragmentary human remains (HR199) represent a 60+ year old Native American male. No associated funerary objects were recovered.
Prior to 1982, human remains representing, at minimum, one individual were removed from an unknown location in Fremont County, WY, by the coroner. In 1982, the human remains were transferred to the UW Anthropology Department. The fragmentary human remains (HR089) represent a 15-17 year old Native American of unknown sex. No associated funerary objects were recovered.
Prior to 1980, human remains representing, at minimum, one individual were removed from an unknown location on Mexican Creek in the Wind River Mountains, Fremont County, WY, by a private individual. In the 1980s, the human remains were transferred to the UW Anthropology Department. The fragmentary human remains (HR167) represent a 35+ year old Native American of unknown sex. The human remains are protohistoric based on notes. No associated funerary objects were recovered.
Prior to 1982, human remains representing, at minimum, one individual were removed from an
In 1973, human remains representing, at minimum, one individual were removed from an unknown location in Hot Springs County, WY, by law enforcement. The human remains were later transferred to the UW Anthropology Department. The fragmentary human remains (FC003) represent an 11-12 year old male Native American. No associated funerary objects were recovered.
In the 1960s or 1970s, human remains representing, at minimum, nine individuals were removed from an unknown location along the future route of Interstate 90 north of Buffalo, Johnson County, WY, during construction by Wyoming Archaeological Society. The human remains were later transferred to the UW Anthropology Department in the 1970s. The fragmentary human remains include a Native American male, 65+ years (HR032); a Native American male, 65+ years of age (HR033); a Native American male, 65+ years (HR034); a Native American male, 65+ years of age (HR035); a Native American child, unknown sex, 9-11 years (HR036); a Native American child, 11-13 years of age, possibly male (HR037); a Native American child about 18 months of age, sex unknown (HR039); a Native American infant, sex unknown, age 0-6 months (HR040); and a Native American infant, sex unknown, age 0-6 months (HR041). No associated funerary objects were recovered.
In the 1960s or 1970s, human remains representing, at minimum, four individuals were removed from an unknown location on the Cash Ranch west of Kaycee, Johnson County, WY, by an unknown individual. The human remains were given to the Wyoming State Museum and transferred to the UW Anthropology Department in the 1982. The fragmentary human remains include a Native American female, 24+ years of age (HR098); a Native American based on museum notes, sex unknown, 15+ years of age (HR099); a Native American based on museum notes, sex unknown, under 18 years (HR100); and a Native American based on museum notes, neonate, sex unknown (HR101). The one associated funerary object is a shaped belemnite fossil, possibly associated with HR098 based on museum notes. The object is currently missing, but, if found, will be transferred with the other cultural items in this notice.
In 1980, human remains representing, at minimum, one individual were removed from an unknown location near Kaycee in Johnson County, WY, by law enforcement. The human remains were transferred to the UW Anthropology Department. The fragmentary human remains (FC024) represent a female Native American 50+ years of age. No associated funerary objects were recovered.
In 1976, human remains representing, at minimum, one individual were removed from an unknown construction location on private ground in Park County, WY, by BLM personnel. The human remains were transferred to the UW Anthropology Department. The fragmentary human remains (HR042) represent a male Native American 17+ years of age. No associated funerary objects were recovered.
In the 1940s, human remains representing, at minimum, one individual were removed from Hargreave's Flat on private ground about nine miles north of Cody, Park County, WY, by Work Projects Administration crew. The human remains have been at the UW Anthropology Department since the early 1970s. The fragmentary human remains (HR046) represent a Native American child 11-13 years of age. The three associated funerary objects are one clam shell fragment, one gypsum fragment, and one dog foot bone.
In the 1960s or 1970s, human remains representing, at minimum, four individuals were removed from site 48SH30 on private ground along Fence Creek, south of Arvada, Sheridan County, WY, by an unknown individual following disturbances due to oil drilling. The human remains were transferred to the UW Anthropology Department in the early 1970s. The fragmentary human remains include a Native American female, 60+ years (HR008a); a probably Native American female, 35-50 years (HR008b); a probable Native American child, age 18-30 months of age (HR008c); and a probable Native American, sex unknown, about 12 years of age (HR008d). The three associated funerary objects are one Late Prehistoric arrow point, one lot of debitage, and one lot of faunal bone.
In 1972, human remains representing, at minimum, five individuals were removed from site 48WA12 on private ground along the west face of the Big Horn Mountains, Washakie County, WY, by University of Wyoming personnel. The human remains have been at the UW Anthropology Department since 1972. The fragmentary human remains include a Native American male, about 25 years of age (HR029); a Native American adult male (HR030); a Native American adult male (HR031a); a probable Native American child, age 7-8 years of age (HR031b); and a probable Native American adult of unknown sex (HR031c). The five associated funerary objects are one lot of reed beads, one lot of red ocher, one lot of bone tool fragments, one lot of wood, and one shell pendant.
Prior to 1982, human remains representing, at minimum, one individual were removed from an unknown location in Ten Sleep Canyon, Washakie County, WY, by a private individual. The human remains were given to the Fort Casper Museum in 1983 and transferred to the UW Anthropology Department in 1993. The fragmentary human remains (HR191) represent a possible Native American (based on museum notes), child, age 1-2 years. No associated funerary objects were recovered.
Prior to 1983, human remains representing, at minimum, one individual were removed from an unknown location in WY by a private individual. The human remains were given to the Wyoming State Museum prior to 1983 and transferred to the UW Anthropology Department in 1993. The fragmentary human remains (HR102) represent Native American adult male. No associated funerary objects were recovered.
Prior to 1983, human remains representing, at minimum, one individual were removed from an unknown location in WY by a private individual. The human remains were given to the Wyoming State Museum prior to 1983 and transferred to the UW Anthropology Department in 1993. The fragmentary human remains represent a possible Native American (HR107), sex unknown, 14-18 years of age. No associated funerary objects were recovered.
Prior to 1983, human remains representing, at minimum, one individual were removed from an unknown location in southeast WY by a private individual. The human remains were given to the Wyoming State Museum prior to 1983 and transferred to the UW Anthropology Department in 1993. The fragmentary human remains represent a possible Native American (HR108) child, six-12 months of age. No associated funerary objects were recovered.
Prior to 1983, human remains representing, at minimum, one individual were removed from an
Prior to 1992, human remains representing, at minimum, one individual were removed from an unknown location in WY by a private individual. The human remains were given to the Pioneer Museum in Douglas, Converse County, WY, prior to 1992 and transferred to the UW Anthropology Department in 1992. The fragmentary human remains represent a possible Native American (HR190), male, adult in age. No associated funerary objects were recovered.
Prior to 1992, human remains representing, at minimum, one individual were removed from an unknown location in WY by a private individual. The human remains were given to Fort Caspar Museum at an unknown time and transferred to the UW Anthropology Department in 1993. The fragmentary human remains represent a possible Native American (HR196), sex unknown, older adult in age. No associated funerary objects were recovered.
Prior to mid-1980s, human remains representing, at minimum, three individuals were removed from private lands around Buffalo, Johnson County, and Sheridan, Sheridan County, WY, and Bighorn County, MT, by a private individual. The human remains were given to the UW Anthropology Department in in the mid-1980s. The fragmentary human remains include a possible Native American male, adult in age (HR218a); a possibly Native American, possibly male, adult in age (HR218b); and a possible Native American, possibly male, adult in age (HR218c). No associated funerary objects were recovered.
Prior to 1972, human remains representing, at minimum, one individual were removed from an unknown location in WY by an unknown individual. The fragmentary human remains were subsequently collected at the Worland Dump near Worland, Washakie County, WY, by local law enforcement and transferred to the UW Anthropology Department in 1972. The fragmentary human remains represent a possible Native American (FC001) male, over 30 years of age. No associated funerary objects were recovered.
In 1985, human remains representing, at minimum, one individual were removed from an unknown location in WY by law enforcement. The human remains were sent to the Wyoming State crime lab and subsequently transferred to the UW Anthropology Department in 1985. The fragmentary human remains represent a Native American (FC068) male, over 30 years of age. No associated funerary objects were recovered.
In 1986, human remains representing, at minimum, one individual were removed from an unknown location in WY by law enforcement. The human remains were sent to the Wyoming State Crime Lab and subsequently transferred to the UW Anthropology Department in 1986. The fragmentary human remains represent a Native American (FC076) male, 40 to 55 years of age. No associated funerary objects were recovered.
In 1992, human remains representing, at minimum, one individual were removed from an unknown location in WY by law enforcement. The human remains were sent to the Wyoming State Crime Lab and subsequently transferred to the UW Anthropology Department in 1992. The fragmentary human remains represent a Native American (FC098) male, 50 to 60 years of age. No associated funerary objects were recovered.
Prior to 1996, human remains representing, at minimum, one individual were removed from an unknown location on the Bishop Ranch in Campbell County, WY, by unknown individuals. The human remains were given to the Rockpile Museum in Gillette, WY, and subsequently transferred to the UW Anthropology Department in 1996. The fragmentary human remains represent a Native American (DB055) female, 20 to 25 years of age. No associated funerary objects were recovered.
In the 1950s or before, human remains representing, at minimum, one individual were removed from an unknown location in WY by unknown individuals. The human remains were given to the Pioneer Museum in Douglas, Converse County, WY, and subsequently transferred to the UW Anthropology Department in 1997. The fragmentary human remains represent a Native American (HR225) female, 17 to 20 years of age. No associated funerary objects were recovered.
In 1986, human remains representing, at minimum, four individuals were removed from private lands in the Green-Phipps site (48PA911), Park County, WY, by UW and the State Archaeologist's Office. The human remains were originally listed as coming from BLM ground, but further investigation places them a few feet into private lands. The human remains have been at the UW Anthropology Department since 1986. The fragmentary human remains represent a Native American male, 50+ years of age (HR134a); a Native American of unknown sex, 14-17 years of age (HR134b); a Native American of unknown sex, 5 to 10 years of age (HR134c); and a Native American of unknown sex, 18-24 years of age (HR134d). The 82 associated funerary objects are 60 pieces of debitage, one projectile point, 20 stone or bone beads, and one lot of unidentified faunal remains.
The human remains and associated funerary objects in this notice were removed from known geographic locations. These locations are the aboriginal lands of one or more Indian Tribes. The following information was used to identify the aboriginal land: a final judgment of the Indian Claims Commission, a treaties, Acts of Congress, and Executive Orders.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes, the University of Wyoming Human Remains Repository has determined that:
• The human remains described in this notice represent the physical remains of 54 individuals of Native American ancestry.
• The 95 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• No relationship of shared group identity can be reasonably traced between the human remains and associated funerary objects and any Indian Tribe.
• The human remains and associated funerary objects described in this notice were removed from the aboriginal land of the Apache Tribe of Oklahoma; Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana; Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Cheyenne and Arapaho Tribes, Oklahoma; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Comanche Nation, Oklahoma; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Crow Tribe of Montana; Fort Belknap Indian Community of the Fort Belknap Reservation of Montana;
Written requests for disposition of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization, or who shows that the requestor is an aboriginal land Indian Tribe.
Disposition of the human remains and associated funerary objects described in this notice to a requestor may occur on or after June 5, 2023. After that date, if no additional requestors have come forward, transfer of control of the human remains and associated funerary objects to the Northern Arapaho Tribe of the Wind River Reservation, Wyoming, may proceed. If competing requests for disposition are received, the University of Wyoming Human Remains Repository must determine the most appropriate requestor prior to disposition. Requests for joint disposition of the human remains and associated funerary objects are considered a single request and not competing requests. The University of Wyoming Human Remains Repository is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the U.S. Army Corps of Engineers, Savannah District, intends to repatriate certain cultural items that meet the definition of unassociated funerary objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural items were removed from Columbia County, GA.
Repatriation of the cultural items in this notice may occur on or after June 5, 2023.
Mr. Rodney Parker, Regulatory Archeologist and District Tribal Liaison, U.S. Army Corps of Engineers, Savannah District, 100 W Oglethorpe Avenue, Savannah, GA 31401, telephone (912) 652-5964, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the U.S. Army Corps of Engineers, Savannah District. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the U.S. Army Corps of Engineers, Savannah District.
Thirteen cultural items were removed from Columbia County, GA. Between 1948-1951, the National Park Service's River Basin Survey conducted archeological investigations at the Lake Springs Village site (9CB22), which is located within the former Clark's Hill Lake, today, Thurmond Lake. Subsequent excavations were conducted at this site by the Smithsonian Institution on behalf of the Savannah District in response to the imminent construction of Thurmond Lake. (Additional cultural objects and human remains removed from this site are housed at the Smithsonian Institution and are under its control.) The 13 unassociated funerary objects are two incised bone pendants, four worked bone fragments, two incised bones, one atlatl fragment/weight, one bear tooth pendant, two ceramic polishing stones, and one undrilled soapstone atlatl weight.
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, biological, geographical, historical, other relevant information, and expert opinion.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the U.S. Army Corps of Engineers, Savannah District, has determined that:
• The 13 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and The Muscogee (Creek) Nation.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after June 5, 2023. If competing requests for repatriation are received, the U.S. Army Corps of Engineers, Savannah District, must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The U.S. Army Corps of Engineers, Savannah District, is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Gilcrease Museum intends to repatriate certain cultural items that meet the definition of unassociated funerary objects, sacred objects, and objects of cultural patrimony and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural items were removed from unknown locations.
Repatriation of the cultural items in this notice may occur on or after June 5, 2023.
Laura Bryant, Gilcrease Museum, 800 S. Tucker Drive, Tulsa, OK 74104, telephone (918) 596-2747, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Gilcrease Museum. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the Gilcrease Museum.
Three cultural items were removed from unknown locations. Museum records do not provide details regarding the original acquisition of these items, except to note that two of them were donated to the Gilcrease Museum by different collectors who primarily collected in the latter half of the 20th century, and that one of them was purchased by Thomas Gilcrease in 1950 from Emil Lenders, an artist who traveled around the country at the turn of the 20th century. The three sacred objects and objects of cultural patrimony are pipe bags.
Six cultural items were removed from unknown locations. Museum records do not provide details regarding the original acquisition of these items, except to note that six of them were donated to the Gilcrease Museum by a collector who primarily collected in the latter half of the 20th century. The six unassociated funerary objects are pipe bags.
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, historical, and oral traditional.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the Gilcrease Museum has determined that:
• Six of the cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Three of the cultural items described above both are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents and have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and the Cheyenne and Arapaho Tribes, Oklahoma.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after June 5, 2023. If competing requests for repatriation are received, the Gilcrease Museum must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The Gilcrease Museum is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the U.S. Army Corps of Engineers, Savannah District, has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human
Repatriation of the human remains and associated funerary objects in this notice may occur on or after June 5, 2023.
Mr. Rodney Parker, Regulatory Archeologist and District Tribal Liaison, U.S. Army Corps of Engineers, Savannah District, 100 W Oglethorpe Avenue, Savannah, GA 31401, telephone (912) 652-5964, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the U.S. Army Corps of Engineers, Savannah District. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the U.S. Army Corps of Engineers, Savannah District.
Human remains representing, at minimum, six individuals were removed from Columbia County, GA. Between 1948-1951, the National Park Service's River Basin Survey conducted archeological investigations at the Lake Springs Village site (9CB22), located within the former Clark's Hill Lake, now Thurmond Lake. Subsequent excavations at this site were conducted by the Smithsonian Institution on behalf of the Savannah District in response to the imminent construction of Thurmond Lake. The human remains belong to four adults, one of whom is likely male, and two individuals for whom no further information is available. No known individuals were identified. (Additional human remains and cultural objects removed from this site are housed at the Smithsonian Institution and are under its control.) The 425 associated funerary objects are two rocks, three wood fragments, one lot of soil matrix, two bone tools, 21 gastropod shells, one matrix nodule with bone, one lot of bone and shell in matrix, six turtle shell fragments, 185 faunal remains, 99 potsherds, six projectile points, one quartz projectile point, 38 lithics, one petrified wood, one biface, 14 noncultural objects, two fire-cracked rocks, two worked bones, 22 shell, four flakes, one projectile point base, one quartz nodule, one quartz thumb scraper, two worked quartz, and eight unidentified clay items.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, biological, geographical, historical, other relevant information, and expert opinion.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the U.S. Army Corps of Engineers, Savannah District, has determined that:
• The human remains described in this notice represent the physical remains of six individuals of Native American ancestry.
• The 425 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and The Muscogee (Creek) Nation.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after June 5, 2023. If competing requests for repatriation are received, the U.S. Army Corps of Engineers, Savannah District, must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The U.S. Army Corps of Engineers, Savannah District, is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Illinois State Museum has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from multiple locations in Arkansas, including Craighead, Crittenden, Cross, and Lonoke Counties, and an unknown Arkansas locale.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after June 5, 2023.
Brooke M. Morgan, Illinois State Museum Research & Collections Center, 1011 East Ash Street, Springfield, IL 62701, telephone (217) 785-8930, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Illinois State Museum. The National Park Service is
Sometime between 1956 and 1960, human remains representing, at minimum, two individuals were removed from the Lawhorn site in Craighead County by John Moselage. In 1960, faunal remains from this site were transferred to the Illinois State Museum for Paul Parmalee to analyze. During that analysis, fragmentary human skeletal remains were identified. No associated funerary objects are present. The Lawhorn site dates to the Mississippian period, with earlier Woodland components present to a lesser extent.
On December 28, 1962, human remains representing, at minimum, two individuals were removed from the McDuffee site (32CG21) in Craighead County by Gregory Perino. In 1963, faunal remains from this site were transferred to the Illinois State Museum for Paul Parmalee to analyze. During that analysis, fragmentary human skeletal remains were identified. No associated funerary objects are present. The McDuffee site dates to the Mississippian period.
Sometime between 1957 and 1959, human remains representing, at minimum, 10 individuals were removed from the Banks site (3CT16) in Crittenden County by Gregory Perino of the Gilcrease Foundation. In 1959, together with faunal remains for Paul Parmalee to analyze, these human remains were transferred to the Illinois State Museum. Nine of these individuals are largely represented by isolated postcranial elements, while the tenth individual, an adult male, is represented by a nearly complete skeleton. The one associated funerary object is one lot of mussel shell. The Banks site dates to the Nodena Phase of the Mississippian period.
On an unknown date, human remains representing, at minimum, one individual were removed from Crittenden County. In 1967, these human remains were transferred from a private collection to the Illinois State Museum. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from Crittenden County. In 2009, these human remains were donated from a private estate to the Illinois State Museum. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from the Rose Mound site (3CS27) in Cross County and later donated to the Quincy Museum in Quincy, IL. In 1991, these human remains were transferred to the Illinois State Museum. No associated funerary objects are present. Rose Mound dates to the Parkin Phase of the Mississippian period.
On an unknown date, human remains representing, at minimum, one individual were removed from “a mound near Little Rock,” most likely Toltec Mounds (3LN42) in Lonoke County. In 1967, these human remains were transferred from a private collection to the Illinois State Museum. No associated funerary objects are present. Toltec Mounds dates to the Late Woodland (Plum Bayou culture) and Quapaw Phase of the Mississippian period.
On an unknown date, human remains representing, at minimum, one individual were removed from an unknown location in Arkansas. In 1967, these human remains were transferred from a private collection to the Illinois State Museum. No associated funerary objects are present.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, geographical, historical, and oral traditional.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the Illinois State Museum has determined that:
• The human remains described in this notice represent the physical remains of 19 individuals of Native American ancestry.
• The one object described in this notice is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Quapaw Nation.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after June 5, 2023. If competing requests for repatriation are received, the Illinois State Museum must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The Illinois State Museum is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
Bureau of Ocean Energy Management (BOEM), Interior.
List of restricted joint bidders.
Pursuant to the Energy Policy and Conservation Act of 1975 and BOEM's regulatory restrictions on joint bidding, BOEM is publishing this list of restricted joint bidders. Each entity within one of the following groups is restricted from bidding with any entity in any of the other groups listed below
This list of restricted joint bidders covers the bidding period of May 1, 2023, through October 31, 2023, and succeeds all prior published lists.
Even if an entity does not appear on the above list, BOEM may disqualify and reject certain joint or single bids submitted by an entity if that entity is chargeable for the prior production period with an average daily production in excess of 1.6 million barrels of crude oil, natural gas, and natural gas liquids.
Bureau of Ocean Energy Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act (NEPA) of 1969, as amended, the Bureau of Ocean Energy Management (BOEM) intends to prepare an environmental assessment (EA) to consider the reasonably foreseeable environmental consequences associated with the issuance of a research lease to the State of Maine. That lease would grant Maine the exclusive right to submit, for BOEM's potential approval, plans for wind energy-related research activities offshore Maine. BOEM is seeking public input regarding important environmental issues and the identification of reasonable alternatives that should be considered in the EA.
BOEM must receive your comments no later than June 5, 2023.
You may submit comments by either of the following methods:
•
• By U.S. Postal Service or other delivery service, send your comments and information to the following address: Bureau of Ocean Energy Management, Office of Renewable Energy Programs, 45600 Woodland Road, Mail Stop VAM-OREP, Sterling, VA 20166.
Jessica Stromberg, BOEM, Environment Branch for Renewable Energy, 45600 Woodland Road, Mail Stop VAM-OREP, Sterling, VA 20166, 703-787-1730, or
On March 20, 2023, BOEM issued a notice that competitive interest did not exist in the area proposed for a research lease by the State of Maine (88 FR 16662). Thus, BOEM has decided to proceed with the research leasing process using the procedures described in 30 CFR 585.239. The next step in that process includes initiating an environmental review of potential impacts from activities associated with the research lease, if issued.
The proposed action that will be the subject of the EA is the issuance of a research lease. In addition to the no action alternative (no lease issuance), other alternatives may be considered, such as exclusion of certain areas from project siting or modification of project activities. The EA will consider the reasonably foreseeable environmental consequences associated with lease issuance that are expected to take place following issuance of a research lease to the State of Maine, including the potential impacts of site characterization surveys and site assessment activities, such as the deployment and recovery of a meteorological buoy. BOEM has decided to prepare an EA for this proposed action in order to assist agency's planning and decision making (40 CFR 1501.5(b)). This notice starts the formal scoping process for the EA under 40 CFR 1501.9 and solicits information regarding additional important environmental issues and alternatives that should be considered in the EA. Additionally, BOEM will use the scoping process to identify and eliminate from detailed analysis issues that are not significant or that have been analyzed by prior environmental reviews (40 CFR 1501.9(f)(1)).
BOEM will use responses to this notice and the EA public input process to satisfy the public involvement requirements of the National Historic Preservation Act (54 U.S.C. 306108), as provided in 36 CFR 800.2(d)(3). Consequently, BOEM seeks information from the public on the identification of historic properties that might be impacted by the leasing activities should BOEM decide to issue the research lease. The analyses contained within the EA also will support compliance with other environmental statutes (
The research lease would not authorize any activities on the Outer Continental Shelf, but would grant the State of Maine the exclusive rights to submit plans for BOEM approval. Prior to the approval of any plan authorizing the construction and operation of wind
BOEM invites Federal, State, and local government agencies, as well as Tribal governments, to consider becoming cooperating agencies in the preparation of this EA. Council on Environmental Quality (CEQ) regulations implementing the procedural provisions of NEPA defines cooperating agencies as those with “jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a reasonable alternative)” (40 CFR 1508.1(e)). Potential cooperating agencies should consider their authority and capacity to assume the responsibilities of a cooperating agency and remember that an agency's role in the environmental analysis neither enlarges nor diminishes the final decision-making authority of any other agency involved in the NEPA process.
Upon request, BOEM will provide potential cooperating agencies with a draft memorandum of agreement that includes a schedule with critical action dates and milestones, mutual responsibilities, designated points of contact, and expectations for handling pre-decisional information. Agencies should also consider the “Factors for Determining Whether to Invite, Decline or End Cooperating Agency Status” in attachment 1 to CEQ's January 30, 2002, memorandum for Federal agencies titled, “Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act.” A copy of this document is available at:
BOEM, as the lead agency, will not provide financial assistance to cooperating agencies. Even if an organization is not a cooperating agency, opportunities will exist to provide information and comments to BOEM during the normal public input phases of the NEPA and EA process.
Federal, State, local government agencies, Tribal governments, and other interested parties are requested to send their written comments on the important issues to be considered in the EA by either of the following methods:
1.
2. By U.S. Postal Service or other delivery service, send your comments and information to the following address and marked “Gulf of Maine Research Lease EA”: Bureau of Ocean Energy Management, Office of Renewable Energy Programs, 45600 Woodland Road, Mail Stop VAM-OREP, Sterling, VA 20166.
BOEM will protect privileged or confidential information that you submit when required by the Freedom of Information Act (FOIA). Exemption 4 of FOIA applies to trade secrets and commercial or financial information that is privileged or confidential. If you wish to protect the confidentiality of such information, clearly label it and request that BOEM treat it as confidential. BOEM will not disclose such information if BOEM determines under 30 CFR 585.114(b) that it qualifies for exemption from disclosure under FOIA. Please label privileged or confidential information “Contains Confidential Information” and consider submitting such information as a separate attachment.
BOEM will not treat as confidential any aggregate summaries of such information or comments not containing such privileged or confidential information. Information that is not labeled as privileged or confidential may be regarded by BOEM as suitable for public release.
BOEM encourages you not to submit anonymous comments. Please include your name and address as part of your comment. You should be aware that your entire comment, including your name, address, and any personally identifiable information (PII) included in your comment, may be made publicly available. All submissions from identified individuals, businesses, and organizations will be available for public viewing on
For BOEM to consider withholding your PII from disclosure, you must identify any information contained in your comments that, if released, would constitute a clearly unwarranted invasion of your personal privacy. You must also briefly describe any possible harmful consequences of the disclosure of information, such as embarrassment, injury, or other harm. Even if BOEM withholds your information in the context of this rulemaking, your submission is subject to FOIA and, if your submission is requested under the FOIA, your information will only be withheld if a determination is made that one of the FOIA's exemptions to disclosure applies. Such a determination will be made in accordance with the Department's FOIA regulations and applicable law.
After consultation with the Secretary, BOEM is required to withhold the location, character, or ownership of historic resources if it determines that disclosure may, among other things, risk harm to the historic resources or impede the use of a traditional religious site by practitioners. Tribal entities should designate information that falls under section 304 of NHPA as confidential.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before July 3, 2023.
Send your comments on this information collection request (ICR) by mail to Mark Gehlhar, Office of
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) is the collection necessary to the proper functions of the agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. 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 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
Bureau of Justice Statistics, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until June 5, 2023.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact the Bureau of Justice Statistics, 810 Seventh Street NW, Washington, DC 20531; telephone (202) 307-0765 or send an email to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Overview of this information collection:
1.
2.
3.
4.
5.
6.
7.
8.
9.
If additional information is required, contact: John R. Carlson, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, 4W-218 Washington, DC 20530.
Veterans' Employment and Training Service (VETS), Department of Labor (DOL).
Notice of ACVETEO charter renewal.
In accordance with section 4110 of Title 38, U.S. Code, and the provisions of the Federal Advisory Committee Act (FACA) and its implementing regulations issued by the U.S. General Services Administration (GSA), the Secretary of Labor is renewing the charter for the Advisory Committee on Veterans' Employment, Training, and Employer Outreach (ACVETEO).
The ACVETEO's responsibilities are to: (a) assess employment and training needs of veterans and their integration into the workforce; (b) determine the extent to which the programs and activities of the Department of Labor (DOL) are meeting such needs; (c) assist the Assistant Secretary for Veterans' Employment and Training (ASVET) in conducting outreach to employers with respect to the training and skills of veterans and the advantages afforded employers by hiring veterans; (d) make recommendations to the Secretary of Labor, through the ASVET, with respect to outreach activities and the employment and training needs of veterans; and (e) carry out such other activities deemed necessary to make required reports and recommendations under Section 4110(f) of Title 38, U.S. Code.
Per Section 4110(c)(1) of Title 38, U.S. Code, the Secretary of Labor shall appoint at least twelve, but no more than sixteen, individuals to serve as Special Government Employees of the ACVETEO as follows: seven individuals, one each from the following organizations: (i) the Society for Human Resource Management; (ii) the Business Roundtable; (iii) the National Association of State Workforce Agencies; (iv) the United States Chamber of Commerce; (v) the National Federation of Independent Business; (vi) a nationally recognized labor union or organization; and (vii) the National Governors Association. The Secretary shall appoint not more than five individuals nominated by veterans' service organizations that have a national employment program and not more than five individuals who are recognized authorities in the fields of business, employment, training, rehabilitation, or labor and who are not employees of DOL. Members will serve as Special Government Employees.
The ACVETEO will function in compliance with the provisions of the FACA, and its charter will be filed under the FACA. For more information, contact Gregory B. Green, Designated Federal Official, ACVETEO, U.S. Department of Labor, 200 Constitution Ave NW, Washington, DC 20210; via email to Mr. Gregory Green, Designated Federal Official for the ACVETEO,
Office of the Assistant Secretary for Policy, Chief Evaluation Office, Department of Labor.
Notice of information collection; request for comment.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). 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 is properly assessed. Currently, the Department of Labor is soliciting comments concerning the collection of data about the Enhancing Registered Apprenticeship Initiatives. A copy of the proposed Information Collection Request (ICR) can be obtained by contacting the office listed below in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee section below on or before July 3, 2023.
You may submit comments by either one of the following methods:
Monica Mean by email at
I.
(1) Design and conduct analyses that add to the evidence base on apprenticeship strategies and models through an evaluation of the Apprenticeship Building American (ABA) grants.
(2) Conduct an impact and cost-benefit evaluability assessment of pre-registered apprenticeship programs that lead to registered apprenticeship programs (RAPs).
(3) Coordinate across the portfolio of apprenticeship projects at CEO and beyond to facilitate sharing of findings, methods, and learning about apprenticeship broadly across research teams.
DOL's CEO contracted with Urban Institute and its partners, Mathematica, and Social Policy Research Associates to conduct the study of these efforts. The ERAI will address the first purpose above by conducting three implementation studies based on the four categories of the ABA grants:
This
DOL will submit additional requests for future data collection for the overall study.
II.
• 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.
• 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—for example, permitting electronic submission of responses.
III.
Comments submitted in response to this request will be summarized and/or included in the request for Office of
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Human Exploration and Operations Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC.
Monday, May 15, 2023, 9:30 a.m. to 12:35 p.m.; and Tuesday, May 16, 2023, 9:00 a.m. to 4:00 p.m., Eastern Time.
Public attendance will be virtual. Webex and dial-in information is below under
Dr. Bette Siegel, Designated Federal Officer, Human Exploration and Operations Committee, NASA Headquarters, Washington, DC 20546, via email at
As noted above, this meeting will be open to the public via Webex and telephonically. Webex connectivity information is provided below. For audio, when joining the Webex event, you may use your computer or provide your phone number to receive a call back, otherwise, call the U.S. toll conference number listed.
On Monday, May 15, and Tuesday, May 16, the event address for attendees is:
The event number is 2764 745 8303 and the event password is
The agenda for the meeting includes the following topics:
It is imperative that this meeting be held on this day to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a joint meeting of the Human Exploration and Operations Committee, and the Technology, Innovation and Engineering Committee, of the NASA Advisory Council (NAC). These two committees report to the NAC.
Monday, May 15, 2023, 1:35 p.m. to 5:30 p.m., Eastern Time.
Public attendance will be virtual. Webex and dial-in information is below under
Dr. Bette Siegel, Designated Federal Officer, Human Exploration and Operations Committee, NASA Headquarters, Washington, DC 20546, via email at
As noted above, this meeting will be open to the public via Webex and telephonically. Webex and dial-in connectivity information is provided below. For audio, when you join the Webex event, you may use your computer or provide your phone number to receive a call back, otherwise, call the U.S. toll conference number listed.
On Monday, May 15, the event address for attendees is:
The event number is 2764 745 8303 and the event password is pMeATbJ@282. If needed, the U.S. toll conference number is 1-929-251-9612 or 1-415-527-5035 and access code is 2764 745 8303.
The agenda for the meeting includes the following topics:
• Transitioning and infusing technologies into Artemis Missions.
• Update on In-Situ Resource Utilization (ISRU) investments.
• Update on Nuclear investments.
It is imperative that this meeting be held on this day to accommodate the scheduling priorities of the key participants.
The National Science Board's (NSB) NSB-NSF Commission on Merit Review hereby gives notice of the scheduling of a videoconference meeting for the transaction of National Science Board business pursuant to the National Science Foundation Act and the Government in the Sunshine Act.
Monday, May 8, 2023, from 9:00 a.m.-12:00 p.m. EDT.
This meeting will be at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, and by videoconference.
Open.
The agenda of the meeting is: Chair's opening remarks; commission planning; discussion of current merit review policy.
Point of contact for this meeting is: (Chris Blair,
The two meetings described here were noticed on April 28, 2023, at 88 FR 26347.
Wednesday, May 3, 2023, from 2:00-3:00 p.m. EDT.
Monday, May 8, 2023, from 1:00-5:00 p.m. EDT.
The May 3, 2023, meeting is CANCELLED.
The agenda item from that meeting, Antarctic Infrastructure Recapitalization (AIR) Program, is ADDED to the Monday, May 8, 2023, meeting.
Point of contact for this meeting is: Chris Blair,
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces its intent to hold proposal review meetings throughout the year. The purpose of these meetings is to provide advice and recommendations concerning proposals submitted to the NSF for financial support. The agenda for each of these meetings is to review and evaluate proposals as part of the selection process for awards. The review and evaluation may also include assessment of the progress of awarded proposals. The majority of these meetings will take place at NSF, 2415 Eisenhower Avenue, Alexandria, VA 22314.
These meetings will be closed to the public. The proposals being reviewed include information of a proprietary or confidential nature, including technical information; financial data, such as salaries; and personal information concerning individuals associated with the proposals. These matters are exempt under 5 U.S.C. 552b(c), (4) and (6) of the Government in the Sunshine Act. NSF will continue to review the agenda and merits of each meeting for overall compliance of the Federal Advisory Committee Act.
These closed proposal review meetings will not be announced on an individual basis in the
Nuclear Regulatory Commission.
Request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is requesting information aimed at understanding the current state-of-art in approaches to radiological survey (
Submit comments by June 5, 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:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Cynthia Barr, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-4015; email:
Please refer to Docket ID NRC-2023-0067 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:
•
•
•
The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is evaluating its readiness to evaluate new forms of data being submitted by licensees to demonstrate compliance with license termination rule (LTR) criteria promulgated in subpart E of part 20 of title 10 of the
Comments received on draft NUREG-1575, Revision 2, “Multi-Agency Radiation Survey and Site Investigation Manual” (MARSSIM) (ADAMS Accession No. ML21008A573), indicated the need for development of statistical and uncertainty
Because MARSSIM only addresses radiological surveys for surface residual radioactivity, additional guidance is also needed on surveys of radiologically contaminated subsurface materials. The MARSSIM methodology relies heavily on scan surveys to evaluate the presence of elevated areas between discrete sample locations. Subsurface soils cannot be effectively scanned due to attenuation of residual radioactivity in the soil column and, therefore, scanning is only effective for surface or excavated materials. Thus, NRC licensees could benefit from additional information regarding acceptable methods for collecting and analyzing data in the subsurface to support decommissioning sites and license termination. Proposed NRC guidance topics include approaches to optimizing subsurface survey design given access difficulties and costly sampling, and data analysis methods to support remedial and compliance decision-making.
The NRC requests comments from stakeholders, including nuclear licensees, professional organizations, nuclear industry consultants, vendors, academic researchers, and interested individuals. The focus of this request is to obtain responses aimed at gathering information that will permit the NRC staff to better understand trends in radiological survey instrumentation development and data analysis approaches, including those for survey of both surface and subsurface residual radioactivity.
Additional guidance is needed to provide NRC licensees with increased transparency on acceptable approaches to collection and analysis of data collected using more modern data logging systems and associated instrumentation. Additionally, guidance is needed on acceptable approaches for radiological survey of subsurface residual radioactivity to demonstrate compliance with radiological criteria for license termination.
The NRC requests responses to a set of general questions. The following questions are focused on providing the NRC with an understanding of the state-of-art in approaches used to collect and process radiological survey and other data (surface and subsurface) to support decommissioning and license termination. Responses to these questions are expected to assist the NRC with obtaining information that it needs to develop guidance in the areas of (i) design and analysis of continuously collected radiological survey data without a surveyor listening to the audible output, and (ii) subsurface survey design optimization and data analysis to support decommissioning decision-making. Respondents can respond to any subset of the questions posed (
When answering these questions, consider providing details on when multiple systems are used for redundancy and/or variety and how that influences your response.
1. What types of system(s) or equipment (
2. What methods do you use to calculate scan minimum detectable concentrations to ensure sufficient sensitivity to detect risk-significant levels of residual radioactivity or to better understand measurement uncertainty?
3. What methods have you used to post-process data to identify areas for follow-up investigation (
4. Have you experienced technical issues with data collection and analysis during previous surveys and what methods did you use to troubleshoot those issues? Do you have any lessons learned you could share related to the technical issues?
5. What areas do you see as challenges or gaps to radiological survey design and data analysis that could be addressed in future guidance (
6. What types of instrumentation and approaches do you use to collect subsurface radiological survey data in the field? Specifically, what types of instrumentation and approaches has your organization used to perform surveys of hard to access locations in the subsurface (embedded piping, sumps, soils located at depth or underneath buildings, and bedrock)?
7. What types of methods and software (
8. What statistical approaches have you used to show subsurface residual radioactivity meets release standards including consideration of uncertainty (
9. What approaches have you used to optimize subsurface survey designs including initial scoping to final status survey designs (
10. What areas do you see as challenges or gaps with respect to subsurface surveys and data analysis that could be addressed in future guidance or tool development?
For the Nuclear Regulatory Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 26, 2023, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 28, 2023, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rule 3110 (Supervision) to adopt a voluntary, three-year remote inspections pilot program to allow member firms to elect to fulfill their obligation under paragraph (1) to Rule 3110(c) (Internal Inspections) by conducting inspections of some or all branch offices and locations remotely without an on-site visit to such office or location, subject to specified terms. As detailed below, the key terms would include, among others: (1) a requirement for a firm to conduct and document a risk assessment for inspecting an office or location remotely and providing a non-exhaustive list of factors to consider for this risk assessment; (2) criteria that would make a member firm ineligible to participate in the program; (3) conditions a member firm must satisfy before becoming a pilot program participant relating to the firm's recordkeeping system, and surveillance and technology tools; (4) criteria that would make ineligible for remote inspection certain member firm offices or locations; (5) conditions a member firm's office or location must satisfy to be able to undergo a remote inspection relating to electronic communications, correspondence, and books and records; (6) a requirement that a participating firm provide FINRA specified data and information on a quarterly basis; and (7) authorization for FINRA to determine in the public interest that a firm is no longer eligible to participate in the proposed program.
The proposed Remote Inspections Pilot Program would not change the current requirements under Rule 3110(c). Instead, the proposed program would provide firms the flexibility to satisfy their Rule 3110(c)(1) inspection obligation with or without an on-site visit to the office or location, subject to the proposed terms described herein. FINRA believes that proposed Rule 3110.18, on balance, preserves investor protection objectives through the proposed safeguards while also providing FINRA the opportunity to gauge the effectiveness of remote inspections as part of a modernized, reasonably designed supervisory system that reflects the current work environment and availability of technologies that did not exist when the on-site inspection originally was conceived.
Subject to further clarifications to proposed Rule 3110.18 as described below, the terms of the proposed rule change herein are largely similar to File No. SR-FINRA-2022-021 filed in July 2022,
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The responsibility of firms to supervise their associated persons is a critical component of broker-dealer regulation.
Before the adoption of Rule 3110(c) in its current form as described below, FINRA's (then NASD's) Rules of Fair Practice
The expanded review requirement included, among other things, an inspection of branch offices in accordance with a schedule as set forth in the member's supervisory procedures.
The guidance about the effective supervision of “off-site representatives” and what an inspection entailed was pragmatic at a time when business activities were conducted primarily using paper documents
Currently, Rule 3110(c) sets forth three main requirements for inspections. First, an inspection of an office or location must occur on a designated frequency. The periodicity of the required inspection varies depending on the classification of the location or the nature of the activities that take place: OSJs and supervisory branch offices must be inspected at least annually;
Further, Rule 3110.12 (Standards for Reasonable Review) sets out factors that constitute a reasonable review. This provision emphasizes establishing reasonable supervisory procedures and conducting reviews of locations, taking into consideration, among other things, the member's size, organizational structure, scope of business activities, number and location of the member's offices, the nature and complexity of the products and services offered by the member, the volume of business done, the number of associated persons assigned to a location, the disciplinary history of registered representatives or associated persons, and any indicators of irregularities or misconduct (
In 2004, the SEC staff similarly provided guidance to broker-dealers on supervision principles.
Over the years, widespread advancements in technology and communications in the financial industry have significantly changed the way in which members and their associated persons conduct their business and communicate, including the practices that formed the original bases for the on-site inspection. For
In addition, the progressive digitization of firm data and the centralization of control functions have converged, with significant advantages for a firm's supervision of its business, including monitoring of an associated person's activities and conducting inspections. Today, many firms capture the lifecycle of an associated person's activities with a firm, as well as a customer's interactions with the firm, in digital audit trails. Such activities include, for example, information about associated persons and customers obtained at the account opening process; communications between associated persons and customers or among associated persons; order and trade activity; and money and security movements in customer accounts. As a result, a firm can monitor the activities of its associated persons and customers continuously, on a real-time or near-real time basis, and react promptly to actual or potential exceptions to routine behaviors, rather than depend on a “point-in-time” office inspection visit on a prescribed schedule.
Further, increased digitization has centralized elements of firm compliance and supervisory functions, and these centralized functions have become the front line in supervision and surveillance. Rather than having a firm's compliance personnel walk around an office or location during an inspection to identify potential problems or to gather on-site intelligence—an approach that relies on chance encounters such as overhearing an associated person making a sales pitch to a customer for a product a firm is not approved to sell or observing an associated person cutting and pasting a customer signature onto a form—digitization now allows a firm to readily “walk around the data,” reducing the member's dependence on on-site intelligence because most of activities occurring at an office or location are electronically captured. The technology-driven environment has provided firms the opportunity to develop a more holistic view of a firm's risk management programs, fostering a more efficient and timely response to areas of concern. For example, centralized control functions strengthen supervision by enabling a firm to implement more frequent or ongoing, repeatable, consistent, and highly scalable approaches to analyzing the activities of associated persons across dispersed offices and locations, creating a level of process discipline not previously achievable in the past. These centralized control functions allow a firm to identify potential areas of concern, and implement targeted solutions or preventative measures in a more timely manner. For example, a fraud specialist team may identify a new fraud scenario and then promptly implement a new surveillance pattern to identify red flags for this behavior throughout the firm. A firm may also use in-house or vendor-created technologies to regularly adjust and “right size” its surveillance alerts and patterns. For example, a firm may quickly adjust its email review lexicons to surveil communications relating to any topic or term.
FINRA notes that firms are turning to new and innovative regulatory tools such as artificial intelligence, natural language processing, and robotics process automation, among others, to strengthen their compliance programs.
The COVID-19 pandemic, identified in early 2020,
Firms have also conveyed that the flexibility of hybrid work has made a positive impact in attracting more diverse talent and retaining existing talent. These views are consistent with those expressed by several commenters in response to the Initial Rule Filing.
Over the last decade, FINRA has observed that the widespread advances in technology in the financial industry, including the progressive digitization of data and the centralization of control functions, have given firms the greater ability to continuously monitor for, identify and investigate atypical behaviors or patterns. With this evolution, the importance of on-site inspections as a primary means to identify non-compliant conduct at all offices and locations has seemingly diminished. Inspection practices that previously depended on an on-site presence at an office or location included, for example, reviewing paper-based books and records (
As firms are working in a progressively more digitized environment and operating under a system of controls that has become more centralized, FINRA has observed that in general, much of the work traditionally associated with an on-site inspection takes place before the on-site visit. For example, efforts to investigate potential undisclosed outside business activities or evidence of a registered person's lifestyle that may not be commensurate with the person's revenue production at the firm are accomplished through general internet searches of social media and public records; and irregular customer account activity, trading activity, and written communications are reviewed through the firm's electronic systems. The pandemic has revealed the pragmatism of satisfying
In 2022, FINRA examined several firms, including those that operate under an independent contractor business model and others with branch office networks, to test their compliance with Rule 3110.17, the temporary provision that provides firms the option, subject to the specified requirements under that supplementary material, to complete their calendar year inspection obligations remotely without an on-site visit to the office or location.
Even prior to the pandemic, in 2017, FINRA considered a proposal to give firms the option of satisfying the inspection requirement remotely for “qualifying offices” that met specified criteria.
The ensuring pandemic-related operational changes made it impracticable for member firms to conduct the on-site inspection component of Rule 3110(c) at most offices and locations because of limitations on travel to geographically dispersed OSJs, branch offices, and non-branch locations. In response to the logistical challenges, FINRA extended the time by which member firms were required to complete their calendar year 2020 inspection obligations under Rule 3110(c) to March 31, 2021 with the expectation that the extension did not relieve firms from the on-site portion of the inspections of their offices and locations.
Through comments to the 2017 Proposal,
Rule 3110.17 was adopted in the midst of the pandemic, when many offices and locations were forced to close to allow employees to carry on with their responsibilities from alternative worksites. This relief has been extended as pandemic concerns continued.
Based on the foregoing, in July 2022, FINRA filed the Initial Rule Filing to amend Rule 3110 to adopt proposed Rule 3110.18 to establish a voluntary, three-year remote inspection pilot program, under terms based largely on Rule 3110.17, but with significant safeguards that would have allowed FINRA the opportunity to collect specified data from pilot program participants to evaluate their experiences and inspection findings in a uniform, comparable manner in the context of then emerging hybrid work model. The SEC twice published the Initial Rule Filing for public comment, which elicited responses from many individuals, broker-dealers, law schools, and trade organizations and other associations, including the Securities Industry and Financial Markets Association, the North American Securities Administrators Association, Inc. (“NASAA”) and the Public Investors Advocate Bar Association (“PIABA”).
FINRA submitted a letter responding to comments
Proposed Rule 3110.18, which sets forth the terms of the proposed pilot program, would build largely on the terms of Rule 3110.17 and retain the key changes as proposed in the 2022 Remote Inspections Pilot Program Rule Filing, including the areas pertaining to the risk assessment, written supervisory procedures, the firm level condition relating to surveillance and technology tools, and FINRA's determination of ineligibility for pilot participation.
FINRA anticipates that the proposed pilot program will provide broader systemized information to supplement
FINRA is wholly dedicated to ensuring effective firm supervision as a bulwark against misconduct or misadventure that could harm investors. To this end, FINRA has been in the forefront of developing strong supervision standards for member firms. As FINRA emphasized in the proposed rule change to adopt Rule 3110.17, the responsibility of firms to supervise their associated persons on a day-to-day basis is a critical component of broker-dealer regulation.
Consistent with the 2022 Remote Inspections Pilot Program Rule Filing, proposed Rule 3110.18(a) would apply to the required inspections of OSJs, branch offices, and non-branch locations under the applicable provisions under Rule 3110(c)(1) for a pilot period of three years starting on the effective date, and expiring on a date that is three years after the effective date. If the proposed pilot program is not extended or Rule 3110.18, as may be amended, is not approved as permanent by the SEC, the proposed supplementary material would automatically sunset on a date that is three years after the effective date. In addition, proposed Rule 3110.18(a) would expressly state that members would not be able to participate in the proposed pilot program after it expires.
As described above, Rule 3110(c)(1) provides that an inspection of an office or location must occur on a designated frequency, and the periodicity of the required inspection varies depending on the classification of the location as an OSJ, branch office or non-branch location. Subject to the proposed provisions relating to written supervisory procedures, and the firm and location level requirements as described below, proposed Rule 3110.18(b)(1) would provide that a member firm may elect to conduct the applicable inspection of an office or location during the pilot period remotely, without necessarily an on-site visit for the office or location, when the member reasonably determines that the purposes of the rule can be accomplished by conducting such required inspection remotely.
Consistent with the 2022 Remote Inspections Pilot Program Rule Filing, proposed Rule 3110.18(b)(1) would provide that prior to electing a remote inspection for an office or location, rather than an on-site inspection, the firm must develop a reasonable risk-based approach to using remote inspections and conduct and document a risk assessment for that office or location. The assessment must document the factors considered, including the factors set forth in Rule 3110.12, and must take into account any higher risk activities that take place or higher risk associated persons that are assigned to that location. FINRA expects that higher risk factors at a particular location would cause a firm to conduct on-site inspections of such location. Further, under the proposed supplementary material, a member that is not eligible to conduct remote inspections under paragraphs (f) or (g) under proposed Rule 3110.18, pertaining to firm level and location level requirements, respectively, must conduct an on-site inspection of that office or location on the required cycle. Finally, notwithstanding the pilot program, a member would remain subject to the other requirements and limitations of Rule 3110(c).
Consistent with the Amended Rule Filing, FINRA is proposing to set forth a non-exhaustive list of factors that a firm must consider and document as part of the risk assessment. Proposed Rule 3110.18(b)(2) would provide that in addition to the requirements under proposed Rule 3110.18(b)(1), a member would be required to consider other factors in making its risk assessment for remotely inspecting an office or location. These factors would include, among others: (1) the volume and nature of customer complaints; (2) the volume and nature of outside business activities, particularly investment-related; (3) the volume and complexity of products offered; (4) the nature of the customer base, including vulnerable adult investors; (5) whether associated persons are subject to heightened supervision; (6) failures by associated persons to comply with the member's written supervisory procedures; and (7) any recordkeeping violations. In addition, proposed Rule 3110.18(b)(2) would provide that, consistent with Rule 3110.12, members should conduct on-site inspections or make more frequent use of unannounced, on-site inspections for high-risk offices or locations or where there are indicators of irregularities or misconduct (
In response to the Amended Rule Filing, NASAA recommended that in the absence of an affirmative on-site inspection requirement, a firm should be required to document its reasons for not conducting an on-site inspection of an office or location, particularly if high
As part of an effective supervisory system tailored specifically to the member firm's business and the activities of all its associated persons, a member must establish and maintain written procedures.
Currently, Rule 3110.17(b) expressly provides that consistent with a member's obligation under Rule 3110(b)(1), a member that elects to conduct each of its inspections in the specified calendar years remotely must amend or supplement its written supervisory procedures to provide for remote inspections that are reasonably designed to assist in detecting and preventing violations of and achieving compliance with applicable securities laws and regulations, and with applicable FINRA rules. In addition, under Rule 3110.17(b), reasonably designed procedures for conducting remote inspection of offices or locations should include, among other things, a description of the methodology, including technologies permitted by the member, that may be used to conduct remote inspections. Further, such procedures should include the use of other risk-based systems employed generally by the member firm to identify and prioritize for review those areas that pose the greatest risk of potential violations of applicable securities laws and regulations, and of applicable FINRA rules.
In response to this proposed provision, NASAA stated that a firm's written supervisory procedures should require more prescriptive details such as specifying the technologies a firm would be using “for what purposes[,]” and providing evidence of firm personnel's accessibility to and proficiency with those technologies; describing the circumstances under which a firm would conduct an on-site inspection in the “ordinary course” and as a result of risk indicators and red flags; indicating “whether the firm [intended] to conduct unannounced inspections, how the firm intend[ed] to do so remotely, and whether certain factors might influence the firm's decision to do so in particular [circumstances];” and describing “how [a] firm will use its remote inspection procedures to control for the possibility of active deception.”
After considering the specific details recommended by NASAA, FINRA is proposing to largely retain the terms as proposed in the 2022 Remote Inspections Pilot Program Rule Filing as consistent with the tenor of other provisions of Rule 3110. Proposed Rule 3110.18(c) would provide that consistent with a member's Rule 3110(b) obligations, a member that elects to participate in the proposed remote inspection pilot program must adopt written supervisory procedures regarding remote inspections that are reasonably designed to detect and prevent violations of and achieve compliance with applicable securities laws and regulations, and with applicable FINRA rules. Further, under the proposed provision, reasonably designed procedures for conducting remote inspections of offices or locations must address, among other things: (1) the methodology, including technology, that may be used to conduct remote inspections; (2) the factors considered in the risk assessment made for each applicable office or location pursuant to proposed Rule 3110.18(b); (3) the procedures specified in paragraphs (h)(1)(G) and (h)(4) under
While the details identified by NASAA may be useful elements for firms to consider in devising reasonably designed procedures, FINRA believes that proposed Rule 3110.18(c), read in conjunction with proposed Rule 3110.18(d), as described below, would provide the appropriate level of direction for firms with respect to technology, the areas that written policies and procedures must address, and the use of other risk-based systems while also staying aligned with the principles underlying Rule 3110. FINRA expects firms to take into account the factors affecting their systems and businesses in crafting reasonably designed policies and procedures to achieve the purposes of the rule.
Consistent with the 2022 Remote Inspections Pilot Program Rule Filing, FINRA is proposing to retain the terms of Rule 3110.17(c), without substantive change, in proposed Rule 3110.18(d). Similar to Rule 3110.17(c), proposed Rule 3110.18(d) would expressly reiterate the principle that the requirement to conduct inspections of offices and locations is one part of the member's overall ongoing obligation to have an effective supervisory system, and therefore a member must maintain its ongoing review of the activities and functions occurring at all offices and locations whether or not the member conducts inspections remotely. In addition, proposed Rule 3110.18(d) would provide that a member's remote inspection of an office or location would be held to the same standards for review applicable to on-site inspections as set forth under Rule 3110.12.
In general, Rule 3110(c)(2) imposes various documentation requirements for inspections, including maintaining a written record of the date upon which each inspection is conducted. Currently, Rule 3110.17(d) requires supplemental documentation by a member that avails itself of the remote inspection option. The member must maintain and preserve a centralized record for each of calendar years specified in the supplementary material that separately identifies: (1) all offices or locations that had inspections that were conducted remotely; and (2) any offices or locations that the member determined to impose additional supervisory procedures or more frequent monitoring, as provided in Rule 3110.17(c). A member's documentation of the results of a remote inspection for an office or location must identify any additional supervisory procedures or more frequent monitoring for that office or location that were imposed as a result of the remote inspection.
Consistent with the 2022 Remote Inspections Pilot Program Rule Filing, FINRA is proposing to incorporate, without substantive change, the terms of Rule 3110.17(d) in proposed Rule 3110.18(e), while making two clarifying changes. One change would be to reference that the centralized record must be for each of the “pilot years” (as defined in proposed Rule 3110.18(l)), and the other change would be to clarify that a member's documentation of the results of a remote inspection for an office or location must identify any additional supervisory procedures or more frequent monitoring for that office or location that were imposed as a result of the remote inspection, including whether an on-site inspection was conducted at such office.
In the Initial Rule Filing, FINRA proposed to exclude some member firms from participating in the proposed pilot program. The categories of ineligibility were events or activities of a member firm that FINRA explained were more likely to raise investor protection concerns based on the firm's record of specified regulatory or disciplinary events. Some commenters to the Initial Rule Filing expressed general concerns relating to the adequacy and scope of those proposed controls—the exclusions and conditions—to address higher risk conduct.
Under proposed Rule 3110.18(f)(1), a member firm would be ineligible to conduct remote inspections of any of its offices if any time during the pilot period, the member: (1) is or becomes designated as a Restricted Firm under Rule 4111
Rules 4111 and 3170 expressly address firms that pose higher risks, and for that reason, those firms would be ineligible to participate in the proposed pilot program. Further, FINRA believes that a member firm that is experiencing issues complying with its capital requirements or has been suspended from membership by FINRA is more likely to face significant operational challenges that may negatively impact the firm's inspection program. FINRA further believes that a firm that has been a FINRA member for less than 12 months is often still implementing its business plan and may not have sufficient experience to develop a sufficiently robust inspection program. With respect to a firm that is or has been found within the past three years by the SEC or FINRA to have violated Rule 3110(c), FINRA believes such firms have demonstrated challenges in developing or maintaining robust inspection programs. Collectively, FINRA believes that these proposed ineligibility criteria would appropriately limit the potential population of pilot program participants to those firms that may be better positioned to conduct remote inspections.
To further address commenters' concerns pertaining to the adequacy and scope of the proposed controls of the pilot program, the Amended Rule Filing proposed enhancing the controls with respect to books and records, and surveillance and technology tools. In that filing, FINRA explained that those conditions were appropriate to establish reasonable baseline requirements for remote inspections. FINRA reaffirms this view through this proposed rule change by retaining, without substantive change, the conditions set forth in the Amended Rule Filing.
As part of the requirements in proposed Rule 3110.18(b) to develop a reasonable risk-based approach to using remote inspections, and to conduct and document a risk assessment for each office or location, the member must, under proposed Rule 3110.18(f)(2)(A), have a recordkeeping system to make and keep current, and preserve records required to be made and kept current, and preserved under applicable securities rules and regulations, FINRA rules, and the member's own written supervisory procedures under Rule 3110. In addition, such records may not be physically or electronically maintained and preserved at the office or location subject to the remote inspection, and the member has prompt access to such records.
In response to the Initial Rule Filing, NASAA expressed general concern about the lack of detail on the technology firms use to conduct effective remote surveillance.
As noted above, FINRA is proposing to retain, without substantive change, the condition pertaining to surveillance and technology tools as set forth in the Amended Rule Filing, as consonant with the principle-based tenor of the rule. Under proposed Rule 3110.18(f)(2)(B), as part of the requirement to develop a reasonable risk-based approach to using remote inspections, and the requirement to conduct and document a risk assessment for each office or location, the member must determine that its surveillance and technology tools are appropriate to supervise the types of risks presented by each such remotely supervised office or location. The proposed provision would provide that these tools may include but are not limited to: (1) firm-wide tools such as electronic recordkeeping systems, electronic surveillance of email and correspondence, electronic trade blotters, regular activity-based sampling reviews, and tools for visual inspections; (2) tools specifically applied to such office or location based on the activities of associated persons, products offered, restrictions on the activity of the office or location (including holding out to customers and handling of customer funds or securities); and (3) system security tools such as secure network connections and effective cybersecurity protocols. FINRA believes that proposed Rule 3110.18(f)(2)(B) appropriately conveys a reasonable baseline requirement for remote inspections. FINRA maintains that it would not be appropriate to identify specific technology-based tools because of the evolving development and ongoing advances in technologies. Moreover, FINRA notes that proposed Rule 3110.18(c) would require a firm to adopt reasonably designed written supervisory procedures that must include, among other things, a description of the methodology, including the technology, that a firm may use to conduct remote inspections.
In the Initial Rule Filing, FINRA had proposed several criteria that if met would render a member's office or location ineligible for remote inspection. The categories of ineligibility were events or activities of an associated person of the member firm that FINRA had explained were more likely to raise investor protection concerns based on the individual's record of specified regulatory or disciplinary events. Some commenters to the Initial Rule Filing expressed general concerns relating to the discretion provided to firms to make risk assessments as to whether an office or location could undergo a remote
Under proposed Rule 3110.18(g)(1), a member firm's office or location would be ineligible for a remote inspection if at any time during the period of the proposed pilot program, an associated person at such office or location is or becomes: (1) subject to a mandatory heightened supervisory plan under the rules of the SEC, FINRA or state regulatory agency (proposed Rule 3110.18(g)(1)(A)); (2) statutorily disqualified, unless such disqualified person has been approved (or is otherwise permitted pursuant to FINRA rules and the federal securities laws) to associate with a member and is not subject to a mandatory heightened supervisory plan under proposed Rule 3110.18(g)(1)(A) or otherwise as a condition to approval or permission for such association (proposed Rule 3110.18(g)(1)(B)); (3) subject to Rule 1017(a)(7)
In the Amended Rule Filing, FINRA had also proposed a criterion that would make a member firm's office or location ineligible for a remote inspection if one or more associated persons at such office or location was “a part of the member's trading desk (
To further address the concerns about the adequacy and scope of the proposed pilot program's controls, the Amended Rule Filing had proposed enhancing the controls with respect to electronic communications, correspondence and books and records. FINRA is proposing to retain, without substantive change, the conditions set forth in the Amended Rule Filing. Under proposed Rule 3110.18(g)(2), as part of the requirement to develop a reasonable risk-based approach to using remote inspections, and the requirement to conduct and document a risk assessment for each office or location, the member must satisfy the following conditions: (1) electronic communications (
FINRA believes that the proposed location level ineligibility criteria are indicia of increased risk to investors at some office or locations, such that they should not be eligible for remote inspections in accordance with the proposed pilot program.
A member firm, or an office or location subject to one of the categorical restrictions would not be eligible for remote inspections, even if the firm's risk assessment concludes that a remote inspection would be appropriate. A member firm that meets one of these ineligibility criteria would not be able to participate in the proposed pilot program. If a member firm is eligible to participate in the proposed pilot program, but one of its offices or locations meets one of the location level ineligibility criteria, the member would be required to conduct an on-site inspection of that office or location on the required cycle. FINRA believes the proposed list of ineligibility categories is appropriately derived from existing rule-based criteria that are part of processes to identify firms that may pose greater concern (
As noted above, Rule 3110.17 was adopted in the midst of the pandemic and operationalized in an environment in which many offices and locations were closed to the public. FINRA believes that the formalized, uniform collection of data is critical to allow FINRA to meaningfully assess the effectiveness of remote inspections to help shape potential permanent amendments to Rule 3110(c) that would optimize an inspection program in the evolving workplace environment. FINRA believes having a pilot program for remote inspections with appropriate conditions, limitations and documentation requirements in an environment that is settling into a hybrid workplace model would provide a clearer picture of the strengths and weaknesses of remote inspections, without compromising investor protection. Proposed Rule 3110.18(h), the terms of which are similar to those set forth in the 2022 Remote Inspections Pilot Program Rule Filing, would impose upon firms a data and information collection requirement as a condition for participating in the pilot program. On a quarterly frequency, participating firms would be required to collect and produce to FINRA, in a manner and format determined by FINRA, data consisting of separate counts for OSJs, supervisory branch offices, non-supervisory branch offices, and non-branch locations, consistent with paragraphs (c)(1)(A), (B) and (C) under Rule 3110, for several categories. These categories include: (1) the total number of inspections—on-site and remote—completed during each calendar quarter;
In response to the Amended Rule Filing, NASAA suggested that firms should be required to provide FINRA with “ `all findings' made during remote inspections, not only the ones the firm subjectively deems `most significant'[,]” contending that the discretion given to firms to make this determination would undermine the data and hinder FINRA's ability to assess trends and developments.
Consistent with the 2022 Remote Inspections Pilot Program Rule Filing, proposed Rule 3110.18(h)(2) would address the additional data and information requirements for Pilot Year 1 (as defined under proposed Rule 3110.18(l)), if such year covers a period that is less that a full calendar year. In such case, a member that elects to participate in the proposed pilot program would be required to collect the following data and information and provide such data and information to FINRA (in a manner and format FINRA determines) no later than December 31 of such first Pilot Year. For items (1) through (3) below, a member would be required to provide separate counts for OSJs, supervisory branch offices, non-supervisory branch offices, and non-branch locations consistent with paragraphs (c)(1)(A), (B) and (C) under Rule 3110: (1) the number of locations with an inspection completed during the full calendar year of the first Pilot Year; (2) the number of locations in item (1) that were inspected remotely during the full calendar year of the first Pilot Year; and (3) the number of locations in item (1) that were inspected on-site during the full calendar year of the first Pilot Year. This additional data and information would provide FINRA the ability to capture, in the aggregate, complete inspection counts—total number of Rule 3110(c)(1) inspections (remote and on-site)—for the entire calendar year in addition to the more detailed data and information requirements under proposed Rule 3110.18(h)(1).
In response to the Amended Rule Filing, NASAA recommended that firms be required to provide FINRA with the information specified in the proposed provision relating to data and information collection to cover the most recent 12-month period during which the firm conducted in-person inspections under Rule 3110(c). FINRA agrees with this approach. Thus, in addition to the data and information requirement under paragraphs (h)(1) and (h)(2) to proposed Rule 3110.18, proposed Rule 3110.18(h)(3) would require a pilot program participant to collect and provide to FINRA calendar year 2019 data and information no later than December 31 of Pilot Year 1 (as
Consistent with the 2022 Remote Inspections Pilot Program Rule Filing, proposed Rule 3110.18(h)(4) would remind firms of the general requirement to establish, maintain and enforce written policies and procedures that are reasonably designed to comply with the data and information collection, and transmission requirements of the proposed pilot program.
Consistent with the 2022 Remote Inspections Pilot Program Rule Filing, proposed Rule 3110.18(i) would set forth the manner in which a firm would notify FINRA of the firm's election to participate in the proposed pilot program and to withdraw from it. The proposed rule would provide that FINRA may, in exceptional cases and where good cause is shown, waive the applicable timeframes described below for the required opt-in or opt-out notices.
Proposed Rule 3110.18(i) would require a firm, at least five calendar days before the beginning of such Pilot Year, to provide FINRA an “opt-in notice” in the manner and format determined by FINRA. By providing such opt-in notice to FINRA, the firm agrees to participate in the proposed pilot program for the duration of such Pilot Year and to comply with the requirements of Rule 3110.18.
By way of example, a firm that provides FINRA an opt-in notice on June 26 to join Pilot Year 1 that begins on July 1 would be automatically deemed to continue participating in Pilot Year 2 unless the firm provides FINRA the required opt-out notice no later than December 26 of Pilot Year 1. To continue with this example, a firm that was automatically deemed to participate in Pilot Year 2 and determines in mid-Pilot Year 2 that it does not want to automatically continue into Pilot Year 3 could elect to withdraw from Pilot Year 3 if it provides FINRA an opt-out notice at least five calendar days before the end of Pilot Year 2. However, because Pilot Year 2 is already underway, the firm would be required to complete Pilot Year 2 in accordance with proposed Rule 3110.18.
FINRA believes that this proposed operational aspect of the program would not only establish a cohesive process in which firms and FINRA may manage program participation but also lend some continuity in data and information collection that would support FINRA's assessment and evaluation of the experiences of pilot program participants.
Consistent with 2022 Remote Inspections Pilot Program Rule Filing, proposed Rule 3110.18(j) would address a situation in which a firm fails to satisfy terms of the proposed pilot program. The proposed paragraph would provide that a firm that fails to satisfy the conditions of Rule 3110.18, including the requirement to timely collect and submit the data and information to FINRA as set forth in proposed Rule 3110.18(h), would be ineligible to participate in the pilot program and must conduct on-site inspections of each office and location on the required cycle in accordance with Rule 3110(c).
To address commenters' concerns pertaining to monitoring for compliance with the proposed pilot program, the Amended Rule Filing had proposed a provision to allow FINRA to make a determination in the public interest and for the protection of investors that a member is no longer eligible to participate in the proposed pilot program if the member fails to comply with the requirements of the proposed pilot program. The proposal further provided that FINRA would provide written notice to the member of such determination and such member would no longer be eligible to participate in the proposed pilot program and would be required to conduct on-site inspections of required offices and locations in accordance with Rule 3110(c). In the Amended Rule Filing, FINRA had explained that this authority would both align with FINRA's examination and risk monitoring programs for member firms and registered persons and allow FINRA to more effectively assess higher risk. In response to the Amended Rule Filing, NASAA stated that the proposed provision should be expanded broadly to provide FINRA the ability to make such a determination if it finds that a firm “fail[ed] to comply with the requirements of applicable laws, rules, and regulations related to supervision of associated persons[,]” stating that this broad scope would provide the appropriate level of flexibility “to protect investors from misconduct and lax supervisory practices.”
FINRA believes that the proposed provision is sufficiently broad in scope for purposes of the proposed pilot program. FINRA reiterates that the purpose of the proposed three-year pilot program, which is voluntary, is to study the effectiveness of remote inspections in accordance with Rule 3110(c)(1) as part of a reasonably designed supervisory system. Consistent with the Amended Rule Filing, FINRA is proposing to retain, without substantive change, proposed Rule 3110.18(k) under the described terms.
Consistent with 2022 Remote Inspections Pilot Program Rule Filing, proposed Rule 3110.18(l) would set forth the meanings underlying “Pilot Year” to explain the duration of the proposed pilot program. Under proposed Rule 3110.18(l), a “Pilot Year” would mean the following: (1) Pilot Year 1 would be the period beginning on the effective date of the proposed pilot program and ending on December 31 of the same year; (2) Pilot Year 2 would mean the calendar year period
As noted above, Rule 3110.17 is set to expire on December 31, 2023.
Consistent with the principles set forth in prior guidance, FINRA expects members to establish reasonably designed inspection programs. The proposed pilot program for remote inspections does not alter the core obligation of a member firm to establish and maintain a system to supervise the activities of each associated person that is reasonably designed to achieve compliance with applicable securities laws and regulations, and with applicable FINRA rules.
FINRA's data-driven regulatory programs are integrated among various FINRA departments, and the data and information FINRA currently collects from its member firms helps provide FINRA with a holistic view of firm risk management. FINRA's Examinations and Risk Monitoring Program, which is a part of FINRA's Member Supervision Department, is a critical component of FINRA's regulatory operations, and one of the many ways in which FINRA oversees the activities of member firms and its associated persons with the goal of detecting, deterring, and addressing activities that may cause investor harm or adversely impact market integrity.
FINRA's Risk Monitoring is organized by the primary business model of member firms
As described above, the terms of proposed Rule 3110.18 include several rule-based or reportable criteria, or information that is electronically captured that FINRA can readily monitor through Risk Monitoring and Examinations. These criteria relate to Rules 1017(a)(7), 3170, 4111, and 9557, the suspension of FINRA membership, or a FINRA membership that has been effective for less than 12 months, among other criteria set forth in the proposed supplementary material. Activity-based criteria such as market-making and trading activities, and the handling of customer funds or securities can also be surveilled through firm submissions, and other data sources and internal systems.
FINRA recognizes that firms are using increasingly sophisticated technology and analytic techniques to synthesize data in ways not previously possible to identify indicators of possible rule violations and associated person misbehavior. To keep pace with the technological environment, FINRA's regulatory programs are also data driven, and FINRA uses its data and information (
In the context of the proposed remote inspections pilot program, FINRA would use the risk markers identified using its analytic techniques to inform FINRA's Risk Monitoring and Examinations' assessment of whether FINRA should examine an office or location, and in turn, examine a firm's
In general, proposed Rule 3110.18(h) would require a pilot program participant to provide FINRA with specified data and information (in an aggregated form), including written supervisory procedures for remote inspections, that FINRA believes would complement FINRA's existing regulatory intelligence as part of the larger effort to gauge the effectiveness of remote inspections as part of a reasonably designed supervisory system. For purposes of its regulatory programs and if appropriate, FINRA may, after some experience with the data and information collected, extrapolate trends and practices in this area that could result in future rulemaking or updated guidance about inspections generally.
If the Commission approves the proposed rule change, FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The terms of the proposed voluntary, three-year remote inspection pilot program, while based largely on the terms of Rule 3110.17, which has been operational since the latter part of 2020 and is set to automatically sunset on December 31, 2023,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
FINRA has undertaken an economic impact assessment, as set forth below, to analyze the regulatory need for the proposed rule change, its potential economic impacts, including anticipated costs, benefits, and distributional and competitive effects, relative to the current baseline, and the alternatives FINRA considered in assessing how best to meet FINRA's regulatory objectives.
The proposed pilot program would serve two purposes. First, it would mitigate potential disruptions to the hybrid work arrangements that have developed during the pandemic. In particular, for participating members, the proposed pilot program would limit the increase in aggregate inspection costs, and the resulting incentive to reduce the number and type of work locations, that would occur when temporary relief provided during the pandemic expires.
The proposed pilot program would also allow FINRA to assess the benefits and costs of allowing some element of remote inspection of branch offices and non-branch locations, under specified conditions, in the post-pandemic world. FINRA would obtain information from participating members on certain elements of the risk-based approach that they implement, the type and frequency of inspections, and certain outcomes conditional on the type and frequency of inspections, as well as the type of office or location inspected.
The economic baseline for the proposed rule change includes both current and foreseeable workforce arrangements and business practices, including those that were first developed during the pandemic and have been modified since. In particular,
As of December 31, 2022, FINRA's membership included 3,381 firms with 150,495 registered branch offices.
When the Form BR Relief ends,
The requirements in the Proposed Rule 3110.18 would exclude some member firms entirely or partially by excluding some of their offices or locations from participating in the Remote Inspections Pilot Program. The proposed additional requirements reference events or activities of a member firm or its associated person where remote inspection may result in an increased risk to investors.
Using CRD data as of early November 2022, FINRA estimates that under the firm level exclusions from the Initial Proposal, at least approximately 128 firms with 474 registered branches would not qualify for the proposed pilot program. Under the office or location level exclusions, an additional 868 registered branch offices belonging to 278 other firms would be excluded. Thus, a total of approximately 1,342 (= 474 + 868) registered branch offices would be excluded from the proposed pilot program.
Participants in the pilot program would be expected to take a risk-based approach to conducting remote inspections. A firm that does not conduct a remote inspection for an office or location must conduct an on-site inspection of that office or location on the required cycle and remains subject to the other requirements of Rule 3110(c). A firm that chooses to participate in the pilot program (assuming that it is not otherwise ineligible from participating) would also be required to provide FINRA with certain data and other information about the risk-based approach that they implement, the type and frequency of inspections, and certain outcomes conditional on the type and frequency of inspections.
The benefit to eligible firms of choosing to participate in the pilot program, in an improved health environment, would result from limiting the increase in travel costs and lost productivity due to time spent during travel and in the on-site inspection. On-site visits have material costs from travel expenses and additional staff time. A system of risk-based on-site and remote inspections will allow firms to more efficiently deploy compliance resources and to use an on-site component only when appropriate.
Firms as well as investors may benefit if remote inspections provide new flexibility in the design of inspection teams. For example, remote inspections may facilitate the development of specialized inspection staff that are deployed over more inspections, for shorter periods of time, in a targeted way. This option may especially benefit diversified member firms with a variety of product offerings. Remote inspections can also facilitate the use of inspections
The proposed rule change may also support the competitiveness of the broker-dealer industry for individuals who seek professional positions in compliance.
Participants in the proposed pilot program would provide FINRA with quarterly data on the frequency and type of inspections (on-site or remote), counts of findings from inspections subdivided by category of office or location, qualitative information about these findings, and certain information about the written supervisory procedures for remote inspections they are required to have.
Participation in the proposed pilot program is voluntary, and the proposed rule change provides firms with an additional method for complying with certain supervisory requirements without removing other methods of compliance. Eligible pilot program participants will therefore participate in the pilot program only if doing so is beneficial to their operations relative to complying with current Rule 3110. The cost of complying with the requirements of the proposed pilot program is a factor in this decision. These costs include conducting risk-based analyses for inspections and providing aggregated data on findings to FINRA. The data request in particular may require more standardization and aggregation of inspection findings than some member firms typically conduct. The data request may also not use the same terms or formats used by compliance officers for reporting and tracking inspection findings. Firms may need to develop new written supervisory procedures and new trainings for compliance staff to ensure that all required data is accurate and compiled and submitted to FINRA in a timely manner. Firms will incur new ongoing costs both for compliance and monitoring for compliance.
Supervision and inspections are intended to identify not only the activities that violate member procedures or FINRA rules but also poor practices that might ultimately allow for such violations. FINRA recognizes that remote inspections may be less likely to identify such practices or activities as on-site inspections. FINRA believes that risks to member firms and investors from remote inspections are mitigated by the proposed requirements to have written supervisory procedures for remote inspections, the proposed requirement to conduct and document risk assessments, the proposed limitations on the firms and locations that would be eligible to participate in the proposed pilot program, and the technology already employed for day-to-day supervision. In addition, FINRA will continue to closely monitor the outcomes of examinations during the pilot program period.
The proposed pilot program would continue for three years. FINRA staff considered alternative durations for the program. FINRA members firms vary by business model and organizational structure, so a shorter program is less likely to yield enough data on inspection findings to allow for meaningful comparisons between on-site and remote inspection regimes across members. In addition, inspections are typically planned by members well ahead of time, so some members may not implement the requirements of the program until well into the duration of the pilot program. It may also help firms and the policy development process if FINRA had enough data to meaningfully evaluate well ahead of the expiration of the pilot program.
As discussed above, the requirements in proposed Rule 3110.18 would exclude some member firms entirely or partially by excluding some of their offices or locations from participating in the proposed pilot program. FINRA considered alternative pilot programs with fewer such exclusions. Firms that are entirely or partially excluded that would otherwise participate in the proposed pilot program do not incur a cost relative to the baseline, but they fail to receive the benefits of alternative programs in which they would choose to participate. Restrictions that exclude these firms not only limit the benefits of the pilot program but also limit the potential learnings from the proposed program. As a result, the same restrictions may ultimately need to be carried over into any ongoing program of risk-based examinations. The exclusion of such firms, however, should reduce any risk of customer
In addition, FINRA considered the merits of adapting other requirements similar to those FINRA has proposed in the 2023 RSL Rule Filing.
Finally, FINRA considered different levels of detail for the data reporting requirement. FINRA has tried to carefully balance the reporting burden for firms with the need for enough information to make statistically valid comparisons. Nevertheless, depending on the number and type of pilot program participants, interpretation of the results will be subject to caveats.
The SEC published the 2022 Remote Inspections Pilot Program Rule Filing for comment and as of the end of the comment period on September 6, 2022, the SEC had received 24 comment letters, then subsequently received four more new comment letters.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend Cboe Options Rule 3.34. The text of the proposed rule change is provided in error 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change amends Cboe Options Rule 3.34. Specifically, the Exchange proposes to amend Cboe Options Rule 3.34 to reinsert requirements related to filing of an electronic Uniform Termination Notice for Securities Industry Registration (“Form U5”).
In 2021, following the approval of Financial Industry Regulatory Authority, Inc. (“FINRA”) rule changes, which, among other things, consolidated FINRA registration rules,
As part of the rule change, the Exchange adopted new Cboe Options Rule 3.34, Electronic Filing Requirements for Uniform Forms, which, among other things, consolidated various Form U5 electronic filing requirements in a single location and also imposed certain new requirements. In consolidating the electronic filing requirements, the Exchange inadvertently removed requirements for the submission of Form U5 and related amendments, previously contained in Cboe Options Rule 3.37. Specifically, Cboe Options Rule 3.37(b) previously contained a requirement that a Form U5 must be electronically submitted by a Trading Permit Holder (“TPH”) organization immediately following the date of termination of any registered person, but in no event later than 30 days following termination. Further, the Exchange inadvertently removed the requirement for a copy of the Form U5 to be provided concurrently to the person whose association has been terminated, also previously contained in Cboe Options Rule 3.37(b). Finally, the Exchange inadvertently removed the requirement, previously set forth in Cboe Options Rule 3.37(c), that a TPH submit an amendment to the Form U5 in the event that the TPH learns of facts or circumstances causing any information set forth in the Form U5 to become inaccurate or incomplete, and that such amendment shall be provided concurrently to the person whose association has been terminated no later than 30 days after the TPH learns of the facts or circumstances giving rise to the need for the amendment.
The Exchange now proposes to amend Cboe Options Rule 3.34(e) to insert these provisions that were previously inadvertently deleted from Cboe Options Rule 3.37. Specifically, the Exchange proposes to amend Cboe Options Rule 3.34(e) to state that a Form U5 is required to be electronically submitted by a TPH organization immediately following the date of termination, but in no event later than 30 days following termination, and to state that a copy of the Form U4 [sic] shall be provided concurrently to the person whose association has been terminated. Further, the Exchange proposes to amend Cboe Options 3.34(e) to state that a TPH shall submit an amendment to the Form U5, in the event that the TPH organization learns of facts or circumstances causing any information set forth in the Form U5 to become inaccurate or incomplete, and that such amendment shall be provided concurrently to the person whose association has been terminated no later than 30 days after the TPH organization learns of the facts or circumstances giving rise to the need for the amendment.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, will protect investors and the public interest by correcting errors and clarifying text within the Cboe Options Rules. Specifically, by adding language that was inadvertently removed regarding requirements for Form U5 submissions and amendments, the proposed rule change is designed to make the Rulebook more accurate and add clarity to the Cboe Options Rules, thereby mitigating any potential confusion for TPHs, particularly those who are also FINRA members. The Exchange believes the amendments reduce the possibility of a significant regulatory gap between Exchange and FINRA rules, providing more uniform standards across the securities industry. Further, the Exchange believes that the alignment of rules regarding Form U5 submissions and amendments immediately and expeditiously would serve to avoid potential confusion for those members registered at both the Exchange and FINRA, prevent unnecessary regulatory burdens, and promote the efficient administration of the rules.
The proposed rule change will have no impact on trading on the Exchange. As the Exchange did not intend to delete these requirements and did not provide specific notice to TPHs of any changes specifically regarding such requirements following the inadvertent deletion, the Exchange believes the proposed clarifying rule amendments will not result in any practical changes to the Form U5 submission and amendment process from an Exchange or TPH standpoint. The proposed requirements are merely being added back to the Rulebook for purposes of clarity and accuracy.
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 merely reinserts language that was inadvertently removed regarding requirements for Form U5 submissions and related amendments. As the Exchange did not intend to delete these requirements and did not provide notice to TPHs of any changes specifically regarding such requirements following the inadvertent deletion, the Exchange believes the proposed clarifying rule amendments will not result in any practical changes to the Form U5 submission and amendment process from an Exchange or TPH standpoint. Further, other Self-Regulatory Organizations (“SROs”), including FINRA, have continued to maintain these requirements for the submission of Form U5 and related amendments in their rules.
The proposed rule change makes no substantive changes to the Cboe Options Rules, and thus will have no impact on trading on the Exchange. The proposed rule change is not intended to have any impact on competition.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, pursuant to Rule 19b-4(f)(6)(iii), the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that this proposed rule change may become operative immediately upon filing.
Waiver of the 30-day operative delay would allow the Exchange to reinsert language that the Exchange states was inadvertently removed regarding requirements for Form U5 submissions and related amendments. As the Exchange states it did not intend to delete these requirements, did not provide notice to TPHs of any changes specifically regarding such requirements following the inadvertent deletion, and the other SROs, including FINRA, still have continued to maintain these requirements for the submission of Form U5 and related amendments in their rules, allowing a waiver will eliminating the regulatory gap between the FINRA and Exchange rules, providing more uniform standards across the securities industry, and helping to avoid confusion for registered persons of the Exchange that are also FINRA members. For this reason, the Commission believes that waiver of the 30-day operative delay for this proposal is consistent with the protection of investors and the public interest. Accordingly, the Commission hereby waives the 30-day operative delay and designates the proposal operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 1, 2023, Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”),
The Exchange operates a “Maker-Taker” model whereby it pays rebates to Members
The Exchange proposes to amend its Fee Schedule to eliminate and modify certain Growth Tiers and Non-Displayed Step-Up Volume Tiers, modify a Retail Growth Tier, introduce new fee code DX and modify fee code DQ, which fee changes became effective on March 1, 2023.
• Proposed Growth Tier 1 provides a rebate of $0.0034 per share to qualifying orders (
In addition, the Exchange proposes to modify proposed Growth Tier 2 by adding a third prong to the Required Criteria. As a result, the Required Criteria for proposed Growth Tier 2 is as follows:
• Proposed Growth Tier 2 provides a rebate of $0.0034 per share to qualifying orders (
The Exchange also offers Non-Displayed Step-Up Volume Tiers under footnote 1 of the Fee Schedule that each provide an enhanced rebate for Members' qualifying orders yielding fee codes DM, HA, MM, and RP, where a Member reaches certain volume-based criteria offered in each tier.
• Non-Displayed Step-Up Volume Tier 1 provides a rebate of $0.0026 per share to qualifying orders (
Pursuant to footnote 2 of the Fee Schedule, the Exchange also offers Retail Volume Tiers which provide Retail Member Organizations (“RMOs”)
• Retail Growth Tier 3 provides a rebate of $0.0037 per share to qualifying orders (
Finally, the Exchange offers fee code DQ, which is appended to Midpoint Discretionary Orders (“MDOs”)
Pursuant to section 19(b)(3)(C) of the Act,
In support of the proposal, the Exchange argues that is operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient.
Additionally, the Exchange notes that relative volume-based incentives and discounts have been widely adopted by exchanges, including the Exchange, and are reasonable, equitable and non-discriminatory because they are open to all Members on an equal basis and provide additional benefits or discounts that are reasonably related to (i) the value to an exchange's market quality and (ii) associated higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns.
With respect to the proposed amendments to proposed Growth Tiers 1 and 2, proposed Non-Displayed Step-Up Volume Tier 1, and Retail Growth Tier 3 in particular, the Exchange states that such modifications are reasonable because they will be available to all Members and will provide all Members with an additional opportunity to receive an enhanced rebate.
The Exchange believes that the proposed changes to proposed Growth Tiers 1 and 2, proposed Non-Displayed Step-Up Volume Tier 1, and Retail Growth Tier 3 are reasonable as they do not represent a significant departure from the criteria currently offered in the Fee Schedule.
When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchange's present proposal, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder applicable to the exchange.
Section 6 of the Act, including sections 6(b)(4), (5), and (8), requires the rules of an exchange to (1) provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities;
In temporarily suspending the Exchange's fee change, the Commission intends to further consider whether the proposal, in particular the proposed modifications to certain Growth Tiers, Non-Displayed Step-Up Volume Tiers, and a Retail Growth Tier, is consistent with the statutory requirements applicable to a national securities exchange under the Act. The Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule change.
In addition to temporarily suspending the proposal, the Commission also
Pursuant to section 19(b)(2)(B) of the Act,
• Whether the Exchange has demonstrated how the proposal is consistent with section 6(b)(4) of the Act, which requires that the rules of a national securities exchange “provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities;”
• Whether the Exchange has demonstrated how the proposal is consistent with section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be “designed to perfect the operation of a free and open market and a national market system” and “protect investors and the public interest,” and not be “designed to permit unfair discrimination between customers, issuers, brokers, or dealers;”
• Whether the Exchange has demonstrated how the proposal is consistent with section 6(b)(8) of the Act, which requires that the rules of a national securities exchange “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].”
As discussed in Section III above, the Exchange argues that all Members will be eligible for the proposed new tiers and have the opportunity to meet the tiers' criteria. The Exchange further states the proposal provides a reasonable means to incentivize Members to continue to send certain types of order flow to the Exchange. Because the proposed growth and step-up tiers are designed to provide more favorable pricing to Members with volume increases over specified baseline months, questions are raised as to whether the Exchange has satisfied its burden to demonstrate that such tiers will, as the Exchange argues, continue to provide a reasonable means to incentivize Members to send certain types of order flow to the Exchange, in a manner consistent with the Act and the rules thereunder when the specified baseline months remain the same and may continue indefinitely.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposal is consistent with the Act, specifically, with its requirements that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers, and other persons using its facilities; are designed to perfect the operation of a free and open market and a national market system, and to protect investors and the public interest; are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers; and do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act;
The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by May 25, 2023. Rebuttal comments should be submitted by June 8, 2023. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rules 1015, 9261, 9341, 9524 and 9830 and Funding Portal Rule 900 to allow for video conference hearings before the Office of Hearing Officers (“OHO”) and the National Adjudicatory Council (“NAC”) under specified conditions.
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Due to the COVID-19 global health crisis, FINRA administratively postponed in-person hearings for over six months beginning in March of 2020, which resulted in an expanding backlog of cases that could have compromised FINRA's ability to provide timely adjudicatory processes and fulfill its statutory obligations to protect investors and maintain fair and orderly markets. To address that backlog and mitigate the consequences of a stalled adjudicatory system, FINRA adopted temporary rules that allow OHO and the NAC to order, without a motion, hearings to proceed by video conference based on public health risks related to COVID-19.
FINRA is proposing to make the temporary amendments regarding video conference hearings permanent, with some modifications that would allow for the use of video conference for reasons in addition to COVID-19.
FINRA believes that the use of video conference technology has improved FINRA's operations during the COVID-19 pandemic, and the proposed rule change will continue to improve and modernize FINRA's operations so that parties, panelists, and FINRA staff may proceed expeditiously by video conference in the event of certain circumstances, including where unforeseen events make appearing in person difficult or impracticable. As described below, impracticability is intended to account for an uncommon situation or extraordinary circumstance.
OHO conducts hearings in disciplinary proceedings
Under the original rules, such hearings were generally conducted in person.
Under the proposed rule change, OHO and the NAC's authority to order hearings by video conference would extend beyond the public health risks posed by COVID-19 to other similar situations in which proceeding in person may endanger the health or safety of the participants or would be impracticable. For example, appearing in person may be impracticable in the event of a natural disaster or terrorist attack that caused travel to be cancelled for a period of time.
In addition, the proposed rule change would differ from the temporary amendments in two respects. First, under the proposed rule change, OHO and the NAC would also have authority to order hearings to occur by video conference based on a motion. Second, the proposed rule change would provide more flexibility for using video conference for oral arguments in appeals from disciplinary proceedings than for evidentiary hearings due to the differences between those types of hearings.
As with the temporary amendments, under the proposed rule change, in-person hearings will remain the default method for hearings before OHO and the NAC, and their exercise of authority under the proposed rule change would be discretionary. In-person hearings may take place where safe and appropriate.
FINRA's protocols for conducting hearings by video conference will be the same as under the temporary amendments. FINRA would, among other things, use a high quality, secure and user-friendly video conferencing service and provide thorough instructions, training, and technical support to all hearing participants.
The proposed rule changes with respect to evidentiary hearings and oral argument are discussed, in turn, below.
For evidentiary hearings, the proposed rule change would give OHO or the NAC authority to order an evidentiary hearing to occur by video conference, in whole or in part, if OHO or the NAC determines that proceeding in person may endanger the health or safety of the participants or would be impracticable, as described above. OHO and the NAC would have such authority on their own (
In addition, under the proposed rule change, parties could file a joint motion requesting the hearing to occur, in whole or in part, by video conference based on a showing of good cause. Due to the nature of evidentiary hearings, which often occur over multiple days and generally include numerous documents in evidence and witness testimony, the proposed rule change would require any motions for a hearing by video conference to be joined by all parties, and even joint motions may be denied if the Adjudicator determines that good cause has not been shown.
Whether acting on its own or based on a joint motion of the parties, OHO and the NAC would have reasonable discretion to exercise their authority under the proposed rule change. In deciding whether to schedule a hearing by video conference, OHO and the NAC could consider and balance a variety of factors including, for example and without limitation, a hearing participant's individual health concerns and access to the connectivity and technology necessary to participate in a video conference hearing.
The proposed rule change would give the NAC authority to order an oral argument hearing to occur by video conference, in whole or in part, if it determines that proceeding in person may endanger the health or safety of the participants or would be impracticable. The NAC would have such authority on its own.
In addition, under the proposed rule change, the NAC would have authority—on its own or on consideration of a motion by any party—to order oral argument to occur by video conference, in whole or in part, for other reasons (
Under the proposed rule change, the NAC would have greater flexibility to allow oral argument to occur by video conference than evidentiary hearings, with an additional safeguard for parties who believe that holding oral argument by video conference would materially disadvantage them. The proposal as to NAC oral argument thus differs from the proposal for evidentiary hearings in three respects: (1) it would give the NAC
Whether acting on its own or based on a motion of a party, the NAC would have reasonable discretion to exercise its authority under the proposed rule change. In deciding whether to order an oral argument hearing by video conference, the NAC could consider and balance a variety of factors including, for example and without limitation, a hearing participant's individual health concerns, access to video conference technology, whether a party has delayed or refused to appear in person, and whether proceeding by video conference would materially disadvantage any party.
If the Commission approves the proposed rule change, FINRA will announce the effective date of the proposed rule change in a Regulatory Notice.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA believes that the proposed rule change protects investors and the public interest by permitting the use of broadly available technology to allow hearings to proceed by video conference under certain circumstances. FINRA's disciplinary and eligibility proceedings and other review processes serve a critical role in providing investor protection and maintaining fair and orderly markets by, for example, sanctioning misconduct and preventing further customer harm by members and associated persons. The proposed rule change would encourage the prompt resolution of these cases while preserving fair process.
The proposed rule change promotes efficiency by permitting hearings to occur by video conference in situations where the hearings would otherwise be postponed for an uncertain period of time. As discussed, this occurred in 2020 when in person hearings were postponed for over six months, resulting in a backlog of cases. COVID-19 necessitated FINRA to propose the temporary amendments, which were extended due to the continuing health risks of COVID-19, as well as limitations on travel, quarantine requirements, and other logistical challenges to safely conducting hearings in person.
The proposed rule change also serves to provide a fair procedure for the disciplining of members and persons associated with members by allowing hearings to proceed by video conference not only due to public health or safety reasons, but also at a party or the parties' request for reasons particular to them. The Adjudicator could allow a hearing to proceed by video conference in the exercise of reasonable discretion and subject to procedural safeguards that ensure fairness. For evidentiary hearings, these safeguards include the requirements that any motions be joined
Thus, the proposed rule change represents a significant step toward modernizing FINRA's procedures in a manner that preserves in-person hearings, but allows for the use of video conference technology under certain circumstances.
FINRA does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
FINRA has undertaken an economic impact assessment, as set forth below, to analyze the potential economic impacts of the proposed rule change, including anticipated costs, benefits, and distributional and competitive effects, relative to the current baseline, and the alternatives FINRA considered in assessing how best to meet FINRA's regulatory objectives.
FINRA does not have permanent rules that allow for video conference hearings before OHO and the NAC, even when both parties prefer proceeding by video conference, or doing so would not materially disadvantage any party, or when video conference is the only practicable method. The proposed rule change would create permanent rules that would allow video conference hearings under some of these circumstances, with safeguards. The proposed rule change would allow certain proceedings by video conference where both parties prefer doing so and show good cause, or where neither party would be materially disadvantaged. The proposed rule change would also enable FINRA to respond to serious health, natural disaster, or other unanticipated events more quickly and adeptly in the future, so that hearings can proceed on time without the need for long postponements or cancellations. As discussed above, the use of video conference hearings for approximately two and a half years has demonstrated that this technology can efficiently resolve pending cases and effectively parallel the experience of conducting hearings in person. The proposed rule change would build on this experience.
The economic baseline for the proposed rule change consists of the original FINRA Rules 1015, 9261, 9341, 9524 and 9830 and Funding Portal Rule 900. As discussed earlier, these rules govern disciplinary proceedings before OHO, appeals before the NAC, and other types of hearings. Under these rules, oral arguments before the NAC and evidentiary hearings before OHO and the NAC are typically conducted in person at various venues across the country. Due to the COVID-19 pandemic, FINRA temporarily amended its rules to allow OHO and the NAC to order, without a motion, evidentiary hearings to proceed by video conference based on public health risks related to COVID-19. The temporary amendments also allow oral arguments before the NAC to proceed by video conference.
The number of new cases filed in OHO and NAC disciplinary proceedings and the number of respondents in these proceedings in the past five years are presented in Table 1 below. The numbers show that the majority of respondents in OHO filings and NAC appeals consist of associated persons.
FINRA has also collected information on the use of video conference in evidentiary hearings in OHO and NAC proceedings and oral arguments before the NAC in the past five years. The information is presented in Table 2 below. The numbers show that no evidentiary hearings before OHO and the NAC or oral arguments before the NAC proceeded by video conference in the two years prior to the pandemic starting in 2020, whereas almost all of those types of hearings proceeded by video conference after 2020.
The proposed rule change will directly impact current and former member firms (including members that are funding portals) and their associated persons. These individuals would be applicants or respondents in proceedings before OHO and the NAC, including appeals from disciplinary proceedings. The proposed rule change is also expected to affect their counsel and other participants, and the proposed rule change may also affect investors associated with the matter, and in some cases, investors more generally.
As described earlier, there have been only a limited number of new cases or appeals filed annually in relevant OHO and NAC proceedings in the past five years. Most of these cases or appeals involved only one respondent. Based on these historical numbers, only a very small fraction of members and associated persons will likely be affected by the proposed rule change.
The primary impact of the proposed rule change would be to reduce delay in resolving relevant matters in extraordinary circumstances (
Under the baseline, a serious public health situation, natural disaster, or other unanticipated emergency event may either delay proceedings, prevent travel, or require parties to consider traveling and appearing in person despite the elevated risk. As discussed, until the temporary amendments were in effect, FINRA administratively postponed hearings for over six months due to concerns about the safety of conducting hearings in person, travel restrictions, quarantine requirements, and other logistical challenges.
Participants in relevant proceedings who, under the baseline, are required to travel and attend hearings in person despite elevated risk will benefit from reduced health and safety risk under the proposed rule change. By allowing video conference hearings and oral arguments either by order of the Adjudicator on its own or on motion of the parties, the proposed rule change would result in reduced travel time and costs for all participants. The cost reductions may vary depending on the nature and length of the proceedings, the number of individuals who must travel, and the distance of the required travel.
Parties may incur additional costs relative to the pre-pandemic baseline. These additional costs may arise from technological challenges such as bandwidth or connectivity issues and concerns related to presenting arguments and evidence in a virtual environment. FINRA believes that cost increases will likely be limited for most parties, after considering the overall positive experience of conducting video conference evidentiary hearings and appellate oral arguments under the temporary amendments.
Parties who are required to participate by video conference under the proposed rule change and believe that they cannot present their arguments and evidence as well as in person, may perceive the potential costs associated with the proposed rule change as large compared with the potential benefits. They may thus prefer a delayed in-person hearing under the above circumstances to a video conference hearing. These potential costs will depend on how Adjudicators define and apply the “impracticable” and “health or safety” standards as well as the “good cause” and “materially disadvantage” standards, among other factors.
FINRA considered applying the same standards to NAC oral argument as to evidentiary hearings. Under this alternative, the NAC could order a scheduled in-person oral argument hearing to occur by video conference for health, safety or impracticability reasons only, and when considering a motion, would require the motion to be joined by all parties and show good cause. Parties who prefer to appear in-person due to concerns about technical or other difficulties to presenting their case by video conference may perceive a lower cost from the less flexible alternative relative to the proposed rule change. This perceived cost reduction, however, should be limited since the proposed rule change would allow such parties to oppose an order or motion to proceed by video conference on grounds that doing so would materially disadvantage them. Further, any cost reduction relative to the proposed rule change would likely be bounded because, as discussed, NAC oral arguments are typically short in duration, contain no presentation of new evidence, and are often conducted by counsel. The alternative would also likely lead to more potential delays in resolving appeals of disciplinary matters. Thus, FINRA believes that the proposed rule change strikes the appropriate balance between preserving the efficiencies in OHO and NAC proceedings that were achieved during the pandemic and ensuring a fair process for parties in evidentiary hearings and appeals.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Long-Term Stock Exchange, Inc. (“LTSE” or “Exchange”) filed with the Securities and Exchange Commission (the “Commission” or “SEC”) an application
LTSE has requested that the Commission grant the Exchange an exemption from the rule filing requirements of Section 19(b) of the Exchange Act for changes to LTSE Rule 2.154 (Continuing Education) effected solely by virtue of changes to Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 1240 (Continuing Education) that are incorporated by reference into LTSE Rule 2.154. Specifically, the Exchange requests that it be permitted to incorporate by reference a change made to FINRA Rule 1240 without the need for the Exchange to separately file a similar proposed rule change pursuant to Section 19(b) of the Exchange Act. The Exchange believes that this exemption is appropriate because it will promote consistency between LTSE and FINRA rules pertaining to continuing education, which are not trading rules.
As a condition of the requested exemption, LTSE has agreed to provide written notice to its members whenever a change is proposed to FINRA continuing education rules that are incorporated by reference into LTSE's continuing education rules.
The Commission has issued exemptions similar to LTSE's request.
• An SRO wishing to incorporate rules of another SRO by reference has submitted a written request for an order exempting it from the requirement in
• The incorporating SRO has requested incorporation of categories of rules (rather than individual rules within a category) that are not trading rules (
• The incorporating SRO has reasonable procedures in place to provide written notice to its members each time a change is proposed to the incorporated rules of another SRO.
The Exchange has satisfied each of these conditions. Moreover, granting LTSE an exemption from the rule filing requirements under Section 19(b) of the Exchange Act will promote efficient use of Commission and Exchange resources by avoiding duplicative rule filings based on simultaneous changes to identical rule text sought by more than one SRO.
Accordingly, it is ordered, pursuant to Section 36 of the Exchange Act,
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 Public Assistance Only for the State of Nevada (FEMA-4708-DR), dated 04/27/2023.
Issued on 04/27/2023.
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 04/27/2023, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 17899 B and for economic injury is 17900 0.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Florida (FEMA-4709-DR), dated 04/27/2023.
Issued on 04/27/2023.
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 04/27/2023, 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 number assigned to this disaster for physical damage is 17901 6 and for economic injury is 17902 0.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Florida (FEMA-4709-DR), dated 04/27/2023.
Issued on 04/27/2023.
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 04/27/2023, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 17903 6 and for economic injury is 17904 0.
The Surface Transportation Board has received a request from the Lehigh Valley Planning Commission (WB23-29—4/27/23) for permission to use select data from the Board's annual 2021 masked Carload Waybill Sample. A copy of this request may be obtained from the Board's website under docket no. WB23-29.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
Department of the Treasury.
Notice of meeting.
This notice announces that the Department of the Treasury Tribal Advisory Committee (TTAC) will convene a public meeting from 1:00 p.m.-4:00 p.m. Eastern Time on Wednesday, June 14, 2023. The meeting will be held in person at the Treasury Building in Washington, DC. The meeting is open to the public.
The meeting will be held on Wednesday, June 14, 2023, from 1:00 p.m.-4:00 p.m. Eastern Time.
Please visit
If you require a reasonable accommodation, please contact the Departmental Offices Reasonable Accommodations Coordinator at
Krishna P. Vallabhaneni, Designated Federal Officer, by emailing
Section 3 of the Tribal General Welfare Exclusion Act of 2014, Public Law 113-68, 128 Stat. 1883, enacted on September 26, 2014 (TGWEA), directs the Secretary of the Treasury (Secretary) to establish a seven-member Tribal Advisory Committee to advise the Secretary on matters related to the taxation of Indians, the training of Internal Revenue Service field agents, and the provision of training and technical assistance to Native American financial officers.
Pursuant to section 3 of the TGWEA and in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. 1001
(1) Matters related to the taxation of Indians;
(2) The establishment of training and education for internal revenue field agents who administer and enforce internal revenue laws with respect to Indian tribes of Federal Indian law and the Federal Government's unique legal treaty and trust relationship with Indian tribal governments; and
(3) The establishment of training of such internal revenue field agents, and provisions of training and technical assistance to tribal financial officers, about implementation of the TGWEA and any amendments.
In accordance with section 10(a)(2) of the FACA and implementing regulations at 41 CFR 102-3.150, Krishna P. Vallabhaneni, the Designated Federal Officer of the TTAC, has ordered publication of this notice to inform the public that the TTAC will convene its eleventh periodic meeting on Wednesday, June 14, 2023, from 1:00 p.m.-4:00 p.m. Eastern Time.
During this meeting, the TTAC members will provide updates on the work of the TTAC's three subcommittees, hear comments from the public, and take other actions necessary to fulfill the TTAC's mandate.
Members of the public wishing to comment on the business of the TTAC are invited to submit written comments by emailing
The Department of the Treasury will post all comments received on its website (
The Department of Veterans Affairs (VA) gives notice under Federal Advisory Committee Act, 5 U.S.C. ch. 10, that a meeting of the Advisory Committee on Structural Safety of Department of Veterans Affairs Facilities will be held on May 16-18, 2023. The meeting sessions will take place at VA Caribbean Healthcare System, 10 Calle Casia (Administration Building 40, Room 2M230), San Juan, Puerto Rico 00921. The meeting sessions will begin and end as follows:
The meeting sessions are open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on matters of structural safety in the construction and remodeling of VA facilities and to recommend standards for use by VA in the construction and alteration of its facilities.
On May 16 through May 18, the meeting will be a hybrid, held in-person and the Committee will receive appropriate briefings and presentations on current seismic, natural hazards, and fire safety issues that are particularly relevant to facilities owned and leased by the Department. The Committee will also discuss appropriate structural and fire safety recommendations for inclusion in VA's construction standards.
No time will be allocated for receiving oral presentations from the public. However, the Committee will accept written comments. Comments should be emailed to Donald Myers, Director, Facilities Standards Service, Office of Construction & Facilities Management (003C2B), Department of Veterans Affairs, at
Those seeking additional information or wishing to attend should contact Mr. Myers at the email address noted above or by phone at 202-632-5388.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; proposed letter of authorization; request for comments.
NMFS has received a request from the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (Dominion Energy), for Incidental Take Regulations (ITR) and an associated Letter of Authorization (LOA) pursuant to the Marine Mammal Protection Act (MMPA). The requested regulations would govern the authorization of take, by Level A harassment and Level B harassment, of small numbers of marine mammals over the course of 5 years (2024-2029) incidental to construction of the Coastal Virginia Offshore Wind Commercial (CVOW-C) project offshore of Virginia within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0483 (Lease Area) and associated Export Cable Routes. Project activities likely to result in incidental take include pile driving activities (impact and vibratory) and site assessment surveys using high-resolution geophysical (HRG) equipment. NMFS requests comments on its proposed rule. NMFS will consider public comments prior to making any final decision on the promulgation of the requested ITR and issuance of the LOA; agency responses to public comments will be summarized in the final notice of our decision. The proposed regulations, if promulgated, would be effective February 5, 2024, through February 4, 2029.
Comments and information must be received no later than June 5, 2023.
Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401.
A copy of Dominion Energy's Incidental Take Authorization (ITA) application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
This proposed rule, if promulgated, would provide a framework under the authority of the MMPA (16 U.S.C. 1361
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, the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”), and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
As noted above, no serious injury or mortality is anticipated or proposed for authorization in this proposed rule. Relevant definitions of MMPA statutory and regulatory terms are included below:
•
•
•
•
•
Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for proposing and, if appropriate, issuing 5-year regulations and associated LOA. This proposed rule also establishes required mitigation, monitoring, and reporting requirements for Dominion Energy's proposed activities.
The major provisions of this proposed rule include:
• Authorize take of marine mammals by Level A harassment and/or Level B harassment. No mortality or serious injury of any marine mammal is proposed to be authorized;
• Establish a seasonal moratorium on pile driving during the months of highest North Atlantic right whale (
• Require both visual and passive acoustic monitoring by trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators before, during, and after the in-water construction activities;
• Require training for all Dominion Energy personnel that would clearly articulate all relevant responsibilities, communication procedures, marine mammal monitoring and mitigation protocols, reporting protocols, safety, operational procedures, and requirements of the ITA and ensure that all requirements are clearly understood by all participating parties;
• Require the use of sound attenuation device(s) during all vibratory and impact pile driving of wind turbine generators (WTG) and offshore substations (OSS) foundation piles to reduce noise levels;
• Delay the start of pile driving if a North Atlantic right whale is observed at any distance by the PSO on the pile driving or dedicated PSO vessel;
• Delay the start of pile driving if other marine mammals are observed entering or within their respective clearance zones;
• Shut down pile driving (if feasible) if a North Atlantic right whale is observed or if other marine mammals enter their respective shut down zones;
• Conduct sound field verification monitoring during a minimum of three WTGs and all three OSS foundation installation events to measure
• Implement soft starts during impact pile driving and using the least hammer energy possible;
• Implement ramp-up for high-resolution geophysical (HRG) site characterization survey equipment prior to operating at full power;
• Implement various vessel strike avoidance measures;
• Increase awareness of North Atlantic right whale presence through monitoring of the appropriate networks and VHF Channel 16, as well as reporting any sightings to the sighting network;
• Implement Best Management Practices (BMPs) during fisheries monitoring research surveys and activities to reduce the risk of marine mammals being considered at-risk or of interacting with deployed gear; and
• Require frequent scheduled and situational reporting including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and sound field verification monitoring results.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS proposes to adopt the BOEM Environmental Impact Statement (EIS), provided our independent evaluation of the document finds that it includes adequate information analyzing the effects of promulgating the proposed regulations and LOA issuance on the human environment. NMFS is a cooperating agency on BOEM's EIS. BOEM's CVOW-C Draft Environmental Impact Statement for Commercial Wind Lease OCS-A 0483 (DEIS), was made available for public comment through a Notice of Availability on December 16, 2022 (87 FR 77135), available at
Information contained within Dominion Energy's ITA application and this proposed rule collectively provide the environmental information related to these proposed regulations and associated 5-year LOA for public review and comment. NMFS will review all comments submitted in response to this proposed rule prior to concluding our NEPA process or making a final decision on the requested 5-year ITR and associated LOA.
This project is covered under Title 41 of the Fixing America's Surface Transportation Act, or “FAST-41.” FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-6(a)(1)(A)).
Dominion Energy's proposed project is listed on the Permitting Dashboard. Milestones and schedules related to the environmental review and permitting for the CVOW-C project can be found at
On February 16, 2022, NMFS received a request from Dominion Energy for the promulgation of a 5-year ITR and issuance of an associated LOA to take marine mammals incidental to construction activities associated with the CVOW-C project offshore of Virginia in the Lease Area and associated export cable routes. Dominion Energy's request is for the incidental, but not intentional, take of a small number of 21 marine mammal species (comprising 22 total stocks) by Level B harassment and by Level A harassment for seven marine mammal species, comprising 7 stocks. Neither Dominion Energy nor NMFS expects serious injury or mortality to result from the specified activities, and Dominion Energy did not request and NMFS is not proposing to authorize mortality or serious injury of any marine mammals species or stock.
In response to our comments and following extensive information exchanges with NMFS, Dominion Energy submitted a final, revised application on August 5, 2022, that NMFS deemed adequate and complete on August 12, 2022. The final version of the application is available on NMFS' website at
On September 15, 2022, NMFS published a notice of receipt (NOR) of the adequate and complete application in the
In June 2022, Duke University's Marine Spatial Ecology Laboratory released updated habitat-based marine mammal density models (Roberts
In January 2023, BOEM informed NMFS that the proposed activity had changed from what is presented in the adequate and complete MMPA application. Specifically, the changed proposed activity involved the reduction of maximum WTGs built (from 205 to 202 WTGs) as under the original Project Design Envelope (PDE) and the OSSs would be located in the vessel transit routes. Under the 202 build-out, three WTGs would be removed and the three OSSs would be shifted into these WTG positions. However, in late-January 2023, Dominion Energy confirmed that their Preferred Layout of 176 WTGs is the base case for construction, but that they could possibly need up to 7 WTGs re-piled in alternate positions due to unstable sediment conditions, which could necessitate up to 183 independent piling events. WTG positions have been removed from consideration for one or more of the following reasons: impracticable due to foundation technical design risk, shallow gas presence, commercial shipping and navigation risk concerns, erosion risk, and presence of a designated fish haven. Based on the information provided, NMFS carried forward the analysis assuming a total build-out of 176 WTGs plus seven re-piled WTGs (a total of 183 independent piling events for WTGs) and the 3 originally planned OSSs. Due to the significant reduction of turbines from the original proposed action found in the adequate and complete ITA application (reduction of approximately 14 percent), Dominion Energy, in consultation with NMFS, provided an updated proposed action summary, revised exposure estimates, revised take requests, and an updated piling schedule in mid-February 2023 (herein referred to as the Revised Proposed Action Memo). NMFS posted this to our website in May 2023.
NMFS has previously issued six Incidental Harassment Authorizations (IHAs) to Dominion Energy. Two of those IHAs, issued in 2018 (83 FR 39062; August 8, 2018) and 2020 (85 FR 30930, May 21, 2020) supported the development of the Coastal Virginia Offshore Wind project, known as the CVOW Pilot Project (wherein two turbines were constructed). The remaining four IHAs (two of which were modified IHAs) were high resolution site characterization surveys within and around the CVOW-C Lease Area (see 85 FR 55415, September 8, 2020; 85 FR 81879, December 17, 2020 (modified 2020 IHA); 86 FR 21298, April 22, 2021 (modified 2021 IHA); and 87 FR 33730, June 3, 2022).
To date, Dominion Energy has complied with all the requirements (
On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations (87 FR 46921; August 1, 2022) to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event. Should a final vessel speed rule be issued and become effective during the effective period of this ITR (or any other MMPA incidental take authorization), the authorization holder would be required to comply with any and all applicable requirements contained within the final rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders would be required to comply with the requirements of the rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization would remain in place. The responsibility to comply with the applicable requirements of any vessel speed rule would become effective immediately upon the effective date of any final vessel speed rule and, when notice is published on the effective date, NMFS would also notify Dominion Energy if the measures in the speed rule were to supersede any of the measures in the MMPA authorization such that they were no longer required.
Dominion Energy's CVOW-C project would allow the Commonwealth of Virginia to meet its clean energy goal of achieving 100 percent clean energy by 2045 through the implementation of up to 5,200 megawatts (MW) of offshore wind-generated energy, as established in the Virginia Clean Economy Act (HB 1526/SB 851;
Dominion Energy's precursor pilot project (
CVOW-C would consist of several different types of permanent offshore infrastructure, including up to 176 wind turbine generators (WTGs;
Marine mammals exposed to elevated noise levels during impact and vibratory pile driving and site characterization surveys may be taken, by Level A harassment and/or Level B harassment, depending on the specified activity.
Dominion Energy anticipates that activities with the potential to result in incidental take of marine mammals would occur throughout all five years of the proposed regulations which, if issued, would be effective from February 5, 2024, through February 4, 2029. Based on Dominion Energy's proposed schedule, the installation of all permanent structures would be completed by the end of October 2025. More specifically, the installation of WTG foundations is expected to occur between May 1st-October 31st of 2024 and 2025, over approximately 12 months (6 months within each year). OSS jacket foundations using pin piles would be installed between May 1st-October 31st, 2024 and 2025. However, delays due to weather or other unanticipated and unforeseen events may require Dominion Energy to install some foundations in 2026. If this occurs, foundation installation would occur between the predetermined pile driving seasonal window (May 1st-October 31st in 2026) and occur over 6 months. However, as this would represent a shift in the schedule, rather than additional piles being installed, the proposed activities would still maintain the same amount of take proposed for authorization, both annual maximum and five-year total. The temporary structures used for nearshore cable landfall construction (
Dominion Energy has provided a schedule for all of their proposed construction activities (Table 1). Based on the schedule presented, no activities (installation, removal, or HRG surveys) are planned to occur in 2029, even though part of this year would fall within the five-year effective period of the proposed regulations. This table also presents a breakdown of the timing and durations of the activities proposed to occur during the construction and operation of the CVOW-C project.
Dominion Energy anticipates that the first 40 WTGs would become operational in 2025, after foundation installation is completed and after all necessary components (such as array cables, OSSs, export cables routes, and onshore substations) are installed. Up to 120 additional WTGs would be commissioned/operational in 2026. Dominion Energy anticipates that all turbines would be commissioned by 2027, with the last 16 being operational that year.
Dominion Energy would construct the CVOW-C project in Federal and state waters offshore of Virginia within the BOEM Lease Area OCS-A 0483 and associated Export Cable Routes (Figure 1). The Lease Area covers approximately 456.5 km
Dominion Energy's specified activities would occur along a portion of the Mid-North Atlantic continental shelf that experiences various concurrent processes that shape the overall geology of the region. These processes include glacio-eustatic sea level change (
The Mid-Atlantic Bight, where the CVOW-C project would be located, spans from Cape Hatteras, North Carolina to Cape Cod, Massachusetts and continues to extend into the west Atlantic to the 100-m isobath. The oceanographic conditions along the Mid-Atlantic Bight are comparable to the conditions found along the Mid-Atlantic East Coast, where summer months are warmer and winter months are milder. The area is known for its high levels of primary productivity, specifically in the nearshore and estuarine regions, where coastal phytoplankton tend to bloom in the winter and summer. Given the proximity to the continental shelf, this area forms an important habitat for various benthic and fish species, as well as forms important habitat for fin whales, humpback whales, North Atlantic right whales, and other large whales as they migrate through the area. The CVOW-C project area is located within the Mid-Atlantic Bight and relatively flat with “very gentle to gentle slopes”, as described by the BOEM classification found in the CVOW-C Construction and Operations Plan (COP) (Dominion Energy, 2023). In the Export Cable Routes, the seafloor slopes are less than 1 degree (“very gentle” based again on the BOEM classification; Dominion Energy, 2023). The most significant slopes can be found on the flanks of morphological features and other topographic highs where the seabed gradient ranges up to 4 degrees (Dominion Energy, 2023). The most prominent seabed features with the project area are pronounced sand ridges that create a ridge and swale topography. In the northeastern portion of the project area, the heights of the sand ridges are lower, topographic variation across the ridges is reduced, seafloor bathymetry is deeper, and water depths are less variable.
A complete mapping of the seabed has identified a low number of boulders present on the seafloor (Dominion Energy, 2023). Only 10 boulders and 110 seabed targets interpreted as possible boulders have sizes greater than 1 m (3 ft). No patterns were identified in the location of boulders across the Lease Area and Export Cable Routes.
The seafloor in the CVOW-C project area is dynamic and changes over time due to current, tidal flows, and wave conditions. The benthic habitat of the project area contains a variety of seafloor substrates, physical features, and associated benthic organisms. The soft bottom sediments in the project area are reflective of the rest of the Mid-Atlantic Bight region, and characterized
Additional information on the underwater environment's physical resources can be found in CVOW-C's COP (Dominion Energy, 2023) available at
Below, we provide detailed descriptions of Dominion Energy's activities, explicitly noting those that are anticipated to result in the take of marine mammals and for which incidental take authorization is requested. Additionally, a brief explanation is provided for those activities that are not expected to result in the take of marine mammals.
Dominion Energy proposes to install up to 176 WTGs on monopile foundations and 3 OSSs on jacket foundations. They anticipate all WTG foundations could be installed between May 1st through October 31st in 2024 and 2025, over the course of six months in each year. However, it may be possible that monopile installation associated with the WTG foundations would need to continue into a third year (2026), depending on construction logistics and local and environmental conditions that may influence Dominion Energy's ability to maintain the planned construction schedule. If this is determined to be necessary, WTG foundations would only be installed between May 1st through September 30th of 2026. However, this schedule shift would not change NMFS' proposed determinations as the total number of piles would remain the same. While this shift is unlikely to occur, the proposed rulemaking does retain flexibility in addressing unforeseen circumstances. However, all foundations would be installed during the effective period of this proposed rule, if issued. OSS jacket foundations would most likely be installed in August 2024; however, they could be installed anytime between May 1st through October 31st. For both types of foundations, Dominion Energy has committed to not installing from November 1st through April 30th, annually.
A WTG monopile foundation typically consists of a single steel tubular section, with several sections of rolled steel plate welded together. Each monopile would have a maximum diameter tapering from 7.5 m (24.6 ft) at the top to 9.5 m (31 ft) at the seafloor (collectively referred to as a 9.5/7.5-m monopile). WTGs would be spaced approximately 0.75 nautical miles (nm; 1.39 km) in an east-west direction and 0.93 nm (1.72 km) in a north-south direction and will have an average penetration depth of 42 m (138 ft; between 30 m and 46 m per Attachment Z-3 of Appendix A in Dominion Energy's ITA application). Although only 176 WTGs would be installed, seven foundations may need to be re-installed at a different location; hence Dominion Energy has accounted for up to 183 WTG individual piling events in its analysis, which we have carried forward with in this proposed rule.
Each OSS installed by Dominion Energy would be supported by a jacket foundation. A piled jacket foundation is formed by a steel lattice construction (comprising tubular steel members and welded joints) secured to the seabed by means of hollow steel pin piles attached to the jacket. Each jacket foundation would consist of up to four pin piles. In total, Dominion Energy would install up to 3 OSSs for a total of 12 pin piles. Up to two pin piles would be installed per day. Pin piles will have a maximum diameter of 2.8 m (9.2 ft) each and will be installed vertically. The maximum penetration depth of each pin pile would be 82 m (269 ft).
Given the project area's soil conditions, the installation of both WTG monopile foundations and OSS jacket foundations would necessitate the use of both vibratory and impact pile driving to avoid pile run (also known as “punch-through”). Pile run can occur when a monopile or a pin pile rapidly penetrates in an uncontrolled manner through a weak layer of soil, due to the soil resistance being lower than the weight of the pile and hammer (transferring impulsive energy to the pile). Pile runs can occur instantaneously and through a depth of meters to dozens of meters. A pile run incident can have severe negative consequences, both for the safety of personnel aboard the installation vessel and significant risk of damage to equipment. To mitigate this risk, Dominion Energy would first perform vibratory hammering, which would allow for a more controllable installation process when installing piles in soft sediments as the vibrohammer is directly in contact with the pile (see Figures 2 through 5 in Dominion Energy's ITA application), as opposed to installation using the impact hammer (see Figures 6 and 7 in Dominion Energy's ITA application). Once the pile run risk depth has been passed, the method of installation would transition from a vibratory hammer to an impact hammer. It is anticipated the transition from a vibratory hammer to an impact hammer would require approximately 1.2 hours wherein no pile driving would occur. Once installation of the monopile and/or pin pile is complete, the pile driving vessel would move to the next installation location. While Dominion Energy states that not all piles will require the use of the vibrohammer in conjunction with the impact hammer, it was considered more conservative to analyze all installed piles using this dual approach as it is not yet known how many would require the dual installation method. No concurrent pile driving at multiple locations would occur.
Per monopile, use of the vibrohammer is estimated to occur for approximately 30 to 60 minutes (depending on if the pile uses a standard driving or hard-to-drive scenario, respectively) to firmly stabilize the foundation pile. A 72 minute (1.2 hour) pause to allow for the vibratory hammer to be exchanged with an impact hammer would occur. Then, the impact hammer would be used for approximately three hours (constituting approximately 3 hours for 3,240-3,720 total hammer strikes, with more strikes needed if the pile is considered difficult to install). A joint standard and hard-to-drive scenario (Scenario 3) for the installation of up to two monopiles in a single day may require up to 90 minutes of vibratory pile driving followed by up to 6,960 hammer strikes. In all situations, the impact hammer would drive the pile until it reaches its target embedment depth (approximately 42 m (138 ft) for monopiles). The three possible WTG monopile installation scenarios are laid out in Table 2 below:
For pin piles, vibratory pile driving is anticipated to require approximately 120 minutes (2 hours), a 72 minute (1.2 hours) pause in activities, and then continue with impact pile driving using a hammer energy up to 3,000 kJ, resulting in a total estimate of 15,210 hammer strikes. As with WTG foundations, the impact hammer would drive the pin pile until it reaches its target embedment depth (approximately 82 m (269 ft) for pin piles). A maximum of two pin piles would be driven per day. Each OSS jacket foundation would take approximately five days to install with a total of 30 days needed for the completion of all three OSSs (n=3) with all of their pin piles (n=12). This 30-day period does include periods of non-pile driving time where other activities related to the jacket foundations may be installed.
The current construction schedule assumes foundation installation would occur in 2024 and 2025; however, as previously discussed in the Dates and Duration section, limited installation of WTGs may need to be installed in 2026 if the project falls off of the construction schedule. Given an estimated installation schedule, Dominion Energy expects that up to 95 monopile foundations would be installed in 2024 and up to 88 monopiles would be installed in 2025. If pile driving must occur in this 3rd year, installation would only occur across a five month period (May 1st through September 30th, 2026). All WTG and OSS foundation installation would occur during daylight hours only. The only exception would be if, for safety reasons, ceasing pile driving activities would compromise both the health of humans and the environment or if ceasing the pile driving would cause instability and integrity concerns on the project. In most cases, one pile would be installed per day, although two may be installed during some months. No concurrent pile driving is planned or proposed to occur. The same exception described above for WTG foundations applies to OSS foundations where integrity or safety concerns may necessitate the pile to be finished after sunset. The proposed WTG and OSS pile driving schedule can be found in Table 3 below that describes the construction schedule on both an annual and monthly basis.
To support the connection of the offshore cable with the onshore cable, Dominion Energy would install both temporary goal posts and temporary cofferdams approximately 1,000 m (3,281 ft) offshore of the State Military Reservation in Virginia Beach, Virginia. These activities are two components of a broader set of activities conducted during cable landfall construction. The goal posts and cofferdams would support work associated with installing casing pipes housing the export cables. Dominion Energy would install the 9 casing pipes approximately 50 ft apart from each other at the cable landfall construction site using a Trenchless Installation approach. Using a tunneling approach similar to horizontal directional drilling (HDD), a boring machine would excavate the ground while simultaneously pushing strings of steel casing pipes along umbilical lines
Temporary goal posts (made up of 42-in diameter steel pipe piles) would be installed between each exit location and would be used to guide the progress and movement of the casing pipes and to provide lateral stability. Temporary cofferdams are used to aid cable pull in as the cable is fed through the underground tunnel (located 6.6 ft (2 m) below the seabed). A technical description of the Trenchless Installation approach can be found in Section 1 of Dominion Energy's ITA application.
Trenchless installation requires the use of extensive equipment that would be staged at the onshore location for the cable. However, only the equipment required to extract the boring device, post-tunneling, is temporarily staged at the onshore exit location. Despite the extensive equipment necessary for this activity (see the ITA application for details), most of it is not expected to result in the take of marine mammals as the source levels are all generally very low. Even the pipe thruster does not vibrate or make noise and simply pushes the pipe forward with the boring device. Because of this, only the aspects for cable landfall construction that could cause the take of marine mammals (
The goal posts would consist of 1.07 m (42 in) steel pipe piles that would be installed using an impact hammer for up to 130 minutes daily (a maximum of 2 installed per day). The duration of each strike of the impact hammer would be between 0.5-2 seconds in duration and necessitate approximately 260 strikes per pile. Up to 12 goal posts are required at each of the 9 casing pipe locations; hence 108 goal posts would be installed. Given there are 12 goal posts per each of the nine Direct Pipe locations, a total of 108 piles would be installed. Given up to 2 piles would be installed per day, there could be 520 strikes per day. To install all goal posts, Dominion Energy would conduct pile driving for 54 days.
Once installed, the goal posts can be removed using equipment not expected to generate any underwater acoustic noise as the majority of the force applied would be to overcome the skin friction of the material that is embedded in the substrate. This is expected to consist of pulling/tugging of the piles using mechanical or hydraulic equipment and take a similar amount of time of installation (
Dominion Energy also anticipates that up to nine temporary cofferdams, which would only be installed and removed via vibratory pile driving, may be necessary during cable landfall construction activities. These would be located at the Nearshore Trenchless Installation Punch-Out location, where the export cables would transition (via underground drilling) to the onshore cable landing location, to facilitate the preferred approach of lowering of the Direct Pipe burial underground (approximately 2 m (6.6. ft) below the seabed) to reduce the need for additional cable protections and to minimize the release of sediments and drilling fluids into the water. Each temporary cofferdam would consist of 30 to 40 steel sheet piles measuring 0.51 m (20 in) in diameter arranged in a predetermined configuration (270 to 360 steel sheet piles total for all nine cofferdams). Vibratory pile drivers would be used to both install and remove the steel sheet piles. Each sheet pile would necessitate approximately 2 to 3 minutes of active drive time for installation, at a maximum installation rate of 20 sheet piles per day (up to 40-60 minutes daily). To allow for flexibility in the plan, Dominion Energy has assumed installation will take approximately 3 days (180 minutes total) per cofferdam. Removal of these sheet piles would also occur by a vibratory driver and is estimated to take approximately the same amount of time to remove as it was to install for a total of 3 days per cofferdam. A single cofferdam would take a total of 6 days to install and remove. In total, pile driving (installation and removal) associated with all cofferdams would occur over 54 non-consecutive days.
Collectively, Dominion Energy estimates that the installation and removal of all necessary components for cable landfall activities that have the potential to result in take of marine mammals (
HRG surveys would be conducted to identify any seabed debris and to support micro-siting of the WTG and OSS foundations and all cable routes. After construction is complete, HRG surveys would be conducted to ensure that all underwater project components have been properly installed. These surveys may utilize acoustic equipment such as multibeam echosounders, side scan sonars, shallow penetration sub-bottom profilers (SBPs) (
• Shallow penetration sub-bottom profilers (SBPs) to map the near-surface stratigraphy (top 0 to 5 m (0 to 16 ft) of sediment below seabed). A CHIRP system emits sonar pulses that increase in frequency over time. The pulse length frequency range can be adjusted to meet
• Medium penetration SBPs (boomers) to map deeper subsurface stratigraphy as needed. A boomer is a broad-band sound source operating in the 3.5 Hz to 10 kHz frequency range. This system is typically mounted on a sled and towed behind the vessel.
• Medium penetration SBPs (sparkers) to map deeper subsurface stratigraphy as needed. A sparker creates acoustic pulses from 50 Hz to 4 kHz omni-directionally from the source that can penetrate several hundred meters into the seafloor. These are typically towed behind the vessel with adjacent hydrophone arrays to receive the return signals.
Table 4 identifies all the representative survey equipment that may be used during the CVOW-C proposed project.
As shown in Table 4 above, multibeam echosounders and side scan sonars used by Dominion Energy operate at frequencies above 180 kHz, which is outside of any marine mammal hearing range. Hence, take from these sources is not anticipated. In addition, due to the characteristics of non-impulsive sources (
HRG surveys would utilize between two or three vessels working concurrently in different sections of the Lease Area and Export Cable Routes. Both vessels would be operating several kilometers apart at any one time. On average, 58 km (36 mi) would be surveyed each survey day, per vessel, at a speed of approximately 2.4 km/hour (1.3 kts) on a 24-hour basis although some vessels may only operate during daylight hours (survey vessels operating for 12-hours). During the five-years the proposed rule would be effective an estimated area of 64,264 km
HRG site characterization surveys would occur annually and throughout the five years of the proposed authorization with duration dependent on the activities occurring in that year (
Cable burial operations would occur both in the Lease Area and export cable routes from the least area to shore. The inter-array cables would connect the 176 WTGs to any one of the three OSSs. Cables within the Export Cable Routes would carry power from the OSSs to shore at the landfall location near the firing range at the State Military Reservation in Virginia Beach, Virginia. The offshore export and inter-array cables would be buried in the seabed at a target depth of up to 0.8 m (2.6 ft) to 3 m (9.8 ft), although the exact depth will depend on the substrate in the area.
Cable laying, cable installation, and cable burial activities planned to occur during the construction of the CVOW-C project may include the following: jet plowing, jet trenching, chain cutting, hydro-plowing (simultaneous lay and burial), mechanical plowing (simultaneous lay and burial), pre-trenching (both simultaneous and separate lay and burial), mechanical trenching (simultaneous lay and burial), and/or other available technologies. As the noise levels generated from cable laying and installation work are low, the potential for take of marine mammals to result is discountable. Dominion Energy is not requesting and NMFS is not proposing to authorize take associated with cable laying activities. Therefore, cable laying activities are not analyzed further in this document.
Prior to installation activities, Dominion Energy would conduct debris clearance, pre-lay grapnel runs, Unexploded Ordnance/Munitions and Explosives of Concern (UXO/MEC) relocation, and pre-lay surveys. While Dominion Energy does not expect any sandwave clearance or boulder removal activities to occur, planned vessel use described below in Table 6 indicates that these activities may occur. Because of this, we include additional information on what these activities may entail and how they would affect marine mammals.
Typically for offshore construction projects, some dredging may be required prior to cable laying due to the presence of sandwaves. Sandwave clearance is typically undertaken where cable exposure is predicted over the lifetime of a project due to seabed mobility. This facilitates cable burial below the reference seabed. Alternatively, sandwave clearance may be undertaken where slopes become greater than approximately 10 degrees (17.6 percent), which could cause instability to the burial tool. Dominion Energy does not anticipate any sandwave clearance (Dominion Energy, 2023). However, while unanticipated, if it becomes necessary to remove sandwaves, Dominion Energy will clear the area using subsea excavation methods. The work could be undertaken by traditional dredging methods such as a trailing suction hopper. Controlled flow excavation may be used to induce water currents to force the seabed into suspicion, where it would otherwise be directed to eventually settle (Dominion Energy, 2023). In some cases, pre-sweeping of the sandwaves may be necessary to provide a sufficient excavated platform at the base of the sandwave for tool installation. Surveys using multi-beams and other equipment may be necessary to inform on the seabed conditions before and after sandwave clearance and cable lay activities (Dominion Energy, 2023).
For monopile and jacket foundation installation, seafloor preparation could include required boulder clearance and removal of any obstructions within the Seafloor Preparation Area at each foundation location. Scour protection installation will occur prior to and/or after installation and will involve a rock dumping vessel placing scour at each foundation location.
For export cable installation, seafloor preparation typically includes required sandwave leveling, boulder clearance, and removal of any out of service cables. Boulder clearance trials are normally performed prior to wide-scale seafloor preparation activities to evaluate efficacy of boulder clearing techniques. Additionally, pre-lay grapnel runs may be undertaken to remove any seafloor debris along the Export Cable Routes. A specialized vessel will tow a grapnel rig along the centerline of each cable to recover any debris to the deck for appropriate licensed disposal ashore, where practicable. Concrete mattress separation layers may also be installed at cable routes prior to cable installation for both in-service assets as well as out-of-service assets that cannot be safely removed and pose a risk to the CVOW-C Export Cable Routes.
Boulder clearance may also be required in targeted locations to clear boulders along the Export Cable Routes, inter-array cable routes, and/or foundations prior to installation. Boulder removal can be performed using a combination of methods to optimize clearance of boulder debris of varying size and frequency. Removal is based on pre-surveys to identify location, size, and density of boulders. Surveys previously performed by Dominion Energy have indicated that no boulders over 0.5 m, or any other subsea obstructions, have been identified in the project area (Dominion Energy, 2023). If boulders are encountered during installation activities, Dominion Energy would move them from the Export Cable Routes, using either subsea grabs, or ploughs, and then relocate them to areas as close as possible to the original location of the undersea object (Dominion Energy, 2023). Boulder removal, if necessary to occur based on information obtained during pre-construction surveys, would be performed prior to the installation of the Export Cable Routes and would be completed by a support vessel. A boulder grab or a boulder plow may be used to complete boulder removal prior to installation. A boulder grab involves a grab most likely deployed from a dynamic positioning offshore support vessel being lowered to the seabed, over the targeted boulder. Once “grabbed”, the boulder is relocated away from the cable route and/or foundation location.
Effects from seafloor preparation on marine mammals are expected to be short-term, low intensity, and unlikely to qualify as a take. Dredging, sandwave leveling, and boulder clearance is expected to be extremely localized at any given time, and NMFS expects that any marine mammals would not be exposed at levels or durations likely to disrupt behavioral patterns (
Dominion Energy would utilize a variety of vessels to construct the CVOW-C project. Vessels may be used for direct installation or construction activities, surveys, protected species resource monitoring, and for crew and/or supply transfers. All route plans for all vessels would be designed to meet the industry guidelines and best practices in accordance with the International Chamber of Shipping guidance. All vessels would utilize Automatic Identification Systems (AIS) for all aspects of the project, as required by the United States Coast Guard. AIS would be required to monitor the number of vessels and traffic patterns for analysis and compliance with vessel speed requirements. All vessels will operate in accordance with applicable rules and regulations for maritime operation within U.S. Federal and state waters.
The largest vessels are expected to be used during the WTG installation phase with floating/jack-up crane barges, cable-laying vessels, supply/crew vessels, and/or associated tugs and barges transporting construction equipment and materials. Large work vessels (
While marine mammals may respond to the presence of a vessel, given the predictable movement and ubiquitous presence of vessels in the marine environment, and especially the variable sizes, which consist of smaller support vessels that are predominate during offshore wind development, exposure to transiting vessels would not generally be expected to result in the disruption of marine mammal behavioral patterns such that a take would occur. As part of various vessel-based construction activities, including cable laying and construction material delivery, dynamic positioning thrusters may be utilized to hold vessels in position or move slowly. Sound produced through use of dynamic positioning thrusters is similar to that produced by transiting vessels, and dynamic positioning thrusters are typically operated either in a similarly predictable manner or used for short durations around stationary activities. Construction-related vessel activity, including the use of dynamic positioning thrusters, is not expected to result in take of marine mammals. Dominion Energy did not request and NMFS does not propose to authorize any take associated with vessel activity.
Dominion Energy has executed a lease agreement for a portion of the existing Portsmouth Marine Terminal facility in the city of Portsmouth, Virginia, to serve as a Construction Port (Sections 1-3, Dominion Energy, 2023). The Construction Port would be used to stage and store the monopiles and relevant transition pieces and to stage and store and pre-assemble wind turbine generation components. Dominion Energy is also currently evaluating several alternatives to lease portions of existing port facilities in the Hampton Roads, Virginia area for an operation and maintenance facility for the CVOW-C proposed project. The preferred location is Lambert's Point, located on a brownfield site in Norfolk, Virginia, although existing facilities at the Virginia Port Authority's Portsmouth Marine Terminal or Newport News Marine Terminal may also be viable options. These ports will continue to assist Dominion Energy to support offshore construction, assembly and fabrication, crew transfers, and logistics.
Vessel types and usage estimated to occur during the entire five-year effective period of the proposed rule, if issued, is shown in Table 6. NMFS references the reader to Dominion Energy's COP for additional information on vessels planned for use during the CVOW-C proposed project (Dominion Energy, 2023).
Dominion Energy may supplement vessel-based transport with helicopter usage to transfer crew to and from both the shore and the Lease Area (crew transfer vessels described in Table 6 above does not consider helicopter use and thus, is a conservative estimate). Helicopter usage would align with the best practices from the Federal Aviation Administration and other relevant stakeholders when determining routes and altitudes for travel. Helicopter use is expected primarily from 2024-2026 at a rate of up to four roundtrip flights per week, equating to 208 roundtrips annually and up to 624 roundtrips total. Project-related aircraft would only occur at low altitudes over water during takeoff and landing at an offshore location where one or more vessels are located. Helicopters produce sounds that can be audible to marine mammals; however, most sound energy from aircraft reflects off the air-water interface as only sound radiated downward within a 26-degree cone penetrates below the surface water (Urick, 1972). Due to the intermittent nature and the small area potentially ensonified by this sound source for a very limited duration, Dominion Energy did not request, and NMFS is not proposing to authorize take of marine mammals incidental to helicopter flights; therefore, this activity will not be discussed further in this proposed action.
Dominion Energy plans to undertake fisheries monitoring surveys, in partnership with the Virginia Institute of Marine Sciences (VIMS), Atlantic surf clam (
With the implementation of these measures, Dominion Energy does not anticipate, and NMFS is not proposing, to authorize take of marine mammals incidental to fishery surveys. Given no take is anticipated from these surveys, impacts from fishery surveys will not be discussed further in this document aside from listing the required mitigation measures (see Proposed Mitigation section).
Thirty-nine marine mammal species under NMFS' jurisdiction have geographic ranges within the western North Atlantic OCS (Hayes
Of the 39 marine mammal species and/or stocks with geographic ranges that include the CVOW-C project area found in the coastal and offshore waters of Virginia (Table 11 in Dominion Energy's ITA application), 17 are not expected to be present or are considered rare or unexpected in the project area based on sighting and distribution data; they are, therefore, not discussed further beyond the explanation provided here. Specifically, the following cetacean species are known to occur offshore of Virginia but are not expected to occur in the project area due to the location of preferred habitat outside the Lease Area and Export Cable Routes, based on the best available information: dwarf sperm whale (
None of the aforementioned species were observed during HRG surveys conducted by Dominion Energy in and around Virginia from 2018-2021 based on monitoring reports received for previously issued high-resolution site characterization IHAs (85 FR 55415, September 8, 2020; 85 FR 81879, December 17, 2020; 86 FR 21298, April 22, 2021), for the construction of the CVOW Pilot Project (85 FR 30930, May 21, 2020) or Unexploded Ordnance/Munitions and Explosives of Concern (UXO/MEC)-specific surveys (83 FR 39062, August 8, 2018). However, four marine mammal species that might otherwise be considered rare were detected through PAM/visually observed by marine mammal monitors during work under these previous IHAs. These include: false killer whales (one acoustically detected, four observed), pygmy sperm whales (one acoustically detected, one observed), Clymene dolphin (five observed), and melon-headed whales (one acoustically detected, five recorded). Although these were detected in low numbers, these observations/detections did occur within locations near the CVOW-C project area where NMFS considers it reasonably likely that some individuals may be observed during the five-year effective period of the proposed rulemaking. Because of this, NMFS has proposed to authorize take of these species.
Table 7 lists all species and stocks for which take is expected and proposed to be authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR) level, 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 (16 U.S.C. 1362(20)) and can be found in NMFS's SARs. While no mortality is anticipated or proposed for authorization here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's 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's U.S. Atlantic and Gulf of Mexico SARs. All values presented in Table 7 are the most recent available at
As indicated above, all 21 species and 22 stocks in Table 7 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. Four of the marine mammal species for which take is requested are listed as threatened or endangered under the ESA, including North Atlantic right, fin, sei, and sperm whales. In addition to what is included in Sections 3 and 4 of Dominion Energy's ITA application (
Under the MMPA, a UME is defined as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response” (16 U.S.C. 1421h(6)). As of April 13, 2023, five UMEs are considered active, with four of these occurring along the U.S. Atlantic coast for various marine mammal species; of these, the most relevant to the CVOW-C project are the North Atlantic right whale and the humpback whale, given the prevalence of these species in the project area. A more recent UME is active for the Northeast pinnipeds (harbor and gray seals) but has only been recorded in Maine, which is outside the project area. Two other UMEs, one for the Atlantic minke whale from 2017-2022 and one for the Northeast pinnipeds (harbor and gray seals) from 2018-2020, are considered non-active and are pending closure. More information on UMEs, including all active, closed, or pending, can be found on NMFS' website at
Below we include information for a subset of the species that presently have an active or recently closed UME occurring along the Atlantic coast, or for which there is information available related to areas of biological significance. For the majority of species potentially present in the specific geographic region, NMFS has designated only a single generic stock (
The North Atlantic right whale has been listed as Endangered since the ESA was enacted in 1973. They were recently uplisted from Endangered to Critically Endangered on the International Union for Conservation of Nature (IUCN) Red List of Threatened Species (Cooke, 2020). The uplisting was due to a decrease in population size (Pace
The North Atlantic right whale population had only a 2.8 percent recovery rate between 1990 and 2011, and an overall abundance decline of 29.7 percent from 2011-2020 (Hayes
NMFS' regulations at 50 CFR 224.105 designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas (SMAs) for right whales in 2008. These specific SMAs were developed to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds. As mentioned previously, the Chesapeake Bay SMA is within the vicinity of the proposed project area (
The proposed project area (456.5 km
In late fall, a portion of the right whale population (including pregnant females) typically departs the feeding grounds in the North Atlantic, moves south along the migratory corridor BIA, including through the proposed project area, to right whale calving grounds off Georgia and Florida. Right whales feed primarily on the copepod,
North Atlantic right whale presence within the CVOW-C project area is predominantly seasonal with individuals likely to be transient and migrating through the area. The highest density months for North Atlantic right whales in this area are November through April, however, mitigation measures include a restriction on pile driving during this time period. Right whales have also been acoustically detected off coastal Virginia year-round with detections during the late fall (October-December) and late winter/early spring (February-March) (Salisbury
Elevated right whale mortalities have occurred since June 7, 2017, along the U.S. and Canadian coast, with the leading category for the cause of death for this UME determined to be “human interaction,” specifically from entanglements or vessel strikes. As of April 13, 2023, there have been 36 confirmed mortalities (dead stranded or floaters), 0 pending mortalities, and 33 seriously injured free-swimming whales for a total of 69 whales. As of October 14, 2022, the UME also considers animals (n=29) with sub-lethal injury or illness (called “morbidity”) bringing the total number of whales in the UME to 98. Approximately 42 percent of the population is known to be in reduced health (Hamilton
Humpback whales are found worldwide in all oceans, but were listed as endangered under the Endangered Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks continued to be listed as endangered.
On September 8, 2016, NMFS divided the once single species into 14 distinct population segments (DPS), removed the species-level listing, and, in its place, listed four DPSs as endangered and one DPS as threatened (81 FR 62259; September 8, 2016). The remaining nine DPSs were not listed. The West Indies DPS, which is not listed under the ESA, is the only DPS of humpback whales that is expected to occur in the project area. Bettridge
Humpback whales are migratory off coastal Virginia, moving seasonally between northern feeding grounds in New England and southern calving grounds in the West Indies (Hayes
Since January 2016, elevated humpback whale mortalities along the Atlantic coast from Maine to Florida led to the declaration of a UME. Partial or full necropsy examinations have been conducted on approximately half of the 191 known cases (as of April 13, 2023). Of the whales examined (approximately 90), about 40 percent had evidence of human interaction, either ship strike or entanglement (
Since December 1, 2022, the number of humpback strandings along the mid-Atlantic coast, including Virginia off Virginia Beach, has been elevated. In some cases, the cause of death is not yet known. In others, vessel strike has been deemed the cause of death. As the humpback whale population has grown,
Fin whales frequently occur in the waters of the U.S. Atlantic Exclusive Economic Zone (EEZ), principally from Cape Hatteras, North Carolina northward and are distributed in both continental shelf and deep water habitats (Hayes
The New England area represents a major feeding ground for fin whales, with two known foraging BIAs in the general area. Fin whales typically feed in the Gulf of Maine and the waters surrounding New England, but their mating and calving (and general wintering) areas are largely unknown (Hain
Minke whales are common and widely distributed throughout the U.S. Atlantic EEZ (Cetacean and Turtle Assessment Program (CETAP), 1982; Hayes
There are two minke whale feeding BIAs identified in the southern and southwestern section of the Gulf of Maine, including Georges Bank, the Great South Channel, Cape Cod Bay and Massachusetts Bay, Stellwagen Bank, Cape Anne, and Jeffreys Ledge from March through November, annually (LeBrecque
Since January 2017, elevated minke whale mortalities detected along the Atlantic coast from Maine through South Carolina resulted in the declaration of a UME. As of April 13, 2023, a total of 142 minke whales have stranded during this UME. Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary findings have shown evidence of human interactions or infectious disease in several of the whales, but these findings are not consistent across all of the whales examined, so more research is needed. This UME has been declared non-active and is pending closure. More information is available at:
The Nova Scotia stock of sei whales can be found in deeper waters of the continental shelf edge of the eastern United States and northeastward to south of Newfoundland (Mitchell, 1975; Hain
A sei whale feeding BIA occurs in New England waters from May through November (LaBrecque
Since June 2022, elevated numbers of harbor seal and gray seal mortalities have occurred across the southern and central coast of Maine. This event has been declared a UME. Preliminary testing of samples has found some harbor and gray seals positive for highly pathogenic avian influenza. While the UME is not occurring in the CVOW-C project area, the populations affected by the UME are the same as those potentially affected by the project.
The above event was preceded by a different UME, occurring from 2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July 2018, elevated numbers of harbor seal and gray seal mortalities occurred across Maine, New Hampshire, and Massachusetts. Additionally, stranded seals have shown clinical signs as far south as Virginia, although not in elevated numbers, therefore the UME investigation encompassed all seal strandings from Maine to Virginia. A total of 3,152 reported strandings (of all species) occurred from July 1, 2018, through March 13, 2020. Full or partial necropsy examinations have been conducted on some of the seals and samples have been collected for testing. Based on tests conducted thus far, the main pathogen found in the seals is phocine distemper virus. NMFS is performing additional testing to identify any other factors that may be involved in this UME, which is pending closure. Information on this UME is available online at:
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Twenty-one marine mammal species (19 cetacean species (5 mysticetes and 14 odontocetes) and 2 pinniped species (both phocid), consisting of 22 total stocks) have the reasonable potential to co-occur with the proposed project activities (Table 7).
NMFS notes that in 2019, Southall
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take of Marine Mammals 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 of Marine Mammals 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 how those impacts on individuals are likely to impact marine mammal species or stocks. General background information on marine mammal hearing was provided previously (see the Description of Marine Mammals in the Area of Specified Activities section). Here, the potential effects of sound on marine mammals are discussed.
Dominion Energy has requested authorization to take marine mammals incidental to construction activities associated within the CVOW-C project area. In the ITA application, Dominion Energy presented analyses of potential impacts to marine mammals from use of acoustic sources. NMFS carefully reviewed the information provided by Dominion Energy and independently
The proposed activities include the placement of up to 179 permanent foundations (176 WTGs and 3 OSSs), temporary nearshore cable landfall activities (
This section contains a brief technical background on sound, on the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document. For general information on sound and its interaction with the marine environment, please see,
Sound is a vibration that travels as an acoustic wave through a medium such as a gas, liquid or solid. Sound waves alternately compress and decompress the medium as the wave travels. These compressions and decompressions are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones (underwater microphones). In water, sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam (narrow beam or directional sources) or sound beams may radiate in all directions (omnidirectional sources).
Sound travels in water more efficiently than almost any other form of energy, making the use of acoustics ideal for the aquatic environment and its inhabitants. In seawater, sound travels at roughly 1,500 meters per second (m/s). In air, sound waves travel much more slowly at about 340 m/s. However, the speed of sound can vary by a small amount based on characteristics of the transmission medium such as water temperature and salinity.
The basic components of a sound wave are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in Hz or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds and typically attenuate (decrease) more rapidly except in certain cases in shallower water. The intensity (or amplitude) of sounds are measured in decibels (dB), which are a relative unit of measurement that is used to express the ratio of one value of a power or field to another. Decibels are measured on a logarithmic scale, so a small change in dB corresponds to large changes in sound pressure. For example, a 10 dB increase is a ten-fold increase in acoustic power. A 20 dB increase is then a 100-fold increase in power and a 30 dB increase is a 1000-fold increase in power. However, a ten-fold increase in acoustic power does not mean that the sound is perceived as being 10 times louder. Decibels are a relative unit comparing two pressures; therefore, a reference pressure must always be indicated. For underwater sound, this is 1 microPascal (μPa). For in-air sound, the reference pressure is 20 microPascal (μPa). The amplitude of a sound can be presented in various ways; however, NMFS typically considers three metrics.
Sound exposure level (SEL) represents the total energy in a stated frequency band over a stated time interval or event and considers both amplitude and duration of exposure (represented as dB re 1 μPa2-s). SEL is a cumulative metric; it can be accumulated over a single pulse (for pile driving this is often referred to as single-strike SEL; SELss) or calculated over periods containing multiple pulses (SEL
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
Peak sound pressure (also referred to as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous sound pressure measurable in the water at a specified distance from the source, and is represented in the same units as the rms sound pressure. Along with SEL, this metric is used in evaluating the potential for PTS (permanent threshold shift) and TTS (temporary threshold shift).
Sounds can be either impulsive or non-impulsive. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Non-impulsive sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or intermittent (ANSI, 1995; NIOSH, 1998). Some of these non-impulsive sounds can be transient signals of short duration but without the essential properties of pulses (
Sounds are also characterized by their temporal component. Continuous sounds are those whose sound pressure level remains above that of the ambient sound with negligibly small fluctuations in level (NIOSH, 1998; ANSI, 2005) while intermittent sounds are defined as sounds with interrupted levels of low or no sound (NIOSH, 1998). NMFS identifies Level B harassment thresholds based on if a sound is continuous or intermittent.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound, which is defined as environmental background sound levels lacking a single source or point (Richardson
The sum of the various natural and anthropogenic sound sources that comprise ambient sound at any given location and time depends not only on the source levels (as determined by current weather conditions and levels of biological and human 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 dB from day to day (Richardson
Pile driving sounds are broadband, omni-directional sound sources. Pile driving noise has the potential to result in harassment to marine mammals if the animal is close enough to the sound source (with the distances necessary to cause harassment dependent on source levels and transmission loss rates). HRG sources; however, are more complex as they vary widely (
Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life from none or minor to potentially severe responses depending on received levels, duration of exposure, behavioral context, and various other factors. Broadly, underwater sound from active acoustic sources, such as those in the CVOW-C project, can potentially result in one or more of the following: temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking (Richardson
In general, the degree of effect of an acoustic exposure is intrinsically related to the signal characteristics, received level, distance from the source, and duration of the sound exposure, in addition to the contextual factors of the receiver (
Richardson
Below, we provide additional detail regarding potential impacts on marine mammals and their habitat from noise in general, starting with hearing impairment, as well as from the specific activities Dominion Energy plans to conduct, to the degree it is available (noting that there is limited information regarding the impacts of offshore wind construction on marine mammals).
Marine mammals exposed to high-intensity sound or to lower-intensity sound for prolonged periods can experience hearing threshold shift (TS), which NMFS defines 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 expressed in decibels (NMFS, 2018). Threshold shifts can be permanent, in which case there is an irreversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range or temporary, in which there is reversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range and the animal's hearing threshold would fully recover over time (Southall
When PTS occurs, there can be physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans. However, such relationships are assumed to be similar to those in humans and other terrestrial mammals. Noise exposure can result in either a permanent shift in hearing thresholds from baseline (PTS; a 40 dB threshold shift approximates a PTS onset;
TTS is the mildest form of hearing impairment that can occur during exposure to sound, with a TTS of 6 dB considered the minimum threshold shift clearly larger than any day-to-day or session-to-session variation in a subject's normal hearing ability (Schlundt
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (
Recent studies with captive odontocete species (bottlenose dolphin, harbor porpoise, beluga, and false killer whale) have observed increases in hearing threshold levels when individuals received a warning sound prior to exposure to a relatively loud sound (Nachtigall and Supin, 2013, 2015; Nachtigall
Exposure of marine mammals to sound sources can result in, but is not limited to, no response or any of the following observable responses: increased alertness; orientation or attraction to a sound source; vocal modifications; cessation of feeding; cessation of social interaction; alteration of movement or diving behavior; habitat abandonment (temporary or permanent);
With respect to distance influencing disturbance, DeRuiter
Ellison
Behavioral change, such as disturbance manifesting in lost foraging time, in response to anthropogenic activities is often assumed to indicate a biologically significant effect on a population of concern. However, individuals may be able to compensate for some types and degrees of shifts in behavior, preserving their health and thus their vital rates and population dynamics. For example, New
Friedlaender
The following subsections provide examples of behavioral responses that give an idea of the variability in behavioral responses that would be expected given the differential sensitivities of marine mammal species to sound, contextual factors, and the wide range of potential acoustic sources to which a marine mammal may be exposed. Behavioral responses that could occur for a given sound exposure should be determined from the literature that is available for each species, or extrapolated from closely related species when no information exists, along with contextual factors.
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
Available information on impacts to marine mammals from pile driving associated with offshore wind is limited to information on harbor porpoises and seals, as the vast majority of this research has occurred at European offshore wind projects where large whales and other odontocete species are uncommon. Harbor porpoises and harbor seals are considered to be behaviorally sensitive species (
Brandt
While harbor porpoises and seals tend to move several kilometers away from wind farm construction activities, the duration of displacement has been documented to be relatively temporary. In two studies at Horns Rev II using impact pile driving, harbor porpoise returned within 1-2 days following cessation of pile driving (Tougaard
NMFS notes the aforementioned studies from Europe involve installing much smaller piles than Dominion Energy proposes to install and, therefore, we anticipate noise levels from impact pile driving to be louder. For this reason, we anticipate that the greater distances of displacement observed in harbor porpoise and harbor seals documented in Europe are likely to occur off Virginia. However, we do
Some avoidance behavior of other marine mammal species has been documented to be dependent on distance from the source. As described above, DeRuiter
The signal context of the noise exposure has been shown to play an important role in avoidance responses. In a 2007-2008 Bahamas study, playback sounds of a potential predator—a killer whale—resulted in a similar but more pronounced reaction in beaked whales (an acoustically sensitive species), which included longer inter-dive intervals and a sustained straight-line departure of more than 20 km from the area (Boyd
One potential consequence of behavioral avoidance is the altered energetic expenditure of marine mammals because energy is required to move and avoid surface vessels or the sound field associated with active sonar (Frid and Dill, 2002). Most animals can avoid that energetic cost by swimming away at slow speeds or speeds that minimize the cost of transport (Miksis-Olds, 2006), as has been demonstrated in Florida manatees (Miksis-Olds, 2006). Those energetic costs increase, however, when animals shift from a resting state, which is designed to conserve an animal's energy, to an active state that consumes energy the animal would have conserved had it not been disturbed. Marine mammals that have been disturbed by anthropogenic noise and vessel approaches are commonly reported to shift from resting to active behavioral states, which would imply that they incur an energy cost.
Forney
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Changes in dive behavior in response to noise exposure can vary widely. They may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Nowacek
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 cessation of secondary indicators of foraging (
Impacts on marine mammal foraging rates from noise exposure have been documented, though there is little data regarding the impacts of offshore turbine construction specifically. Several broader examples follow, and it is reasonable to expect that exposure to noise produced during the 5-years the proposed rule would be effective could have similar impacts.
Visual tracking, passive acoustic monitoring, and movement recording tags were used to quantify sperm whale behavior prior to, during, and following exposure to air gun arrays at received levels in the range 140-160 dB at distances of 7-13 km, following a phase-in of sound intensity and full array exposures at 1-13 km (Madsen
Balaenopterid whales exposed to moderate low-frequency signals similar to the ATOC sound source demonstrated no variation in foraging activity (Croll
Information on or estimates of the energetic requirements of the individuals and the relationship between prey availability, foraging effort and success, and the life history stage of the animal will help better inform a determination of whether foraging disruptions incur fitness consequences. Foraging strategies may impact foraging efficiency, such as by reducing foraging effort and increasing success in prey detection and capture, in turn promoting fitness and allowing individuals to better compensate for foraging disruptions. Surface feeding blue whales did not show a change in
Similarly, while the rates of foraging lunges decrease in humpback whales due to sonar exposure, there was variability in the response across individuals, with one animal ceasing to forage completely and another animal starting to forage during the exposure (Sivle
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, production of echolocation clicks, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result directly from increased vigilance (also see the
For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller
Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest (
Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting behavioral patterns. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which only occurs during the sound exposure. Because masking (without resulting in threshold shift) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
The echolocation calls of toothed whales are subject to masking by high-frequency sound. Human data indicate low-frequency sound can mask high-
Impacts on signal detection, measured by masked detection thresholds, are not the only important factors to address when considering the potential effects of masking. As marine mammals use sound to recognize conspecifics, prey, predators, or other biologically significant sources (Branstetter
As marine mammals use sound to recognize predators (Allen
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The dominant background noise may be highly directional if it comes from a particular anthropogenic source such as a ship or industrial site. Directional hearing may significantly reduce the masking effects of these sounds by improving the effective signal-to-noise ratio.
Masking affects both senders and receivers of acoustic signals and, at higher levels and longer duration, can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009; Cholewiak
In addition to making it more difficult for animals to perceive and recognize acoustic cues in their environment, anthropogenic sound presents separate challenges for animals that are vocalizing. When they vocalize, animals are aware of environmental conditions that affect the “active space” (or communication space) of their vocalizations, which is the maximum area within which their vocalizations can be detected before it drops to the level of ambient noise (Brenowitz, 2004; Brumm
Many animals will combine several of these strategies to compensate for high levels of background noise. Anthropogenic sounds that reduce the signal-to-noise ratio of animal vocalizations, increase the masked auditory thresholds of animals listening for such vocalizations, or reduce the active space of an animal's vocalizations impair communication between animals. Most animals that vocalize have evolved strategies to compensate for the effects of short-term or temporary increases in background or ambient noise on their songs or calls. Although the fitness consequences of these vocal adjustments are not directly known in all instances, like most other trade-offs animals must make, some of these strategies likely come at a cost (Patricelli
Marine mammals are also known to make vocal changes in response to anthropogenic noise. In cetaceans, vocalization changes have been reported from exposure to anthropogenic noise sources such as sonar, vessel noise, and seismic surveying (see the following for examples: Gordon
In some cases, these vocal changes may have fitness consequences, such as an increase in metabolic rates and oxygen consumption, as observed in bottlenose dolphins when increasing their call amplitude (Holt
While these changes all represent possible tactics by the sound-producing animal to reduce the impact of masking, the receiving animal can also reduce masking by using active listening strategies such as orienting to the sound source, moving to a quieter location, or reducing self-noise from hydrodynamic flow by remaining still. The temporal structure of noise (
Masking is more likely to occur in the presence of broadband, relatively continuous noise sources such as vessels. Several studies have shown decreases in marine mammal communication space and changes in behavior as a result of the presence of vessel noise. For example, right whales were observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
An animal's perception of a threat may be sufficient to trigger stress responses consisting of some combination of behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses (
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 sufficiently to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well studied through controlled experiments and for both laboratory and free-ranging animals (
These and other studies lead to a reasonable expectation that some marine mammals will experience physiological stress responses upon exposure to acoustic stressors and that it is possible that some of these would be classified as “distress.” In addition, any animal experiencing TTS would likely also experience stress responses (NRC, 2003, 2017).
Respiration naturally varies with different behaviors and variations in respiration rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Mean exhalation rates of gray whales at rest and while diving were found to be unaffected by seismic surveys conducted adjacent to the whale feeding grounds (Gailey
The different ways that marine mammals respond to sound are sometimes indicators of the ultimate effect that exposure to a given stimulus will have on the well-being (survival, reproduction,
Attention is the cognitive process of selectively concentrating on one aspect of an animal's environment while ignoring other things (Posner, 1994). Because animals (including humans) have limited cognitive resources, there is a limit to how much sensory information they can process at any time. The phenomenon called “attentional capture” occurs when a stimulus (usually a stimulus that an animal is not concentrating on or attending to) “captures” an animal's attention. This shift in attention can occur consciously or subconsciously (for example, when an animal hears sounds that it associates with the approach of a predator) and the shift in attention can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has captured an animal's attention, the animal can respond by ignoring the stimulus, assuming a “watch and wait” posture, or treat the stimulus as a disturbance and respond accordingly, which includes scanning for the source of the stimulus or “vigilance” (Cowlishaw
Vigilance is an adaptive behavior that helps animals determine the presence or absence of predators, assess their distance from conspecifics, or to attend cues from prey (Bednekoff and Lima, 1998; Treves, 2000). Despite those benefits, however, vigilance has a cost of time; when animals focus their attention on specific environmental cues, they are not attending to other activities such as foraging or resting. These effects have generally not been demonstrated for marine mammals, but studies involving fish and terrestrial animals have shown that increased vigilance may substantially reduce feeding rates (Saino, 1994; Beauchamp and Livoreil, 1997; Fritz
The primary mechanism by which increased vigilance and disturbance appear to affect the fitness of individual animals is by disrupting an animal's time budget and, as a result, reducing the time they might spend foraging and resting (which increases an animal's activity rate and energy demand while decreasing their caloric intake/energy). In a study of northern resident killer
On a related note, many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant for fitness if they last more than one diel cycle or recur on subsequent days (Southall
As noted above, there are few studies that directly illustrate the impacts of disturbance on marine mammal populations. Lusseau and Bejder (2007) present data from three long-term studies illustrating the connections between disturbance from whale-watching boats and population-level effects in cetaceans. In Shark Bay, Australia, the abundance of bottlenose dolphins was compared within adjacent control and tourism sites over three consecutive 4.5-year periods of increasing tourism levels. Between the second and third time periods, in which tourism doubled, dolphin abundance decreased by 15 percent in the tourism area and did not change significantly in the control area. In Fiordland, New Zealand, two populations (Milford and Doubtful Sounds) of bottlenose dolphins with tourism levels that differed by a factor of seven were observed and significant increases in traveling time and decreases in resting time were documented for both. Consistent short-term avoidance strategies were observed in response to tour boats until a threshold of disturbance was reached (average 68 minutes between interactions), after which the response switched to a longer-term habitat displacement strategy. For one population, tourism only occurred in a part of the home range. However, tourism occurred throughout the home range of the Doubtful Sound population and once boat traffic increased beyond the 68-minute threshold (resulting in abandonment of their home range/preferred habitat), reproductive success drastically decreased (increased stillbirths) and abundance decreased significantly (from 67 to 56 individuals in a short period).
In order to understand how the effects of activities may or may not impact species and stocks of marine mammals, it is necessary to understand not only what the likely disturbances are going to be but how those disturbances may affect the reproductive success and survivorship of individuals and then how those impacts to individuals translate to population-level effects. Following on the earlier work of a committee of the U.S. National Research Council (NRC, 2005), New
Despite its simplicity, there are few complete PCoD models available for any marine mammal species due to a lack of data available to parameterize many of the steps. To date, no PCoD model has been fully parameterized with empirical data (Pirotta
PCoD models may also be approached in different manners. Dunlop
Behavioral change, such as disturbance manifesting in lost foraging time, in response to anthropogenic activities is often assumed to indicate a biologically significant effect on a population of concern. However, as described above, individuals may be able to compensate for some types and degrees of shifts in behavior, preserving their health and thus their vital rates and population dynamics. For example, New
Nearly all PCoD studies and experts agree that infrequent exposures of a single day or less are unlikely to impact individual fitness, let alone lead to population level effects (Booth
Vessel collisions with marine mammals, also referred to as vessel strikes or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or an animal just below the surface could be cut by a vessel's propeller. Superficial strikes may not kill or result in the death of the animal. Lethal interactions are typically associated with large whales, which are occasionally found draped across the bulbous bow of large commercial ships upon arrival in port. Although smaller cetaceans are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to strike. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus, 2001; Laist
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike occurs and, if so, whether it results in injury, serious injury, or mortality (Knowlton and Kraus, 2001; Laist
Jensen and Silber (2003) detailed 292 records of known or probable ship strikes of all large whale species from 1975 to 2002. Of these, vessel speed at the time of collision was reported for 58 cases. Of these 58 cases, 39 (or 67 percent) resulted in serious injury or death (19 of those resulted in serious injury as determined by blood in the water, propeller gashes or severed tailstock, and fractured skull, jaw, vertebrae, hemorrhaging, massive bruising or other injuries noted during necropsy and 20 resulted in death). Operating speeds of vessels that struck various species of large whales ranged from 2 to 51 kn. The majority (79 percent) of these strikes occurred at speeds of 13 kn or greater. The average speed that resulted in serious injury or death was 18.6 kn. Pace and Silber (2005) found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed
In a separate study, Vanderlaan and Taggart (2007) analyzed the probability of lethal mortality of large whales at a given speed, showing that the greatest rate of change in the probability of a lethal injury to a large whale as a function of vessel speed occurs between 8.6 and 15 kn. The chances of a lethal injury decline from approximately 80 percent at 15 kn to approximately 20 percent at 8.6 kn. At speeds below 11.8 kn, the chances of lethal injury drop below 50 percent, while the probability asymptotically increases toward 100 percent above 15 kn.
The Jensen and Silber (2003) report notes that the Large Whale Ship Strike Database represents a minimum number of collisions because the vast majority probably goes undetected or unreported. In contrast, Dominion Energy's personnel are likely to detect any strike that does occur because of the required personnel training and lookouts, along with the inclusion of Protected Species Observers (as described in the Proposed Mitigation section), and they are required to report all ship strikes involving marine mammals.
In the CVOW-C project area, NMFS has no documented vessel strikes of marine mammals by Dominion Energy during previous site characterization surveys. Given the comprehensive mitigation and monitoring measures (see the Proposed Mitigation and Proposed Monitoring and Reporting section) that would be required of Dominion Energy, NMFS believes that a vessel strike is not likely to occur.
Dominion Energy's proposed construction activities could potentially affect marine mammal habitat through the introduction of impacts to the prey species of marine mammals (through noise, oceanographic processes, or reef effects), acoustic habitat (sound in the water column), water quality, and biologically important habitat for marine mammals.
Sound may affect marine mammals through impacts on the abundance, behavior, or distribution of prey species (
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fishes, like other vertebrates, have a variety of different sensory systems to glean information from the ocean around them (Hawkins and Johnstone, 1978; Astrup and Mohl, 1993; Astrup, 1999; Popper
Hearing capabilities vary considerably between different fish species with data only available for just over 100 species out of the 34,000 marine and freshwater fish species (Eschmeyer and Fong, 2016). In order to better understand acoustic impacts on fishes, fish hearing groups are defined by species that possess a similar continuum of anatomical features, which result in varying degrees of hearing sensitivity (Popper and Hastings, 2009a). There are four hearing groups defined for all fish species (modified from Popper
In terms of physiology, multiple scientific studies have documented a lack of mortality or physiological effects to fish from exposure to low- and mid-frequency sonar and other sounds (Jørgensen
In terms of behavioral responses, Juanes
Pile-driving noise during construction is of particular concern as the very high sound pressure levels could potentially prevent fish from reaching breeding or spawning sites, finding food, and acoustically locating mates. A playback study in West Scotland revealed that there was a significant movement response to the pile-driving stimulus in both species at relatively low received sound pressure levels (sole: 144-156 dB re 1μPa Peak; cod: 140-161 dB re 1 μPa Peak, particle motion between 6.51 × 10
Occasional behavioral reactions to activities that produce underwater noise sources are unlikely to cause long-term consequences for individual fish or populations. The most likely impact to fish from impact and vibratory pile driving activities at the project areas would be temporary behavioral avoidance of the area. Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the nearby vicinity. The duration of fish avoidance of an area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, any behavioral impacts to prey species are expected to be minor, temporary, and localized given the relatively small areas being affected and the short duration of individual pile driving events.
SPLs of sufficient strength have been known to cause fish auditory impairment, injury and mortality. Popper
Required soft-starts would allow prey and marine mammals to move away from the source prior to any noise levels that may physically injure prey and the use of the noise attenuation devices would reduce noise levels to the degree any mortality or injury of prey is also minimized. Use of bubble curtains, in addition to reducing impacts to marine mammals, for example, is a key mitigation measure in reducing injury and mortality of marine mammal prey. However, we recognize some mortality, physical injury and hearing impairment in marine mammal prey may occur but we anticipate the amount of prey impacted in this manner is minimal compared to overall availability. Any behavioral responses to pile driving by marine mammal prey are expected to be relatively brief. We expect that other impacts such as stress or masking would occur in fish that serve as marine mammals prey (Popper
In addition to fish, prey sources such as marine invertebrates could potentially be impacted by noise stressors as a result of the proposed activities. However, most marine invertebrates' ability to sense sounds is limited. Invertebrates appear to be able to detect sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive to low-frequency sounds (Packard
With regard to potential impacts on zooplankton, McCauley
A modeling exercise was conducted as a follow-up to the McCauley
Notably, a recently described study produced results inconsistent with those of McCauley
The presence of large numbers of turbines has been shown to impact meso- and sub-meso-scale water column circulation, which can affect the density, distribution, and energy content of zooplankton and thereby, their availability as marine mammal prey. The presence and operation of structures such as wind turbines are, in general, likely to result in local and broader oceanographic effects in the marine environment and may disrupt marine mammal prey, such as dense aggregations and distribution of zooplankton, through altering the strength of tidal currents and associated fronts, changes in stratification, primary production, the degree of mixing, and stratification in the water column (Chen
Dominion Energy anticipates that some turbines would become operational as early as 2025 with all 176 turbines being operational by the end of 2027. As described above, there is scientific uncertainty around the scale of oceanographic impacts (meters to kilometers) associated with turbine operation. CVOW-C is located offshore of Virginia along the Mid-Atlantic Bight. The transition zone between the Mid-Atlantic Bight and South Atlantic Bight is located just south of the project area, off Cape Hatteras, North Carolina. This zone provides the project area with larval ichthyoplankton flow via prevailing currents. However, the project area does not include key foraging grounds for marine mammals with planktonic diets (
Although the project area does not provide high-quality foraging habitat for plankton-feeding marine mammals, such as North Atlantic right whales, coastal Virginia provides seasonal high-quality foraging habitat for piscivorous marine mammals, such as humpback whales. Generally speaking and depending on the extent, impacts on prey could impact the distribution of marine mammals in an area, potentially necessitating additional energy expenditure to find and capture prey. However, at the temporal and spatial scales anticipated for this activity, any such impacts on prey are not expected to impact the reproduction or survival of any individual marine mammals. Although studies assessing the impacts of offshore wind development on marine mammals are limited, the repopulation of wind energy areas by harbor porpoises (Brandt
In general, impacts to marine mammal prey species are primarily expected to be relatively minor and temporary due to the relatively small areas being affected compared to available habitat and the duration of individual pile driving activities. Some mortality of prey inside the bubble curtain may occur; however, this would be very limited. NMFS does not expect HRG acoustic sources to impact fish and most sources are likely outside the hearing range of the primary prey species in the project area.
Overall, the combined impacts of sound exposure and oceanographic impacts on marine mammal habitat resulting from the proposed activities would not be expected to have measurable effects on populations of marine mammal prey species. Prey species exposed to sound might move away from the sound source, experience TTS, experience masking of biologically relevant sounds, or show no obvious direct effects; however, for Dominion Energy's activity, as described above, these impacts would not be expected to impact marine mammal foraging in a manner that would affect marine mammal reproduction or survival.
Acoustic habitat is the soundscape, which encompasses all of the sound present in a particular location and time, as a whole when considered from the perspective of the animals experiencing it. Animals produce sound for, or listen for sounds produced by, conspecifics (communication during feeding, mating, and other social activities), other animals (finding prey or avoiding predators), and the physical environment (finding suitable habitats, navigating). Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic or may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of air gun arrays) or for Navy training and testing purposes (as in the use of sonar and explosives and other acoustic sources). Together, sounds made by animals, generated by the geophysical environment (
Anthropogenic noise varies widely in its frequency, content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please also see the previous discussion on Masking), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic (
The term “listening area” refers to the region of ocean over which sources of sound of any kind can be detected by an animal at the center of the space. Loss of “communication space” concerns the area over which a specific animal signal, used to communicate with conspecifics in biologically important contexts (
Sound produced from construction activities in the CVOW-C project area may be widely dispersed or concentrated in small areas for varying periods. However, anthropogenic noise from construction activities in the project area would be intermittent and temporary. There would be breaks between noise-generating activities on active pile driving days. Similarly, there would likely be periods of days or weeks without construction-related underwater noise.
Although this proposed rulemaking primarily covers the noise produced from construction activities relevant to the CVOW-C project, operational noise was a consideration in NMFS' analysis of the project, as all 176 turbines would become operational within the effective dates (February 5, 2024-February 4, 2029), beginning no sooner than 2025 with all turbines expected to be operational by 2027. Once operational, offshore wind turbines are known to produce continuous, non-impulsive underwater noise, primarily below 1 kHz (Tougaard
In both newer, quieter, direct-drive systems (such as what has been proposed for CVOW-C) and older generation, geared turbine designs, recent scientific studies indicate that operational noise from turbines is on the order of 110 to 125 dB re 1 μPa root-mean-square sound pressure level (SPL
Tougaard
More recently, Stöber and Thomsen (2021) used monitoring data and modeling to estimate noise generated by more recently developed, larger (10 MW) direct-drive WTGs. Their findings, similar to Tougaard
Impacts to the immediate substrate during installation of piles are anticipated, but these would be limited to minor, temporary suspension of sediments, which could impact water quality and visibility for a short amount of time but which would not be expected to have any effects on individual marine mammals. Given there are no UXO/MEC detonations proposed by Dominion Energy, we do not expect any direct or indirect effects of explosives and unexploded ordnance to marine mammals via sediment to occur. Furthermore, we do not expect any contamination of water from UXOs/MECs as none would be detonated during this project.
Equipment used by Dominion Energy within the project area, including ships and other marine vessels, potentially aircrafts, and other equipment, are also potential sources of chemical by-products. All equipment is required to be properly maintained in accordance with applicable legal requirements. All such operating equipment would be required to meet Federal water quality standards, where applicable.
The presence of the WTG and OSS foundations for CVOW-C, scour protection, and cable protection will result in a conversion of the existing sandy bottom habitat to a hard bottom habitat with areas of vertical structural relief (Dominion Energy, 2022). This could potentially alter the existing habitat by creating an “artificial reef effect” that results in colonization by assemblages of both sessile and mobile animals within the new hard-bottom habitat (Wilhelmsson
Artificial structures can create increased habitat heterogeneity important for species diversity and density (Langhamer, 2012). The WTG and OSS foundations will extend through the water column, which may serve to increase settlement of meroplankton or planktonic larvae on the structures in both the pelagic and benthic zones (Boehlert and Gill, 2010). Fish and invertebrate species are also likely to aggregate around the foundations and scour protection which could provide increased prey availability and structural habitat (Boehlert and Gill, 2010; Bonar
Numerous studies have documented significantly higher fish concentrations including species like cod and pouting (
This section provides an estimate of the number of incidental takes proposed for authorization, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Dominion Energy's activities are expected to result in the incidental take, by harassment only, of marine mammals; no serious injury or mortality is anticipated or proposed for authorization. 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 primarily be by Level B harassment, as noise from impact and vibratory pile driving and
As described previously, no serious injury or mortality is anticipated or proposed to be authorized incidental to Dominion Energy's specified activities. Pile driving and HRG surveys inherently are not considered to have the potential to cause marine mammal mortality or serious injury. While, in general, vessel strikes have the potential to result in mortality or serious injury to marine mammals, given the factors discussed previously and the mitigation and monitoring measures required by this proposed rule, the probability of a vessel strike is so low as to be discountable. Hence, no mortality or serious injury is anticipated or proposed to be authorized. Below we describe how the proposed take numbers are estimated.
For acoustic impacts, we estimate take by considering: (1) acoustic thresholds above which 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 (
In this case, as described below, there are multiple lines of data with which to address density or occurrence and, for each species and activity, the largest value resulting from the three take estimation methods described below (
Below, we describe the acoustic thresholds NMFS uses, discuss the marine mammal density and occurrence/group size information used, and then describe the modeling and methodologies applied to estimate take for each of Dominion Energy's proposed construction activities. NMFS has carefully considered all information and analysis presented by the applicant as well as all other applicable information and, based on the best available science, concurs that the applicant's estimates of the types and amounts of take for each species and stock are reasonable and is what NMFS is proposing to authorize. NMFS notes the take estimates described herein for foundation installation can be considered conservative as the estimates do not reflect the implementation of mitigation (other than sound attenuation device use) and monitoring measures for any marine mammal species or stock, with the exception of North Atlantic right whale. In the case of North Atlantic right whales, NMFS has determined that the potential for Level A harassment (PTS) has been reduced to a
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). A summary of all NMFS' thresholds can be found at
Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context (
Dominion Energy's construction activities include the use of continuous (
NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups
These thresholds are provided in Table 9 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:
As Dominion Energy has not requested, and NMFS has not proposed to authorize any take related to the detonation of UXOs/MECs, the acoustic (
As described above, underwater noise associated with the construction of offshore components of CVOW-C would predominantly result from installation of the WTG monopile and the OSS jacket foundations using a dual-vibratory and impact pile driving approach while noise from cable landfall construction activities (
Animat exposure modeling was only performed for foundation installation. For other proposed activities planned by Dominion Energy (
Dominion Energy employed Tetra Tech, Inc. (Tetra Tech) to conduct the acoustic modeling and Marine Acoustics, Inc. (MAI) for the animal movement modeling to better understand both the sound fields produced during foundation and cofferdam installation and to estimate any potential exposures (see the Acoustic Modeling report in Appendix A of Dominion Energy's ITA application). Dominion Energy also collaborated with the Institute for Technical and Applied Physics (iTAP) for information related to vibratory pile driving of foundation piles. Tetra Tech also performed the acoustic analysis related to temporary cofferdam installation via vibratory pile driving. Acoustic source modeling of vibratory pile driving related to cofferdam installation and removal was used in conjunction with static methods to yield estimated and requested take values. The approach undertaken by Tetra Tech to determine the sound source of impact pile driving of WTG foundations was originally applied to the CVOW Pilot Project, and subsequently modified based on newly available data and the additional availability of research studies. This revised approach is summarized here; more detail can be found in the Acoustic Modeling report in Appendix A of Dominion Energy's ITA application.
Based on a literature review of pile driving measurement reports, theoretical modeling reports, and peer-reviewed research papers (see the references in Attachment Z-2 in Appendix A of Dominion Energy's COP (2023)), Tetra Tech developed an empirical modeling approach for calculating the acoustic source of impact pile driving foundation installation activities proposed for the CVOW-C project. A collaboration between Dominion Energy and iTAP assessed the estimated acoustic source levels produced from vibratory pile driving of foundation piles based on empirical data collected and assessed from the CVOW Pilot Project and other European offshore wind farms. These two modeling approaches are discussed separately here.
An empirical model developed by Tetra Tech was used to determine the peak sound level (L
1. Normalizing the received sound pressure levels to a common received range, assuming a transmission loss of
2. Scaling the source levels to an energy of 4,000 kJ, assuming a relationship between the hammer energy and radiated sound as 10 times the base 10 logarithm of the ratio of hammer energy to the referenced hammer energy (as in the scaling laws outlined in von Pein
3. Calculating a linear regression of the adjusted source levels (which has been normalized for range and hammer energy) as a function of the base 10 logarithm of the pile diameters, which is then used to predict the broadband SEL and peak sound levels for the planned energy and diameter.
Pile driving sound source levels were represented using three different sound metrics: L
Information on the impact pile driving scenarios and source levels for WTGs, OSSs, and goal posts can be found in Table Z-7 of Appendix A of Dominion Energy's ITA application. These impact modeling scenarios assumed no sound attenuation. For all WTG monopile modeling (
Limited empirical data exists for the installation of foundation piles by vibratory driving, with most being measured by iTAP (see Remmers and Bellmann (2021) in Appendix A of the application (Attachment Z-3)). Current datasets contain a variety of different information, including ranges of water depths from several meters to depths of 40 m, different sediment types, and measured receiver distances from several meters away from the source up to 750 m away.
To predict the expected underwater noise levels during vibratory pile driving of 2.4 m pin piles for the OSS and 9.5 m monopiles, iTAP used the limited empirical data from several existing offshore wind farms from different pile diameters. All data were normalized to a distance from the source of 750 m assuming a propagation loss of
For vibratory installation of cofferdams, adjusted one-third-octave band source levels (with a broadband source level of 195 dB SEL) obtained from similar offshore construction projects and then adjusted to account for the estimated force needed to drive cofferdam sheet piles (see Schultz-von Glahn
To predict acoustic levels at range during foundation installation (impact and vibratory pile driving) and temporary cofferdam installation and removal (vibratory pile driving), Tetra Tech used sound propagation models, discussed below. For the installation and removal of goal posts and HRG surveys, Dominion Energy assumed a practical spreading loss rate (
Tetra Tech utilized a software called dBSea, which was developed by Marshall Day Acoustics (
•
•
Each model utilizes imported environmental data and manually placed noise sources in the aquatic environment, which could consist of either equipment in the standard dBSea database or a user-specific database (
For the CVOW-C project's modeled environment using dBSea, bathymetry data was obtained by Tetra Tech from the National Geophysical Data Center and U.S. Coastal Relief Model (NOAA Satellite and Information Service, 2020) and consisted of a horizontal resolution of 3 arc seconds (defined as 90 m (295.28 ft)). The data covered an area consisting of 138 km × 144 km (452,755.91 ft × 472,440.94 ft) with a maximum depth of 459 m (1,505.91 ft). Sound sources were placed near the middle of the bathymetry area. The bathymetry data was imported into the dBSea model and extents were set for displaying the received sound levels. Relatedly, sediment data was also included into the model as bottom sedimentation has the potential to directly impact the sound propagation. Dominion Energy's site assessment surveys revealed the project area primarily consists of a predominantly sandy seabed. While not reiterated here, Appendix A of Dominion Energy's application contains the tables that include the geoacoustic properties of the sub-bottom sediments for modeling scenarios involving the more offshore WTG and OSS foundations (see Table Z-5) and for the nearshore temporary cofferdams (see Table Z-6).
Given that the sound speed profile in an aquatic environment varies throughout the year, Tetra Tech calculated seasonal sound speed profiles based on the proposed installation schedule presented for the CVOW-C project. Dominion Energy would only install WTG and OSS foundations between May 1st and October 31st, annually, hence an average sound speed profile was calculated for this time period. Sound speed profile data was obtained from the NOAA Sound Speed Manager software incorporating World Ocean Atlantic 2009 extension algorithms. A sensitivity analysis was performed on the monthly sound speed information to determine the most conservative sound modeling results. The average sound speed profile obtained from this dataset was directly included into the dBSea model (see Figure 3 in Attachment Z-1 in Dominion Energy's application (Appendix A)). This same approach was undertaken for temporary cofferdam installation.
The scenarios for WTG monopile and OSS jacket pin pile installation were modeled using a vertical array (based on third-octave band sound characteristics that was adjusted for site-specific parameters, including expected hammer energy and the number of hammers strikes needed per each scenario) of point sources spaced at 1-m intervals. Each of the third octave band center frequencies from 12.5 Hz up to 20 kHz, of the source spectra, was modeled. In order to more closely match expected sound propagation characteristics of the source signal, a constant 15 dB/decade roll-off filter is applied to the modeled spectra after the second spectral peak. The spectra source levels for impact driving of monopile and pin piles can be found in Figure 10 of the CVOW-C ITA application. The vibratory pile driving spectra, which is available in Figure 11 of the ITA application, used reference information from iTAP (Gerke and Bellmann, 2012), the California Department of Transportation (CALTRANS, 2015), and from measurements of vibratory driving collected by Tetra Tech. Based on the description above, Tetra Tech determined an appropriate sound speed profile to input into dBSea by pulling the average sound speed profile for the construction period (May 1st to October 31st), following the schedule provided by Dominion Energy. No information was pulled for November 1st through April 30th, as no pile driving is planned due to seasonal restrictions regarding the North Atlantic right whale. The monthly sound speed profile for the planned WTG and OSS foundation construction period is found in Figure 12 in the CVOW-C ITA application.
The sound level estimates are calculated from the generated three-dimensional sound fields and then, at each sampling range, the maximum received level that occurs within the water column is used as the received level at that range. The dBSea model allows for a maximum received level-over-depth approach (
Here we note that Tetra Tech and MAI did not calculate or provide exposure ranges to the Level A harassment SEL
Temporary cofferdams followed a similarly described approach. To estimate the distances to the harassment isopleths from the vibratory installation of sheet piles, it was assumed that the vibratory pile driver would use approximately 1,800 kilonewtons of vibratory force over 60 minutes. Given the close proximity of all temporary cofferdams in the nearshore environment and the relatively same installation depth (3.3. m), a single representative location (
As previously described above, unique environmental inputs can be included into dBSea to provide a more project-specific output. Tetra Tech input bathymetry data, which was obtained from the National Geophysical Data Center (NGDC) and the U.S. Coastal Relief Model (NOAA Satellite and Information Service, 2020) with a horizontal resolution of 3 arc seconds (approximately 90 m). The bathymetry data were sampled through the creation of a fan of radials at specifically given angular spacings, which was in turn used to determine depth points as each of the modeling transects.
Sediment data was included as determined to be specific to the CVOW-C project area (
To determine the appropriate sound speed profile, Tetra Tech looked toward Dominion Energy's construction schedule, which states that temporary cofferdams would be installed and removed from Q1 to Q4 of 2024, but most likely between May 1st and October 31st. As this period is the same period of time where the 2024 foundation installation activities would be occurring, Tetra Tech incorporated the same average sound speed profile used for WTG and OSS foundation installation (see Figure 12 in Dominion Energy's ITA application). As no pile driving of any type is planned to occur from November to April, these months were not incorporated into the sound speed profile analysis. As was previously described for foundation installation, the speed of sound profile information was obtained using the NOAA Sound Speed Manager software, which incorporated the World Ocean Atlantic 2009 extension algorithms.
To calculate the ranges to the defined acoustic thresholds, Tetra Tech utilized a maximum received level-over-depth approach where the maximum received sound level that occurs within the water column at each sampling point was used. Tetra Tech calculated both the R
To estimate the probability of exposure of animals to sound above NMFS' harassment thresholds during foundation installation, MAI integrated the sound fields generated from the source and propagation models described above with marine mammal species-typical behavioral parameters (
MAI's animat modeling was conducted using the Acoustic Integration Model (AIM; Frankel
Animats that exceed NMFS' acoustic thresholds were identified and the range for the exceedances determined. The output of the simulation is the exposure history for each animat within the simulation, and the combined history of all animats gives a probability density function of exposure during the project. The number of animals expected to exceed the regulatory thresholds is determined by scaling the probability of exposure by the species-specific density of animals in the area. By programming animats to behave like marine species that may be exposed to foundation installation noise during pile driving, the animats are exposed to the sound fields in a manner similar to that expected for real animals.
Take estimates from cable landfall construction activities (cofferdam and goal post installation and removal) and HRG surveys were calculated based on a static method (
This methodology was utilized for impact pile driving associated with goal posts, vibratory pile driving associated with temporary cofferdams, and active acoustic source use from HRG surveys as no exposure modeling was conducted.
In this section, we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. As noted above, depending on the species and activity type and as described in the take estimation section for each activity type, the requested amount of take, and which NMFS proposes to authorize, is based on the highest estimate of take resulting from full consideration of density models, average group sizes, or site-specific survey data.
Dominion Energy applied the Duke University Marine Geospatial Ecology Laboratory marine mammal habitat-based density models (
The Duke habitat-based density models delineate species' density into 5 × 5 km (3.1 × 3.1 mi) grid cells (as opposed to the 10 × 10 km (6.2 × 6.2 mi) grid cells previously used in past Roberts
For foundation installation, densities were extracted from grid cells within the Lease Area and those extending 8.9
The exposure estimates from the animal movement modeling or static methods described above directly informed the take estimates. In some cases, adjustments to the density-based exposure estimates may be necessary to fully account for all animals that could be taken during the specified activities. This could consist of an adjustment based on species group size or observations or acoustic detections provided in monitoring reports.
For some species, observational data from Protected Species Observers (PSOs) aboard HRG survey vessels indicate that the density-based exposure estimates may be insufficient to account for the number of individuals or type of species that may be encountered during the planned activities. As an example, pantropical spotted dolphins have been included in the requested take request based on prior PSO observation data, obtained via the 2020-2021 monitoring report from under previously issued (and subsequently modified) HRG IHAs to Dominion Energy occurring in and around the Lease Area (see RPS Group (RPS) (2018), AIS, Inc. (2020), and RPS (2021)). For other less-common species, the predicted densities from Roberts and Halpin (2022) are very low and the resulting density-based exposure estimate was less than a single animal or a typical group size for the species. In such cases, the mean group size was considered as an alternative to the density-based take estimates to account for potential impacts on a group during an activity.
Regardless of methodology used (
Here, we present the construction scenarios Dominion Energy applied to its analysis, which NMFS is carrying forward in this proposed rule, and the resulting acoustic ranges to Level A harassment and Level B harassment thresholds, exposure estimates, and take estimates from WTG and OSS foundation installation following the aforementioned modeling methodologies.
To complete the project, Dominion Energy has proposed four foundation installation construction schedules (three for WTG installation and one for OSS installation), as construction schedules cannot be fully predicted due to uncontrollable environmental factors (
For the monopile scenarios, two types of pile driving conditions are expected for each monopile installed: a standard pile driving situation (Scenario 1) and a hard-to-drive (Scenario 2) situation. During the installation of one monopile for WTG foundations per day, either a standard or hard-to-drive scenario may be necessary, which would determine the duration of vibratory driving and the number of impact hammer strikes needed. In situations where two monopile WTGs would be installed per day (
Dominion Energy has assumed that a maximum of two monopiles may be installed per day or that a maximum of two pin piles would be installed per day. No concurrent pile driving would occur. Due to the risk of pile run, Dominion Energy expects to utilize a joint vibratory-impact pile driving installation approach on all WTG and OSS foundation piles. All scenarios, including associated pile driving details, expected to occur can be found in Table 10 below.
As described above, underwater noise associated with the construction of offshore components of CVOW-C would predominantly result from vibratory and impact pile driving monopile and jacket foundations. As previously described,
Presented below are the acoustic ranges to the Level A harassment and Level B harassment thresholds for WTG installation in the deeper environment (Table 11), WTG installation in the shallower water (Table 12), and OSS installation in the single representative location (Table 13). All ranges shown are assuming 10 dB of sound attenuation as Dominion Energy would employ a noise attenuation system during all vibratory and impact pile driving of monopile and jacket foundations. Although three attenuation levels were evaluated and Dominion Energy has not yet finalized its mitigation strategy, Dominion Energy and NMFS both anticipate that the noise attenuation system ultimately chosen will be capable of reliably reducing source levels by 10 dB. Therefore, modeling results assuming 10-dB attenuation are carried forward in this analysis for WTG and OSS foundation installation. See the Proposed Mitigation section for more information regarding the justification for the 10 dB assumption.
Dominion Energy provided seasonal density estimates during the time of year when WTG and OSS foundations would be installed following the methodology provided in the
MAI set the modeled marine mammal animats to populate each of the model areas with the representative nominal densities provided. During the modeling, some of the obtained densities were higher than the real-world density, as to ensure that the results of the animat model simulations were not unduly influenced by the spontaneous placement of some of the simulated marine mammals and to provide additional statistical robustness within the modeling exercise. To obtain the final exposure estimates, the modeled results were normalized by the ratio of the modeled animat density to the real-world seasonal densities. The exposure estimates were derived based on the history of exposure within the modeling exercise for each marine mammal species or species group. The modeled sound exposure level (SEL) received by each animat over the duration of the construction activity period (
For the monopile WTG installation, the exposure calculations assumed 176 WTG monopiles would be installed over two years, but also took into account the need for Dominion Energy to possibly re-pile for up to seven WTG foundations (equating to a total of 183 modeled piling events for WTGs). For the jacket foundations using pin piles for the OSSs, the modeling assumed that up to 12 pin piles (four per OSS for up to three total OSSs) would be installed over two years. Both of these were modeled in accordance with the schedule provided by Dominion Energy.
Overall, for Year 1 (2024), it was assumed that up to a maximum of 95 monopiles and all 12 pin piles would be installed. For Year 2, it was assumed that a maximum of 88 monopiles (which does account for the seven possible re-piling events that may be necessary) would be installed. As construction of the WTGs and OSSs are only anticipated to occur in the first two years of the project (2024 and 2025), animats were only calculated for these. Although schedule delays due to weather or other unforeseen activities may require Dominion Energy to not complete all piling in Year 2, but instead push a limited number of piles to Year 3 (2026), no modeling was completed for 2026. This is because any piles not completed in 2025 (Year 2) would be pushed to 2026 (Year 3), which means that the current analysis has accounted for the total scenario as the analysis for foundation installation activities in Year 2 would be less than estimated here and instead would shift some to Year 3. Please see Table 15 for the derived exposure estimates during WTG and OSS foundation installation over two years (2024 and 2025).
The exposure estimates for both the installation of WTGs and OSSs over two years (2024 and 2025) were then adjusted, for some species, based on group size characteristics known through the scientific literature and received sighting reports from previous projects and/or surveys. As indicated below, when density-based take calculations were lower than one, estimates were adjusted upwards based on group size, when density-based take calculations were too low based on PSO observations. The species-specific requested and proposed take estimates are listed below:
• North Atlantic right whale: Level B take for foundation installation adjusted for group size of 1 individual for months with monthly density <0.01 per 100 km
• Fin whale: Adjusted based on protected species observer (PSO) data (max daily number × days of activity);
• Humpback whale: Adjusted based on PSO data (max daily number × days of activity);
• Sperm whale: Adjusted based on 1 group size per year (3 per Barkaszi
• Atlantic white-sided dolphin: Adjusted based on 1 group size per year (15 per Reeves
• Pantropical spotted dolphin: Adjusted based on 1 group size per year (20 per Reeves
• Short-beaked common dolphin: Adjusted based on 1 group size (20 individuals per group) per day (Dominion Energy, 2021);
• Clymene dolphin: Adjusted based on 1 group size (5 per AIS, Inc. (2020));
• False killer whale: Adjusted based on 1 group size per year (4 per RPS (2021));
• Melon-headed whale: Adjusted based on 1 group size per year (5 per RPS (2018)); and
• Pygmy sperm whale: Adjusted based on 1 group size per year (1 per RPS (2021)).
In Table 15, we present the calculated exposure estimates and the maximum amount of take proposed for authorization during foundation installation of WTGs and OSSs during the proposed five-year effective period for the CVOW-C project. As demonstrated by the exposure modeling results, which do not consider mitigation other than the use of a sound attenuation device(s), the potential for Level A harassment is very low. However, there may be some situations where pile driving cannot be stopped due to safety concerns related to pile instability.
As previously discussed, only 176 WTG and 3 OSS (using a maximum of 12 pin piles) foundations would be permanently installed for the CVOW-C project; however, Dominion Energy has considered the possibility that some piles may be started but not fully installed at some locations due to installation feasibility issues. Conservatively, Dominion Energy has estimated up to 7 additional pile driving events may be needed in the event this occurs. Per Dominion Energy's estimated construction schedule, it is anticipated that all of these foundation installation activities would occur in Year 1 (2024) and Year 2 (2025); therefore, the take estimates below reflect the foundation pile driving activities associated with 183 WTG foundations and 3 OSSs, to account for the seven additional re-piling events that may occur if monopiles were started in one location but then needed to be re-driven at another WTG position.
Additionally, as previously discussed above in the
Dominion Energy has proposed to install and remove both temporary goal posts comprised of steel pipe piles (to guide the placement of casing pipes installed using a trenchless installation method that does not produce noise levels with the potential to result in marine mammal harassment) and temporary cofferdams comprised of steel sheet piles at cable landfall locations.
Dominion Energy would install and remove up to nine temporary cofferdams adjacent to the firing range at the State Military Reservation in Virginia Beach using a vibratory hammer. Dominion Energy assumed that a maximum of six days would be needed to install and remove a single cofferdam (3 days to install and 3 days to remove). Vibratory pile driving would occur for up to 60 minutes per day (1 hour) and up to 20 sheet piles could be installed per day (each cofferdam would necessitate 30 to 40 sheet piles, depending on the final chosen configuration). Table 16 includes details for the cofferdam scenario.
Underwater noise associated with the construction of temporary cofferdams would only result from vibratory pile driving of steel sheet piles. As already described previously, Dominion Energy employed Tetra Tech to conduct the acoustic modeling to better understand the sound fields produced during these activities. These results also utilized information provided by iTAP (see Remmers and Bellmann (2021) Attachment Z-3 in Appendix A of Dominion Energy's application).
Following a similar approach to the one described for foundation installation, Tetra Tech calculated the ranges to the defined acoustic thresholds using a maximum received level-over-depth approach where the maximum received sound level that occurs within the water column at each sampling point was used. Tetra Tech calculated both the R
dBSea was used to derive the acoustic ranges to the Level B harassment threshold, assuming no sound attenuation, around the cable landfall site. This included the ensonified area that was truncated by any land, which yielded an area (approximately 1 km
Density data from Roberts and Halpin (2022) were mapped within the boundary of the CVOW-C project area using geographic information system (GIS) software (Environmental Systems Research Institute (ESRI), 2017). To estimate marine mammal density around the temporary cofferdams, the greatest ensonified area was intersected with the density grid cells for each individual species to select all of those grid cells that the ensonified area intersects, representing the furthest extent where potential impacts to marine mammals could be expected. Maximum monthly densities (
For some species where little density information is available (
Given that use of the vibratory hammer during cofferdam installation and removal may occur on up to six days per cofferdam (three days for installation and three days for removal), a max total of 54 days was assumed necessary for all nine cofferdams. To calculate exposures, the highest average seasonal marine mammal densities were multiplied by the daily ensonified area (29.04 km
Given the small distances to the Level A harassment isopleths, Level A harassment incidental to this activity is not anticipated, even absent mitigation, although mitigation measures are proposed that would further reduce the risk. Therefore, Dominion Energy is not requesting and NMFS is not proposing to authorize Level A harassment related to cofferdam installation and removal.
Calculated take estimates for temporary cofferdams were then adjusted, for some species, based on group size characteristics known through the scientific literature and received sighting reports from previous projects and/or surveys. These group size estimates for cofferdam installation and removal are described below and were incorporated into the estimated take to yield the requested and proposed take estimate:
• Atlantic spotted dolphin: Adjusted based on 1 group size per day (20 per Dominion Energy, 2020, Jefferson
• Bottlenose dolphin (Combined Southern Migratory Coastal, Western North Atlantic Offshore): Adjusted based on 1 group size per day (15 per Jefferson
• Common dolphin (short-beaked): Adjusted based on 1 group size per day (20 per Dominion Energy, 2021).
Given that take by Level B harassment was precautionarily proposed for authorization during two years of foundation installation for Clymene dolphins, false killer whales, melon-headed whales, and pygmy sperm whales, and given the nearshore nature of cable landfall activities, no take (and therefore, no group size adjustments) have been accounted for nearshore cable landfall activities.
Additionally, beyond group size adjustments, some slight modifications were performed for some species, including for harbor seals, gray seals, short- and long-finned pilot whales, and bottlenose dolphins. More specifically, the takes requested were accrued based on a 50/50 split for both pinniped species, as the Roberts and Halpin (2022) data does not differentiate the density by specific pinniped species. The density for pilot whales represents a single group (
Below we present the estimated take and maximum amount of take proposed for authorization during temporary cofferdam installation and removal during the proposed five-year effective period for the CVOW-C project (Table 19). No take by Level A harassment is expected, nor has it been requested by Dominion Energy or proposed for authorization by NMFS. The proposed take for authorization accounts for three days for installation and 3 days for removal, for a total of six days for each of nine cofferdams (54 days total). To be conservative, Dominion Energy has requested take, by Level B harassment, based on the highest exposures predicted by the density-based take estimates, with some slight modifications to account for group sizes for some species.
Although North Atlantic right whales do migrate in coastal waters and have been seen off Virginia Beach, Virginia, they are not expected to occur in the nearshore waters where work would be occurring. The amount of work considered here is limited and would be conducted during a time when North Atlantic right whales are less likely to be migrating in this area. The distance to the Level B harassment isopleth (3.1 km) for installation and removal of the sheet piles associated with the cofferdams and the maximum distance to the Level A isopleth (0.11 km) remain in shallow waters in the nearshore environment and for a very short period of time (approximately one hour daily); thus, it is unlikely that right whales (or most species of marine mammals considered here) would be exposed to vibratory pile driving during cofferdam installation and removal at levels close to the 120 dB Level B harassment threshold or to the Level A harassment thresholds. Hence, Dominion Energy did not request take of North Atlantic right whales incidental to this activity and NMFS is not proposing to authorize it.
We note that these would be the maximum number of animals that may be harassed during vibratory pile driving for nearshore temporary cofferdams as the analysis conservatively assumes each exposure is a different animal. This is unlikely to be the case for all species shown here but is the most comprehensive assessment of the level of impact from this activity.
To facilitate nearshore, trenchless installation for the export cables to shore, Direct Steerable Pipe Tunneling equipment utilizing a steerable tunnel boring machine would excavate ground while goal posts are used to guide steel casing pipes behind the tunnel boring machine using a pipe thruster. Of all the equipment planned for use during the tunneling and boring activities (
Tetra Tech applied the Level A harassment cumulative PTS criteria to a specific tab (for impact pile driving) spreadsheet (called the User Spreadsheet) that reflects NOAA Fisheries' 2018 Revisions to Technical Guidance (NOAA Fisheries, 2018a). The User Spreadsheet relies on overriding default values, calculating individual adjustment factors, and using the difference between levels with and without weighting functions for each of the five categories of hearing groups. The new adjustment factors in the spreadsheets allow for the calculation of cumulative sound exposure level (SEL
To calculate the distance to the acoustic threshold for Level B harassment of marine mammals, Tetra Tech utilizing a spread calculation to estimate the horizontal distance to the 160 dB re 1 μPa isopleth:
We note that while these methodologies provided by NOAA Fisheries are able to calculate the maximum distances to the Level A harassment and Level B harassment thresholds, these calculations do not allow for the inclusion of site-specific environmental parameters, as was described for activities analyzed through dBSea.
The results of this analysis are presented below in Table 20 and are presented in terms of the R
Given the small distances to Level A harassment isopleths, Level A harassment incidental to this activity is not anticipated, even absent mitigation, although mitigation measures are proposed that would further reduce the risk. Therefore, Dominion Energy is not requesting and NMFS is not proposing to authorize Level A harassment related to goal post installation. The acoustic ranges to the Level B harassment threshold, assuming no sound attenuation, were used to calculate the ensonified area around the cable landfall site. The Ensonified Area is calculated as the following:
To accurately account for the greatest level of impact (via behavioral harassment) to marine mammals, Tetra Tech applied the evaluated maximum Level B harassment distance (1,450 m) as the basis for determining potential takes. To get an accurate value of the total ensonified area within the aquatic environment, the isopleth was overlaid on a map to determine if any truncation by land would occur due to the nearshore proximity of the goal posts. For the vibratory pile driving for temporary cofferdams associated with the sheet pile installation and removal, it was assumed that the daily ensonified area was 4.98 km
In the same approach as was undertaken by the temporary cofferdams, the greatest ensonified area was intersected with the density grid cells for each individual species to select all of those grid cells that the ensonified area intersects to estimate the marine mammal density relevant to the temporary goal posts. Maximum monthly densities (
To calculate exposures, the highest average seasonal marine mammal densities from Table 18 were multiplied by the daily ensonified area (4.98 km
The take estimates for Level B harassment related to temporary goal post installation were then adjusted, for some species, based on group size characteristics known through the scientific literature and received sighting reports from previous projects and/or surveys. These group size estimates for temporary goal post installation are described below and
• Atlantic spotted dolphin: Adjusted based on 1 group size per day (20 per Dominion Energy, 2020; Jefferson
• Bottlenose dolphin (Southern Migratory Coastal Stock): Adjusted based on 1 group size per day (15 per Jefferson
• Short-beaked common dolphin: Adjusted based on 1 group size per day (20 per Dominion Energy, 2021).
Given that take by Level B harassment was precautionarily proposed for authorization during two years of foundation installation for Clymene dolphins, false killer whales, melon-headed whales, and pygmy sperm whales, and given the nearshore nature of cable landfall activities, no take (and therefore, no group size adjustments) have been accounted for nearshore cable landfall activities.
Additionally, beyond group size adjustments, some slight modifications were performed for some species, including for harbor seals, gray seals, short- and long-finned pilot whales, and bottlenose dolphins. More specifically, the takes requested were accrued based on a 50/50 split for both pinniped species, as the Roberts and Halpin (2022) data does not differentiate the density by specific pinniped species. The density for pilot whales represents a single group (
Below we present the estimated take and maximum amount of take proposed for authorization during temporary goal post installation during the proposed five-year effective period for the CVOW-C project (Table 21). No take by Level A harassment is expected, nor has it been requested by Dominion Energy or proposed for authorization by NMFS. These proposed take estimates take into account 54 days total for temporary goal post activities, including installation and removal, at a rate of 2 steel pipe piles installed per day over 130 minutes.
We note that these would be the maximum number of animals that may be harassed during impact pile driving for nearshore temporary goal posts as the analysis conservatively assumes each exposure is a different animal. This is unlikely to be the case for all species shown here but is the most comprehensive assessment of the level of impact from this activity.
Dominion Energy's proposed HRG survey activities includes the use of impulsive (
Specific to HRG surveys, in order to better consider the narrower and directional beams of the sources, NMFS has developed a tool for determining the sound pressure level (SPL
NMFS considers the data provided by Crocker and Fratantonio (2016) to represent the best available information on source levels associated with HRG equipment and, therefore, recommends that source levels provided by Crocker and Fratantonio (2016) be incorporated in the method described above to estimate ranges to the Level A harassment and Level B harassment isopleths. In cases when the source level for a specific type of HRG equipment is not provided in Crocker and Fratantonio (2016), NMFS recommends that either the source levels provided by the manufacturer be used, or, in instances where source levels provided by the manufacturer are unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) be used instead. Tetra Tech utilized the following criteria for selecting the appropriate inputs into the NMFS User Spreadsheet Tool (NMFS, 2018):
(1) For equipment that was measured in Crocker and Fratantonio (2016), the reported source level for the most likely operational parameters was selected.
(2) For equipment not measured in Crocker and Fratantonio (2016), the best available manufacturer specifications were selected. Use of manufacturer specifications represent the absolute maximum output of any source and do not adequately represent the operational source. Therefore, they should be considered an overestimate of the sound propagation range for that equipment.
(3) For equipment that was not measured in Crocker and Fratantonio (2016) and did not have sufficient manufacturer information, the closest proxy source measured in Crocker and Fratantonio (2016) was used.
The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the HRG surveys. These included variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when manufacturer or other reliable measurements are not available. Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was used in the 700 joules (J) measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted in a lower source level; therefore, the single maximum source level value was used for both operational levels of the S-Boom.
Table 22 identifies all the representative survey equipment that operates below 180 kHz (
Results of modeling using the methodology described above indicated that, of the HRG equipment planned for use by Dominion Energy that has the potential to result in Level B harassment of marine mammals, sound produced by the GeoMarine Dual 400 sparker would propagate furthest to the Level B harassment isopleth (100 m (328 ft); Table 23). For the purposes of take estimation, it was conservatively assumed that sparker would be the dominant acoustic source for all survey days (although, again, this may not always be the case). Thus, the range to the isopleth corresponding to the threshold for Level B harassment for and the boomer and sparkers (100 m) was used as the basis of take calculations for all marine mammals. This is a conservative approach, as the actual sources used on individual survey days, or during a portion of a survey day, may produce smaller distances to the Level B harassment isopleth.
To estimate densities for the HRG surveys occurring both within the Lease Area and within the Export Cable Routes for the CVOW-C project based on the Roberts and Halpin (2022) dataset the relevant density models using GIS (ESRI, 2017) were overlaid to the CVOW-C project and survey area. The boundary of the CVOW-C HRG project area corresponds to the Lease Area and Export Cable Routes, for which the area was not increased due to an additional perimeter, as was done for foundation installation. For each survey segment, the average densities (
As previously stated, of the HRG equipment planned for use by Dominion Energy that has the potential to result in Level B harassment of marine mammals, sound produced by the GeoMarine Dual 400 sparker would propagate furthest to the Level B harassment isopleth (100 m). This maximum range to the Level B harassment threshold and the estimated trackline distance traveled per day by a given survey vessel (
The ZOI is a representation of the maximum extent of the ensonified area around a HRG sound source over a 24-hr period. The ZOI for each piece of equipment operating at or below 180 kHz was calculated per the following formula:
The largest daily ZOI (111.6 km
As previously described, this assumes a total length of surveys that will occur within the CVOW-C project area as 64,264 km
For HRG surveys, density data from Roberts and Halpin (2022) were mapped within the boundary of the CVOW-C project area using GIS software (ESRI, 2017). The boundary of the CVOW-C HRG project area corresponds to the Lease Area and Export Cable Routes, for which the area was not increased due to an additional perimeter, as was done for foundation installation. For each survey segment, the average densities (
For most species or species groups, monthly densities are available, though in some cases insufficient data are available or we are unable to differentiate species groups by individual
The take estimates were then adjusted, for some species, based on group size and sighting reports from previous projects and/or surveys. These group size estimates for HRG surveys are described below and were incorporated into the estimated take to yield the requested and proposed take estimate:
• Atlantic white-sided dolphin: Adjusted based on 1 group size per year (15 per Reeves
• Risso's dolphin: Adjusted based on 1 group size per year (25 per Dominion Energy, 2021; Jefferson
• Bottlenose dolphin (Combined Southern Migratory Coastal, Western North Atlantic Offshore): Adjusted based on 1 group size per day (15 per Jefferson
• Pantropical spotted dolphins: Adjusted based on 1 group size per day (20 individuals);
• Common dolphins: Adjusted based on 1 group size per day (20 individuals);
• Common dolphins: Adjusted based on 1 group size per year (20 individuals); and
• Pilot whale
Given the very small zone sizes associated with HRG surveys, no take in addition to that requested, and proposed to be authorized, for foundation installation (which has much larger sizes) is proposed to be authorized for the following species: false killer whales, melon-headed whales, and pygmy sperm whales. Clymene dolphins are from the Stenella
Similar to other activities, the density-based exposure estimates were adjusted due to the manner in which density data is presented in the Duke models for harbor seals, gray seals, short- and long-finned pilot whales, and bottlenose dolphins. More specifically, the takes requested were split 50/50 for both pinniped species, as the Roberts and Halpin (2022) data does not differentiate the density by specific pinniped species. The density for pilot whales represents a single group (
Below we present the maximum amount of take proposed for authorization during HRG surveys occurring during the proposed five-year effective period for the CVOW-C project (Table 26). No take by Level A harassment is expected, nor has it been requested by Dominion Energy or proposed for authorization by NMFS. We note that these would be the maximum number of animals that may be harassed during HRG surveys as the analysis conservatively assumes each exposure is a different animal. This is unlikely to be the case for all species shown here but is the most comprehensive assessment of the level of impact from this activity.
The amount of Level A harassment and Level B harassment proposed to be authorized for all activities considered in this proposed rule (WTG and OSS foundation installation, cable landfall construction, and HRG surveys) are presented in Table 27. The mitigation and monitoring measures provided in the Proposed Mitigation and Proposed Monitoring and Reporting sections are activity-specific and are designed to minimize acoustic exposures to marine mammal species.
The take numbers NMFS proposes for authorization (Table 27) are considered the maximum number that could occur (
• The proposed take accounts for 183 pile driving events when only 176 foundations may be installed. It could be that no piles will require the need to be re-driven.
• The amount of Level A harassment proposed to be authorized considered the maximum of up to two monopiles per day being installed and use of acoustic ranges which does not account for animal movement.
• The amount of take, by Level A harassment, proposed to be authorized does not account for the likelihood that marine mammals would avoid a stimulus when possible before the individual accumulates enough acoustic energy to potentially cause auditory injury.
• All take estimates assume all piles are installed in the month with the highest average seasonal and/or annual densities for each marine mammal species and/or stock based on the construction schedule.
• Dominion Energy assumed the maximum number of temporary cofferdams (up to nine) and goal posts (up to 108) would be installed when, during construction, fewer piles may be installed and, in the case of cofferdams, may not be installed at all (Dominion Energy may use a gravity-cell structure in lieu of cofferdams which would not generate noise levels that would result in marine mammal harassment).
• The amount of take, by Level B harassment, proposed to be authorized does not account for the effectiveness of the proposed monitoring and mitigation measures, with the exception of use of noise attenuation device, for any species.
The Year 1 take estimates include HRG surveys, vibratory and impact installation of WTG and OSS foundations, the impact installation and removal of temporary goal posts, and the vibratory installation and removal of temporary cofferdams. Year 2 includes HRG surveys and the vibratory and impact installation of WTG and OSS foundations. Years 3, 4, and 5 each include HRG surveys. Dominion Energy has noted that Year 3 may include some installation of foundation piles for WTGs if they fall behind their construction schedule. However, if this occurs, this would just reduce the number of WTGs installed in Year 2. Exact durations for HRG surveys in each construction are not given although estimates are provided above and are repeated here: 65 days in 2024, 249 days in 2025, 58 days in 2026, and 368 days in each of 2027 and 2028. These estimates are based on the effort of two concurrently operating survey vessels.
Table 27 shows the estimated take of each species for each year based on the planned distribution of activities. Tables 28 and 29 show the total take over five years and the maximum take proposed for authorization in any one year, respectively.
In making the negligible impact determination and the small numbers finding, NMFS assesses the greatest number of proposed take of marine mammals that could occur within any one year, which in the case of this rule is based on the predicted take in either Year 1 (2024) or Year 2 (2025), depending on the species and/or stock. In this calculation, the maximum estimated number of Level A harassment takes in any one year is summed with the maximum estimated number of Level B harassment takes in any one year for each species to yield the highest number of estimated take that could occur in any year. We recognize that certain activities could shift within the 5-year effective period of the rule; however, the rule allows for that flexibility and the takes are not expected to exceed those shown in Table 29 in any one year.
In order to promulgate a rulemaking 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, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The mitigation strategies described below are consistent with those required and successfully implemented under previous incidental take authorizations issued in association with in-water construction activities (
Generally speaking, the measures considered and proposed here fall into three categories: temporal (seasonal and daily) work restrictions, real-time measures (shutdown, clearance zones, and vessel strike avoidance), and noise reduction measures. Seasonal work restrictions are designed to avoid or minimize operations when marine mammals are concentrated or engaged in behaviors that make them more susceptible or make impacts more likely. Temporal restrictions are also designed to reduce both the number and severity of potential takes, and are effective in reducing both chronic (longer-term) and acute effects. Real-time measures, such as clearance and shutdown requirements and vessel strike avoidance measures, are intended to reduce the probability or scope of near-term acute impacts by taking steps in real time once a higher-risk scenario is identified (
Below, we describe measures that apply to all activity types, and then in the following subsections, we describe the measures that apply specifically to WTG and OSS foundation installation, cable landfall construction pile driving, HRG surveys, and fishery monitoring surveys.
Although the language contained in this proposed rule directly refers to the applicant, Dominion Energy, all proposed measures discussed herein would also apply to any persons Dominion Energy authorizes or funds to conduct activities on its behalf specific to the CVOW-C project.
All relevant personnel and the marine mammal monitoring team(s) would be required to participate in joint, onboard briefings that would be led by CVOW-C project personnel and the Lead PSO prior to the beginning of project activities. This would serve to ensure that all relevant responsibilities, communication procedures, marine mammal monitoring and mitigation protocols, reporting protocols, safety, operational procedures, and ITA requirements are clearly understood by all involved parties. The briefing would be repeated whenever new relevant personnel (
Dominion Energy would employ NMFS-approved PSOs and PAM operators. The PSO field team and PAM team would have a lead member (designated as the “Lead PSO” or “PAM Lead”) who would have prior experience observing mysticetes, odontocetes, and pinnipeds in the northwestern Atlantic Ocean on other offshore projects requiring PSOs. Any remaining PSOs and PAM operators must have previous experience observing marine mammals during projects and must have the ability to work with all required and relevant software and equipment. New and/or inexperienced PSOs would be paired with an experienced PSO to ensure that the quality of marine mammal observations and data recording is kept consistent. Additional information on the roles and requirements of the PAM operators (section 4.1.1.2) and PSOs (section 4.1.1.3) can be found in Dominion Energy's supplemental Protected Species Mitigation and Monitoring Plan (PSMMP) on NMFS' website (
Prior to the start of activities, a briefing would be conducted between the supervisors, the crew, the PSO/PAM team, the environmental compliance monitors, and Dominion Energy personnel. This briefing would be to establish the responsibilities of each participating party, to define the chains of command, to discuss communication procedures, to provide an overview of the monitoring purposes, and to review
Dominion Energy must use available sources of information on North Atlantic right whale presence, including daily monitoring of the Right Whale Sightings Advisory System, monitoring of Coast Guard VHF Channel 16 throughout each day to receive notifications of any sightings, and information associated with any regulatory management actions (
Given the CVOW-C project is occurring within the general vicinity of the North Atlantic right whale SMA located outside of the mouth of the Chesapeake Bay, all vessels would be required to comply with the Mid-Atlantic Seasonal Management Area (SMA) mandatory speed restriction period (November 1st through April 30th) for all activities. Dominion Energy would also be required to monitor the NOAA Fisheries North Atlantic Right Whale reporting system for the establishment of a Dynamic Management Area (DMA).
This proposed rule contains numerous vessel strike avoidance measures. Dominion Energy will be required to comply with these measures except under circumstances when doing so would create an imminent and serious threat to a person or vessel or to the extent that a vessel is unable to maneuver and because of the inability to maneuver, the vessel cannot comply (
Dominion Energy will abide by the following vessel strike avoidance measures:
• All vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course (as appropriate) to avoid striking any marine mammal.
• During any vessel transits within or to/from the CVOW-C project area, such as for crew transfers, an observer would be stationed at the best vantage point of the vessel(s) to ensure that the vessel(s) are maintaining the appropriate separation distance from marine mammals.
• Year-round and when a vessel is in transit, all vessel operators will continuously monitor U.S. Coast Guard VHF Channel 16 over which North Atlantic right whale sightings are broadcasted.
• At the onset of transiting and at least once every four hours, vessel operators and/or trained crew members will monitor the project's Situational Awareness System, WhaleAlert, and the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales.
• Any observations of any large whale by any Dominion Energy staff or contractors, including vessel crew, must be communicated immediately to PSOs, PAM operator, and all vessel captains to increase situational awareness. Conversely, any large whale observation or detection via a sighting network (
• All vessels would comply with existing NMFS regulations and speed restrictions and state regulations, as applicable, for North Atlantic right whales.
• In the event that any Slow Zone (DMA or acoustically triggered slow zone) is established that overlaps with an area where a project-associated vessel would operate, that vessel, regardless of size, will transit that area at 10 kts or less.
• Between November 1st and April 30th, all vessels, regardless of size, would operate at 10 kts or less.
• All vessels, regardless of size, would immediately reduce speed to 10 kts or less when any large whale, whale mother/calf pairs, or large assemblages of non-delphinid cetaceans are observed near (within 100 m) an underway vessel.
• All vessels, regardless of size, would immediately reduce speed to 10 kts or less when a North Atlantic right whale is sighted, at any distance, by an observer or anyone else on the vessel.
• All transiting vessels (
• All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If a whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take appropriate action.
• All transiting vessels must steer a course away from any sighted North
• All vessels must maintain a minimum separation distance of 100 m from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, that vessel must shift the engine to neutral. Engines will not be engaged until the whale has moved outside of the vessel's path and beyond 100 m.
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (
• When a marine mammal(s) is sighted while a vessel is transiting, the vessel must take action as necessary to maintain the relevant separation distances (
• All transiting vessels must not divert or alter course in order to approach any marine mammal.
• For in-water construction heavy machinery activities, other than impact or vibratory pile driving, if a marine mammal is on a path towards or comes within 10 m of equipment, Dominion Energy must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment.
• Dominion Energy must submit a North Atlantic right whale vessel strike avoidance plan 180 days prior to commencement of vessel use. The plan would, at minimum, describe how PAM, in combination with visual observations, would be conducted to ensure the transit corridor is clear of right whales. The plan would also provide details on the vessel-based observer protocols on transiting vessels.
For WTG and OSS foundation installation, NMFS is proposing to include the following mitigation requirements, which are described in detail below: seasonal and daily restrictions; the use of noise abatement systems; the use of PSOs and PAM operators; the implementation of clearance and shutdown zones, and the use of soft-start.
No foundation pile driving activities (inclusive of both vibratory and impact pile driving) would occur between November 1st through April 30th of any year. Based on the best scientific information available (
No more than two foundation monopiles would be installed per day. Monopiles would be no larger than 9.5-m in diameter, representing the larger end of the tapered 9.5/7.5-m monopile design. For all monopiles, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. These hammer energies must not exceed 4,000 kJ. Similarly, no more than two foundation pin piles would be installed per day. Pin piles for jacket foundations would be no larger than 2.8-m in diameter. A jacket foundation design no larger than a four-legged design must be used (four pin piles per jacket foundation). For all pin piles, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. These hammer energies must not exceed 3,000 kJ.
Dominion Energy would initiate pile driving (inclusive of both vibratory and impact) no earlier than one hour after civil sunrise or no later than 1.5 hours before civil sunset. Dominion Energy has not proposed nighttime pile driving other than if pile driving continues after dark. This would only occur when installation of the same pile begins during daylight (
Dominion Energy would employ noise abatement systems (NAS), also known as noise attenuation systems, during all vibratory and impact pile driving of monopiles and pin piles to reduce the sound pressure levels that are transmitted through the water in an effort to reduce ranges to acoustic thresholds and minimize any acoustic impacts resulting from pile driving. Dominion Energy would be required to employ a big double bubble curtain (as was used during the CVOW Pilot Project), other technology capable of achieving a 10-dB sound level reduction, or a combination of two or more NAS capable of achieving a 10-dB sound level reduction during these activities as well as the adjustment of operational protocols to minimize noise levels.
Two categories of NAS exist: primary and secondary. A primary NAS would be used to reduce the level of noise produced by the pile driving activities at the source, typically through adjustments on to the equipment (
Noise abatement systems, such as bubble curtains, are used to decrease the sound levels radiated from a source. Bubbles create a local impedance change that acts as a barrier to sound transmission. The size of the bubbles determines their effective frequency band, with larger bubbles needed for lower frequencies. There are a variety of bubble curtain systems, confined or unconfined bubbles, and some with encapsulated bubbles or panels. Attenuation levels also vary by type of system, frequency band, and location. Small bubble curtains have been measured to reduce sound levels but effective attenuation is highly dependent on depth of water, current, and configuration and operation of the curtain (Austin
The literature presents a wide array of observed attenuation results for bubble curtains. The variability in attenuation levels is the result of variation in design as well as differences in site conditions and difficulty in properly installing and operating in-water attenuation devices. Dähne
If a bubble curtain is used (single or double), Dominion Energy would be required to maintain the following operational parameters: the bubble curtain(s) must distribute air bubbles using a target air flow rate of at least 0.5 m
Again, NMFS would require Dominion Energy to apply a dBBC or a single BBC coupled with an additional noise mitigation device to ensure sound generated from the project does not exceed that modeled (assuming 10-dB reduction) at given ranges to harassment isopleths and to minimize noise levels to the lowest level practicable. Double BBCs are successfully and widely applied across European wind development efforts and are known to reduce noise levels more than single BBC alone (
As described above, Dominion Energy would be required to use PSOs and acoustic PSOs (
As a requirement that is not only exclusive to PAM operators and PSOs, all crew and personnel working on the CVOW-C project would be required to maintain situational awareness of marine mammal presence (discussed further above) and would be required to report any sightings to the PSOs for implementation of mitigation measures, if necessary.
NMFS is proposing to require the establishment of both clearance and shutdown zones during all impact and vibratory pile driving of monopiles and pin piles, which would be monitored by visual PSOs and PAM operators before, during and after pile driving. PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes immediately prior to commencing pile driving. At least one PAM operator must review data from at least 24 hours prior to pile driving and actively monitor hydrophones for 60 minutes immediately prior to pile driving. Prior to initiating soft-start procedures, all clearance zones must be visually confirmed to be free of marine mammals for 30 minutes immediately prior to starting a soft-start of pile driving. If a marine mammal is observed entering or within the relevant clearance zone prior to the initiation of impact pile driving activities, pile driving must be delayed and will not begin until either the marine mammal(s) has voluntarily left the specific clearance zones and have been visually or acoustically confirmed beyond that clearance zone or when specific time periods have elapsed with no further sightings or acoustic detections have occurred (
The purpose of “clearance” of a particular zone is to prevent or minimize potential instances of auditory injury and more severe behavioral disturbances by delaying the commencement of impact pile driving if marine mammals are near the activity. Prior to the start of impact pile driving activities, Dominion Energy would ensure the area is clear of marine mammals, per the clearance zones presented in Tables 30 and 31, to minimize the potential for and degree of harassment. Once pile driving activity begins, any marine mammal entering the shutdown zone would trigger pile driving to cease (unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals). The purpose of a shutdown is to prevent a specific acute impact, such as auditory injury or severe behavioral disturbance of sensitive species, by halting the activity.
In addition to the clearance and shutdown zones that would be monitored both visually and acoustically, NMFS is proposing to establish a minimum visibility zone to ensure both visual and acoustic methods are used in tandem to detect marine mammals resulting in maximum detection capability. The minimum visibility zone that has been proposed by Dominion Energy would extend 1,750 m from the pile being driven during all months in which foundation installation is planned to occur. This value was proposed by Dominion Energy as it corresponds to the Exclusion Zone implemented during the CVOW Pilot Project (see 85 FR 30930, May 21, 2020). While NMFS acknowledges that this distance was adequate and appropriate for the CVOW Pilot Project, the turbine models for the proposed CVOW-C project are much larger (7.8-m versus 9.5-m, respectively) and would require a much larger maximum hammer energy (1,000 kJ maximum versus 4,000 kJ maximum). These factors create a larger distance to the Level A harassment threshold than the CVOW Pilot Project. Because of these reasons, NMFS has instead proposed a minimum visibility distance for WTG monopile and OSS pin pile installation as 2,000 m.
During all foundation installation, Dominion Energy must ensure that the entire minimum visibility zone (as based on the installation activity occurring) is visible (
Proposed clearance and shutdown zones have been developed in consideration of modeled distances to relevant PTS thresholds with respect to minimizing the potential for take by Level A harassment. All proposed clearance and shutdown zones for large whales are larger than the largest modeled acoustic range (R
If a marine mammal is observed entering or within the respective shutdown zone (Tables 30 and 31) after pile driving has begun, the PSO will request a temporary cessation of pile driving. Dominion Energy will stop pile driving immediately unless Dominion Energy determines shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals or the lead engineer determines there is pile refusal or pile instability. Pile refusal occurs when the pile driving sensors indicate the pile is approaching refusal, and a shut-down would lead to a stuck pile which then poses an imminent risk of injury or loss of life. Pile instability occurs when the pile is unstable and unable to stay standing if the piling vessel were to “let go.” During these periods of instability, the lead engineer may determine a shutdown is not feasible because the shutdown combined with impending weather conditions may require the piling vessel to “let go”, which then poses an imminent risk of injury or loss of life, pile refusal, or pile instability. In any of these situations, Dominion Energy must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS.
The lead engineer must evaluate the following to determine if a shutdown is safe and practicable:
a. Use of site-specific soil data and real-time hammer log information to judge whether a stoppage would risk causing piling refusal at re-start of piling;
b. Confirmation that pile penetration is deep enough to secure pile stability in the interim situation, taking into account weather statistics for the relevant season and the current weather forecast; and
c. Determination by the lead engineer on duty will be made for each pile as the installation progresses and not for the site as a whole.
If it is determined that shutdown is not feasible, the reason must be documented and reported (see Proposed Monitoring and Reporting section).
Subsequent restart of the equipment can be initiated if the animal has been observed exiting its respective shutdown zone within 30 minutes of the shutdown, or, after an additional time period has elapsed with no further sighting (
The clearance and shutdown zone sizes vary by species and are shown in Tables 30 and 31. All distances to the perimeter of these mitigation zones are the radii from the center of the pile. Pursuant to the proposed adaptive management provisions, Dominion Energy may request modification to these zone sizes pending results of sound field verification (see Proposed Monitoring and Reporting section). Any changes to zone size would require NMFS' prior approval.
The use of a soft-start procedure is believed to provide additional protection to marine mammals by warning them or providing them with a chance to leave the area prior to the hammer operating at full capacity. Soft-start typically involves initiating hammer operation at a reduced energy level (relative to full operating capacity) followed by a waiting period. Dominion Energy must utilize a soft-start protocol for impact pile driving of monopiles by performing 4-6 strikes per minute at 10 to 20 percent of the maximum hammer energy for a minimum of 30 minutes.
Soft-start will be required at the beginning of each day's monopile and pin pile installation and at any time following a cessation of vibratory or impact pile driving of 30 minutes or longer. If a marine mammal is detected within or about to enter the applicable clearance zones prior to the beginning of soft-start procedures, impact pile driving would be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings (
For the installation and removal of temporary cofferdams, NMFS is proposing to include the following mitigation requirements, which are described in detail below: daily restrictions; the use of PSOs; and the implementation of clearance and shutdown zones. Given the short duration of work and lower noise levels during vibratory driving, NMFS is not proposing to require PAM or noise abatement system use during these activities.
Dominion Energy has proposed to install and remove all sheet piles associated with temporary cofferdams within the first year of the effective period of the regulations and LOA and has proposed to only perform these activities within the same seasonal work window as previously specified for foundation installation (
Prior to the start of vibratory pile driving activities, at least two PSOs located at the best vantage points would monitor the clearance zone for 30 minutes, continue monitoring during vibratory pile driving, and for 30 minutes following cessation of the activity. The clearance zones must be fully visible for at least 30 minutes and all marine mammal(s) must be confirmed to be outside of the clearance zone for at least 30 minutes immediately prior to initiation of the activity.
Dominion Energy would establish clearance and shutdown zones for vibratory pile driving activities associated with sheet pile installation (Table 32). If a marine mammal is observed entering or is observed within the respective zones, activities will not commence until the animal has exited the zone or a specific amount of time has elapsed since the last sighting (
The clearance and shutdown zone sizes vary by species and are shown in Table 32. All distances to the perimeter of these mitigation zones are the radii from the center of the pile. Dominion Energy is not proposing, and NMFS is not requiring, sound field verification, hence these distances would not change.
For the installation of temporary goal posts, NMFS is proposing to include the following mitigation requirements, which are described in detail below: daily restrictions; the use of PSOs; the implementation of clearance and shutdown zones; and the use of soft-start. Given the short duration of work and relatively small harassment zones, NMFS is not proposing to require PAM or noise abatement system use during these activities.
Dominion Energy has proposed to install all pile pipes associated with temporary goal posts within the first year of the effective period of the regulations and LOA and has proposed to only perform these activities within the same seasonal work window as
Prior to the start of impact hammering activities, at least two PSOs located at the best vantage points would monitor the clearance zone for 30 minutes, continue monitoring during impact pile driving, and for 30 minutes following cessation of the activity. The clearance zones must be fully visible for at least 30 minutes and all marine mammal(s) must be confirmed to be outside of the clearance zone for at least 30 minutes immediately prior to initiation of the activity.
Dominion Energy would establish clearance and shutdown zones for impact pile driving for casing pipe installation (Table 33). If a marine mammal is observed entering or is observed within the respective zones, activities will not commence until the animal has exited the zone or a specific amount of time has elapsed since the last sighting (
The clearance and shutdown zone sizes vary by species and are shown in Table 33. All distances to the perimeter of these mitigation zones are the radii from the center of the pile. Dominion Energy is not proposing, and NMFS is not requiring, sound field verification, hence these distances would not change.
Dominion Energy did not provide specific details in either their ITA application or their PSMMP as to the soft-start plan that would be implemented for piles associated with temporary goal posts, however, NMFS proposes the following approach below, which is similar to the soft-start requirements proposed for WTG and OSS foundation installation via impact pile driving.
Dominion Energy must utilize a soft-start protocol for impact pile driving of goal post pipe piles. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. Soft-start will be required at the beginning of the installation procedure for each goal post pipe pile and at any time following a cessation of impact pile driving of 30 minutes or longer. If a marine mammal is detected within or about to enter the applicable clearance zones prior to the beginning of soft-start procedures, impact pile driving would be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings (
For HRG surveys, NMFS is proposing to include the following mitigation requirements, which are described in detail below, for all HRG survey activities using boomers, sparkers, and CHIRPs: the use of PSOs; the implementation of clearance, shutdown, and vessel separation zones; and ramp-up of survey equipment.
There are no mitigation measures prescribed for sound sources operating at frequencies greater than 180 kHz as these would be expected to fall outside of marine mammal hearing ranges and not result in harassment; however, all HRG survey vessels would be subject to the aforementioned vessel strike avoidance measures described earlier in this section. Furthermore, due to the frequency range and characteristics of some of the sound sources, take is not anticipated for non-impulsive sources (
PAM would not be required during HRG surveys. While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances, its utility in further reducing impacts during HRG survey activities is limited. We have provided a thorough description of our reasoning for not requiring PAM during previous HRG surveys in several
Given the potential impacts to marine mammals from exposure to HRG survey noise sources are relatively minor (
Although no temporal restrictions are proposed, NMFS would require Dominion Energy to deactivate acoustic sources during periods where no data is being collected except as determined necessary for testing. Any unnecessary use of the acoustic source would be avoided.
During all HRG survey activities using boomers, sparkers, and CHIRPS, one PSO would be required to monitor during daylight hours and two would be required to monitor during nighttime hours per vessel. PSOs would begin visually monitoring 30 minutes prior to the initiation of the specified acoustic source (
Dominion Energy would be required to implement a 30-minute clearance period of the clearance zones (Table 34) immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities and PSOs have not been actively monitoring. The clearance zones would be monitored by PSOs using the appropriate visual technology. If a marine mammal is observed within a clearance zone during the clearance period, ramp-up (described below) may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until an additional time period has elapsed with no further sighting (
Once the survey has commenced, Dominion Energy would be required to shut down boomers, sparkers, and CHIRPs if a marine mammal enters a respective shutdown zone (Table 34). In cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations would be allowed to continue (
The shutdown requirement would be waived for small delphinids of the following genera:
If a boomer, sparker, or CHIRP is shut down for reasons other than mitigation (
At the start or restart of the use of boomers, sparkers, and/or CHIRPs, a ramp-up procedure would be required unless the equipment operates on a binary on/off switch. A ramp-up procedure, involving a gradual increase in source level output, is required at all times as part of the activation of the acoustic source when technically feasible. Operators would ramp up sources to half power for 5 minutes and then proceed to full power. Prior to a ramp-up procedure starting, the operator would have to notify the Lead PSO of the planned start of the ramp-up. This notification time would not be less than 60 minutes prior to the planned ramp-up activities as all relevant PSOs would need the appropriate 30 minute period to monitor prior to the initiation of ramp-up. Prior to ramp-up beginning, the operator must receive confirmation from the PSO that the clearance zone is clear of any marine mammals. All ramp-ups would be scheduled to minimize the overall time spent with the source being activated. The ramp-up procedure must be used at the beginning of HRG survey activities or after more than a 30-minute break in survey activities using the specified HRG equipment to provide additional protection to marine mammals in or near the survey area by allowing them to vacate the area prior to operation of survey equipment at full power.
Dominion Energy would not initiate ramp-up until the clearance process has been completed (see Clearance and Shutdown Zones section above). Ramp-
For all pot/trap surveys, Dominion Energy would implement marine mammal monitoring and gear interaction avoidance measures to ensure no marine mammals are taken (
All captains and crew conducting the surveys will be trained in marine mammal detection and identification. Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement the following “move-on” rule. If marine mammals are sighted within 1 nm of the planned location in the 15 minutes before gear deployment, Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains, as appropriate, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgment. If, after moving on, marine mammals are still visible from the vessel, Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains may decide to move again or to skip the station. Gear would not be deployed if marine mammals are observed within the area and if a marine mammal is deemed to be at risk of interaction, all gear will be immediately removed. Dominion Energy and/or its cooperating institutions must deploy pot gear as soon as is practicable upon arrival at the sampling station. Dominion Energy and/or its cooperating institutions must initiate marine mammal watches (visual observation) no less than 15 minutes prior to both deployment and retrieval of the pot gear. Marine mammal watches must be conducted by scanning these surrounding waters with the naked eye and binoculars and monitoring effort must be maintained during the entire period of the time that gear is in the water (
If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains must immediately and carefully retrieve the gear as quickly as possible. Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision. Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains must ensure that surveys deploy gear fulfilling all pot universal commercial gear configurations such as weak link requirements and marking requirements as specified by applicable take reduction plans as required for commercial pot fisheries. Dominion Energy will be using on-demand fishing systems aimed at reducing the entanglement risk to protected species. These systems include, but are not limited to, spooled systems, buoy and stowed systems, lift bag systems, and grappling. All gear must be clearly labeled as attributed to Dominion Energy's fishery surveys. All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use. Any lost gear associated with the fishery surveys will be reported to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division (
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures would provide the means of affecting 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 promulgate a rulemaking 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 in the proposed action area. 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.
Separately, monitoring is also regularly used to support mitigation implementation, which is referred to as mitigation monitoring, and monitoring plans typically include measures that both support mitigation implementation and increase our understanding of the impacts of the activity on marine mammals.
During Dominion Energy's construction activities, visual monitoring by NMFS-approved PSOs would be conducted before, during, and after impact pile driving, vibratory pile driving, and HRG surveys. PAM would also be conducted during all impact pile driving. Observations and acoustic detections by PSOs would be used to support the activity-specific mitigation
Again, we specify here that although the language contained in this proposed rule directly refers to the applicant, Dominion Energy, all proposed measures discussed herein would also apply to any contractors or other agents working for Dominion Energy specific to the CVOW-C project.
Dominion Energy would be required to collect sighting, behavioral response, and acoustic data related to construction activities for marine mammal species observed in the region of the activity during the period in which the activities occur using NMFS-approved visual PSOs and acoustic PAM operators (see Proposed Mitigation section). All observers must be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. PSOs would monitor all clearance and shutdown zones prior to, during, and following impact pile driving, vibratory pile driving, and during HRG surveys using boomers, sparkers, and CHIRPs (with monitoring durations specified further below). PSOs will also monitor the Level B harassment zones to the extent practicable (noting that some zones are too large to fully observe) and beyond and will document any marine mammals observed. Observers would be located at the best practicable vantage points on the pile driving vessel and, where required, on an aerial platform. Full details regarding all marine mammal monitoring must be included in relevant Plans (
The following measures apply to all visual monitoring efforts:
1. Monitoring must be conducted by NMFS-approved, trained PSOs and PAM operators. PSOs must be placed at the primary location relevant to the activity (
2. PSO and PAM operators must be independent third-party observers and must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct the relevant vessel crew with regard to the presence of protected species and mitigation requirements;
3. PSOs may not exceed 4 consecutive watch hours, must have a minimum 2-hour break between watches, and may not exceed a combined watch schedule of more than 12 hours in a single 24-hour period;
4. PSOs would be required to use appropriate equipment (specified below) to monitor for marine mammals. During periods of low visibility (
5. PSOs must be in the best vantage point to monitor for marine mammals and implement the relevant clearance and shutdown procedures, when determined to be applicable.
6. PSOs should have the following minimum qualifications:
a. Visual acuity in both eyes (corrected is permissible) sufficient for discernment of moving targets at the water's surface with the ability to estimate the target size and distance. The use of binoculars is permitted and may be necessary to correctly identify the target(s);
b. Ability to conduct field observations and collect data according to the assigned protocols;
c. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
d. Writing skills sufficient to document observations, including but not limited to: the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental injury of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and
e. 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.
Observer teams employed by Dominion Energy, in satisfaction of the mitigation and monitoring requirements described herein, must meet the following additional requirements:
7. PSOs must successfully complete relevant training, including completion of all required coursework and a written and/or oral examination developed for the training;
8. PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver shall be submitted to NMFS and must include written justification. Alternate experience that may be considered includes, but is not limited to: Secondary education and/or experience comparable to PSO duties; previous work experience conducting academic, commercial, or government sponsored marine mammal surveys; or previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties;
9. One observer will be designated as lead observer or monitoring coordinator (“Lead PSO”). This Lead PSO would be required to have a minimum of 90 days of at-sea experience working in this role in an offshore environment and would be required to have no more than eighteen months elapsed since the conclusion of their last at-sea experience;
10. At least one PSO located on platforms (either vessel-based or aerial) would be required to have a minimum of 90 days of at-sea experience working in this role in an offshore environment and would be required to have no more than eighteen months elapsed since the conclusion of their last at-sea experience; and
11. All PSOs and PAM operators must be approved by NMFS. Dominion Energy would be required to submit resumes of the initial set of PSOs necessary to commence the project to NMFS Office of Protected Resources (OPR) for approval at least 60 days prior to the first day of in-water construction activities requiring PSOs. Resumes
Some Dominion Energy activities may require the use of PAM, which would necessitate the employment of at least one PAM operator on duty at any given time. PAM operators would be required to meet several of the specified requirements described above for PSOs, including: 2, 4, 6b-e, 8, 9, 10, and 11. Furthermore, PAM operators would be required to complete a specialized training for operating PAM systems and must demonstrate familiarity with the PAM system on which they would be working.
PSOs would be able to act as both acoustic and visual observers for the project if the individual(s) demonstrates that they have had the required level and appropriate training and experience to perform each task. However, a single individual would not be allowed to concurrently act in both roles or exceed work hours, as specified in #4 above.
Dominion Energy's personnel and PSOs would also be required to use available sources of information on North Atlantic right whale presence to aid in monitoring efforts. This includes:
1. Daily monitoring of the Right Whale Sightings Advisory System;
2. Consulting of the WhaleAlert app; and,
3. Monitoring of the Coast Guard's VHF Channel 16 throughout the day to receive notifications of any sightings and information associated with any Dynamic Management Areas to plan construction activities and vessel routes, if practicable, to minimize the potential for co-occurrence with North Atlantic right whales.
Additionally, whenever multiple project-associated vessels (of any size;
The following are proposed monitoring and reporting measures that NMFS would require specific to each construction activity:
Dominion Energy would be required to implement the following monitoring procedures during all impact pile driving of WTG and OSS foundations.
During all observations associated with pile driving (vibratory and/or impact), PSOs would use magnification (7x) binoculars and the naked eye to search continuously for marine mammals. At least one PSO would be located on the foundation pile driving vessel and a secondary dedicated-PSO vessel. These PSOs must be equipped with Big Eye binoculars (
Dominion Energy would be required to have a minimum of four PSOs actively observing marine mammals before, during, and after (specific times described below) the installation of foundation piles (monopiles and pin piles for jacket foundations). At least two PSOs must be actively observing on the pile driving vessel while at least two PSOs are actively observing on a secondary, PSO-dedicated vessel. Concurrently, at least one acoustic PSO (
As described in the Proposed Mitigation section, if the minimum visibility zone cannot be visually monitored at all times, pile driving operations may not commence or, if active, must shutdown, unless Dominion Energy determines shutdown is not practicable due to imminent risk of injury or loss of life to an individual, pile refusal, or pile instability.
To supplement visual observation efforts, Dominion Energy would utilize at least one PAM operator before, during, and after pile installation. This PAM operator would assist the PSOs in ensuring full coverage of the clearance and shutdown zones. All on-duty visual PSOs would remain in contact with the on-duty PAM operator, who would monitor the PAM systems for acoustic detections of marine mammals in the area. In some cases, the PAM operator and workstation may be located onshore or they may be located on a vessel. In either situation, PAM operators would maintain constant and clear communication with visual PSOs on duty regarding detections of marine mammals that are approaching or within the applicable zones related to impact pile driving. Dominion Energy would utilize PAM to acoustically monitor the clearance and shutdown zones (and beyond for situational awareness), and would record all detections of marine mammals and estimated distance, when possible, to the activity (noting whether they are in the Level A harassment or Level B harassment zones). To effectively utilize PAM, Dominion Energy would implement the following protocols:
• PAM operators would be stationed on at least one of the dedicated monitoring vessels in addition to the PSOs, or located remotely/onshore.
• All PAM operators must be NMFS-approved, third party contractors. PAM operators would have completed specialized training for operating PAM systems prior to the start of monitoring activities, including identification of species-specific mysticete vocalizations (
• Where localization of sounds or deriving bearings and distance are proposed, the PAM operators need to have demonstrated experience in using this technique.
• PAM operators must demonstrate experience with relevant acoustic software and equipment.
• PAM operators must have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary.
• PAM operators must be able to test software and hardware functionality prior to operation.
• PAM operators must have evaluated their acoustic detection software using the PAM Atlantic baleen whale annotated data set available through the National Centers for Environmental Information (NCEI;
The PAM operator(s) on-duty would monitor the PAM systems for acoustic detections of marine mammals that are vocalizing in the area. Any detections would be conveyed to the PSO team and any PSO sightings would be conveyed to the PAM operator for awareness purposes, and to identify if mitigation is to be triggered. For real-time PAM systems, at least one PAM operator would be designated to monitor each system by viewing data or data products that are streamed in real-time or near real-time to a computer workstation and monitor located on a project vessel or onshore. The PAM operator would
All PSOs and PAM operators would be required to begin monitoring 60 minutes prior to and during all impact pile driving and for 30 minutes after impact driving. However, PAM operators must review acoustic data from the previous 24 hours as well. As described in the Proposed Mitigation section, pile driving of monopiles and pin piles would only commence when the minimum visibility zone (extending 2.0 km from the pile, based on NMFS' proposed distance) is fully visible (
For North Atlantic right whales, any visual (regardless of distance) or acoustic detection would trigger a delay to the commencement of pile driving. In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale species, it must be treated as if it were a North Atlantic right whale. Following a shutdown, monopile/pin pile installation may not recommence until the minimum visibility zone is fully visible and the clearance zone is clear of marine mammals for 30 minutes and no marine mammals have been detected acoustically within the PAM clearance zone for 30 minutes.
During the time period in which Dominion Energy would be allowed to pile driving (May 1-October 31), North Atlantic right whales are most likely to occur in May. Dominion Energy has proposed additional enhanced monitoring measures to supplement PSO and PAM operators during the month of May (per the May Pile Driving Memo Dominion Energy submitted to NMFS on March 23, 2023 and which can be found on NMFS' website), including the use of drones equipped with infrared technology (referred to as autonomous vehicles, remote operated vehicles in Dominion Energy's PSMMP), additional PSO vessels on-site, aerial surveys, and/or 24-hour PAM use. These measures, as proposed by Dominion Energy, would not prevent or replace other proposed monitoring measures (
If drones are deployed during May foundation installation activities Dominion Energy would undertake monitoring approaches in a way that would ensure no additional behavioral harassment or impacts on marine mammals would occur. While specifics on Dominion Energy's drone strategy was not provided in either the ITA application, nor the PSMMP, given ongoing and planned testing to occur in 2023, NMFS would require that:
• All drone operators and associated drone crews would be fully trained, qualified, and would operate in compliance with current Federal Aviation Administration (FAA), Federal, State, and local standards and would be operated in accordance with 14 CFR part 107 (Small Unmanned Aircraft Systems, Docket FAA-2015-0150, Amdt. 107-1, 81 FR 42209, June 28, 2016, unless otherwise noted);
• An appropriate number of drone operators and crews would be utilized, with some personnel operating the drone and others monitoring the instrumentation for marine mammal identification in real-time (
• All monitoring crews (
• All drones would maintain appropriate altitudes and minimize maneuvers or circling activities that may incur behavioral harassment to marine mammals and appropriate distances (to be decided based on the 2023 testing by Dominion Energy) would be required if mothers and calves are sighted; and
• All drone visual observations would be incorporated into the standard reporting requirements, described later on in this proposed rulemaking.
The advancement of additional monitoring measures have the potential to enhance capabilities in situations where there is limited visibility. However, implementation of such strategies would require additional testing by Dominion Energy (via 2023 trials) and additional discussions between NMFS.
For all foundation installation activities, Dominion Energy must prepare and submit a Pile Driving and Marine Mammal Monitoring Plan (including information related to the proposed enhanced monitoring measures described above) to NMFS for review and approval at least 180 days before the start of any pile driving. The plans must include final pile driving project design (
Dominion Energy would be required to implement the following procedures during all vibratory pile driving activities associated with the installation and removal of temporary cofferdams.
During all observation periods related to vibratory pile driving, PSOs must use standard handheld (7x) binoculars and the naked eye to search continuously for marine mammals. Dominion Energy would be required to have a minimum of two PSOs on active duty during any installation and removal activities related to temporary cofferdams. These PSOs would always be located at the best vantage point(s) on the vibratory pile driving platform or secondary platform in the immediate vicinity of the primary platforms in order to ensure that appropriate visual coverage is available of the entire visual clearance zone and as much of the Level B harassment zone as possible. NMFS would not require the use of PAM for these activities.
PSOs would monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the piles, and for 30 minutes after the activities have ceased. Installation may only commence when visual clearance zones are fully visible (
Dominion Energy would be required to implement the following procedures during all impact pile driving activities associated with the installation of temporary goal posts. These requirements generally mirror the requirements described above for temporary cofferdams.
During all observation periods related to impact pile driving, PSOs must use standard handheld (7x) binoculars and the naked eye to search continuously for marine mammals. Dominion Energy would be required to have a minimum of two PSOs on active duty during any installation activities related to temporary goal posts. These PSOs would always be located at the best vantage point(s) on the impact pile driving platform or secondary platform in the immediate vicinity of the primary platforms in order to ensure that appropriate visual coverage is available of the entire visual clearance zone and as much of the Level B harassment zone as possible. NMFS would not require the use of PAM for these activities.
PSOs would monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the pipe piles, and for 30 minutes after the activities have ceased. Installation may only commence when visual clearance zones are fully visible (
Dominion Energy would be required to implement the following procedures during all HRG surveys.
During all observation periods, PSOs must use standard handheld (7x) binoculars and the naked eye to search continuously for marine mammals.
Between four and six PSOs would be present on every 24-hour survey vessel, and two to three PSOs would be present on every 12-hour survey vessel. Dominion Energy would be required to have at least one PSO on active duty during HRG surveys that are conducted during daylight hours (
All PSOs would begin monitoring 30 minutes prior to the activation of boomers, sparkers, or CHIRPs; throughout use of these acoustic sources, and for 30 minutes after the use of the acoustic sources has ceased.
Given that multiple HRG vessels may be operating concurrently, any observations of marine mammals would be required to be communicated to PSOs on all nearby survey vessels.
Ramp-up of boomers, sparkers, and CHIRPs would only commence when visual clearance zones are fully visible (
During daylight hours when survey equipment is not operating, Dominion Energy would ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
As described previously, Dominion Energy would be required to utilize a PAM system to supplement visual monitoring for all foundation installation activities, inclusive of vibratory and impact hammer installation. Training and qualified PAM operators would monitor the PAM systems. PAM operators may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches. Again, PSOs can act as PAM operators or visual PSOs (but not simultaneously) as long as they demonstrate that their training and experience are sufficient to perform each task. The PAM system must be monitored by a minimum of one PAM operator beginning at least 60 minutes prior to the initiation of soft-start of foundation piles, at all times during installation, and for 30 minutes after pile driving has ceased. To further aid in detections of North Atlantic right whales during the highest occurrence month (May) during the construction period (and as described above for monitoring during
PAM operators would monitor the signals from the hydrophones in both real-time using headphones and visually via the outputs on a computer monitor. PAM operators must immediately communicate all detections of marine mammals at any distance (
PAM systems may be used for real-time mitigation monitoring. The PAM system would be, at a minimum, capable of detecting animals at least 5 km away from the pile driving location. The PAM system would offer real-time detections of low-frequency cetaceans with a targeted frequency range of 20 Hz to 1,500 Hz, with a specific focus on a system capable of monitoring the bandwidth for North Atlantic right whales (65-400 Hz; corresponding to information provided in Van Parijs
At this stage, Dominion Energy has not chosen the appropriate and final PAM systems for the CVOW-C project. However, when an appropriate system or configuration of systems is chosen, a Passive Acoustic Monitoring (PAM) Plan must be submitted to NMFS for review and approval at least 180 days prior to the planned start of foundation installations. PAM should follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind
During the installation (inclusive of both vibratory and impact pile driving approaches) of the first three WTG monopile foundations and all three OSSs using jacket foundations, Dominion Energy must empirically determine source levels, the ranges to the isopleths corresponding to the Level A harassment and Level B harassment thresholds, and the transmission loss coefficient(s). Dominion Energy may also estimate ranges to the Level A harassment and Level B harassment isopleths by extrapolating from
If acoustic field measurements collected during installation of the WTG monopiles and OSS foundations indicates ranges to the isopleths corresponding to Level A harassment and Level B harassment thresholds are greater than the ranges predicted by modeling (assuming 10-dB attenuation), Dominion Energy must implement additional noise attenuation measures prior to installing the next WTG monopile or OSS jacket foundation. Dominion Energy has also proposed to monitor and collect acoustic information on a subsequent monopile in the event that obtained technical information indicates a monopile would produce a larger sound field than previously monitored. Initial additional measures may include improving the efficacy of the implemented noise mitigation technology (
If acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), Dominion Energy may request a modification of the clearance and shutdown zones for pile driving of WTG monopiles and OSS foundation pin piles. For NMFS to consider a modification request, Dominion Energy will have had to conduct SFV on three or more WTG monopiles and two full OSS jacket foundations (8 total pin piles), thus far, to verify that zone sizes are consistently smaller than those predicted by modeling (assuming 10-dB attenuation). In addition, if a subsequent monopile installation location is selected that was not represented by previous three locations (
Upon receipt of an interim SFV report, NMFS may adjust zones (
The SFV plan must also include how operational noise from the wind farm would be monitored. Dominion Energy would be required to estimate source levels based on measurements in the near and far-field at a minimum of three locations from each foundation monitored. These data must be used to also identify estimated transmission loss rates. Operational parameters (
Dominion Energy must submit a SFV Plan at least 180 days prior to the planned start of impact pile driving activities. The plan must describe how Dominion Energy would ensure that the first three WTG monopile and OSS jacket (using pin piles) foundation installation sites selected for SFV are representative of the rest of the monopile and pin pile installation sites. Dominion Energy must include information on how additional sites/scenarios would be selected for SFV should it be determined that these sites/scenarios are not representative of all other monopile installation sites. The plan must also include the methodology for collecting, analyzing, and preparing SFV data for submission to NMFS. The plan must describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. Dominion Energy must also provide, as soon as they are available but no later than 48 hours after each installation, the initial results of the SFV measurements to NMFS in an interim report after each monopile for the first three piles.
Prior to any construction activities occurring, Dominion Energy would provide a report to NMFS (at
NMFS would require standardized and frequent reporting from Dominion Energy during the life of the proposed regulations and LOA. All data collected relating to the Dominion Energy project would be recorded using industry-standard software (
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Watch status (
• PSO who sighted the animal;
• Time of sighting;
• Weather parameters (
• Water conditions (
• All marine mammal sightings, regardless of distance from the construction activity;
• Species (or lowest possible taxonomic level possible);
• Pace of the animal(s);
• Estimated number of animals (minimum/maximum/high/low/best);
• Estimated number of animals by cohort (
• Description (
• Description of any marine mammal behavioral observations (
• Animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time spent within the Level A harassment and/or Level B harassment zones;
• Construction activity at time of sighting (
• Description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (
• Other human activity in the area.
For all real-time acoustic detections of marine mammals, the following must be recorded and included in weekly, monthly, annual, and final reports:
1. Location of hydrophone (latitude & longitude; in Decimal Degrees) and site name;
2. Bottom depth and depth of recording unit (in meters);
3. Recorder (model & manufacturer) and platform type (
4. Time zone for sound files and recorded date/times in data and metadata (in relation to Universal Coordinated Time (UTC);
5. Duration of recordings (start/end dates and times; in ISO 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ);
6. Deployment/retrieval dates and times (in ISO 8601 format);
7. Recording schedule (must be continuous);
8. Hydrophone and recorder sensitivity (in dB
9. Calibration curve for each recorder;
10. Bandwidth/sampling rate (in Hz);
11. Sample bit-rate of recordings; and
12. Detection range of equipment for relevant frequency bands (in meters).
For each detection the following information must be noted:
13. Species identification (if possible);
14. Call type and number of calls (if known);
15. Temporal aspects of vocalization (date, time, duration,
16. Confidence of detection (detected, or possibly detected);
17. Comparison with any concurrent visual sightings;
18. Location and/or directionality of call (if determined) relative to acoustic recorder or construction activities;
19. Location of recorder and construction activities at time of call;
20. Name and version of detection or sound analysis software used, with protocol reference;
21. Minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and
22. Name of PAM operator(s) on duty.
If a North Atlantic right whale is detected, data shall be submitted to
If a North Atlantic right whale is observed at any time by PSOs or personnel on or in the vicinity of any impact or vibratory pile-driving vessel, dedicated PSO vessel, construction survey vessel, or during vessel transit, Dominion Energy must immediately report sighting information to the NMFS North Atlantic Right Whale Sighting Advisory System (866) 755-6622, to the U.S. Coast Guard via channel 16, and through the WhaleAlert app (
Specific situations encountered during the development of the Dominion Energy project would require reporting. These situations and the relevant procedures include:
• If a large whale is detected during vessel transit, the following information must be recorded and reported:
a. Time, date, and location;
b. The vessel's activity, heading, and speed;
c. Sea state, water depth, and visibility;
d. Marine mammal identification to the best of the observer's ability (
e. Initial distance and bearing to marine mammal from vessel and closest point of approach; and,
f. Any avoidance measures taken in response to the marine mammal sighting.
• If a sighting of a stranded, entangled, injured, or dead marine mammal occurs, the sighting would be reported to NMFS OPR, the NMFS Greater Atlantic Regional Fisheries Office (GARFO) Marine Mammal and Sea Turtle Stranding & Entanglement Hotline (866-755-6622), and the U.S. Coast Guard within 24 hours. If the injury or death was caused by a project activity, Dominion Energy must immediately cease all 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 the LOA. NMFS may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. Dominion Energy may not resume their activities until notified by NMFS. The report must include the following information:
a. Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
b. Species identification (if known) or description of the animal(s) involved;
c. Condition of the animal(s) (including carcass condition if the animal is dead);
d. Observed behaviors of the animal(s), if alive;
e. If available, photographs or video footage of the animal(s); and
f. General circumstances under which the animal was discovered.
• In the event of a vessel strike of a marine mammal by any vessel associated with the CVOW-C project, Dominion Energy shall immediately report the strike incident to the NMFS OPR and the GARFO within and no later than 24 hours. Dominion Energy must immediately cease all 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 the LOA. NMFS may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. Dominion Energy may not resume their activities until notified by NMFS. The report must include the following information:
a. Time, date, and location (latitude/longitude) of the incident;
b. Species identification (if known) or description of the animal(s) involved;
c. Vessel's speed during and leading up to the incident;
d. Vessel's course/heading and what operations were being conducted (if applicable);
e. Status of all sound sources in use;
f. Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
g. Environmental conditions (
h. Estimated size and length of animal that was struck;
i. Description of the behavior of the marine mammal immediately preceding and following the strike;
j. If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
k. Estimated fate of the animal (
l. To the extent practicable, photographs or video footage of the animal(s).
As described previously, Dominion Energy would be required to provide the initial results of SFV (including measurements) to NMFS in interim reports after each monopile installation for the first three piles (and any subsequent piles) as soon as they are available, but no later than 48 hours after each installation. In addition to in situ measured ranges to the Level A harassment and Level B harassment
The regulations governing the take of marine mammals incidental to Dominion Energy's construction activities would contain an adaptive management component. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data throughout the life of the regulations that can inform potential consideration of whether any changes to mitigation or monitoring are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from Dominion Energy regarding practicability) if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would 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 number not authorized by these regulations or subsequent LOA. During the course of the rule, Dominion Energy (and other LOA-holders conducting offshore wind development activities) would be required to participate in one or more adaptive management meetings convened by NMFS and/or BOEM, in which the above information would be summarized and discussed in the context of potential changes to the mitigation or monitoring measures.
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 (
In the Estimated Take section, we identified the subset of potential effects that would be expected to qualify as takes under the MMPA and then identified the total number of takes by Level A harassment and Level B harassment that we estimate are reasonably expected to occur based on the methods described. The impact that any given take would have is dependent on many case-specific factors that need to be considered in the negligible impact analysis (
The Description of the Specified Activities section describes the specified activities proposed by Dominion Energy that may result in take of marine mammals and an estimated schedule for conducting those activities. Dominion Energy has provided a realistic construction schedule (
We base our analysis and negligible impact determination (NID) on the total number of takes that would be reasonably expected to occur and are proposed to be authorized in the 5-year LOA, if issued, and extensive qualitative consideration of other contextual factors that influence the degree of impact of the takes on the affected individuals and the number and context of the individuals affected. As stated before, the number of takes, both annual and 5-year total, alone are only a part of the analysis. To avoid repetition, we provide some general analysis in this Negligible Impact Analysis and Determination section that applies to all the species listed in Table 7, given that some of the anticipated effects of Dominion Energy's construction
Last, we provide a negligible impact determination for each species or stock, providing species or stock-specific information or analysis, where appropriate, for example, for North Atlantic right whales given their population status. Organizing our analysis by grouping species or stocks that share common traits or that would respond similarly to effects of Dominion Energy's proposed activities and then providing species- or stock-specific information allows us to avoid duplication while ensuring that we have analyzed the effects of the specified activities on each affected species or stock. It is important to note that in the group or species sections, we base our negligible impact analysis on the maximum annual take that is predicted under the 5-year rule; however, the majority of the impacts are associated with installation of the WTG and OSS foundations, which would occur largely within a two year period. The estimated take in the other years is expected to be notably less, which is reflected in the total take that would be allowable under the rule (see Tables 27, 28, and 29).
As described previously, no serious injury or mortality is anticipated or proposed for authorization in this rule. The amount of harassment Dominion Energy has requested and NMFS is proposing to authorize is based on exposure models that consider the outputs of acoustic source and propagation models as well as consideration of other information such as group size and PSO data during previous HRG surveys. For all species, the amount of take proposed to be authorized represents the amount of Level A harassment and Level B harassment that could occur.
In general, NMFS anticipates that impacts on an individual that has been harassed are likely to be more intense when exposed to higher received levels and for a longer duration (though this is in no way a strictly linear relationship for behavioral effects across species, individuals, or circumstances) and less severe impacts result when exposed to lower received levels and for a shorter duration. However, there is also growing evidence of the importance of contextual factors, such as distance from a source in predicting marine mammal behavioral response to sound—
In the range of potential behavioral effects that might be expected to be part of a response that qualifies as an instance of Level B harassment by behavioral disturbance (which by nature of the way it is modeled/counted, occurs within one day), the less severe end might include exposure to comparatively lower levels of a sound, at a greater distance from the animal, for a few or several minutes. A less severe exposure of this nature could result in a behavioral response such as avoiding an area that an animal would otherwise have chosen to move through or feed in for some amount of time, or breaking off one or a few feeding bouts. More severe effects could occur if an animal gets close enough to the source to receive a comparatively higher level, is exposed continuously to one source for a longer time, or is exposed intermittently to different sources throughout a day. Such effects might result in an animal having a more severe flight response and leaving a larger area for a day or more or potentially losing feeding opportunities for a day. However, such severe behavioral effects are expected to occur infrequently.
Many species perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hour cycle). Behavioral reactions to noise exposure, when taking place in a biologically important context, such as disruption of critical life functions, displacement, or avoidance of important habitat, are more likely to be significant if they last more than one day or recur on subsequent days (Southall
It is also important to identify that the estimated number of takes does not necessarily equate to the number of individual animals Dominion Energy expects to harass (which is likely lower for some species) but rather, to the instances of take (
For the CVOW-C project, impact pile driving is likely to result in a higher magnitude and severity of behavioral disturbance than vibratory pile driving, HRG surveys, or other activities. Impact pile driving has higher source levels than vibratory pile driving and HRG sources. HRG survey equipment also produces much higher frequencies than pile driving, resulting in minimal sound propagation. While impact pile driving is anticipated to be most impactful for these reasons, impacts are minimized through implementation of mitigation measures, including soft-start, use of a sound attenuation system, and the implementation of clearance zones that would facilitate a delay of pile driving if marine mammals were observed approaching or within areas that could be ensonified above sound levels that could result in Level B harassment. Given sufficient notice through the use of soft-start, marine mammals are expected to move away from a sound source prior to becoming exposed to very loud noise levels. The requirement that pile driving can only commence when the full extent of all clearance zones are fully visible to visual PSOs would ensure a higher marine mammal detection, enabling a high rate of success in implementation of clearance zones. Furthermore, Dominion Energy would be required to utilize PAM to augment visual observations prior to and during all clearance periods, during impact pile driving, and after pile driving has ended during the post-piling period. PAM has been shown to be particularly effective when used in conjunction with visual observations, increasing the overall capability to detect marine mammals (Van Parijs
Occasional, milder behavioral reactions are unlikely to cause long-term consequences for individual animals or populations, and even if some smaller subset of the takes are in the form of a longer (several hours or a day) and more severe response, if they are not expected to be repeated over sequential days, impacts to individual fitness are not anticipated. Nearly all studies and experts agree that infrequent exposures of a single day or less are unlikely to impact an individual's overall energy budget (Farmer
TTS is one form of Level B harassment that marine mammals may incur through exposure to Dominion Energy's activities and, as described earlier, the proposed takes by Level B harassment may represent takes in the form of behavioral disturbance, TTS, or both. As discussed in the Potential Effects to Marine Mammals and their Habitat section, in general, TTS can last from a few minutes to days, be of varying degree, and occur across different frequency bandwidths, all of which determine the severity of the impacts on the affected individual, which can range from minor to more severe. Impact and vibratory pile driving generate sounds in the lower frequency ranges (with most of the energy below 1-2 kHz, but with a small amount energy ranging up to 20 kHz); therefore, in general and all else being equal, we would anticipate the potential for TTS is higher in low-frequency cetaceans (
Generally, both the degree of TTS and the duration of TTS would be greater if the marine mammal is exposed to a higher level of energy (which would occur when the peak dB level is higher or the duration is longer). The threshold for the onset of TTS was discussed previously (refer back to the Level B Harassment section in
Dominion Energy has requested and NMFS proposed to authorize a very small amount of take by PTS to some marine mammal individuals. The maximum amount of Level A harassment proposed to be authorized is relatively low for all marine mammal stocks and species: humpback whales (4 takes), fin whales (4 takes), sei whales (1 take), minke whale (8 takes), harbor porpoises (1 take), gray seals (1 take), and harbor seals (1 take). The only activities we anticipate PTS may result from are exposure to impact pile driving foundation piles, an activity that produces sound that is both impulsive and primarily concentrated in the lower frequency ranges (below 1 kHz) (David, 2006; Krumpel
There are no PTS data on cetaceans and only one instance of PTS being induced in an older harbor seals (Reichmuth
PTS would consist of minor degradation of hearing capabilities occurring predominantly at frequencies one-half to one octave above the frequency of the energy produced by pile driving (
The ultimate potential impacts of masking on an individual are similar to those discussed for TTS (
As previously discussed in the Potential Effects of Specified Activities to Marine Mammals and their Habitat section, construction activities may result in fish and invertebrate mortality or injury very close to the source, and all activities (including HRG surveys) may cause some fish to leave the area of disturbance. It is anticipated that any mortality or injury would be limited to a very small subset of available prey and the implementation of mitigation measures, such as the use of a noise attenuation system during impact pile driving of foundations, would further limit the degree of impact. Behavioral changes in prey in response to construction activities could temporarily impact 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 at any given time (
Cable presence and operation are not anticipated to impact marine mammal habitat as these would be buried, and any electromagnetic fields emanating from the cables are not anticipated to result in consequences that would impact marine mammals prey to the extent they would be unavailable for consumption.
The presence and operation of wind turbines within the Lease Area could have longer-term impacts on marine mammal habitat, as the project would result in the persistence of the structures within marine mammal habitat for more than 30 years. The presence and operation of an extensive number of structures, such as wind turbines, are, in general, likely to result in local and broader oceanographic effects in the marine environment and may disrupt dense aggregations and distribution of marine mammal zooplankton prey through altering the strength of tidal currents and associated fronts, changes in stratification, primary production, the degree of mixing, and stratification in the water column (Chen
As discussed in the Potential Effects to Marine Mammals and Their Habitat section, the CVOW-C proposed project would consist of no more than 176 WTGs (all of which are scheduled to be operational by the end of 2027) in Federal and state waters off of Virginia, an area dominated by physical oceanographic patterns of strong seasonal stratification (summer) and turbulence-driven mixing (winter), with a maximum of 183 piling events for all WTGs. While there are likely to be local oceanographic impacts from the presence and operation of the CVOW-C project area, meaningful oceanographic impacts relative to stratification and mixing that would significantly affect marine mammal habitat and prey over large areas in key habitats are not anticipated from the CVOW-C project. Although this area supports aggregations of zooplankton (baleen whale prey) that could be impacted if long-term oceanographic changes occurred, prey densities are typically significantly less in the CVOW-C project area than in known baleen whale foraging habitats to the northern areas off the New England coast (
This proposed rulemaking includes a variety of mitigation measures designed to minimize impacts on all marine mammals, with a focus on North Atlantic right whales (the latter is described in more detail below). For the dual approach of vibratory and impact pile driving of foundation piles, nine
When foundation installation does occur, Dominion Energy is committed to reducing the noise levels generated by impact pile driving to the lowest levels practicable and ensuring that they do not exceed a noise footprint above that which was modeled assuming a 10-dB attenuation. Use of a soft-start would allow animals to move away from (
Dominion Energy proposed, and NMFS proposed to require, use a noise attenuation device (likely a double big bubble curtain, another technology, or combination of technologies, such as a hydro-sound damper) during all foundation pile driving to ensure sound generated from the project does not exceed that modeled (assuming a 10-dB reduction) distances to harassment isopleths and to minimize noise levels to the lowest level practicable. Double big bubble curtains are successfully and widely applied across European wind development efforts, and are known to reduce noise levels more than a single big bubble curtain alone (
Five mysticete species (comprising five stocks) of cetaceans (North Atlantic right whale, humpback whale, fin whale, sei whale, and minke whale) are proposed to be taken by harassment. These species, to varying extents, utilize coastal Virginia waters, including the project area, primarily for the purposes of migration. Key foraging grounds for most of these species are located hundreds of kilometers north of the project area off of southern New England, and will not be impacted by Dominion Energy's activities.
Behavioral data on mysticete reactions to pile driving noise is scant. Kraus
Mysticetes encountered in the CVOW-C project area are primarily expected to be migrating through the project area; the extent to which an animal engages in these behaviors in the area is species-specific and varies seasonally. Given that extensive feeding BIAs for the North Atlantic right whale, humpback whale, fin whale, sei whale, and minke whale are identified in area hundreds of kilometers north of the project area (LaBrecque
While we have acknowledged above that mortality, hearing impairment, or displacement of mysticete prey species may result locally from impact pile driving, the project area during which time impact pile driving of foundations may occur is not a known key foraging area. Impact pile driving foundations would not occur in winter when whales (
The potential for repeated exposures is dependent upon the residency time of whales, with migratory animals unlikely to be exposed on repeated occasions and animals remaining in the area to be more likely exposed repeatedly. As is the case here, where relatively low amounts of species-specific proposed Level B harassment are predicted (Tables 27, 28, and 29) and movement patterns suggest that individuals would not necessarily linger in a particular area for multiple days, each estimated take likely represents an exposure of a different individual. The behavioral impacts to any given individual would, therefore, be expected to occur within a single day within a year—an amount that would not be expected to impact reproduction or survival. Alternatively, species with longer residence time in the project area may be subject to repeated exposures. In general, for this project, the duration of exposures would not be continuous throughout any given day and pile driving would not occur on all consecutive days within a given year due to weather delays, other planned activities in the construction schedule, and any number of logistical constraints that Dominion Energy has already identified. Given mysticete habitat use of waters off Virginia is predominately migratory in nature (reducing the likelihood of repeated exposures), we do not anticipate whales to experience repeated exposures, if it does occur, to the degree any meaningful consequence to reproduction or survival would occur. Species-specific analysis regarding potential for repeated exposures and impacts is provided below. Overall, we do not expect impacts to whales within the CVOW-C project area to affect the fitness of any large whales.
NMFS is proposing to authorize Level A harassment (in the form of PTS) of fin, minke, humpback, and sei whales incidental to installation of the WTG and OSS foundations. As described
North Atlantic right whales are listed as endangered under the ESA and as described in the Effects to Marine Mammals and Their Habitat section, are threatened by a low population abundance, higher than average mortality rates, and lower than average reproductive rates. Recent studies have reported individuals showing high stress levels (
North Atlantic right whales are presently experiencing an ongoing UME (beginning in June 2017). Preliminary findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of North Atlantic right whales. Given the current status of the North Atlantic right whale, the loss of even one individual could significantly impact the population. No mortality, serious injury, or injury of North Atlantic right whales as a result of the project is expected or proposed to be authorized. Any disturbance to North Atlantic right whales due to Dominion Energy's activities is expected to result in temporary avoidance of the immediate area of construction. As no injury, serious injury, or mortality is expected or authorized, and Level B harassment of North Atlantic right whales will be reduced to the level of least practicable adverse impact through use of mitigation measures, the authorized number of takes of North Atlantic right whales would not exacerbate or compound the effects of the ongoing UME in any way.
NMFS proposes to authorize a maximum of 7 takes of North Atlantic right whales by Level B harassment only in any given year (primarily due to activities occurring in Years 1 and 2) with no more than 17 takes incidental to all construction activities over the 5-year period of effectiveness of this proposed rule.
As described above, the CVOW-C project area represents part of a migratory corridor that North Atlantic right whales use for transit between northern feeding grounds in New England and southern calving grounds off Georgia and Florida. Northward migration occurs mainly during the months of March and April while southern transit typically takes place during the months of November and December (LaBrecque
As any North Atlantic right whales within the project area would likely be engaged in migratory behavior (LaBrecque
As described in the general
As described above, no more than 7 takes of North Atlantic right whales would occur in any given year (likely in Year 1 or Year 2 if all foundations are installed according to the construction schedule provided by Dominion Energy) with no more than 17 takes occurring across the 5 years the proposed rule would be effective. If exposure results in temporary behavioral reactions, such as slight displacement (but not abandonment), it is unlikely to result in energetic consequences that could affect reproduction or survival of any individuals. Overall, NMFS expects that any harassment of North Atlantic right whales incidental to the specified activities would not result in meaningful changes to their migration patterns or disruption of foraging behavior as only temporary avoidance of an area during construction is expected to occur. As described previously, right whales migrating through these areas are not expected to remain in this habitat for extensive durations. Because of this, NMFS expects that any temporarily displaced animals would be able to return to or continue to travel through these areas once Dominion
Although acoustic masking may occur, based on the acoustic characteristics of noise associated with pile driving (
As described in the Potential Effects to Marine Mammals and Their Habitat section, the distance of the receiver to the source influences the severity of response with greater distances typically eliciting less severe responses. Additionally, NMFS recognizes North Atlantic right whales migrating could be pregnant females (in the fall) and cows with older calves (in spring) and that these animals may slightly alter their migration course in response to any foundation pile driving. However, as described in the Potential Effects to Marine Mammals and Their Habitat section, we anticipate that course diversion would be of small magnitude. Hence, while some avoidance of the pile driving activities may occur, we anticipate any avoidance behavior of migratory right whales would be similar to that of gray whales (Tyack
Dominion Energy has proposed, and NMFS is proposing to require, a suite of enhanced mitigation measures designed to reduce impacts to North Atlantic right whales to the maximum extent practicable. These mitigation measures are fully described in the Proposed Mitigation section above and are designed to minimize the amount and severity of Level B harassment (TTS and behavioral disruptions) by minimizing the potential for exposure and, if exposures do occur, the noise levels and duration associated with those exposures. Implementation of these measures further ensure that takes by Level B harassment proposed to be authorized would not be expected to affect reproductive success or survivorship of species during migratory transit.
As described in the Description of Marine Mammals in the Area of Specified Activities section, the proposed CVOW-C project would be constructed within the North Atlantic right whale migratory corridor BIA, which represent areas and months within which a substantial portion of a species or population is known to migrate. Off the coast of Virginia, this BIA extends from the coast to beyond the shelf break. The CVOW-C Lease Area is relatively small compared with the migratory BIA area (approximately 456.5 km
The primary prey species for the North Atlantic right whale are mobile (
The most significant measure to minimize impacts to individual North Atlantic right whales during monopile installations is the seasonal moratorium on impact pile driving of monopiles from November 1st through April 30th when North Atlantic right whale abundance in the project area is expected to be highest for the proposed construction period. NMFS also expects this measure to greatly reduce the potential for mother-calf pairs to be exposed to foundation pile driving noise above the Level B harassment threshold during their annual spring migration through the CVOW-C project area from southern calving grounds to the foraging grounds in southern New England and north. Further, NMFS expects that exposures to North Atlantic right whales would be reduced due to the additional proposed mitigation measures that would ensure that any exposures above the Level B harassment threshold would result in only short-term effects to individuals exposed. Impact pile driving may only begin in the absence of North Atlantic right whales (based on visual and passive acoustic monitoring). If impact pile driving has commenced, NMFS anticipates North Atlantic right whales would avoid the area, utilizing nearby waters to carry on pre-exposure behaviors. However, NMFS proposes to require that impact pile driving must be shut down if a North Atlantic right whale is sighted at any distance unless a shutdown is not feasible due to risk of injury or loss of life, pile refusal, or pile instability. Shutdown may occur anywhere if right whales are seen within or beyond the Level B harassment zone, further minimizing the duration and intensity of exposure. NMFS anticipates that if North Atlantic right whales go undetected and they are exposed to impact pile driving noise, it is unlikely a North Atlantic right whale
The proposed clearance and shutdown measures are most effective when detection efficiency is maximized, as the measures are triggered by a sighting or acoustic detection. To maximize detection efficiency, Dominion Energy proposed, and NMFS is proposing to require the combination of PAM and visual observers (as well as communication protocols with other Dominion Energy vessels, and other heightened awareness efforts such as daily monitoring of North Atlantic right whale sighting databases) such that as a North Atlantic right whale approaches the source (and thereby could be exposed to higher noise energy levels), PSO detection efficacy would increase, the whale would be detected, and a delay to commencing pile driving or shutdown (if feasible) would occur. In addition, the implementation of a soft start would provide an opportunity for whales to move away from the source if they are undetected, reducing received levels. Further, Dominion Energy has committed to not installing two WTG or OSS foundations simultaneously. North Atlantic right whales would, therefore, not be exposed to concurrent impact pile driving on any given day and the area ensonified at any given time would be limited. We further note that Dominion Energy has not requested to install foundation piles at night, which is likely to further improve the ability of observers to spot and identify any approach or transiting North Atlantic right whales.
Dominion Energy anticipates a need to undertake a dual vibratory and impact pile driving approach for foundation piles to avoid risks associated with pile run due to softer sedimentation in the CVOW-C project area. While Dominion Energy expects that up to 70 percent of their piles may necessitate this joint approach (approximately 123 foundation piles), realistically not all piles would be at risk of pile run and would be installed by impact pile driving. However, as a conservative approach given uncertainty with the seabed conditions for the location of each pile, Dominion Energy assumed all foundation piles would undertake this approach. Furthermore, Dominion Energy has already stated that no concurrent installation of foundation piles is planned to occur, no concurrent vibratory and impact driving is expected to occur either as a 1.2 hour gap between the end vibratory driving to the start of impact pile driving (to allow for the moving and set-up of equipment) would treat each installation approach as a separate event and would not overlap.
Finally, for HRG surveys, the maximum distance to the Level B harassment isopleth is 100 m. The estimated take, by Level B harassment only, associated with HRG surveys is to account for any North Atlantic right whale sightings PSOs may miss when HRG acoustic sources are active. However, because of the short maximum distance to the Level B harassment isopleth (100 m via the GeoMarine Dual 400 Sparker 800 J), the requirement that vessels maintain a distance of 500 m from any North Atlantic right whales, the fact whales are unlikely to remain in close proximity to an HRG survey vessel for any length of time, and that the acoustic source would be shutdown if a North Atlantic right whale is observed within 500 m of the source, any exposure to noise levels above the harassment threshold (if any) would be very brief and at comparatively low received levels. To further minimize exposures, ramp-up of boomers, sparkers, and CHIRPs must be delayed during the clearance period if PSOs detect a North Atlantic right whale (or any other ESA-listed species) within 500 m of the acoustic source. Potential impacts associated with Level B harassment would include low-level, temporary behavioral modifications, most likely in the form of brief avoidance behavior that would return to baseline conditions once the vessel leaves the area. Given the high level of precautions taken to minimize both the amount and intensity of Level B harassment on North Atlantic right whales, it is unlikely that the anticipated low-level exposures would lead to reduced reproductive success or survival of any individuals.
North Atlantic right whales are listed as endangered under the ESA with a declining population primarily due to vessel strike and entanglement. Again, NMFS is proposing to authorize no more than 17 instances of take, by Level B harassment only, within the a given year with no more than 7 instances of take could occur over the 5-year effective period of the proposed rule, with the likely scenario that each instance of exposure occurs to a different individual (a small portion of the stock), and any individual North Atlantic right whale is likely to be disturbed at a low level. The low magnitude and severity of harassment are not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality, serious injury, or Level A harassment is anticipated or proposed to be authorized. For these reasons, we have preliminarily determined, in consideration of all of the effects of Dominion Energy's activities combined, that the proposed authorized take would have a negligible impact on the Western North Atlantic stock of North Atlantic right whales.
Humpback whales potentially impacted by Dominion Energy's activities do not belong to a DPS that is listed as threatened or endangered under the ESA. However, humpback whales along the Atlantic Coast have been experiencing an active UME as elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts, and take from ship strike and entanglement is not proposed to be authorized. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or DPS of which the Gulf of Maine stock is a part) remains stable at approximately 12,000 individuals.
Dominion Energy has requested, and NMFS has proposed to authorize incidental take by Level A harassment (n=8) and Level B harassment (n=242) over the five-year effective period of the rule, with no more than 4 takes by Level A harassment and 130 takes by Level B harassment in any year (likely year one or two, with fewer anticipated in other years). No mortality or serious injury is anticipated or proposed for authorization. Among the activities analyzed, impact pile driving has the potential to result in the highest amount of annual take of humpback whales and is of greatest concern, given the associated louder source levels. As mentioned earlier, humpback whales are generally migratory in Virginia waters, although the mid-Atlantic region may also serve as a supplemental winter feeding ground for juvenile and mature male humpback whales (Mallette
The 130 maximum annual instances of estimated take by Level B harassment would likely consist of individuals exposed to noise levels above the harassment thresholds once during migration through the CVOW-C project area and/or individuals exposed on multiple days if they are utilizing the area as foraging habitat. Based on the observed winter peaks in humpback whale seasonal distribution in the Virginia region, it is likely that these individuals would primarily be exposed to HRG survey activities given there is no time of year restriction for this activity. The proposed pile driving restrictions for foundation installation and cable landfall activities are designed around North Atlantic right whales; however, this seasonal restriction also affords protection to humpback whales utilizing the waters off of Virginia during the winter months.
For all the reasons described in the
Altogether, the low magnitude and severity of harassment effects is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality or serious injury is anticipated or proposed to be authorized. For these reasons, we have preliminarily determined, in consideration of all of the effects of Dominion Energy's activities combined, that the proposed authorized take would have a negligible impact on the Gulf of Maine stock of humpback whales.
The western North Atlantic stock of fin whales is listed as endangered under the ESA. The amount of incidental take of fin whales proposed for authorization in any year is 4 by Level A harassment and 113 by Level B harassment. The 5-year total amount of fin whale take proposed for authorization is 7 by Level A harassment and 208 by Level B harassment with the majority of take occurring in the first two years of the proposed authorization. The amount of take proposed for authorization is low relative to the population abundance. No serious injury or mortality is anticipated or proposed for authorization. Any Level B harassment is expected to be in the form of behavioral disturbance, primarily resulting in avoidance of the Project Area where pile driving and HRG surveys are occurring, and some low-level TTS and masking that may limit the detection of acoustic cues for relatively brief periods of time. Any potential PTS or TTS would be small (limited to a few dB) and concentrated at half or one octave above the frequency band of pile driving noise (most sound is below 2 kHz) which does not include the full predicted hearing range of fin whales. As described previously, there are no known areas of biological importance in or adjacent to the project area, the closest fin whale BIA (located east of Montauk Point, New York) is hundreds of kilometers away.
Because of the relatively low magnitude and severity of take proposed for authorization, the fact that no serious injury or mortality is anticipated, the temporary nature of the disturbance, and the availability of similar habitat and resources in the surrounding area, NMFS has preliminarily determined that the impacts of Dominion Energy's activities on fin whales are not expected to cause significant impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock.
The Nova Scotia stock of sei whales are listed under the ESA. There are no known areas of specific biological importance in or around the project area, nor are there any UMEs for this species. The actual abundance of each stock is likely significantly greater than what is reflected in each draft and final SAR because, as noted in the SARs, the most recent population estimates are primarily based on surveys conducted in U.S. waters and the stock's range extends well beyond the U.S. EEZ.
The maximum annual amount of incidental take of sei whales proposed for authorization in any year is 1 by Level A harassment and 3 by Level B harassment. The number of takes proposed to be authorized in the last three years of the rule is notably less and the 5-year total amount of sei whale take proposed for authorization is 2 by Level A harassment and 8 by Level B harassment. The amount of take proposed for authorization is low in the context of the population abundance. No serious injury or mortality is anticipated or proposed for authorization. Similar to other mysticetes, we would anticipate the number of takes to represent individuals taken only once or, in rare cases, an individual taken a very small number of times as most whales in the project area would be migrating. To a small degree, sei whales may forage in the project area, although the currently identified foraging habitats (BIAs) are found much further north of the area in which Dominion Energy's activities would occur (LaBrecque
Overall, the take by harassment proposed for authorization is of a low magnitude and severity and is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality or serious
The Canadian East Coast stock of minke whales is not listed under the ESA. There are no known areas of specific biological importance in or around the project area off of Virginia. Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest numbers in Massachusetts, Maine, and New York. This event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 21,000 whales. No mortality or serious injury of this stock is anticipated or proposed for authorization.
The maximum annual amount of incidental take of minke whales proposed for authorization in any year is 8 by Level A harassment and 56 by Level B harassment. The number of takes proposed to be authorized in the last three years of the rule is notably less (refer back to Table 27) and the 5-year total amount of minke whale take proposed for authorization is 15 by Level A harassment and 116 by Level B harassment. The amount of take proposed for authorization is low in the context of the population abundance. No serious injury or mortality is anticipated or proposed for authorization.
We anticipate the impacts of this harassment to follow those described in the general
In this section, we include information here that applies to all of the odontocete species and stocks addressed below, which are further divided into the following subsections: sperm whales, delphinids and pilot whales, and harbor porpoises. These sub-sections include more specific information, as well as conclusions for each stock represented.
The majority of takes by harassment of odontocetes incidental to Dominion Energy's specified activities are by Level B harassment incidental to pile driving and HRG surveys. We anticipate that, given ranges of individuals (
Pile driving, particularly vibratory and impact pile driving of WTG and OSS foundation piles, has the potential to disturb odontocetes to the greatest extent, compared to HRG surveys and nearshore cable landfall activities (
As described earlier, Level B harassment may manifest as changes to behavior (
Any masking or TTS effects are anticipated to be of low-severity. First, the frequency range of pile driving, the most impactful activity conducted by Dominion Energy in terms of response severity, falls within a portion of the frequency range of most odontocete vocalizations. However, odontocete vocalizations span a much wider range than the low frequency construction activities proposed by Dominion Energy. Further, as described above, recent studies suggest odontocetes have a mechanism to self-mitigate (
The waters off the coast of Virginia are used by several odontocete species; however, none (except the sperm whale) are listed under the ESA and there are no known habitats of particular importance in the vicinity of the project. In general, odontocete habitat ranges are far-reaching along the Atlantic coast of the U.S. and the waters off of Virginia and within the continental slope, including the project area, do not contain any particularly unique odontocete habitat features.
The Western North Atlantic stock of sperm whales spans the East Coast out into oceanic waters well beyond the U.S. EEZ. Although listed as endangered, the primary threat faced by the sperm whale (
No mortality, serious injury or Level A harassment is anticipated or proposed to be authorized for this species. Impacts would be limited to Level B harassment and would occur to only a very small number of individuals (maximum of 3 in any given year and six total across all 5-years of the proposed project) incidental to pile driving associated with foundation installation and HRG surveys. Sperm whales are not common within the project area due to the shallow waters, and it is not expected that any noise levels would reach habitat in which sperm whales are common, including deep-water foraging habitat. If sperm whales do happen to be present in the project area during any activities related to the CVOW-C project, they would likely be only transient visitors and not engaging in any significant behaviors. This very low magnitude and severity of effects is not expected to result in impacts on the reproduction or survival of individuals, much less impact annual rates of recruitment or survival. For these reasons, we have determined, in consideration of all of the effects of Dominion Energy's activities combined, that the take proposed to be authorized would have a negligible impact on sperm whales.
None of the delphinids or small whale species for which take has been proposed for authorization are listed as endangered in the ESA. Across these species, the maximum amount of incidental take, by Level B harassment only, proposed for authorization in any one year ranges between 1 (pygmy sperm whale) and 7,360 (for both Atlantic spotted dolphins and common dolphins). The number of takes proposed to be authorized in the last three years of the rule is notably less and the 5-year total amount of take (by Level B harassment only) proposed for authorization ranges between 2 (pygmy sperm whale) and 26,764 (Atlantic spotted dolphin) No mortality, serious injury, or Level A harassment is anticipated or proposed to be authorized for any delphinid or small whale. There are no recent UMEs, specific areas of known biological importance, or other specific issues related to the status of odontocete stocks that cause particular concern. Further, though the estimated numbers of take are comparatively higher than the numbers for mysticetes, we note that for all species they are relatively low relative to the population abundance.
As described above for odontocetes broadly, given the comparatively higher amount of estimated takes for some species and the behavioral patterns of odontocetes, we anticipate that a fair number of these instances of take in a day represent multiple exposures of a smaller number of individuals, meaning the actual number of individuals taken is lower. Although some amount of repeated exposure to some individuals is likely given the duration of activity proposed by Dominion Energy, the intensity of any Level B harassment combined with the availability of alternate nearby foraging habitat suggests that the likely impacts would not impact the reproduction or survival of any individuals.
Overall, the populations of all delphinid and small whale species and stocks for which we propose to authorize take are stable (no declining population trends), not facing existing UMEs, and the relatively low magnitude and severity of effects is not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. No mortality, serious injury or Level A harassment is anticipated or proposed to be authorized for any of these species. For these reasons, we have preliminarily determined, in consideration of all of the effects of Dominion Energy's activities combined, that the take proposed to be authorized would have a negligible impact on all delphinid and small whale species and stocks considered in this analysis.
The Gulf of Maine/Bay of Fundy stock of harbor porpoises is found predominantly in northern U.S. coastal waters (less than 150 m depth) and up into Canada's Bay of Fundy. This stock of harbor porpoise is not listed as endangered under the ESA. The maximum amount of incidental take of harbor porpoises proposed for authorization in any year is 1 by Level A harassment and 40 by Level B harassment. The number of takes proposed to be authorized in the last three years of the rule is notably less and the 5-year total amount of harbor porpoise take proposed for authorization is 2 by Level A harassment and 141 by Level B harassment. The amount of take proposed for authorization is low in the context of the population abundance. No serious injury or mortality is anticipated or proposed for authorization. Although the population trend is not known, there are no UMEs, known areas of biological importance, or other factors that specifically cause concern for this stock. No mortality or non-auditory injury by WTG and OSS foundation installation, or due to any other activities planned by Dominion Energy, are anticipated or authorized for this stock.
Regarding the severity of takes by behavioral Level B harassment, because harbor porpoises are particularly sensitive to noise, it is likely that a fair number of the responses could be of a more moderate nature, particularly to pile driving. In response to pile driving, harbor porpoises are likely to avoid the area during construction, as previously demonstrated in Tougaard
With respect to PTS and TTS, the effects on an individual are likely relatively low given the frequency bands
No mortality or serious injury of harbor porpoise is anticipated or proposed to be authorized. While harbor porpoises are likely to avoid the area during any construction activity discussed herein, as demonstrated during the construction of European wind farms, the time of year in which work would occur is when harbor porpoises are not in high abundance, and any work that does occur would not be expected to result in the species' abandonment of the waters off of Virginia. The low magnitude and low to moderate severity of harassment effects is not expected to result in impacts on the reproduction or survival of any individuals, let alone have impacts on annual rates of recruitment or survival of this stock. No mortality or serious injury is anticipated or proposed to be authorized. For these reasons, we have preliminarily determined, in consideration of all of the effects of Dominion Energy's activities combined, that the proposed authorized take would have a negligible impact on the Gulf of Maine/Bay of Fundy stock of harbor porpoises.
Neither the harbor seal nor gray seal are listed as endangered under the ESA. The maximum amount of incidental take proposed for authorization in any year is 1 by Level A harassment and 83 by Level B harassment for each seal species. The number of takes proposed to be authorized in the last three years of the rule is notably less than this. Further, the 5-year total number of take of each seal species proposed for authorization is 2 by Level A harassment and 218 by Level B harassment. The amount of take proposed for authorization is low relative to the population abundance. No serious injury or mortality is anticipated or proposed for authorization. We expect that the majority of takes of these two species is from the vibratory and impact installation of WTG monopile and OSS jacket foundations. Any takes by Level B harassment are expected to be in the form of behavioral disturbance, primarily due to temporary avoidance of the Project Area during pile driving and HRG survey activities. Some low-level TTS and masking may occur and may limit the detection of acoustic cues for relatively brief periods of time. As described previously for other species, any potential TTS or PTS would be small and limited to a few dB. There are no known haul-out locations or other areas of importance in or adjacent to the Project Area for either harbor or gray seals.
These pinniped species occur in Virginia waters in relatively low numbers in the summer (0.00001; June to August) and fall (0.00047; September to October), as compared to the spring density (0.01828; May). Given foundation installation would occur during months primarily when pinniped densities are lower, we expect impacts to animals to be minimal. Seals are also more likely to be close to shore such that exposure to impact pile driving would be expected to be at lower levels generally (but still above NMFS behavioral harassment threshold). Research and observations show that pinnipeds in the water may be tolerant of anthropogenic noise and activity (a review of behavioral reactions by pinnipeds to impulsive and non-impulsive noise can be found in Richardson
Effects on pinnipeds that are taken by Level B harassment in the CVOW-C project area would likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring). Most likely, individuals would simply move away from the sound source and be temporarily displaced from those areas (see Lucke
As described above, noise from impact pile driving is low frequency and, while any PTS that does occur would fall within the lower end of pinniped hearing ranges (50 Hz to 86 kHz), it would be of small degree and not occur across the entire, or even most sensitive, hearing part of the pinniped hearing range. Hence, any impacts from PTS are likely to be of low severity and not interfere with behaviors critical to reproduction or survival.
Elevated numbers of harbor seal and gray seal mortalities were first observed in July 2018 and occurred across Maine, New Hampshire, and Massachusetts until 2020. Based on tests conducted so far, the main pathogen found in the seals belonging to that UME was phocine distemper virus, although additional testing to identify other factors that may be involved in this UME are underway. Currently, the only active UME is occurring in Maine with some harbor and gray seals testing positive for highly pathogenic avian influenza (HPAI) H5N1. Although elevated strandings continue, neither UME (alone or in combination) provide cause for concern regarding population-level impacts to any of these stocks. For harbor seals, the population abundance is over 75,000 and annual M/SI (350) is well below PBR (2,006) (per the draft 2022 SARs (88 FR 4162; January 24, 2023)). The population abundance for gray seals in the United States is over 27,000, with an estimated overall abundance, including seals in Canada, of approximately 450,000. In addition, the abundance of gray seals is likely increasing in the U.S. Atlantic, as well
Overall, impacts from the Level B harassment take proposed for authorization incidental to Dominion Energy's specified activities would be of relatively low magnitude and a low severity. Similarly, while some individuals may incur PTS overlapping some frequencies that are used for foraging and communication, given the low degree, the impacts would not be expected to impact reproduction or survival of any individuals. In consideration of all of the effects of Dominion Energy's activities combined, we have preliminarily determined that the authorized take will have a negligible impact on harbor seals and gray seals.
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 marine mammal take from all of Dominion Energy's specified activities combined would have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is less than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
NMFS proposes to authorize incidental take (by Level A harassment and Level B harassment) of 21 species of marine mammal (with 22 total managed stocks). The maximum number of takes estimated within any one year and proposed for authorization relative to the best available population abundance is less than one-third for all species and stocks potentially impacted (
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS is proposing to authorize the take of four marine mammal species which are listed under the ESA: the North Atlantic right, sei, fin, and sperm whale. The Permit and Conservation Division requested initiation of Section 7 consultation on April 4, 2023, with GARFO for the issuance of this proposed rulemaking. NMFS will conclude the Endangered Species Act consultation prior to reaching a determination regarding the proposed issuance of the authorization. The proposed regulations and any subsequent LOA(s) would be conditioned such that, in addition to measures included in those documents, the applicant would also be required to abide by the reasonable and prudent measures and terms and conditions of a Biological Opinion and Incidental Take Statement, issued by NMFS, pursuant to section 7 of the Endangered Species Act.
As a result of these preliminary determinations, NMFS proposes to promulgate an ITA for Dominion Energy that would authorize take, by Level A harassment and Level B harassment, of marine mammals incidental to construction activities associated with the CVOW-C project offshore of Virginia for a 5-year period from February 5, 2024, through February 4, 2029, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
NMFS requests interested persons to submit comments, information, and suggestions concerning Dominion Energy's request and the proposed regulations (see
Recognizing, as a general matter, that this action is one of many current and future wind energy actions, we invite comment on the relative merits of the IHA, single-action rule/LOA, and programmatic multi-action rule/LOA approaches, including potential marine mammal take impacts resulting from this and other related wind energy actions and possible benefits resulting from regulatory certainty and efficiency.
Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed 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 has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Dominion Energy is the sole entity that would be subject to the requirements in these proposed regulations, and Dominion Energy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Under the RFA,
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOA, and reports. Send comments regarding any aspect of this data collection, including suggestions for reducing the burden, to NMFS.
The Coastal Zone Management Act (CZMA) requires Federal actions within and outside the coastal zone that have reasonably foreseeable effects on any coastal use or natural resource of the coastal zone be consistent with the enforceable policies of a state's federally approved coastal management program. 16 U.S.C. 1456(c). Additionally, regulations implementing the CZMA require non-Federal applicants for Federal licenses or permits to submit a consistency certification to the state that declares that the proposed activity complies with the enforceable policies of the state's approved management program and will be conducted in a manner consistent with such program.
In 2021, the Virginia Electric and Power Company, doing business as Dominion Energy Virginia, submitted a Federal consistency certification to the Virginia Department of Environmental Quality (VDEQ) seeking concurrence that the construction, operations, and decommissioning activities of the proposed CVOW-C project is consistent with the enforceable policies of the State's federally approved coastal management program. Although no project components are proposed in the State of North Carolina or in North Carolina State waters, Dominion Energy also submitted a Federal consistency certification to the North Carolina Division of Coastal Management. A revised draft of the consistency certifications dated May 2022 was prepared and submitted to each state and is included as Appendix P of the company's Construction and Operation Plan.
NMFS has determined that Dominion Energy's application for authorization to take small numbers of marine mammals incidental to the development of the CVOW-C project on the outer continental shelf of the Atlantic Ocean is an unlisted activity and, thus, is not, at this time, subject to Federal consistency requirements in the absence of the receipt and prior approval of an unlisted activity review request from the state by the Director of NOAA's Office for Coastal Management. This determination does not excuse Dominion Energy from responsibility to seek concurrence from VDEQ on other Federal permits, approvals, or actions that might be subject to consistency review pursuant to the CZMA.
Administrative practice and procedure, Endangered and threatened species, Fish, Fisheries, Marine mammals, Penalties, Reporting and recordkeeping requirements, Wildlife.
For reasons set forth in the preamble, NMFS proposes to amend 50 CFR part 217 as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the taking of marine mammals that occurs incidental to activities associated with construction of the Coastal Virginia Offshore Wind Commercial (CVOW-C) project by Virginia Electric and Power Company, doing business as Dominion Energy Virginia (Dominion Energy), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section.
(b) The taking of marine mammals by Dominion Energy may be authorized in a Letter of Authorization (LOA) only if it occurs in the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A-0483 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the sea-to-shore transition points west of the firing range at the State Military Reservation in Virginia Beach, Virginia.
(c) The taking of marine mammals by Dominion Energy is only authorized if it occurs incidental to the following activities associated with the CVOW-C project: installation of up to 176 wind turbine generator (WTG) and 3 offshore substation (OSS) foundations by impact and vibratory pile driving, impact and vibratory pile driving associated with cable landfall construction; and high-resolution geophysical (HRG) site characterization surveys.
Regulations in this subpart are effective from February 5, 2024, through February 4, 2029.
Under an LOA, issued pursuant to §§ 216.106 of this chapter and 217.296, Dominion Energy, and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the area described in § 217.290(b) in the following ways, provided Dominion Energy is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact and vibratory pile driving (WTG and OSS foundation installation), impact and vibratory pile
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving WTG and OSS foundations.
(c) Take by mortality or serious injury of any marine mammal species is not authorized; and
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following species:
Except for the takings described in § 217.292 and authorized by an LOA issued under § 217.296 or § 217.297, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 217.296 and 217.297;
(b) Take any marine mammal not specified in § 217.292(d);
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal specified in § 217.292(d), after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the activities identified in §§ 217.290 and 217.292, Dominion Energy must implement the mitigation measures contained in this section and any LOA issued under §§ 217.296 and 217.297. These mitigation measures include, but are not limited to:
(a)
(1) A copy of any issued LOA must be in the possession of Dominion Energy and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA.
(2) Dominion Energy must conduct briefings between construction supervisors, construction crews, and the PSO and PAM team prior to the start of all construction activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring and reporting protocols, and operational procedures. A simple guide must be included with the Marine Mammal Monitoring Plan to aid personnel in identifying species if they are observed in the vicinity of the project area.
(3) Prior to and when conducting any in-water construction activities and vessel operations, Dominion Energy personnel (
(4) Dominion Energy must ensure that any visual observations of an Endangered Species Act (ESA)-listed marine mammal are communicated to PSOs and vessel captains during the concurrent use of multiple project-associated vessels (of any size;
(5) Dominion Energy must establish and implement clearance and shutdown zones as described in the LOA.
(6) Dominion Energy must instruct all vessel personnel regarding the authority of the PSO(s). Any disagreement between the Lead PSO and the vessel operator would only be discussed after shutdown has occurred.
(7) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant Level B harassment zone for a specified activity, pile driving and HRG acoustic sources must be shut down immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability, or be delayed if the activity has not commenced. Impact and vibratory pile driving and initiation of
(8) Construction and survey activities shall only commence when visual clearance zones are fully visible (
(9) Any visual or acoustic detection within the clearance or shutdown zones must trigger a delay to the commencement of construction and survey activities. Any marine mammals observed within a clearance or shutdown zone must be allowed to remain in the area (
(10) Dominion Energy must treat any large whale sighted by a PSO or acoustically detected by a PAM operator as if it were a North Atlantic right whale and apply the mitigation measures applicable to North Atlantic right whales, unless a PSO or a PAM operator confirms the large whale is another type of whale.
(11) Following a shutdown, construction and survey activities shall not recommence until the minimum visibility zone is fully visible and clear of marine mammals for 30 minutes and no marine mammals have been detected acoustically within the PAM clearance zone for 30 minutes.
(12) For in-water construction heavy machinery activities, other than impact and vibratory pile driving, if a marine mammal is on a path towards or comes within 10 m of equipment, Dominion Energy must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment.
(13) All vessels must be equipped with an Automatic Identification System (AIS) and Dominion Energy must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources prior to initiating in-water activities.
(b)
(1) Prior to the start of construction activities, all vessel operators and crew must receive a protected species identification training that covers, at a minimum:
(i) Identification of marine mammals and other protected species known to occur or which have the potential to occur in the Dominion Energy project area;
(ii) Training on making observations in both good weather conditions (
(iii) Training on information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species;
(iv) Observer training related to vessel strike avoidance measures must be conducted for all vessel operators and crew prior to the start of in-water construction activities; and
(v) Confirmation of marine mammal observer training must be documented on a training course log sheet and reported to NMFS;
(2) All vessel operators and crews, regardless of their vessel's size, must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course, as appropriate, to avoid striking any marine mammal;
(3) All vessels must have a visual observer on board who is responsible for monitoring the vessel strike avoidance zone for marine mammals. Visual observers may be a PSO or crew member, but crew members responsible for these duties must be provided sufficient training by Dominion Energy to distinguish marine mammals from other types of animals or objects and must be able to identify a marine mammal as a North Atlantic right whale, other whale (defined in this context as sperm whales or baleen whales other than North Atlantic right whales), or other marine mammal. Crew members serving as visual observers must not have duties other than observing for marine mammals while the vessel is operating over 10 knots (kts);
(4) Year-round and when a vessel is in transit, all vessel operators must continuously monitor U.S. Coast Guard VHF Channel 16, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every four hours, vessel operators and/or trained crew members must monitor the project's Situational Awareness System, WhaleAlert, and the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales. Any observations of any large whale by any Dominion Energy staff or contractors, including vessel crew, must be communicated immediately to PSOs, PAM operator, and all vessel captains to increase situational awareness. Conversely, any large whale observation or detection via a sighting network (
(5) Any observations of any large whale by any Dominion Energy staff or contractor, including vessel crew, must be communicated immediately to PSOs and all vessel captains to increase situational awareness;
(6) Nothing in this subpart exempts vessels from applicable speed regulations at 50 CFR 224.105;
(7) All vessels must transit active Slow Zones (
(8) Between November 1st and April 30th, all vessels must transit at 10 kts or less;
(9) All vessels, regardless of size, must immediately reduce speed to 10 kts or less when any large whale, mother/calf pairs, or large assemblages of non-delphinid cetaceans are observed (within 500 m) of an underway vessel;
(10) All vessels, regardless of size, must immediately reduce speed to 10 kts or less when a North Atlantic right whale is sighted, at any distance, by anyone on the vessel;
(11) All transiting vessels operating at any speed must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180 degree direction of the forward path of the vessel (90 degrees port to 90 degree starboards) located at the best vantage point for ensuring vessels are maintaining appropriate separation distances from marine mammals. Visual observers must be equipped with alternative monitoring technology for periods of low visibility (
(12) All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway and making way, all vessels must steer a course away from any
(13) All vessels must maintain a minimum separation distance of 100 m from sperm whales and baleen whales other than North Atlantic right whales. If one of these species is sighted within 100 m of a transiting vessel, that vessel must shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(14) All vessels must maintain a minimum separation distance of 50 m from all delphinoid cetaceans and pinnipeds, with an exception made for those that approach the vessel (
(15) When a marine mammal(s) is sighted while a vessel is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (
(16) All vessels underway must not divert or alter course to approach any marine mammal. If a separation distance is triggered, any vessel underway must avoid abrupt changes in course direction and transit at 10 kts or less until the animal is outside the relevant separation distance; and
(17) Dominion Energy must submit a North Atlantic right whale vessel strike avoidance plan 180 days prior to the commencement of vessel use. This plan must describe, at a minimum, how PAM, in combination with visual observations, would be conducted to ensure the transit corridor is clear of right whales and would also provide details on the vessel-based observer protocols on transiting vessels.
(c)
(1) Foundation vibratory and impact pile driving may not occur November 1st through April 30th;
(2) Monopiles must be no larger than 9.5-m in diameter, representing the larger end of the tapered 9.5/7.5-m monopile design. Pin piles must be no larger than 2.8-m in diameter. During all monopile and pin pile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,000 kilojoules (kJ) for monopile installations and 3,000 kJ for pin pile installation. No more than two monopile foundation or two pin piles for jacket foundations may be installed per day;
(3) Dominion Energy must not initiate pile driving earlier than 1 hour after civil sunrise or later than 1.5 hours prior to civil sunset, unless Dominion Energy submits, and NMFS approves an Alternative Monitoring Plan as part of the Pile Driving and Marine Mammal Monitoring Plan that reliably demonstrates the efficacy of their night vision devices;
(4) Dominion Energy must utilize a soft-start protocol for each impact pile driving event of all monopiles and pin piles by performing 4-6 strikes per minute at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 minutes;
(5) Soft-start must occur at the beginning of monopile and pin pile installation and at any time following a cessation of impact pile driving of 30 minutes or longer;
(6) If a marine mammal is detected, visually or acoustically, within or about to enter the applicable clearance zones, prior to the beginning of soft-start procedures, impact pile driving must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other species;
(7) Dominion Energy must deploy dual noise abatement systems that are capable of achieving, at a minimum, 10 decibel (dB) of sound attenuation, during all vibratory and impact pile driving of monopiles and pin piles and comply with the following requirements related noise abatement:
(i) A single bubble curtain must not be used unless paired with another noise attenuation device;
(ii) A big double bubble curtain may be used without being paired with another noise attenuation device;
(iii) The bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m
(iv) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(v) No parts of the ring or other objects may prevent full seafloor contact;
(vi) Construction contractors must train personnel in the proper balancing of airflow to the ring. Construction contractors must submit an inspection/performance report for approval by Dominion Energy within 72 hours following the performance test. Dominion Energy must then submit that report to NMFS; and
(vii) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (c)(7) must occur prior to impact pile driving of monopiles and pin piles. If Dominion Energy uses a noise mitigation device in addition to the bubble curtain, Dominion Energy must maintain similar quality control measures as described in this paragraph (c)(7);
(8) Dominion Energy must conduct sound field verification (SFV) during all vibratory and impact pile driving of the first three monopiles and all piles associated with the first OSS foundation installed. Subsequent SFV is required should additional piles be driven that are anticipated to produce louder sound fields than those previously measured;
(9) Dominion Energy must conduct SFV after construction is complete to estimate turbine operational source levels based on measurements in the near and far-field at a minimum of three locations from each foundation
(10) Dominion Energy must submit a sound field verification (SFV) plan to NOAA Fisheries for review and approval at least 180 days prior to planned start of pile driving that identifies how Dominion Energy will comply with the following requirements:
(i) Dominion Energy must empirically determine source levels, the ranges to the isopleths corresponding to the Level A harassment and Level B harassment thresholds in meters, and the transmission loss coefficient(s). Dominion Energy may estimate ranges to the Level A harassment and Level B harassment isopleths by extrapolating from
(ii) Dominion Energy must perform sound field measurements at four distances from the pile being driven, including, but not limited to, 750 m and the modeled Level B harassment zones to verify the accuracy of those modeled zones;
(iii) The recordings must be continuous throughout the duration of all impact and vibratory hammering of each pile monitored;
(iv) The measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile;
(v) The frequency range of the system must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz);
(vi) The system will be designed to have omnidirectional sensitivity and will be designed so that the predicted broadband received level of all impact pile-driving strikes exceeds the system noise floor by at least 10 dB. The dynamic range of the system must be sufficient such that at each location, pile driving signals are not clipped and are not masked by noise floor; and
(vii) Identify operational noise levels and transmission loss rates;
(11) If acoustic field measurements collected during installation of foundation piles indicate ranges to the isopleths, corresponding to Level A harassment and Level B harassment thresholds, are greater than the ranges predicted by modeling (assuming 10 dB attenuation), Dominion Energy must implement additional noise mitigation measures prior to installing the next monopile. Each modification must be evaluated empirically by acoustic field measurements;
(12) In the event that field measurements indicate ranges to isopleths, corresponding to Level A harassment and Level B harassment thresholds, are greater than the ranges predicted by modeling (assuming 10 dB attenuation), NMFS may expand the relevant harassment, clearance, and shutdown zones and associated monitoring protocols;
(13) If the harassment zones are expanded beyond an additional 1,500 m, additional PSOs must be deployed on additional platforms, with each observer responsible for maintaining watch in no more than 180 degrees and of an area with a radius no greater than 1,500 m;
(14) If acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10 dB attenuation), Dominion Energy may request to NMFS a modification of the clearance and shutdown zones for impact pile driving of monopiles and pin piles;
(15) For NMFS to consider a modification request for reduced zone sizes, Dominion Energy must have had to conduct SFV on three or more monopiles and four or more pin piles to verify that zone sizes are consistently smaller than those predicted by modeling (assuming 10 dB attenuation) and subsequent piles would be installed within and under similar conditions (
(16) If a subsequent monopile installation location is selected that was not represented by the previous three locations (
(17) Dominion Energy must utilize, at minimum, four PSOs who must be actively observing for marine mammals before, during, and after pile driving. At least two PSOs must be stationed on the primary pile driving vessel and at least two PSOs must be stationed on a secondary, dedicated PSO vessel. The dedicated PSO vessel must be positioned approximately 3 km from the pile being driven and must circle the pile at a speed of less than 10 knots;
(18) PSOs must be able to visually clear (
(19) PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes prior to commencing pile driving. Prior to initiating soft-start procedures, all clearance zones must be visually confirmed to be free of marine mammals for 30 minutes before pile driving can begin;
(20) At least one PAM operator must review data from at least 24 hours prior to pile driving and actively monitor hydrophones for 60 minutes prior to pile driving. All clearance zones must be acoustically confirmed to be free of marine mammals for 60 minutes before activities can begin immediately prior to starting a soft-start of impact pile driving;
(21) If a marine mammal is observed entering or within the relevant clearance zone prior to the initiation of vibratory and/or impact pile driving activities, pile driving must be delayed and must not begin until either the marine mammal(s) has voluntarily left the specific clearance zones and have been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections. The specific time periods are 15 minutes for small odontocetes and 30 minutes for all other marine mammal species;
(22) For North Atlantic right whales, any acoustic detection must trigger a delay to the commencement of pile driving. The clearance zone may only be declared clear if no confirmed North Atlantic right whale acoustic detections (in addition to visual) have occurred within the PAM clearance zone during the 60-minute monitoring period. Any large whale sighting by a PSO or detected by a PAM operator that cannot be identified by species must be treated as if it were a North Atlantic right whale;
(23) If a marine mammal is observed entering or within the respective shutdown zone, as defined in the LOA, after pile driving has begun, the PSO must call for a temporary shutdown of pile driving;
(24) Dominion Energy must immediately cease pile driving when a marine mammal is detected within a shutdown zone, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. In this situation, Dominion Energy must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS;
(25) If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right
(26) Upon restarting impact pile driving, soft-start protocols must be followed; and
(27) Pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time Dominion Energy must use the lowest hammer energy practicable to maintain stability.
(d)
(1) Dominion Energy must conduct pile driving during daylight hours only.
(2) Dominion Energy must have a minimum of two PSOs on active duty during any installation and removal of the temporary cofferdams and goal posts. PSOs must be located at the best vantage point(s) on the pile driving platform or secondary platform in the immediate vicinity of the pile driving platform, in order to ensure that appropriate visual coverage is available for the entire visual clearance zone and as much of the Level B harassment zone, as possible.
(3) Prior to the start of pile driving activities, at least two PSOs must monitor the clearance zone for 30 minutes, continue monitoring during pile driving and for 30 minutes post-pile driving.
(4) If a marine mammal(s) is observed entering or is observed within the clearance zones, pile driving must not commence until the animal(s) has exited the zone or a specific amount of time has elapsed since the last sighting. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species.
(5) If a marine mammal is observed entering or within the respective shutdown zone, as defined in the LOA, after pile driving has begun, the PSO must call for a temporary shutdown of pile driving.
(6) Dominion Energy must immediately cease pile driving when a marine mammal is detected within a shutdown zone, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual, pile refusal, or instability. In this situation, Dominion Energy must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS.
(7) Pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species. In cases where the criteria in this paragraph (e)(7) is not met, pile driving may restart only if necessary to maintain pile stability at which time Dominion Energy must use the lowest hammer energy practicable to maintain stability.
(8) If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale is no longer observed or 30 minutes has elapsed since the last detection.
(9) Dominion Energy must employ a soft-start for all impact pile driving. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets.
(e)
(1) Dominion Energy is required to have at least one PSO on active duty per vessel during HRG surveys that are conducted during daylight hours (
(2) Dominion Energy must deactivate acoustic sources during periods where no data are being collected, except as determined to be necessary for testing. Unnecessary use of the acoustic source(s) is prohibited.
(3) Dominion Energy is required to ramp-up sub-bottom profilers (SBPs) prior to commencing full power, unless the equipment operates on a binary on/off switch. ensure visual clearance zones are fully visible (
(4) Prior to a ramp-up procedure starting or activating SBPs, the operator must notify the Lead PSO of the planned start time. This notification time must not be less than 60 minutes prior to the planned ramp-up or activation as all relevant PSOs must monitor the clearance zone for 30 minutes prior to the initiation of ramp-up or activation.
(5) Prior to starting the survey and after receiving confirmation from the PSOs that the clearance zone is clear of any marine mammals, Dominion Energy must ramp-up sources to half power for 5 minutes and then proceed to full power, unless the source operates on a binary on/off switch in which case ramp-up is not required. Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings.
(6) Dominion Energy must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30 minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone.
(7) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and seals, and 30 minutes for all other species.
(8) Any large whale sighted by a PSO within 1 km of the SBP that cannot be identified by species must be treated as if it were a North Atlantic right whale and Dominion Energy must apply the mitigation measure applicable to this species.
(9) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations would be allowed to commence (
(10) Once the survey has commenced, Dominion Energy must shut down SBPs if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured
(11) If SBPs have been shut down due to the presence of a marine mammal, the use of SBPs may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting.
(12) Dominion Energy must immediately shutdown any SBP acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (
(13) If a SBP is shut down for reasons other than mitigation (
(i) PSOs have maintained constant observation; and
(ii) No additional detections of any marine mammal occurred within the respective shutdown zones.
(f)
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification. Marine mammal monitoring will be conducted by the captain and/or a member of the scientific crew before (within 1 nautical mile (nm) and 15 minutes prior to deploying gear), during, and after haul back.
(2) Survey gear will be deployed as soon as possible once the vessel arrives on station.
(3) Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement the following “move-on” rule: If marine mammals are sighted within 1 nm of the planned location and 15 minutes before gear deployment, Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, Dominion Energy and/or its cooperating institutions, contracted vessels, or commercially-hired captains must move again or skip the station.
(4) If a marine mammal is deemed to be at risk of interaction after the gear is set, all gear must be immediately removed from the water.
(5) Dominion Energy must maintain visual monitoring effort during the entire period of time that gear is in the water (
(6) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use.
(7) All lost gear must be reported to NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division (
(8) Dominion Energy must implement measures within the Atlantic Large Whale Take Reduction Plan at 50 CFR 229.32.
(a)
(1) Dominion Energy must use independent, dedicated, qualified PSOs, meaning that the PSOs must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of protected species and mitigation requirements;
(2) PSOs must successfully complete relevant training, including completion of all required coursework and passing a written and/or oral examination developed for the training;
(3) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver shall be submitted to NMFS and must include written justification. Alternate experience that may be considered includes, but is not limited to: Secondary education and/or experience comparable to PSO duties; previous work experience conducting academic, commercial, or government sponsored marine mammal surveys; or previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties;
(4) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental injury of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the 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;
(5) All PSOs must be approved by NMFS. Dominion Energy must submit PSO resumes for NMFS' review and approval at least 60 days prior to commencement of in-water construction activities requiring PSOs. Resumes must include dates of training and any prior NMFS approval, as well as dates and description of last experience, and must
(6) All PSOs must be trained in marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations;
(7) At least one PSO on active duty for each activity (
(8) PAM operators must complete specialized training for operating PAM systems and must demonstrate familiarity with the PAM system on which they must be working. PSOs may act as both acoustic operators and visual observers (but not simultaneously), so long as they demonstrate that their training and experience are sufficient to perform each task; and
(9) PAM operators may additionally function as PSOs, assuming all qualifications and requirements in paragraphs (a)(1) through (7) of this section are met, but may only perform one role at any one time and must abide by the requirements specified for that role.
(b)
(1) PSOs must monitor all clearance and shutdown zones prior to, during, and following pile driving, cable landfall construction activities, and during HRG surveys that use boomers, sparkers, and CHIRPs (with specific monitoring durations and needs described in paragraphs (c) through (e) of this section, respectively). PSOs must also monitor the Level B harassment zones and document any marine mammals observed within these zones, to the extent practicable. PSOs must ensure that there is appropriate visual coverage for the entire clearance and shutdown zones and as much of the Level B harassment zone as possible;
(2) All PSOs must be located at the best vantage point(s) on the primary vessel, pile driving platform, or secondary platform, whichever is most appropriate to the activity occurring, in order to obtain 360 degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. PAM operators may be located on a vessel or remotely on-shore but must have the appropriate equipment (
(3) During all visual observation periods, PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During impact pile driving, at least one PSO on the primary pile driving vessel must be equipped with functional Big Eye binoculars (
(4) During periods of low visibility (
(5) PSOs must not exceed four consecutive watch hours on duty at any time, must have a two-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period;
(6) Any PSO has the authority to call for a delay or shutdown of project activities;
(7) Any observations of marine mammals must be communicated to PSOs on all nearby project vessels during construction activities and surveys;
(8) PSOs must remain in contact with the PAM operator currently on duty regarding any animal detection that would be approaching or found within the applicable zones no matter where the PAM operator is stationed (
(9) During daylight hours when equipment is not operating, Dominion Energy must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports; and
(10) Dominion Energy's personnel and PSOs are required to use available sources of information on North Atlantic right whale presence to aid in monitoring efforts. These include daily monitoring of the Right Whale Sightings Advisory System, consulting of the WhaleAlert app, and monitoring of the Coast Guard's VHF Channel 16 throughout the day to receive notifications of any sightings and information associated with any Dynamic Management Areas, to plan construction activities and vessel routes, if practicable, to minimize the potential for co-occurrence with North Atlantic right whales.
(c)
(1) At least four PSOs must be actively observing marine mammals before, during, and after installation of foundation piles (
(2) All on-duty visual PSOs must remain in contact with the on-duty PAM operator, who would monitor the PAM systems for acoustic detections of marine mammals in the area, regarding any animal detection that might be approaching or found within the applicable zones no matter where the PAM operator is stationed (
(3) If PSOs cannot visually monitor the minimum visibility zone at all times using the equipment described in paragraphs (b)(3) and (4) of this section, pile driving operations must not commence or must shutdown if they are currently active;
(4) All PSOs must begin monitoring 60 minutes prior to pile driving, during, and for 30 minutes after the activity. Pile driving must only commence when the minimum visibility zone is fully visible (
(5) For North Atlantic right whales, any visual or acoustic detection must trigger a delay to the commencement of pile driving. In the event that a large whale is sighted or acoustically detected that cannot be confirmed by species, it must be treated as if it were a North Atlantic right whale;
(6) Dominion Energy must conduct PAM for at least 24 hours immediately prior to pile driving activities;
(7) During use of any real-time PAM system, at least one PAM operator must be designated to monitor each system by viewing data or data products that would be streamed in real-time or in near real-time to a computer workstation and monitor;
(8) Dominion Energy must use a minimum of one PAM operator to actively monitor for marine mammals before, during, and after pile driving activities. The PAM operator must assist visual PSOs in ensuring full coverage of the clearance and shutdown zones. The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the pile driving activity via the data collection software system (
(9) PAM operators must be on watch for a maximum of four consecutive hours, followed by a break of at least two hours between watches, and may not exceed a combined watch schedule of more than 12 hours in a single 24-hour period;
(10) Dominion Energy must prepare and submit a Pile Driving and Marine Mammal Monitoring Plan to NMFS for review and approval at least 180 days before the start of any pile driving. The plan must include final pile driving project design (
(11) A Passive Acoustic Monitoring (PAM) Plan must be submitted to NMFS for review and approval at least 180 days prior to the planned start of WTG or OSS installation. The authorization to take marine mammals would be contingent upon NMFS' approval of the PAM Plan.
(d)
(1) At least two PSOs must be on active duty during all activities related to the installation and removal of cofferdams, goal posts, and casing pipes;
(2) The PSOs must be located at the best vantage points on the pile driving platform or secondary platform in the immediate vicinity of the pile driving; and
(3) PSOs must monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the sheet piles and casing pipes, and for 30 minutes after all pile driving activities have ceased. Pile driving must only commence when visual clearance zones are fully visible (
(e)
(1) Between four and six PSOs must be present on every 24-hour survey vessel and two to three PSOs must be present on every 12-hour survey vessel;
(2) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating SBPs during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(4) During daylight hours when survey equipment is not operating, Dominion Energy must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports; and
(5) Any acoustic monitoring would complement visual monitoring efforts and would cover an area of at least the Level B harassment zone around each acoustic source.
(f)
(1) Prior to initiation of project activities, Dominion Energy must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for Dominion Energy personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed.
(2) Dominion Energy must use a standardized reporting system during the effective period of this subpart and LOA. All data collected related to the CVOW-C project must be recorded using industry-standard softwares (
(i) Date and time that monitored activity begins or ends;
(ii) Construction activities occurring during each observation period;
(iii) Watch status (
(iv) PSO who sighted the animal;
(v) Time of sighting;
(vi) Weather parameters (
(vii) Water conditions (
(viii) All marine mammal sightings, regardless of distance from the construction activity;
(ix) Species (or lowest possible taxonomic level possible);
(x) Pace of the animal(s);
(xi) Estimated number of animals (minimum/maximum/high/low/best);
(xii) Estimated number of animals by cohort (
(xiii) Description (
(xiv) Description of any marine mammal behavioral observations (
(xv) Animal's closest distance and bearing from the pile being driven or
(xvi) Activity at time of sighting (
(xvii) Marine mammal occurrence in Level A harassment or Level B harassment zones;
(xviii) Description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (
(xix) Other human activity in the area.
(3) If a marine mammal is acoustically detected during PAM monitoring, the following information must be recorded and reported to NMFS:
(i) Location of hydrophone (latitude & longitude; in Decimal Degrees) and site name;
(ii) Bottom depth and depth of recording unit (in meters);
(iii) Recorder (model & manufacturer) and platform type (
(iv) Time zone for sound files and recorded date/times in data and metadata (in relation to Universal Coordinated Time (UTC);
(v) Duration of recordings (start/end dates and times; in International Organization for Standardization (ISO) 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ);
(vi) Deployment/retrieval dates and times (in ISO 8601 format);
(vii) Recording schedule (must be continuous);
(viii) Hydrophone and recorder sensitivity (in dB re. 1 microPascal (μPa));
(ix) Calibration curve for each recorder;
(x) Bandwidth/sampling rate (in Hz);
(xi) Sample bit-rate of recordings; and,
(xii) Detection range of equipment for relevant frequency bands (in meters).
(4) Information required for each detection, the following information must be noted:
(i) Species identification (if possible);
(ii) Call type and number of calls (if known);
(iii) Temporal aspects of vocalization (date, time, duration,
(iv) Confidence of detection (detected, or possibly detected);
(v) Comparison with any concurrent visual sightings;
(vi) Location and/or directionality of call (if determined) relative to acoustic recorder or construction activities;
(vii) Location of recorder and construction activities at time of call;
(viii) Name and version of detection or sound analysis software used, with protocol reference;
(ix) Minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and
(x) Name of PAM operator(s) on duty.
(5) Dominion Energy must compile and submit weekly reports to NMFS Office of Protected Resources that document the daily start and stop of all pile driving and HRG survey, the start and stop of associated observation periods by PSOs, details on the deployment of PSOs, a record of all detections of marine mammals (acoustic and visual), any mitigation actions (or if mitigation actions could not be taken, provide reasons why), and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday-Saturday) and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required.
(6) Dominion Energy must compile and submit monthly reports to NMFS (at
(7) Dominion Energy must submit a draft annual report to NMFS Office of Protected Resources no later than 90 days following the end of a given calendar year. Dominion Energy must provide a final report within 30 days following resolution of comments on the draft report. The draft and final reports must detail the following information:
(i) The total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zones with comparison to authorized take of marine mammals for the associated activity type;
(ii) Marine mammal detections and behavioral observations before, during, and after each activity;
(iii) What mitigation measures were implemented (
(iv) Operational details (
(v) Any PAM systems used;
(vi) The results, effectiveness, and which noise attenuation systems were used during relevant activities (
(vii) Summarized information related to situational reporting; and
(viii) Any other important information relevant to the CVOW-C project, including additional information that may be identified through the adaptive management process.
(ix) The final annual report must be prepared and submitted within 30 calendar days following the receipt of any comments from NMFS on the draft report. If no comments are received from NMFS within 60 calendar days of NMFS' receipt of the draft report, the report must be considered final.
(8) Dominion Energy must submit its draft final report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted under the LOA within 90 calendar days of the completion of activities occurring under the LOA. 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 NMFS' receipt of the draft report, the report shall be considered final.
(9) Dominion Energy must submit a SFV plan at least 180 days prior to the planned start of vibratory and/or impact pile driving. The plan must describe how Dominion Energy would ensure that the first three WTG monopile and OSS jacket (using pin piles) foundation installation sites selected for SFV are representative of the rest of the monopile and pin pile installation sites. In the case that these sites/scenarios are not determined to be representative of all other monopile/pin pile installation sites, Dominion Energy must include information on how additional sites/scenarios would be selected for SFV. The plan must also include methodology for collecting, analyzing,
(i) The SFV plan must also include how operational noise would be monitored. Dominion Energy must estimate source levels (at 10 m from the operating foundation) based on received levels measured at 50 m, 100 m, and 250 m from the pile foundation. These data must be used to identify estimated transmission loss rates. Operational parameters (
(ii) Dominion Energy must provide the initial results of the SFV measurements to NMFS in an interim report after each monopile and pin pile foundation installation for the first three monopiles piles and/or two full OSS foundations (consisting of 8 total pin piles) as soon as they are available, but no later than 48 hours after each installation. Dominion Energy must also provide interim reports on any subsequent SFV on foundation piles within 48 hours. The interim report must include hammer energies used during pile driving, peak sound pressure level (SPL
(iii) The final results of SFV of foundation installations must be submitted as soon as possible, but no later than within 90 days following completion of pile driving of monopiles and pin piles. The final report must include, at minimum, the following:
(A) Peak sound pressure level (SPL
(B) All these levels must be reported in the form of:
(
(
(
(
(C) The SEL and SPL power spectral density and one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations should be reported;
(D) The sound levels reported must be in median and linear average (
(E) A description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and pile driving locations;
(F) Hammer energies required for pile installation and the number of strikes per pile;
(G) Hydrophone equipment and methods (
(H) Description of the SFV PAM hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information;
(I) Local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile), baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern);
(J) Spatial configuration of the noise attenuation device(s) relative to the pile;
(K) The extents of the Level A harassment and Level B harassment zones; and
(L) A description of the noise abatement system and operational parameters (
(10) Dominion Energy must submit situational reports if the following circumstances occur:
(i) If a North Atlantic right whale is observed at any time by PSOs or personnel on or in the vicinity of any project vessel, or during vessel transit, Dominion Energy must immediately report sighting information to the NMFS North Atlantic Right Whale Sighting Advisory System (866) 755-6622, through the WhaleAlert app (
(ii) When an observation of a large whale occurs during vessel transit, the following information must be recorded and reported to NMFS:
(A) Time, date, and location (latitude/longitude; in Decimal Degrees);
(B) The vessel's activity, heading, and speed;
(C) Sea state, water depth, and visibility;
(D) Marine mammal identification to the best of the observer's ability (
(E) Initial distance and bearing to marine mammal from vessel and closest point of approach; and
(F) Any avoidance measures taken in response to the marine mammal sighting.
(iii) If a North Atlantic right whale is detected via PAM, the date, time, location (
(iv) In the event that the personnel involved in the activities defined in § 217.290(a) discover a stranded, entangled, injured, or dead marine mammal, Dominion Energy must immediately report the observation to the NMFS Office of Protected Resources (OPR), the NMFS Greater Atlantic Stranding Coordinator for the New England/Mid-Atlantic area (866-755-6622), and the U.S. Coast Guard within 24 hours. If the injury or death was caused by a project activity, Dominion Energy must immediately cease all 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 the LOA. NMFS may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. Dominion Energy may not resume their activities until notified by NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude; in Decimal Degrees) of the first discovery (and updated location information if known and applicable);
(B) Species identification (if known) or description of the animal(s) involved;
(C) Condition of the animal(s) (including carcass condition if the animal is dead);
(D) Observed behaviors of the animal(s), if alive;
(E) If available, photographs or video footage of the animal(s); and
(F) General circumstances under which the animal was discovered.
(v) In the event of a vessel strike of a marine mammal by any vessel associated with the CVOW-C project, Dominion Energy must immediately report the strike incident to the NMFS OPR and the NMFS Greater Atlantic Regional Fisheries Office (GARFO) within and no later than 24 hours. Dominion Energy must immediately cease all on-water 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 the LOA. NMFS may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. Dominion Energy may not resume their activities until notified by NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude; in Decimal Degrees) of the incident;
(B) Species identification (if known) or description of the animal(s) involved;
(C) Vessel's speed leading up to and during the incident;
(D) Vessel's course/heading and what operations were being conducted (if applicable);
(E) Status of all sound sources in use;
(F) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
(G) Environmental conditions (
(H) Estimated size and length of animal that was struck;
(I) Description of the behavior of the marine mammal immediately preceding and following the strike;
(J) If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
(K) Estimated fate of the animal (
(L) To the extent practicable, photographs or video footage of the animal(s).
(a) To incidentally take marine mammals pursuant to this subpart, Dominion Energy 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 February 4, 2029, the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Dominion Energy must apply for and obtain a modification of the LOA as described in § 217.297.
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(f) Notice of issuance or denial of an LOA must be published in the
(a) An LOA issued under §§ 217.292 and 217.296 or this section for the activity identified in § 217.290(a) shall be 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 this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations in this subpart 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) An LOA issued under §§ 217.292 and 217.296 or this section for the activities identified in § 217.290(a) may be modified by NMFS under the following circumstances:
(1) Through adaptive management, NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Dominion Energy regarding the practicability of the modifications), if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA are:
(A) Results from Dominion Energy's monitoring from the previous year(s);
(B) Results from other marine mammals and/or sound research or studies;
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOA; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall 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 the LOA issued pursuant to §§ 217.292 and 217.296 or this section, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
The U.S. Department of Energy (DOE) is amending the test procedures for walk-in coolers and walk-in freezers to harmonize with updated industry standards, revise certain definitions, revise the test methods to more accurately represent field energy use, and to accommodate a wider range of walk-in cooler and walk-in freezer component equipment designs.
The effective date of this rule is June 5, 2023. The amendments will be mandatory for product testing starting October 31, 2023. Manufacturers will be required to use the amended test procedures until the compliance date of any final rule establishing amended energy conservation standards based on the newly established test procedures. At such time, manufacturers will be required to begin using the newly established test procedures.
The incorporation by reference of certain materials listed in the rule is approved by the Director of the Federal Register on June 5, 2023. The incorporation by reference of certain other material listed in the rule was approved by the Director of the Federal Register on January 27, 2017.
The docket, which includes
A link to the docket web page can be found at
For further information on how to review the docket contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Ms. Catherine Rivest, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-7335. Email:
Mr. 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:
DOE maintains a previously approved incorporation by reference and incorporates by reference the following industry standards into part 431:
AHRI Standard 1250-2020, “2020 Standard for Performance Rating of Walk-in Coolers and Freezers.”
Copies of AHRI 1250-2020 can be obtained from the Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Blvd., Suite 400, Arlington, VA 22201 or at
ANSI/ASHRAE 16-2016, “Method of Testing for Rating Room Air Conditioners, Packaged Terminal Air Conditioners, and Packaged Terminal Heat Pumps for Cooling and Heating Capacity”.
ANSI/ASHRAE 23.1-2010, “Methods of Testing for Rating the Performance of Positive Displacement Refrigerant Compressors and Condensing Units that Operate at Subcritical Temperatures of the Refrigerant”.
ANSI/ASHRAE 37-2009, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat-Pump Equipment”.
ANSI/ASHRAE 41.1-2013, “Standard Method for Temperature Measurement”.
ANSI/ASHRAE 41.3-2014, “Standard Methods for Pressure Measurement”.
ANSI/ASHRAE 41.6-2014, “Standard Method for Humidity Measurement”.
ANSI/ASHRAE 41.10-2013, “Standard Methods for Refrigerant Mass Flow Measurement Using Flowmeters”.
Copies of ANSI/ASHRAE 16-2016, ANSI/ASHRAE 23.1-2010, ANSI/ASHRAE 37-2009, ANSI/ASHRAE 41.1-2013, ANSI/ASHRAE 41.3-2014, ANSI/ASHRAE 41.6-2014, and ANSI/ASHRAE 41.10-2013, can be obtained from the American Society of Heating, Refrigerating and Air-Conditioning Engineers, 180 Technology Parkway NW, Peachtree Corners, GA 30092, or at
ASTM C518-17, “Standard Test Method for Steady-State Thermal Transmission Properties by Means of the Heat Flow Meter Apparatus”.
ASTM C1199-14, “Standard Test Method for Measuring the Steady-State Thermal Transmittance of Fenestration Systems Using Hot Box Methods.”
Copies of ASTM C518-17 and ASTM C1199-14 can be obtained from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959, or at
NFRC 102-2020 [E0A0], “Procedure for Measuring the Steady-State Thermal Transmittance of Fenestration Systems”
Copies of NFRC 102-2020 can be obtained from the National Fenestration Rating Council, 6305 Ivy Lane, Suite 140, Greenbelt, MD 20770, or at
See section IV.N of this document for a further discussion of these standards.
Walk-in coolers and walk-in freezers (collectively “WICFs” or “walk-ins”) are included in the list of “covered equipment” for which the U.S. Department of Energy (DOE) is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6311(1)(G)) DOE's energy conservation standards and test procedures for WICFs are currently prescribed at subpart R of part 431 of title 10 of the Code of Federal Regulations (CFR). The following sections discuss DOE's authority to establish test procedures for WICFs and relevant background information regarding DOE's consideration of test procedures for this equipment.
The Energy Policy and Conservation Act, Public Law 94-163, 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. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)), and (2) making other representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s))
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6316(b)(2)(D))
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results that reflect energy efficiency, energy use, or estimated annual operating cost of a given type of covered equipment during a representative average use cycle (as determined by the Secretary) and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment, including WICFs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1)) DOE considers this rulemaking to be in satisfaction of the 7-year review requirement specified in EPCA.
In addition, if the Secretary determines that a test procedure amendment is warranted, the Secretary must publish proposed test procedures in the
For measuring walk-in energy use, DOE has established separate test procedures for the principal components that may comprise a walk-in (
For walk-in non-display panels and non-display doors, in the final rule published on April 15, 2011, DOE codified in the CFR the standards established in EPCA based on the R-value metric,
For walk-in refrigeration systems, the efficiency metric is the annual walk-in energy factor (“AWEF”), which is the ratio of the total heat, not including the heat generated by the operation of refrigeration systems, removed, in Btu, from a walk-in box during a one-year period of usage for refrigeration to the total energy input of refrigeration systems, in watt-hours, during the same period. AWEF is determined by conducting the test procedure set forth in American National Standards Institute (ANSI)/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) Standard 1250 (I-P), “2009 Standard for Performance Rating of Walk-in Coolers and Freezers” (AHRI 1250-2009), which is incorporated by reference in 10 CFR 431.303 with certain adjustments specified in the CFR.
On August 5, 2015, DOE published its intention to establish a working group under the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) to negotiate energy conservation standards to replace the standards established in the final rule published on June 3, 2014 (79 FR 32050, “June 2014 ECS Final Rule”). 80 FR 46521. The established working group (ASRAC Working Group) assembled its recommendations into a term sheet
The ASRAC Term Sheet provided recommendations for energy conservation standards to replace standards vacated by the United States Court of Appeals for the Fifth Circuit in a controlling order issued August 10, 2015. It also included recommendations regarding definitions for a number of terms related to the WICF regulations, as well as recommendations to amend the test procedure that the ASRAC Working Group viewed as necessary to properly implement the energy conservation standards recommendations. Consequently, in 2016 DOE initiated both an energy conservation standards rulemaking and a test procedure rulemaking to implement these recommendations. The ASRAC Term Sheet also included recommendations for future amendments to the test procedures intended to make DOE's test procedures more fully representative of walk-in energy use.
On December 28, 2016, DOE published a final rule amending the WICF test procedures (“December 2016 Final Rule”), consistent with the ASRAC Term Sheet recommendations and including provisions to facilitate implementation of energy conservation standards for walk-in components. 81 FR 95758.
In 2020, AHRI published an updated industry test standard for walk-in refrigeration systems, “2020 Standard for Performance Rating of Walk-in Coolers and Freezers,” (AHRI 1250-2020) updating the existing AHRI standard “AHRI 1250P (I-P)-2009.” This new test procedure included updated calculations for the determination of default values for equipment with electric defrost and hot gas defrost. DOE published a final rule for hot gas defrost unit coolers on March 26, 2021 (March 2021 Final Rule), that amended the test procedure to rate hot gas defrost unit coolers using the modified default values for energy use and heat load contributions in AHRI 1250-2020. These amendments ensure that ratings for hot gas defrost unit coolers are consistent with those of electric defrost unit coolers. 86 FR 16027.
Under 10 CFR 431.401, 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 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 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 431.401(f)(2). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures specified by DOE.
On June 17, 2021, DOE published a request for information (RFI) to initiate a test procedure rulemaking for walk-ins (June 2021 RFI). 86 FR 32332. DOE published a notice of proposed rulemaking (NOPR) on April 21, 2022 (April 2022 NOPR), responding to comments received in response to the June 2021 RFI and presenting DOE's proposals to amend the WICFs test procedure—including amendments to eliminate the need for existing test procedure waivers—and establish a new test procedure at 10 CFR part 431, subpart R, appendix C1 (appendix C1), that would establish a new energy efficiency metric, AWEF2. 87 FR 23920. DOE held a public meeting related to the April 2022 NOPR on May 9, 2022.
DOE received comments in response to the April 2022 NOPR from the interested parties listed in Table I.2.
A
In response to the April 2022 NOPR, NAFEM commented that while the April 2022 NOPR was not inconsistent with DOE's Process Rule,
In this final rule, DOE is expanding the scope of its walk-in coolers and freezers test procedure to include carbon dioxide (CO
In this final rule, DOE is amending the definitions of walk-in cooler and walk-in freezer, door, door surface area, and single-packaged dedicated systems. DOE is also adding new definitions for door leaf, hinged vertical door, non-display door, roll-up door, sliding door, high-temperature refrigeration systems, ducted fan coil units, multi-circuit single-packaged dedicated systems, ducted multi-circuit single-packaged dedicated systems, attached split systems, detachable single-packaged dedicated systems, and CO
In this final rule, DOE is revising appendix A as follows: (1) incorporate by reference NFRC 102-2020 as the applicable test procedure to determine door “U-factor” in place of NFRC 100-2010;
Additionally, DOE is modifying appendix B to improve test representativeness and repeatability. Specifically, DOE is revising appendix B as follows: (1) reference the updated industry standard ASTM C518-17; (2) include more detailed provisions for determining measuring insulation thickness and test specimen thickness; (3) provide additional specifications for determining parallelism and flatness of a test specimen; and (4) reorganize appendix B as a step-by-step procedure to improve readability.
DOE is also including walk-in doors and walk-in panels in the list of covered equipment in the same sampling plan for enforcement testing that is used for walk-in refrigeration systems. (
In this final rule, DOE is making two sets of changes to the refrigeration system test procedure. One set of changes is grouped into revisions to appendix C, and the other set of changes is included in a new appendix C1. DOE has determined that the changes to appendix C will not affect AWEF ratings and therefore will not require any retesting or recertification. These changes will be required starting 180 days after the test procedure final rule is published. DOE is also establishing a new metric, AWEF2, in the new appendix C1, which will require retesting and recertification. Use of appendix C1 will not be required until the compliance date of amended energy conservation standards for WICFs that DOE may ultimately adopt as part of a separate rulemaking.
DOE is revising appendix C, as follows:
(1) Specify refrigeration test room conditions.
(2) Provide for a temperature probe exception for small diameter refrigerant lines.
(3) Incorporate a test setup hierarchy of installation instructions for laboratories to follow when setting up a unit for test.
(4) Allow active cooling of the liquid line in order to achieve the required 3 °F subcooling at a refrigerant mass flow meter.
(5) Modify instrument accuracy and test tolerances.
(6) Address current test procedure waivers for CO
The new appendix C1 includes these changes to appendix C, as well as the following additional changes:
(1) Adopt AHRI 1250-2020.
(2) Provide for testing single-packaged dedicated systems, detachable single-packaged dedicated systems; attached split systems; CO
(3) Add a single-packaged dedicated system refrigerant enthalpy test procedure.
(4) Add a new energy efficiency metric, AWEF2, to reflect the changes in the test procedure that would result in a significant change to energy use values compared to the AWEF metric in appendix C.
Table II.1 summarizes the current DOE test procedure, DOE's changes to the test procedure, the attribution for each proposed change, and the relevant test procedure appendix.
DOE has determined that the amendments described in section III.C and III.E of this final rule would not alter the measured energy consumption of walk-in doors without motors or the R-value of walk-in non-display doors and non-display panels. Therefore, retesting or recertification would not be required solely as a result of DOE's adoption of the amendments to the test procedures. Additionally, DOE has determined that the amendments would not increase the cost of testing.
For walk-in doors with motors, DOE has determined that the amendments described in section III of this final rule would either not change the measured energy consumption or would result in a lower measured energy consumption and therefore, would not require retesting or recertification as a result of DOE's adoption of the amendments to the test procedures. New testing is only required if the manufacturer wishes to make claims using the new, more efficient rating. Additionally, DOE has determined the amendments would not increase the cost of testing for doors with motors.
DOE has also determined that the amendments to appendix C, described in section III.F of this final rule would not alter the measured efficiency of walk-in refrigeration systems and would not require retesting or recertification as a result of DOE's adoption of the amendments to the test procedures. Additionally, DOE has determined that the amendments would not increase the cost of testing.
Finally, DOE has determined that the provisions of the new appendix C1 described in section III.G of this final rule would alter the measured efficiency of walk-in refrigeration systems, in part because the amended test procedure adopts a different energy efficiency metric than in the current test procedure. However, the use of appendix C1 is not required for use until the compliance date of any amended energy conservation standards based on the test procedure in appendix C1. Additionally, DOE has determined that the provisions in appendix C1 will increase the cost of testing. DOE's estimation of costs is discussed in section III.K of this document.
The effective date for the amended test procedures adopted in this final rule is 30 days after publication of this document in the
This final rule applies to the test procedures for “walk-in coolers and walk-in freezers.” The following sections discuss DOE's consideration of the scope of the test procedures and relevant definitions.
The following sections discuss considerations and adopted changes regarding the scope of equipment covered by DOE's test procedures for walk-ins.
A liquid-cooled refrigeration system rejects heat during the condensing process to a liquid, and the liquid transports the heat to a remote location. This contrasts with an air-cooled system, which rejects heat to ambient air during the condensing process. The current DOE test procedure for walk-in refrigeration systems, which incorporates by reference AHRI 1250-2009, does not address how to test liquid-cooled systems. Additionally, liquid-cooled dedicated condensing units are outside the scope of AHRI 1250-2020, being specifically excluded in Section 2.2.4. In the April 2022 NOPR, DOE tentatively determined that liquid-cooled refrigeration systems represent a small portion of the walk-in market, and thus DOE did not propose to amend its test procedures to include liquid-cooled refrigeration systems. 87 FR 23920, 23927.
In response to the April 2022 NOPR, the Efficiency Advocates and CA IOUs encouraged DOE to develop a test procedure for liquid-cooled refrigeration systems. (Efficiency Advocates, No. 37 at p. 3; CA IOUs, No. 42 at p. 5)
DOE recognizes the potential benefit of a test procedure for liquid-cooled walk-ins and the value that a reliable test procedure can provide to facilitate comparable representations of energy use for consumers. However, DOE maintains that liquid-cooled refrigeration systems represent a small portion of the walk-in market, and the potential for energy savings that could be realized through the development of a test procedure and corresponding energy conservation standards is likely limited at this time. Additionally, DOE is not aware of an industry test standard for liquid cooled walk-in refrigeration systems. Therefore, although liquid-cooled refrigeration systems are covered within the scope of the walk-in coolers and walk-in freezers definition, DOE is not adopting provisions specific to liquid-cooled refrigeration systems in its test procedure at this time.
Currently, the DOE test procedure for walk-in refrigeration systems does not explicitly define scope based on refrigerant.
As a result, DOE has granted waivers or interim waivers to manufacturers from appendix C, for specific basic models of CO
In the April 2022 NOPR, DOE tentatively determined that walk-in refrigeration equipment utilizing CO
In response to the April 2022 NOPR, the CA IOUs and HTPG stated that CO
DOE has conducted additional market research and determined that while CO
DOE published an interim test procedure waiver for Refrigerated Solutions Group (RSG) on July 22, 2022. 87 FR 43808. In its petition for waiver and interim waiver, RSG stated that the current walk-in test procedure does not address multiple refrigeration circuits enclosed in a single unit. DOE has determined that refrigeration systems with multiple refrigeration circuits that share a single evaporator and a single condenser and that are used in walk-in applications meet the definition of “walk-in cooler and walk-in freezer.” Thus, DOE is adding a definition for “multi-circuit single-packaged dedicated system,” as discussed in section III.A.2.e of this document, and adopting a test procedure for such systems, as discussed in section III.G.2.f of this document.
As discussed in the April 2022 NOPR, DOE is aware that some walk-in evaporators and/or dedicated condensing units are sold with provisions to be installed with ducting to circulate air between the walk-in and the refrigeration system; however, unit cooler and single-packaged systems sold for ducted installation are not addressed by either the definition for “single-packaged dedicated system” or “unit cooler.” 87 FR 23920, 23928. The current definition of “single-packaged dedicated system” specifies that such systems do not have “any element external to the system imposing resistance to flow of the refrigerated air,” and the definition of “unit cooler” specifies that such equipment does not have “any element external to the cooler imposing air resistance.” 10 CFR 431.302. As such, unit coolers and single-packaged dedicated systems sold for ducted installation are not addressed by either definition. In addition, the current test procedure does not include provisions for the setup of ductwork. While the definition of “condensing unit” does not exclude systems intended for ducted installation, the current test procedure also does not include provisions for setup of ductwork for these components.
DOE has granted waivers from the test procedure in appendix C, to CellarPro, Air Innovations, Vinotheque, and Vinotemp, and an interim waiver to LRC Coil, for walk-ins marketed for use as wine cellar refrigeration systems.
In this final rule, DOE is revising the single-packaged dedicated system definition to clarify that such systems may have provisions for ducted installation. DOE is adding a definition for “ducted fan coil unit,” the ducted equivalent of a unit cooler, as discussed in section III.A.2.d of this document. In doing so, DOE preserves the industry standard definition of a unit cooler while expanding the scope of the test procedure to ducted units. DOE is also adding provisions in the test procedures to address setup of ductwork and the external static pressure that it imposes on refrigeration system fans—all to improve the representativeness of the test procedure for ducted units. These test procedure revisions are addressed in section III.G.6 of this document.
DOE currently defines the term “walk-in cooler and walk-in freezer” as an enclosed storage space refrigerated to temperatures, respectively, above, and at or below 32 degrees Fahrenheit, that can be walked into, and has a total chilled storage area of less than 3,000 square feet; however, the term does not include products designed and marketed exclusively for medical, scientific, or research purposes. 10 CFR 431.302. (
To align the definition of walk-in cooler and walk-in freezer with the regulatory scheme adopted by DOE—which establishes separate test procedures and energy conservation standards for the principal components that make up a walk-in: panels, doors, and refrigeration systems—in the April 2022 NOPR, DOE proposed to amend the definition to specify that a walk-in may comprise these principal components. DOE requested comment on this proposed change. 87 FR 23920, 23928.
AHRI, Anthony, RSG, HTPG, KeepRite, Lennox, and National Refrigeration agreed with DOE's proposed changes to the definition of walk-in cooler and walk-in freezer. (AHRI, No. 30 at p. 2; Anthony, No. 31 at p. 1; RSG, No. 41 at p. 1; HTPG, No. 32 at p. 2; KeepRite, No. 36 at p. 1; Lennox, No. 35 at p. 2; National Refrigeration, No. 39 at p. 1) For the reasons discussed in the previous paragraph and the April 2022 NOPR, DOE is adopting the definition proposed in the April 2022 NOPR that “walk-in cooler and walk-in freezer” means an enclosed storage space, including but not limited to panels, doors, and refrigeration systems, refrigerated to temperatures, respectively, above, and at or below 32 degrees Fahrenheit that can be walked into, and has a total chilled storage area of less than 3,000 square feet; however, the terms do not include products designed and marketed exclusively for medical, scientific, or research purposes.
The Efficiency Advocates commented that refrigerated shipping containers should be within the scope of the walk-in test procedures. (Efficiency Advocates, No. 37 at p. 4) DOE notes that based on its initial research, neither the previous definition of walk-in cooler and walk-in freezer nor the amended definition adopted in this final rule would specifically exclude refrigerated shipping containers. However, DOE has not evaluated refrigerated shipping containers to determine if current walk-in test procedures would produce test results that reflect energy efficiency, energy use, or estimated operating costs during a representative average use cycle, without being unduly burdensome to conduct. Therefore, DOE has determined that refrigerated shipping containers are not currently subject to the DOE test procedure or energy conservation standards for WICFs. DOE may consider whether test procedures and energy conservation standards should be applied to refrigerated shipping containers in future rulemakings.
With respect to walk-ins, DOE defines a “door” as an assembly installed in an opening on an interior or exterior wall that is used to allow access or close off the opening and that is movable in a sliding, pivoting, hinged, or revolving manner of movement. For walk-in coolers and walk-in freezers, a door includes the door panel, glass, framing materials, door plug, mullions, and any other elements that form the door or part of its connection to the wall. 10 CFR 431.302.
In the April 2022 NOPR, DOE discussed that the current definition of “door” does not explicitly address that walk-in door assemblies may contain multiple door openings within one frame. 87 FR 23920, 23929. DOE also
In the April 2022 NOPR, DOE proposed to amend the definition of “door” to address doors with multiple openings within one frame, to include terminology that generally aligns with that used by the industry, and to remove use of the term “door plug.”
Regarding the proposed definition of “door,” Senneca considered the proposed definition of “door” to refer to the door system (
Anthony stated that the definition of “door” does not accurately reflect the use of the term “door” in the 2014 final rule engineering analysis spreadsheet.
For the reasons discussed in the preceding paragraphs and the April 2022 NOPR, this final rule adopts the revised definition of “door” as proposed.
Bally agreed with the term “door leaf” and stated that the term as defined would be easily understood. (Bally, No. 40 at p. 1) AHRI stated that DOE's proposed definition of “door leaf” is clear. (AHRI, No. 30 at p. 2) Senneca commented that it considers “door leaf” to be a movable, insulated portion of the assembly. (Senneca, No. 26 at p. 10) DOE has concluded that Senneca's comment is consistent with the proposed definition of “door leaf.” This final rule adopts the definition of “door leaf” as proposed in the April 2022 NOPR. 87 FR 23920, 23929.
DOE did not receive any comments regarding its proposal to remove use of the term “door plug.” For the reasons discussed in the April 2022 NOPR, this final rule removes the term “door plug” as proposed.
DOE also proposed to define the term “non-display door” in the April 2022 NOPR. 87 FR 23920, 23930. Although the test procedures outlined in 10 CFR 431.304 and appendices A and B use the term “non-display door,” it is not currently defined. DOE proposed to define a “non-display door” as a door that is not a display door.
In response to the April 2022 NOPR discussion of non-display doors, Hussmann stated that although its Heavy Duty Door products and ABC Beer Cave sliding door products are made largely of glass, it does not believe these doors meet the display door definition because they are designed to be used as passage doors (
In this final rule, DOE is adopting the definition of “non-display door” as proposed in the April 2022 NOPR.
In the April 2022 NOPR, DOE tentatively determined that differentiating walk-in doors based on opening characteristics would better align with industry terminology and proposed to define three terms to further differentiate all walk-in doors (including both display and non-display doors): “hinged vertical door,” “roll-up door,” and “sliding door.” 87 FR 23920, 23930.
DOE proposed to define “hinged vertical door” as a door with a door leaf (or leaves) with a hinge (or hinges) connecting one vertical edge of the door leaf (or leaves) to a frame or mullion of the door. This includes doors that swing open in one direction (
DOE proposed to define “roll-up door” as a door that bi-directionally rolls open and closed in a vertical and horizontal manner and may include vertical jamb tracks.
DOE proposed to define “sliding door” as a door having one or more manually operated or motorized door leaves within a common frame that slide horizontally or vertically.
In the April 2022 NOPR, DOE requested feedback on the proposed definitions for “hinged vertical door,” “roll-up door,” and “sliding door.”
DOE recognizes that these definitions are not used in the adopted test procedure amendments. In the preliminary analysis for the walk-in standards energy conservation rulemaking, DOE stated that it was interested in differentiating its analysis by door opening characteristics.
As discussed in the April 2022 NOPR, DOE currently differentiates non-display doors by whether they are passage doors or freight doors. 87 FR 23920, 23929. A “freight door” is a door that is not a display door and is equal to or larger than 4 feet wide and 8 feet tall. 10 CFR 431.302. A “passage door” is a door that is not a freight or display door.
Bally commented that specifying the way a door leaf is moved would not aid in defining a door nor clarify whether a non-display door is a passage or a freight door. (Bally, No. 40 at p. 1) Additionally, Bally disagreed with the current distinction of freight doors by size, stating that it manufactures doors with a width greater than or equal to 4 feet that are often the only door in the WICF; therefore, it considers these doors to be passage doors rather than freight doors.
DOE acknowledges that stakeholder comments demonstrate that factors other than size may be used to differentiate between a passage and freight door. However, DOE concludes that size is currently the most suitable way to differentiate between a passage door and a freight door. Therefore, DOE is not amending these definitions.
As mentioned previously, DOE has granted several manufacturers waivers and interim waivers from the current test procedure in appendix C for basic models of refrigeration systems marketed as wine cellar refrigeration systems (
In the April 2022 NOPR, DOE proposed to define “high-temperature refrigeration system” as a walk-in refrigeration system that is not designed to operate below 45 °F. 87 FR 23920, 23930. DOE did not receive any feedback from stakeholders on the proposed definition; however, the CA IOUs commented that they support DOE including a test method for high-temperature unit coolers (CA IOUs, No. 42 at p. 6). DOE is adopting the definition for “high-temperature refrigeration system” as proposed in the April 2022 NOPR. Section III.G.6 provides further details of the corresponding test procedure provisions.
As discussed in the April 2022 NOPR, the definitions for single-packaged dedicated systems and unit coolers currently exclude ducted units. 87 FR 23920, 23931. As a part of the high-temperature refrigeration system waivers discussed in section III.A.2.c, DOE has granted waivers to Air Innovations, Vinotheque, CellarPro, and Vinotemp, and an interim waiver to LRC Coil, for walk-ins that are marketed as wine cellar refrigeration systems that are designed and marketed as ducted units.
To clarify that refrigeration systems with provision for ducted installation are included in the DOE test procedure, DOE proposed to adopt the new term “ducted fan-coil unit,” defined as an assembly including means for forced air circulation capable of moving air against both internal and non-zero external flow resistance and elements by which heat is transferred from air to refrigerant to cool the air, with provision for ducted installation. 87 FR 23920, 23931. DOE also proposed to revise the current “single-packaged dedicated system” definition to mean a refrigeration system (as defined in 10 CFR 431.302) that is a single-packaged assembly that includes one or more compressors, a condenser, a means for forced circulation of refrigerated air, and elements by which heat is transferred from air to refrigerant.
In the April 2022 NOPR, DOE requested comment on its proposed definition for “ducted fan coil unit” and on the proposed modification to the definition of “single-packaged dedicated system.”
After consideration of stakeholder comments, and to maintain consistency with industry terminology, DOE is adopting a separate definition for “ducted single-packaged dedicated system” that means a refrigeration system (as defined in 10 CFR 431.302) that is a single-packaged assembly designed for use with ducts, that includes one or more compressors, a condenser, a means for forced circulation of refrigerated air, and elements by which heat is transferred from air to refrigerant. As such, DOE is maintaining its current definition of a “single-packaged dedicated system,” and clarifying that it describes non-ducted units.
DOE received no feedback from stakeholders on the proposed definition for the new term “ducted fan coil unit.” DOE is adopting the definition for “ducted fan coil unit” as proposed in the April 2022 NOPR.
In the April 2022 NOPR, DOE proposed to define a “multi-circuit single-packaged dedicated system” as a single-packaged dedicated system (as defined in 10 CFR 431.302) that contains two or more refrigeration circuits that refrigerate a single stream of circulated air. DOE requested comment on this proposed definition. 87 FR 23920, 23931.
RSG agreed with the proposed definition. (RSG, No. 41 at p. 1) AHRI and HTPG suggested that the proposed definition is too specific and should be
In this final rule, DOE is adopting the definition for “multi-circuit single-packaged dedicated refrigeration system” as proposed in the April 2022 NOPR.
As discussed in section III.A.2.d, DOE proposed to adopt the new term “ducted fan-coil unit” to clarify that refrigeration systems with provision for ducted installation are included in the DOE test procedure. 87 FR 23920, 23931. In response to the April 2022 NOPR, several stakeholders suggested creating separate definitions for ducted and non-ducted single-packaged dedicated systems. (AHRI, No. 30 at pp. 2-3; HTPG, No. 32 at p. 2) DOE's current definition for a “single-packaged dedicated system” applies only to non-ducted units. As discussed in section III.A.2.d, after consideration of stakeholder comments, and to maintain consistency with industry terminology, DOE is adopting a definition for ducted single-packaged dedicated systems Since ducted multi-circuit single-packaged dedicated systems are a derivative of ducted single-packaged dedicated systems, DOE is also defining “ducted multi-circuit single-packaged dedicated systems” to mean a ducted single-packaged dedicated system that contains two or more refrigeration circuits that refrigerate a single stream of circulated air. DOE believes these amendments are consistent with the intent of proposed changes in the April 2022 NOPR while being responsive to stakeholder feedback.
As discussed in the April 2022 NOPR, DOE is aware of some refrigeration systems that are sold as matched pairs in which the dedicated condensing unit and unit cooler are permanently attached to each other with structural beams. 87 FR 23920, 23931. The DOE test procedure does not currently define such systems, nor does it provide any unique test provisions for them, thereby affecting the ability of manufacturers to provide test results reflecting the energy efficiency of this equipment during a representative average use cycle. DOE proposed to define “attached split system” as a matched-pair refrigeration system designed to be installed with the evaporator entirely inside the walk-in enclosure and the condenser entirely outside the walk-in enclosure, and the evaporator and condenser are permanently connected with structural members extending through the walk-in wall.
In the April 2022 NOPR, DOE requested comment on the proposed definition for “attached split system.”
In this final rule, DOE is adopting the proposed definition for “attached split system.” The provisions for testing such units are discussed in section III.G.4 of this document.
As discussed in the April 2022 NOPR, DOE had tentatively determined that detachable single-packaged systems are a type of single-packaged dedicated system, and proposed to define “detachable single-packaged system” as a system consisting of a dedicated condensing unit and an insulated evaporator section in which the evaporator section is designed to be installed external to the walk-in enclosure and circulating air through the enclosure wall, and the condensing unit is designed to be installed either attached to the evaporator section or mounted remotely with a set of refrigerant lines connecting the two components. 87 FR 23920, 23931. The current DOE test procedure does not define such systems or provide testing provisions specific to this configuration.
In the April 2022 NOPR, DOE requested comment on the proposed definition for “detachable single-packaged dedicated system.”
In this final rule, DOE is adopting the definition for “detachable single-packaged dedicated system” as proposed in the April 2022 NOPR.
In the April 2022 NOPR, DOE proposed a test procedure for CO
In the April 2022 NOPR, DOE requested comment on the proposed definition of CO
DOE also requested comment on whether any distinguishing features of CO
AHRI, HTPG, Lennox, and National Refrigeration all stated that they were not aware of any features that distinguish CO
Given that stakeholders are not aware of any features that distinguish CO
In the April 2022 NOPR, DOE proposed that manufacturers of equipment with hot gas defrost installed at the factory may make market representations of performance with hot gas defrost activated, in addition to the current required calculation-based approach using default electric defrost parameters, and proposed a definition for “hot gas defrost” to clarify the scope of the voluntary representation. 87 FR 23920, 23932.
AHRI, HTPG, KeepRite, Lennox, National Refrigeration, and RSG all recommended changes to the definition as proposed. (AHRI, No. 30 at p. 3; HTPG, No. 32 at p. 3; KeepRite, No. 36 at p. 1; Lennox, No. 35 at p. 2; National Refrigeration, No. 39 at p. 1; RSG, No. 41 at p. 4) In particular, AHRI, HTPG, and Lennox stated that not all hot gas defrost systems are factory installed. (AHRI, No. 30 at pp. 3-4; HTPG, No. 32 at p. 3; Lennox, No. 35 at p. 2)
DOE intended for the voluntary hot gas defrost representation provisions proposed in the April 2022 NOPR to apply only to factory-installed hot gas defrost systems. 87 FR 23920, 23970. Considering the comments received, DOE recognizes that the proposed provisions would not apply to many hot gas defrost applications, thus negating the purpose and intent of DOE's proposal. Therefore, DOE has determined not to adopt provisions allowing representations of performance with hot gas defrost activated at this
The current DOE test procedures for walk-in coolers and freezers incorporate the following industry test standards: NFRC 100-2010 into appendix A; ASTM C518-04 into appendix B; and AHRI 1250-2009, AHRI 420-2008,
As discussed in the April 2022 NOPR, appendix A to subpart R of part 431 references NFRC 100-2010 as the method for determining the U-factor of doors and display panels, which references NFRC 102-2010. 87 FR 23920, 23932. NFRC has published updates to NFRC 102-2010, the most recent being NFRC 102-2020, which contains the following substantive changes from NFRC 102-2010:
1. Added a list of required calibrations for primary measurement equipment;
2. Added metering box wall transducer and surround panel flanking loss characterization and annual verification procedure;
3. Incorporated a calibration transfer standard continuous characterization procedure; and
4. Revised the provisions regarding air velocity distribution to be more specific to the type of fans used.
DOE proposed to adopt by reference in appendix A the following sections of NFRC 102-2020 in place of NFRC 100-2010 for determining U-factor:
DOE also proposed to incorporate by reference ASTM C1199-14, as it is referenced in NFRC 102-2020. Specifically, in the appendix A test procedure, DOE proposed to reference the following sections of ASTM C1199-14 as referenced through NFRC 102-2020: sections 2, 3, 5, 6, 7 (excluding 7.3), 8, 9, and annexes A1 and A2. DOE did not propose to reference any other sections of NFRC 102-2020 or ASTM C1199-14, as either they do not apply or they are in direct conflict with other test procedure provisions included in appendix A.
In this final rule, DOE is incorporating by reference NFRC 102-2020 and ASTM C1199-14 in appendix A as proposed in the April 2020 NOPR. DOE further discusses the reference to NFRC 102-2020 in place of NFRC 100-2010 and addresses stakeholder comments in section III.C.1 of this document.
As discussed in the April 2022 NOPR, section 4.2 of appendix B to subpart R of part 431 references ASTM C518-04
In the April 2022 NOPR, DOE tentatively determined that the updates in ASTM C518-17 do not substantively change the test method and do not impact test burden compared to ASTM C518-04. Therefore, DOE proposed to amend its test procedure for determining insulation R-value for non-display doors and panels by incorporating by reference ASTM C518-17. Specifically, in the test procedure in appendix B, DOE proposed to reference the following sections of ASTM C518-17:
DOE did not propose to reference any other sections of ASTM C518-17, as either they do not apply or they are in direct conflict with other test procedure provisions included in appendix B. Because ASTM C518-17 is an updated version of ASTM C518-04, DOE stated in the April 2022 NOPR that the test procedure for determining the K-factor would effectively remain based on ASTM C518-04 as specified by EPCA (42 U.S.C. 6314(a)(9)(A)(ii)).
In response to the April 2022 NOPR, Anthony supported the proposal to reference the latest version of the industry test procedure, ASTM C518-17. (Anthony, No. 31 at p. 3)
In this final rule, DOE is incorporating by reference the sections of ASTM C518-17 as proposed in the April 2022 NOPR.
DOE's current test procedure for WICF refrigeration systems is codified in appendix C to subpart R of part 431 and incorporates by reference AHRI 1250-2009, AHRI 420-2008, and ASHRAE 23.1-2010. AHRI 1250-2009 is the industry test standard for walk-in cooler and freezer refrigeration systems, including unit coolers and dedicated condensing units sold separately, as well as matched pairs. 81 FR 95758, 95798.
The DOE test procedure for walk-in refrigeration systems incorporates by reference the test procedure in AHRI 1250-2009 (excluding Tables 15 and 16), with certain enumerated modifications.
In April 2020, AHRI published AHRI 1250-2020, which incorporates many of the modifications and additions to AHRI 1250-2009 that DOE currently prescribes in its test procedure at appendix C. It also includes test methods for unit coolers and dedicated condensing units tested alone, rather than incorporating by reference updated versions of AHRI 420-2008 and/or ASHRAE 23.1-2010. AHRI 1250-2020 also includes test methods for single-packaged dedicated systems.
The following sections discuss the amendments being adopted in appendix
In the April 2022 NOPR, DOE proposed minor modifications to appendix C that improve test procedure accuracy and repeatability, while maintaining equivalent measurements of AWEF. 87 FR 23920, 23933. As discussed further in the section that follows, DOE also proposed to establish a new appendix C1 to subpart R that would incorporate substantive changes that would result in different measured values of efficiency, AWEF2, compared to appendix C. DOE proposed that the use of appendix C with the proposed amendments would be required 180 days after this test procedure final rule is published and would remain required for use until the compliance date of any future amended energy conservation standards based on appendix C1.
Within appendix C, DOE proposed to maintain reference to AHRI 1250-2009. DOE proposed to adopt certain instrument accuracy and test tolerances from AHRI 1250-2020 that would not change the measured AWEF value, as discussed further in section III.F.5 of this document.
DOE received no comments on its proposal to maintain appendix C, with modification, until the compliance date of any future amended energy conservation standards based on appendix C1.
In this final rule, DOE maintains the required use of appendix C, as amended by this final rule, including the incorporation by reference of AHRI 1250-2009, until the compliance date of any future amended energy conservation standards based on appendix C1.
As discussed, in the April 2022 NOPR, DOE proposed to establish a new appendix C1 to subpart R that incorporates by reference AHRI 1250-2020. 87 FR 23920, 23933. DOE tentatively determined that the changes proposed in appendix C1 through the incorporation of AHRI 1250-2020 would increase the representativeness of the DOE test procedure for walk-ins. DOE also tentatively determined that several of the changes in AHRI 1250-2020 would change the measured AWEF value. These changes can be grouped into five categories: off-cycle tests, single-packaged dedicated systems, defrost calculations, variable capacity, and default unit cooler parameters. These changes and the comments received on these proposed changes are discussed in detail in section III.G. Since these changes would result in a change to measured AWEF, DOE proposed to establish a new metric called “AWEF2.”
In the April 2022 NOPR, DOE proposed to incorporate AHRI 1250-2020 for use in appendix C1, with the following exclusions:
DOE proposed to exclude these sections of AHRI 1250-2020 because they either do not apply or conflict with other test procedure provisions included in appendix C1.
Further, DOE proposed to reference ASHRAE 16-2016 in appendix C1, as it is referenced in AHRI 1250-2020, with the following exclusions:
DOE did not propose to reference these sections of ASHRAE 16-2016, as either they do not apply or they conflict with other test procedure provisions that are included as part of appendix C1.
Similarly, DOE proposed to reference ASHRAE 37-2009 in appendix C1, as it is referenced in AHRI 1250-2020, with the following exclusions:
DOE did not propose to reference these sections of ASHRAE 37-2009, as either they do not apply, or they conflict with other test procedure provisions that are included as part of appendix C1.
As discussed in the April 2022 NOPR, AHRI 1250-2020 incorporates many of the modifications and additions to AHRI 1250-2009 that DOE currently prescribes in its appendix C test procedure.
AHRI 1250-2020 does not incorporate all the modifications and additions to AHRI 1250-2009 that DOE currently prescribes in its test procedure. Therefore, DOE proposed that the modifications in sections 3.2.3, 3.3.4, 3.3.5, and 3.3.7 of appendix C be incorporated into appendix C1.
In response to the April 2022 NOPR, DOE received several general comments about the incorporation of AHRI 1250-2020 for use in appendix C1. AHRI and National Refrigeration commented that they disagreed with DOE aligning appendix C1 with AHRI 1250-2020 and requested further clarification on the proposal. (AHRI, No. 30 at p. 7; National Refrigeration, No. 39 at p. 2) Neither AHRI nor National Refrigeration provided detail about what specifically they disagreed with, or which aspects of DOE's proposal required further clarification.
In response to the April 2022 NOPR, HTPG requested details on the changes in the new appendix C1 that may impact the determination of AWEF for unit coolers and variable-capacity systems. (HTPG, No. 32 at p. 2) These topics are discussed in detail in sections III.G.7 and III.G.11 of this document, respectively.
As discussed in this section and in more detail in section III.G, DOE has concluded that the changes in AHRI 1250-2020 improve the representativeness of the walk-in refrigeration systems test procedure. Therefore, DOE is incorporating AHRI 1250-2020, ASHRAE 37-2009, ASHRAE 16-2016 for use in appendix C1 as proposed in the April 2022 NOPR.
AHRI 1250-2020 includes additional amendments that are inconsistent with AHRI 1250-2009 but are either not referenced in the DOE test procedure or serve to make aspects of the test procedure more explicit or clear. None of these changes impact measured AWEF. These additional amendments are discussed in the paragraphs below.
AHRI 1250-2020 added exclusions for liquid-cooled condensing systems in section 2.2.4 and excludes systems that use carbon dioxide, glycol, or ammonia as refrigerants in section 2.2.5. As mentioned previously, DOE is not incorporating section 2 of AHRI 1250-2020 into appendix C1.
AHRI 1250-2020 includes an updated list of references and the applicable versions of certain test standards in appendix A, “References—Normative.” DOE does not expect these changes to impact measured AWEF apart from ways discussed in section III.G. AHRI 1250-2020 added specifications for refrigerant temperature measurement locations for unit coolers tested alone, matched pairs, and dedicated condensing systems tested alone in sections C3.1.3.1, C3.1.3.2, and C3.1.3.3. DOE has determined that these specifications will not affect measured AWEF.
AHRI 1250-2020 revised section C7.5.1 to provide more detailed instructions for calculating system capacity beginning with measured temperatures and pressures instead of calculated enthalpies, which is what was done in AHRI 1250-2009. Section C7.5.1 also includes the determination of capacity from enthalpy calculation results. The addition of these sections provides clarity and further instruction but does not affect measured AWEF.
AHRI 1250-2009 included section C12, “Method of Testing Condensing Units for Walk-in Cooler and Freezer Systems for Use in Mix-Match System Ratings,” which referenced ASHRAE 23.1-2010. AHRI 1250-2020 now provides specific methods for testing dedicated condensing units tested alone. DOE has determined that the test procedure incorporated into AHRI 1250-2020 is the same as that in ASHRAE 23.1-2010 and therefore does not impact measured AWEF.
Section C13 of AHRI 1250-2009, “Method of Testing Unit Coolers for Walk-in Cooler and Freezer Systems for Use in Mix-Match System Ratings,” referenced AHRI 420-2008. AHRI 1250-2020 no longer references AHRI 420-2008 and instead outlines a method for unit coolers tested alone. DOE has determined that the test procedure incorporated into AHRI 1250-2020 is the same as that in ASHRAE AHRI 420-2008 and therefore does not impact measured AWEF. As a result, DOE is not incorporating by reference AHRI 420-2008 in new appendix C1.
Appendix A provides test procedures for measuring walk-in envelope component energy consumption. Specifically, appendix A provides the test procedures to determine the U-factor, conduction load, and energy use of walk-in display panels and to determine the energy use of walk-in display doors and non-display doors (
In the April 2022 NOPR, DOE proposed several changes to appendix A specific to display doors and non-display doors. 87 FR 23920, 23936-23943. DOE determined that these changes would improve test representativeness and repeatability. DOE stated in the April 2022 NOPR that it did not expect the changes it proposed to have a substantive impact on measured energy consumption calculations for display doors or non-display doors, except in the case of testing doors with motors.
The following sections describe the modifications that DOE proposed to appendix A with respect to walk-in display and non-display doors.
Appendix A references NFRC 100-2010 as the method for determining the U-factor of doors and display panels. NFRC 100-2010 allows for computational determination of U-factor by simulating U-factor using Lawrence Berkeley National Lab's (LBNL) WINDOW and THERM software, provided that the simulated value for the baseline product in a product line is validated with a physical test of that baseline product and the simulated value is within the accepted agreement with the physical test value as specified in section 4.7.1 of NFRC 100-2010.
As discussed in the April 2022 NOPR, DOE is aware there has been limited success using the computational method in NFRC 100-2010 to simulate U-factors of non-display doors. 87 FR 23920, 23936-23937. Thus, DOE proposed to remove reference to NFRC 100-2010 (
In response, Bally stated that it looks forward to using AEDMs to rate its walk-in doors. (Bally, No. 40 at p. 5) RSG also agreed with the proposal to allow for AEDMs. (RSG, No. 41 at p. 2)
Hussmann noted that, although it is “not pleased” with the current NFRC 100-2010 test method, it does not support use of an AEDM because it believes rating with an AEDM creates an opportunity for “approved non-compliance.” (Hussmann, No. 34 at pp. 3-4)
DOE acknowledges Hussmann's concern but notes that rating a basic model with an AEDM does not excuse a manufacturer from complying with the relevant energy conservation standards. DOE has several requirements pertaining to AEDM records retention; the ability to provide analyses, conduct simulations, or conduct certification testing of basic models rated with the AEDM at DOE's request; and verification testing of an AEDM by DOE. These requirements can be found in 10 CFR 429.70(f)(3) through (5). DOE enforces all these requirements.
DOE notes that despite the limited success historically with using the computational method in NFRC 100-2010, to the extent that manufacturers have successfully used the simulation method in NFRC 100-2010 to produce accurate results, such results would be acceptable as an AEDM. AEDMs and the specific provisions DOE is adopting pertaining to AEDMs for doors are explained and discussed in the following section.
Pursuant to the requirements of 10 CFR 429.70, DOE may permit use of an AEDM in lieu of testing equipment for which testing burden may be considerable and for which that equipment's energy efficiency performance may be well predicted by such alternative methods. Although specific requirements vary by product or equipment, use of an AEDM entails development of a mathematical model that estimates energy efficiency or energy consumption characteristics of the basic model, as would be measured by the applicable DOE test procedure. The AEDM must be based on engineering or statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data. A manufacturer must perform validation of an AEDM by demonstrating that the performance, as predicted by the AEDM, agrees with the performance as measured by actual testing in accordance with the applicable DOE test procedure. The validation procedure and requirements, including the statistical tolerance, number of basic models, and number of units tested vary by product or equipment.
Once developed and validated, an AEDM may be used to rate and certify the performance of untested basic models in lieu of physical testing. Use of an AEDM for any basic model is always at the option of the manufacturer. One potential advantage of AEDM use is that it may free a manufacturer from the burden of physical testing. One potential risk is that the AEDM may not perfectly predict performance, and the manufacturer could be found responsible for having an invalid rating for the equipment in question or for having distributed a noncompliant basic model. The manufacturer, by using an AEDM, bears the responsibility and risk of the validity of the ratings.
For walk-ins, DOE currently permits the use of AEDMs for refrigeration systems only. 10 CFR 429.70(f). As discussed previously, DOE proposed to allow the use of AEDMs for rating walk-in doors in the April 2022 NOPR. 87 FR 23920, 23972. Concurrent with this proposal, DOE proposed a number of provisions specific to the validation and use of an AEDM. First, DOE proposed to include walk-in door validation classes at 10 CFR 429.70(f)(2)(iv) and to require that two basic models per validation class be tested using the proposed test procedure in appendix A, which is consistent with the number of basic models required to be tested per validation class for walk-in refrigeration systems.
Second, DOE proposed to include a 5 percent individual model tolerance, which aligns with the individual model tolerance applicable to walk-in refrigeration systems, to validate the measured energy consumption result of an AEDM with the appendix A test result at 10 CFR 429.70(f)(2)(ii).
DOE also proposed that an AEDM for doors can only simulate or model characteristics of the door that are required to be tested by the DOE test procedure—
Lastly, DOE proposed to include a 5 percent tolerance applicable to the maximum daily energy consumption metric for AEDM verification testing conducted by DOE at 10 CFR 429.70(f)(5)(vi), which aligns with the tolerance applicable to AWEF of walk-in refrigeration systems.
In the April 2022 NOPR, DOE requested comment on the specific proposals pertaining to the validation and use of AEDMs for doors.
Anthony disagreed with DOE removing the reference to NFRC 100-2010 for NFRC 102-2020 and allowing AEDMs because it believes an AEDM would require more testing and result in an increased financial and physical burden on manufacturers without achieving an additional energy benefit. (Anthony, No. 31 at pp. 3, 8-9) Additionally, Anthony stated that if NFRC 100-2010 is able to be used as an AEDM, the application of the 5 percent
DOE is clarifying that to use an AEDM, the manufacturer must first validate the AEDM. To validate the AEDM, the manufacturer must select at least the minimum number of basic models for each validation class (specified in table 1 to 10 CFR 429.70(f)(2)(iv)(A)) and physically test a single unit of each basic model. Thus, for a single validation class, where DOE proposed two basic models be tested per validation class, only two physical tests would be required, although more testing may be conducted at the manufacturer's discretion. The manufacturer would be required to conduct the physical U-factor tests according to NFRC 102-2020 referenced by appendix A and carry out the energy consumption calculations as done in appendix A. For the AEDM, the manufacturer would model or simulate the U-factor using a method of their choice, and then carry out the energy consumption calculations as done for the physical test, only deviating by using the simulated U-factor in the calculations. All other parts of the energy consumption calculations shall be done according to appendix A and may not be modeled. To validate the AEDM, the energy consumption output using the physical test must be compared with the energy consumption output using the AEDM for each basic model used for validation. If the output using the AEDM is lower than the physical test output by more than the individual model tolerance (
To illustrate the minimum number of physical tests required, consider an example of a display door manufacturer that produces models in two validation classes: medium-temperature and low-temperature. This manufacturer would need to, at a minimum, physically test the U-factor and calculate the energy consumption of two basic models per validation class, thus requiring a total of four physical tests: two for the medium-temperature display door validation class and two for the low-temperature display door validation class. The manufacturer would use the U-factor test results to calculate the total daily energy consumption each door. Then, the manufacturer would use their AEDM to model or simulate the U-factor of each door and calculate each door's total daily energy consumption. Each basic model's simulated and tested total daily energy consumption results would be compared using the tolerance of 5 percent in order to validate the AEDM. DOE stresses that this 5 percent tolerance used to validate the AEDM would only apply to the comparison of tested and simulated energy consumption for the minimum number of models physically tested for validation of the AEDM. If the AEDM is validated, the manufacturer could then use the AEDM to rate the remainder of the basic models it manufacturers in those validation classes. The 5 percent tolerance would not be used for any models simulated without a physical test because the AEDM was validated and thus no physical test would be further required.
DOE emphasizes that allowing use of an AEDM would provide manufacturers with the flexibility to use an alternative method (
Section 5.3 of appendix A references NFRC 100-2010 for determining U-factor, and section 5.3(a) of appendix A specifies four exceptions to that industry standard. The first exception implements a tolerance on the surface heat transfer coefficients (no such tolerance is specified in NFRC 100-2010); specifically, that the average surface heat transfer coefficients during a test must be within ± 5 percent of the values specified through NFRC 100-2010 in ASTM C1199. The second and third exceptions modify the cold and warm-side conditions from the standard conditions prescribed in NFRC 100-2010. The fourth exception specifies the direct solar irradiance be 0 Btu/(h-ft
Sections 6.2.3 and 6.2.4 of ASTM C1199 specify the standardized heat transfer coefficients and their tolerances as part of the procedure to set the surface heat transfer conditions of the test facility using the Calibration Transfer Standard (“CTS”) test. The warm-side surface heat transfer coefficient must be within ± 5 percent of the standardized warm-side value of 1.36 Btu/(h-ft
As discussed in the April 2022 NOPR, DOE has found that obtaining the standardized heat transfer values within the ± 5 percent tolerance specified in section 5.3(a)(1) of appendix A on the
DOE did not receive any comments on its proposal to remove the exceptions specified in section 5.3(a)(1) of appendix A.
For the reasons discussed in the preceding paragraphs and the April 2022 NOPR, DOE is removing the exceptions listed in section 5.3(a)(1) of appendix A regarding the surface heat transfer coefficients and the tolerances on them during testing. 87 FR 23920, 23937-23938. By removing these exceptions, the requirements pertaining to the surface heat transfer coefficients would apply as they are specified in the referenced industry standards.
Relatedly, Anthony commented on the specific values used to define the surface heat transfer coefficients. Specifically, Anthony commented that it disagrees with the current surface heat transfer coefficient applied to the cold side during testing and simulation of U-factors for display doors. (Anthony, No. 31 at pp. 4-5) Anthony presented data from field testing at several different public locations showing that the actual measured wind speed is on average 84 percent less than specified in NFRC 102-2020 and NFRC 100-2010, as well as a measured wind speed from their test cell showing an average of 1.1 miles per hour (“mph”). Anthony recommended that DOE adopt a cold-side heat transfer coefficient corresponding to a conservative wind speed value of 5 mph.
DOE notes that deviating from the existing surface heat transfer coefficients would require test labs to change their test chamber calibration procedures and would require manufacturers to retest and rerate all envelope components subject to the energy consumption test procedure in appendix A. DOE has evaluated the data and information provided by Anthony but is unable to establish at this time whether such changes to the heat transfer coefficient would be nationally representative, nor the extent to which any such improvement in representativeness of the test result would outweigh the test burden associated with changing the heat transfer coefficient value. DOE has therefore determined it is not appropriate to amend the heat transfer coefficients in this final rule.
Additionally, section 5.3(a)(1) of appendix A currently specifies a direct solar irradiance
Surface area of a door is used in two ways in the regulations at subpart R of 10 CFR431: (1) to convert the tested U-factor of the door into a conduction load as part of the energy consumption test procedure, and (2) to determine compliance with the maximum energy consumption standards. As currently defined in section 3.4 of appendix A, surface area means the area of the surface of the walk-in component that would be external to the walk-in cooler or walk-in freezer as appropriate. The definition does not provide detail on how to determine the boundaries of the walk-in door from which height and width are determined to calculate surface area. Additionally, the definition does not specify if these measurements are to be strictly in-plane with the surface of the wall or panel that the walk-in door would be affixed to, or if troughs and other design features on the exterior surface of the walk-in door should be included in the measured surface area.
In the April 2022 NOPR, DOE proposed that the surface area bounds of both display doors and non-display doors be the outer edge of the frame. 87 FR 23920, 23939. DOE proposed to change the term from “surface area” to “door surface area,” and to define the term as meaning the product of the height and width of a walk-in door measured external to the walk-in.
In addition, DOE proposed to move the defined term from the test procedure in appendix A to the definition section in 10 CFR 431.302 with the other definitions that are broadly applicable to subpart R.
Anthony agreed with the proposed revision of using the external frame dimensions, which includes the flange, for determining A
Bally suggested that the surface area definition should include electrical conduit and pressure relief vents, not pieces of the door with low conductivity. (Bally, No. 40 at pp. 1-2) Bally also commented that it disagrees with DOE's discussion in the April 2022 NOPR that if the surface area of a door is measured without the frame, then it should be considered a panel. (
Senneca also stated that with the proposal for the door frame to be included in the surface area, it believes there is ambiguity in measuring sliding doors that have a track extending past the door frame. (
DOE has considered stakeholder opposition to including the frame in the door surface area measurement but has determined that the definition of “door” includes the frame for consistent comparison across door products offered. DOE recognizes that non-display doors may have variations in the frames used, where some look similar to panels but tend to have electrical components wired through them, while others look more like casings used in replacement installations. DOE also recognizes that non-display doors may have variations in the installation of doors, where parts of the door frame may or may not be in direct contact with the cold side of the walk-in. However, DOE intends to consistently evaluate different products and sees a need to have consistent instructions on determining the bounds of surface area for all walk-in doors. DOE has determined that all parts of the door that impact the operation of the door shall be included in the determination of the surface area, with the exception of extended track area for sliding doors as discussed previously. Therefore, the bounds of the “door surface area” dimensions also include the frame.
As proposed in the April 2022 NOPR, in this final rule, DOE is defining “door surface area” as the product of the height and width of a walk-in door measured external to the walk-in. The height and width dimensions shall be perpendicular to each other and parallel to the wall or panel of the walk-in to which the door is affixed. The height and width measurements shall extend to the edge of the frame and frame flange (as applicable) to which the door is affixed. For sliding doors, the height and width measurements shall include the track; however, the width (for horizontal sliding doors) or the height (for vertical sliding doors) shall be truncated to the external width or height of the door leaf or leaves and its frame or casings. The surface area of a display door is represented as
As stated previously, appendix A currently references NFRC 100-2010, which in turn references NFRC 102 for the determination of U-factor through a physical test. When conducting physical testing, the U-factor (U
Currently, equations 4-19 and 4-28 of appendix A specify that surface area of display doors (A
As discussed in section III.C.2.a, DOE is amending the definitions of A
In the April 2022 NOPR, DOE proposed to specify that the projected area of the test specimen, A
Anthony commented that it agrees with the proposed revision to use the area of the test specimen, A
DOE reiterates that the door surface area defined in section III.C.2.a differs from the surface area used to calculate U-factor in NFRC 102-2020. Thus, despite stakeholder comments, DOE sees a need to resolve this discrepancy. Otherwise, the conduction load determined from the physical U-factor test may inflate the actual conduction load.
In the April 2022 NOPR, DOE also proposed to specify in appendix A that the physical U-factor test should include all components of the door that aid in the operation of the door, including the frame, rather than just the door leaf, to improve consistency in application of the test procedure across all walk-in doors. 87 FR 23920, 23940. Bally commented that it does not believe the frame of the door should be included in the U-factor test and suggested that including the frame in the U-factor test was minimal in comparison to the electrical components. (Bally, No. 40 at pp. 2-3) As stated in the April 2022 NOPR, DOE's testing of non-display doors has demonstrated that including the frame in the U-factor test has a measurable impact on the thermal performance of the door assembly relative to the increase in the total area, and so DOE is adopting the specification that the physical U-factor test should include the door frame.
Sections 4.4.2 and 4.5.2 of appendix A currently include provisions for calculating the direct energy consumption of electrical components of display doors and non-display doors, respectively. Electrical components associated with doors could include, for example, heater wire (for anti-sweat or anti-freeze applications), lights (including display door lighting systems), control system units, or sensors. For each electricity consuming component, the calculation of energy consumption is based on the component's “rated power” rather than a measurement of its power draw. Section 3.5 of appendix A defines “rated power” as the electricity consuming device's power as specified (1) on the device's nameplate or (2) on the device's product data sheet if the device does not have a nameplate or such nameplate does not list the device's power.
As discussed in the April 2022 NOPR, DOE has observed issues that make calculating a door's total energy consumption a challenge. 87 FR 23920, 23940. These issues include using a
Furthermore, DOE has observed that some manufacturers may be certifying door motor power as the output power rating of the motor, rather than the input power of the motor. Thus, DOE proposed in the April 2022 NOPR to specify in appendix A that the rated power of each electrical component, P
Additionally, DOE has observed through testing that the measured power of some walk-in door electrical components exceeds either the certified or nameplate power values of these electrical components. In the April 2022 NOPR, DOE proposed that for the purposes of enforcement testing, in 10 CFR 429.134(q), DOE may validate the certified or nameplate power values of an electrical component by measuring the power when the device is energized using a power supply that provides power within the allowable voltage range listed on the nameplate. If the measured input power is more than 10 percent higher than the power listed on the nameplate or the rated input power in a manufacturer's certification, then the measured input power would be used in the energy consumption calculation. For electrical components with controls, the maximum input wattage observed while energizing the device and activating the control would be considered the measured input power. Anthony agreed with the proposal to use nameplate values for determining energy consumption unless physical testing results in a power value that exceeds what is depicted on the nameplate. (Anthony, No. 31 at p. 6) Bally stated that adjusting nameplate values based on measurement results requires door manufacturers to be responsible for the quality assurance of their vendors. (Bally, No. 40 at p. 3) In response, DOE notes that the door manufacturer is ultimately responsible for certifying that the walk-in door, when outfitted with all necessary components, meets the applicable DOE energy conservation standards.
Given DOE's observations during testing, DOE sees a need to provide a way to calculate energy consumption using a measured value of electrical component power. DOE recognizes that there may be minor variations in measured power as compared to the rated power and has determined that a tolerance of 10 percent accounts for such variation. DOE is adopting this provision at 10 CFR 429.134(q)(4) only for the purposes of enforcement testing to aid the Department in determining non-compliance with energy conservation standards.
The current test procedure assigns percent time off (“PTO”) values to various walk-in door components to reflect the hours in a day that an electricity-consuming device operates at its full rated or certified power. PTO values are not incorporated in the rated or certified power of an electricity-consuming device. Table III.2 lists the PTO values in the current DOE test procedure for walk-in door components.
As mentioned in the April 2022 NOPR, DOE has granted waivers to several door manufacturers with motorized door openers, allowing the use of a different PTO for motors.
As discussed in the April 2022 NOPR, the energy efficiency ratio (“EER”) values used in appendix A differ from the EER values in appendix C. 87 FR 23920, 23942. The values in appendix A are used to calculate the daily energy consumption associated with heat loss through a walk-in door, and the values in appendix C correspond to adjusted dew point temperature when testing refrigeration systems of walk-in unit coolers alone. In the July 2021 RFI, DOE requested comment on the difference in EER values used in appendices A and C and based on stakeholder feedback, DOE concluded in the April 2022 NOPR that there is no advantage to harmonizing the two values.
In response to the April 2022 NOPR, Anthony suggested that DOE adopt the EER values specified in AHRI 1250 to align all components of a WICF and stated that the modification of EER values would not require additional testing, as these values are only used in the mathematical energy calculations. (Anthony, No. 31 at pp. 6-7) DOE notes that Anthony's suggested approach would require recalculation and recertification of every basic model and would do so without necessarily providing a more representative test procedure. As such, DOE has determined that changing the reference EER values in either appendix A or C would be unduly burdensome. Therefore, DOE is not harmonizing the EER values in appendices A and C.
As discussed in the April 2022 NOPR, EPCA includes prescriptive requirements for doors used in walk-in applications intended to reduce air infiltration. 87 FR 23902, 23943. Specifically, walk-ins must have (A) automatic door closers that firmly close all walk-in doors that have been closed to within 1 inch of full closure (excluding doors wider than 3 feet 9 inches or taller than 7 feet), and (B) strip doors, spring-hinged doors, or other method of minimizing infiltration when doors are open. (42 U.S.C. 6313(f)(1)(A)-(B)) DOE previously proposed methods for determining the thermal energy leakage due to steady-state infiltration through the seals of a closed door and door opening infiltration. 75 FR 186, 196-197; 75 FR 55068, 55084-55085. DOE did not ultimately adopt these methods as part of the final test procedure because DOE concluded that steady state infiltration was primarily influenced by on-site assembly practices rather than the performance of individual components. 76 FR 21580, 21594-21595 (April 15, 2011). Similarly, DOE stated that, based on its experience with the door manufacturing industry, door opening infiltration is primarily reduced by incorporating a separate infiltration reduction device at the assembly stage of the complete walk-in.
In the April 2022 NOPR, DOE did not propose to include air infiltration in the test procedure. 87 FR 23920, 23943. However, the Efficiency Advocates encouraged DOE to incorporate a measurement of air infiltration for walk-in doors because it would improve the representativeness and encourage the development and deployment of technologies that can save energy. (Efficiency Advocates, No. 37 at p. 4) DOE did not receive any data or recommendations for how to incorporate the measurement of air infiltration for walk-in doors into the test procedure in response to either the June 2021 RFI or the April 2022 NOPR. DOE has concluded that additional investigation is needed to adopt a test procedure that considers air infiltration for walk-in doors and thus is not adopting provisions pertaining to air infiltration at this time. DOE intends to consider data on the magnitude of air infiltration for walk-ins as it becomes available for appropriate evaluation of the representativeness of including it in the test procedure for walk-in doors.
As previously mentioned, EPCA requires air infiltration limiting devices on all doors. (42 U.S.C. 6313(f)(1)(A)-(B)) Even though air infiltration is not currently evaluated as part of the current test procedure and thus not part of the performance standard, all walk-in doors are subject to the prescriptive requirements in the energy conservation standard pertaining to air infiltration limiting devices. (10 CFR 431.306(a)(1)-(2))
Appendix A specifies the test procedure to determine energy consumption of walk-in display panels, which are not currently subject to any daily energy consumption performance standards but are subject to the prescriptive requirements at 10 CFR 431.306. The existing test procedure for walk-in display panels is very similar to that of walk-in doors in that it requires a U-factor test using NFRC 100-2010, which is used to determine the thermal conduction through the display panel and ultimately the total daily energy consumption. The existing display panel test procedure differs, however, from that of walk-in doors in that direct and indirect electrical energy consumption are not included in the test procedure.
In the April 2022 NOPR, DOE proposed to apply all the test requirements proposed for determining display door conduction load and energy consumption to determining display panel conduction load and energy consumption, except for the provisions applicable to electrical components and PTO values. 87 FR 23920, 23943.
Anthony agreed that the test procedure for display panels should be similar to the test procedure for display doors, but it disagreed with DOE's proposal that provisions applicable to electrical components and PTO values should be excluded from the test procedure for display panels. (Anthony, No. 31 at p. 7) Anthony stated that display panels can have heaters and lights. (
DOE acknowledges Anthony's feedback regarding display panels; however, DOE does not currently have sufficient information on display panel electrical components and PTO values to adopt provisions for electrical components for display panels. DOE may do so in a future rulemaking, however at this time, DOE is adopting the changes to section III.C of appendix A for determining display panel conduction load and energy consumption as proposed in the April 2022 NOPR.
The insulation R-value of walk-in non-display panels and non-display doors is determined using appendix B. In the April 2022 NOPR, DOE proposed to modify appendix B to improve test representativeness and repeatability. 87 FR 23920, 23943. Specifically, DOE proposed to make the following revisions to appendix B: (1) reference the updated industry standard ASTM C518-17; (2) include more detailed provisions on measuring insulation thickness and test sample thickness; (3) provide additional guidance on determining parallelism and flatness of test specimen; and (4) reorganize appendix B so it is easier for stakeholders to follow as a step-by-step test procedure.
In response to the appendix B proposals, Bally commented that the proposed regulations will be burdensome for laboratories to conduct. (Bally, No. 40 at p. 4) DOE acknowledges Bally's comment; however, DOE has concluded that the proposed amendments would not be unduly burdensome and would improve test representativeness and repeatability as discussed in sections III.E.1 through III.E.5 of this document. Test procedure costs and impacts because of the adopted changes are further discussed in section III.K.2 of this document. DOE does not expect that the adopted changes to appendix B, discussed further, will alter measured R-values; therefore, no retesting or recertification is required.
Additionally, AHRI commented generally that they would like to understand if display doors, non-display doors, and panels use the same calculation. (AHRI, No. 30 at p. 4) DOE defines each of these components separately (
Furthermore, DOE clarifies that in the following sections, the changes discussed are specifically in the context of walk-in panels; however, DOE notes that non-display doors are also subject to the prescriptive R-value requirement at 10 CFR 431.306(a)(3) and that the R-value for walk-in door insulation is determined using appendix B. The following sections describe the modifications that DOE is adopting in appendix B.
As mentioned in the April 2022 NOPR, DOE is aware that the test specimen and conditioning instruction and example given in section 7.3 of ASTM C518-04 and ASTM C518-17 conflict with the provision in section 4.5 of the DOE test procedure at appendix B. The DOE test procedure requires testing be completed within 24 hours of specimens being cut for the purpose of testing, while ASTM C518-04 and ASTM C518-17 require that specimens be conditioned prior to testing based on material specifications, which could be longer than 24 hours. 87 FR 23920, 23942.
Bally commented that a cut sample should not be exposed to air for longer than 8 hours because foam samples become irreversibly de-conditioned once removed from a panel. (Bally, No. 40 at pp. 3-4) Bally included a technical bulletin from 1984 that states that, in general, a 1-inch cut section of foam can increase in K-factor about 5 to 10 percent in a few days. (Bally, No. 40, Attachment 2)
It is DOE's understanding that since the technical bulletin referenced by Bally was published, there have been changes to the blowing agents used in polyurethane foam, the most common foam insulation type used in walk-in panels. Additionally, no specific data on the change in K-factor beyond 8 hours was provided. Recent tests conducted by DOE demonstrate that there is no measurable difference in K-factor for specimens tested immediately after extraction from the complete panel as compared to specimens tested 24 hours after extraction from the complete panel. DOE has not evaluated changes to K-factor of a test specimen beyond 24 hours of extraction from the panel. Given the existing technology on the market today, DOE believes 24 hours is an appropriate limit that balances K-factor representativeness with test burden, and therefore DOE is maintaining the current requirement that testing be completed within 24 hours of cutting a test specimen from the envelope component. Correspondingly, DOE is not referencing Section 7.3 of ASTM C518-17 regarding specimen conditioning as part of its update to appendix B.
Section 4.5 of appendix B currently requires that K-factor of a 1 ± 0.1-inch sample of insulation be determined according to ASTM C518-04.
To make the test procedure in appendix B more repeatable, DOE proposed in the April 2022 NOPR to include instructions for determining both the total insulation thickness as well as the test specimen insulation thickness prior to conducting the test to determine K-factor using ASTM C518-17, which is substantively the same as determining the K-factor according to ASTM C518-04. 87 FR 23920, 23944. DOE also proposed step-by-step instructions for specimen preparation, including detailed instructions of the number and locations of thickness and area measurements and from where the test specimen should be removed from the overall envelope component.
• The thickness around the perimeter of the envelope component is determined as the average of at least 8 measurements taken around the perimeter that avoid the edge region.
• The area of the entire envelope component is calculated as the width by the height of the envelope component.
• A sample is cut from the center of the envelope component relative to the envelope component's width and height. The specimen to be tested using ASTM C518-17 will be cut from the center sample.
• The thickness of the sample cut and removed from the center of the envelope component is determined as the average of at least 8 measurements, with at least 2 measurements taken in each quadrant.
• The area of the sample cut and removed from the center of the envelope component is determined as the width by the height of the cut sample.
• Any facers on the sample cut from the envelope component shall be removed while minimally disturbing the foam, and the thickness of each facer shall be the average of at least 4 measurements.
• The average total thickness of the foam shall then be determined by calculating an area-weighted average thickness of the complete envelope component less the thickness of the facers.
For preparing and determining the thickness of the 1-inch test specimen, DOE proposed the following:
• A 1 ± 0.1-inch-thick specimen shall be cut from the center of the cut envelope sample removed from the center of the envelope component.
• Prior to testing, the average of at least 9 thickness measurements at evenly spaced intervals around the test specimen shall be the thickness of the test specimen,
In the April 2022 NOPR, DOE requested feedback on the proposed provisions relating to test specimen and total insulation thickness and test specimen preparation prior to conducting the ASTM C518-17 test. Anthony agreed with both of the proposals. (Anthony, No. 31 at p. 7) Bally referenced the EPCA calculation for R-value and recommended that R-value remain calculated with that formula. (Bally, No. 40 at p. 3) Bally commented that it believes the tolerance of 1 ± 0.1 inch is not necessary because the sample preparation process would need to be restarted, but a smaller sample could have been used to determine K-factor. (Bally, No. 40 at p. 4)
In response to Bally's comment, DOE is not adopting any changes to the R-value formula; rather, DOE is providing additional instruction so that the inputs to the R-value formula, namely the K-factor, are determined in a consistent and more repeatable manner. At this time, DOE has determined that the 1 ± 0.1 inch tolerance is still necessary to appropriately and consistently measure K-factor. Therefore, DOE is adopting the provisions outlined in the April 2022 NOPR for determining test specimen and total thickness of insulation in appendix B.
The test procedure for determining R-value requires that the two surfaces of the tested sample that contact the hot plate assemblies (as defined in ASTM C518-04 and ASTM C518-17) maintain a flatness tolerance of ±0.03 inches and maintain parallelism of one another with a tolerance of ±0.03 inches.
In the April 2022 NOPR, DOE proposed to include several steps for determining the parallelism and flatness of the test specimen in appendix B:
• Prior to determining the specimen thickness, the specimen would be placed on a flat surface and gravity used determine the specimen's position on the surface. As specified previously, a minimum of nine thickness measurements would be taken at equidistant positions on the specimen. These measurements would be associated with side 1 of the specimen.
• The least squares plane of side 1 is determined based on the height measurements taken. The theoretical height of the least squares plane is determined at each measurement location in the x and y (length and width) direction of the specimen.
• The difference at each measurement location between actual height measurement and theoretical height measurement based on the least squares plane is calculated. The maximum value minus the minimum value is the flatness associated with this side (side 1). For each side of the specimen to be considered flat, this value would need to be less than or equal to 0.03 inches.
• Flip the specimen so that side 1 is now on the flat surface and let gravity determine the specimen position on the surface. Repeat the steps above for side 2 of the specimen.
• To determine if each side of the specimen is parallel, the theoretical height at the four corners (
AHRI and Anthony agreed with the proposed provisions relating to determining parallelism and flatness of the test specimen. (AHRI, No. 30 at p. 4; Anthony, No. 31 at p. 8) Bally stated that commercial devices used to measure K-factor using ASTM C518 have an internal check on flatness and parallelism so a sample that is out of tolerance will be flagged. (Bally, No. 40 at pp. 4-5)
DOE acknowledges Bally's comment, however, it is DOE's understanding that not all manufacturers or laboratories use the same commercial device to measure K-factor. Regardless of the device used, a consistent procedure for determining parallelism and flatness is necessary. DOE is adopting the method for determining parallelism and flatness in appendix B as described in the April 2022 NOPR. 87 FR 23920, 23945.
The current test procedure for determining panel R-value does not account for insulation aging. “Aging” of foam insulation refers to how diffusion of blowing agents out of the foam and diffusion of air into the foam impacts thermal resistance of insulation materials. The gaseous blowing agents contained in the foam provide it with much of its insulating performance, represented by the R-value of the foam material. Because air has a lower insulating value than the blowing agents used in foam insulation, the increased ratio of air to blowing agent reduces the foam insulation performance, which reduces the R-value of the foam material over time. The building industry uses long-term thermal resistance (“LTTR”) to represent the R-value of foam material over its lifetime by describing the insulating performance changes due to diffusion over time. The presence of impermeable facers on a foam structure may delay the rate of aging or reduce the decrease in R-value when compared to a foam structure that is unfaced or has permeable facers. Blowing agents and temperature and humidity conditions may also affect the amount or rate of aging that occurs in a foam structure.
In the April 2022 NOPR, DOE discussed its previous adoption and subsequent removal of a test procedure that considered aging of foam insulation. 87 FR 23920, 23945-23946. DOE rescinded the method that evaluated aging because of stakeholder concerns regarding test burden and the availability of laboratories to conduct the adopted test procedure. 79 FR 23788, 27405-27406. As such, DOE did
In response, AHRI suggested that any aging criteria should be based on the conditioning requirements in ASTM C518. (AHRI, No. 30 at p. 4) AHRI also stated that typical aging periods to ensure dimensional stability of finished foam has been reached vary between 14 and 28 days.
In response to AHRI's suggestion regarding aging criteria, DOE testing has shown that there is no measurable difference in K-factor for specimens tested immediately after extraction from the complete panel as compared to specimens tested 24 hours after extraction from the complete panel, even though it would be expected that aging of a thinner sample without facers would be more significant than a fully intact panel. Therefore, DOE expects the aging of an intact panel to be negligible after 24 hours.
Bally's and RSG's comments suggest that manufacturers are rating R-value without considering the effects of aging and would prefer to limit the amount of time between manufacture and test. As stated previously, DOE has found that there are minimal effects of foam insulation aging for panels sold with facers when panel facers remain attached to the foam. For assessment and enforcement testing conducted to support the enforcement of DOE's energy conservation standards, DOE is generally able to test samples within one to three months after receipt. The time lag from when the panel is manufactured and when testing is conducted at a laboratory is typically significantly shorter than that evaluated in the ORNL study. Therefore, DOE expects any reduction in R-value to be minimal from date of manufacture to assessment or enforcement test date. Additionally, walk-in panels received by DOE for assessment and enforcement testing are evaluated upon arrival to ensure that they are received intact (
The current test procedure for non-display panels does not measure the overall thermal transmittance of a walk-in panel. 87 FR 23920, 23946. DOE previously adopted a test method for measuring overall thermal transmittance of a walk-in panel, including the impacts of thermal bridges
In response, the Efficiency Advocates encouraged DOE to investigate appropriate methods to capture the overall thermal transmittance of walk-in panels. (Efficiency Advocates, No. 37 at p. 4) DOE did not receive any other feedback on its proposal or specific suggestions on how to implement a procedure that would measure overall thermal transmittance while minimizing the test cost burdens previously identified.
DOE continues to have the same concerns regarding test burden and lack of availability of test facilities to conduct any potential overall thermal transmittance testing of walk-in panels. Therefore, DOE is not including a test procedure in appendix B for determining overall thermal transmittance of non-display panels at this time.
Appendix C provides test procedures to determine the AWEF and net capacity of walk-in refrigeration systems. DOE does not expect that the adopted changes to appendix C will alter measured capacity values or AWEF. Therefore, DOE expects no retesting or recertification will be required. Rather, the revisions for appendix C address repeatability issues that DOE has observed through its testing of walk-in refrigeration systems.
The following sections describe the modifications that DOE is making to appendix C, in this final rule.
The DOE test procedure for walk-in refrigeration systems specifies temperature and/or humidity conditions for the test chambers. (
AHRI, HTPG, Hussmann, KeepRite, Lennox, and National Refrigeration disagreed with allowing the unit under test to condition the test room because it cannot sufficiently remove humidity from the room. (AHRI, No. 30 at p. 4; HTPG, No. 32 at p. 4; Hussmann, No. 38 at p. 3; KeepRite, No. 36 at p. 1; Lennox, No. 35 at pp. 2-3; National Refrigeration, No. 39 at p. 1) The same group of commenters also stated that the requirement for the unit to be “free from frost” is too subjective. (
The current DOE test procedure requires measuring refrigerant temperature entering or leaving the unit cooler using either thermometer wells or immersed sensors to determine refrigerant enthalpy as part of the capacity measurement for matched pairs and unit coolers tested alone (
AHRI, KeepRite, Lennox, National Refrigeration, and HTPG all commented that they do not support the proposal to forgo temperature measuring requirements for the suction line when testing dedicated condensing units. (AHRI, No. 30 at p. 5; KeepRite, No. 36 at p. 1; Lennox, No. 35 at p. 3; National Refrigeration, No. 39 at p. 1; HTPG, No. 32 at p. 4) AHRI also stated that legacy calculation and simulation systems use existing temperature measurements of the suction discharge. (AHRI, No. 30 at p. 5)
DOE acknowledges that existing systems and calculations may depend on suction line temperature measurements. For this reason, DOE retracts its proposal from the April 2022 NOPR and in this final rule maintains the requirements for thermometer wells or immersed sensors for both the suction and liquid lines when testing dedicated condensing units alone.
AHRI-Wine also commented that wine cellar manufacturers are concerned that the wells are not large enough for temperature measurements. (AHRI-Wine, No. 30 at p. 2) DOE notes that thermometer wells are required in the current DOE test procedure for temperature measurement. DOE addresses these concerns in the remainder of this section.
As mentioned in the April 2022 NOPR, DOE has found that implementing the current thermometer well requirement for refrigerant lines with an outer diameter of 1-2 inch or less can restrict the refrigerant flow and thus affect temperature measurements. To rectify this issue and to ensure that all walk-in refrigeration systems can be tested according to the DOE test procedure, DOE proposed allowing an alternative approach when the refrigerant line tubing diameter is 1-2 inch or less, in which the temperature measurement would be made using two surface-mounted measuring instruments with a minimum accuracy of ±0.5 °F, which would be averaged to obtain the reading. Additionally, DOE proposed that the two measuring instruments must be mounted on the pipe separated by 180 degrees around the refrigerant tube circumference. To ensure
With respect to tube surface measurements, AHRI and KeepRite stated that the temperature measurements on the tube surface are not accurate enough, and that this measurement is too critical to allow this. (AHRI, No. 30 at p. 5; KeepRite, No. 36 at p. 1) AHRI and KeepRite also stated that a low-temperature reading resulting from surface-mounted temperature measurement devices could lead to bubbling upstream of the expansion valve, resulting in inflated AWEF values. (AHRI, No. 30 at p. 5; KeepRite, No. 36 at p. 2) Lennox supported DOE's proposal to allow surface-mounted temperature sensors but encouraged DOE to work with industry to ensure the full scope of applications can be covered with these requirements. (Lennox, No. 35 at p. 3) Additionally, AHRI and KeepRite suggested allowing transition to a pipe large enough for a thermometer well.
Specific to the liquid line temperature measurement location, DOE clarifies that the measurement is from the center of the body of the expansion valve.
AHRI-Wine and HTPG agreed with the proposal to allow two external temperature measurements for small diameter tubing. (AHRI-Wine, No. 30 at p. 2; HTPG, No. 32 at p. 4)
DOE acknowledges the concerns from stakeholders regarding the use of surface measurements and will consider data from industry on this issue in future rulemakings. DOE has conducted testing using the approach proposed in the April 2022 NOPR and has determined that the approach provides representative measurements and prevents bubbling. Therefore, DOE is adopting the surface mount temperature measurement test provisions as proposed in the April 2022 NOPR. These requirements will be added to appendix C, and will also carry over to appendix C1.
As discussed in the April 2022 NOPR, DOE is aware that sometimes multiple installation instructions may be available for a unit, and different test results could be obtained based on which instructions are used. 87 FR 23920, 23948. DOE proposed a hierarchy for installation instructions and setup of refrigerant conditions to improve test repeatability by indicating which manufacturer-specified conditions would be prioritized during setup.
Setup conditions or instructions may be stamped on the unit nameplate or otherwise affixed to the unit, shipped with the unit, or available online. DOE has encountered walk-in refrigeration units for which these three sources of instruction provide different values or conflicting directions. To ensure consistent setup during testing, DOE proposed in the April 2022 NOPR that instructions or conditions stamped on or adhered to a test unit take precedence, followed by instructions shipped with the unit.
Furthermore, setting of refrigerant charge level or refrigerant conditions is a key aspect of setup of refrigeration systems, whether for field use or testing. In the April 2022 NOPR, DOE proposed that units be charged and set up at operating conditions specified in the test procedure (for outdoor refrigeration systems, DOE proposed use of operating condition A) based on the installation instructions, using the proposed hierarchy (
DOE determined that in some cases, a manufacturer specifies a range of conditions for superheat,
DOE also notes that zeotropic
If the installation instructions on the label affixed to (or shipped with) the unit do not provide instructions for setting subcooling or otherwise how to charge with refrigerant for a condensing unit tested alone or as part of a matched pair, DOE proposed requiring testing the unit in a way that is consistent with the DOE test procedure and the installation instructions and that also does not cause the unit to stop operating during testing,
AHRI and Lennox commented that they agree with the hierarchy of charging methods, however, they recommended that DOE allow use of online documentation. (AHRI, No. 30 at p. 6; Lennox, No. 35 at p. 3) HTPG also suggested that electronic instructions be allowed in addition to paper. (HTPG, No. 32 at p. 5)
As discussed previously, DOE proposed in the April 2022 NOPR not to permit online instruction manuals in part because they can be easily revised. In consideration of these stakeholder comments, DOE has determined to allow use of online instruction manuals, with certain restrictions. Firstly, online instructions can be used only if no instructions or conditions are stamped on or adhered to a test unit or shipped with the unit. Secondly, to prevent revision to online documentation once a unit has been shipped by the manufacturer, online instruction manuals must include a version number or version date on the unit label or in the documents that are packaged with the unit.
In this final rule, DOE is amending the test procedure such that setup instructions or conditions stamped on or adhered to a test unit take precedence, followed by instructions shipped with the unit, followed by online instructions if the version number or date of the online instruction manual is referenced on the unit label or is included in documents that are packaged with the unit.
AHRI and Lennox recommended that outdoor units should be charged for condition C, not condition A. (AHRI, No. 30 at p. 6; Lennox, No. 35 at p. 4) DOE has considered the commentors' recommendations and validated this charging procedure through testing. DOE is therefore amending the test procedure such that units be charged and set up at operating conditions specified in the test procedure (for outdoor refrigeration systems, operating condition C) based on the installation instructions, using the hierarchy summarized in Table III.3 of this document. DOE notes that many outdoor condensing units achieve head pressure control that uses valves to “flood” the condenser with liquid refrigerant to maintain sufficiently high condensing temperature when outdoor air is cold. If such a condensing unit has insufficient charge, it will be more obvious during operation in condition C (where head pressure control is generally active) since more charge would be in the condenser during such operation under head pressure control. Hence, DOE concludes that charging in the C condition rather than the A condition is appropriate for dedicated condensing systems (dedicated condensing units, matched systems, and single-packaged dedicated systems) that use a flooded condenser design. DOE has encountered units that, when charged at the C condition, will not operate at the A condition with the same charge weight due to high pressure cut out. This suggests the possibility that following the charging instructions may lead to two different charge weights depending on the condition used for charging. DOE maintains that it is not representative of field operation to use different refrigerant charge weights for the two test conditions, since it is not expected that refrigerant charge would be adjusted as ambient temperature rises and falls for a dedicated condensing system in the field. As such, DOE is adopting test provisions such that if a dedicated condensing system is charged at the C condition but does not operate at the A condition due to excess charge causing high pressure cut out, then refrigerant charge shall be adjusted to the highest charge that allows operation at the A condition. To limit the test burden of determining this highest charge, the determination shall be subject to a stepwise charge adjustment. Specifically, refrigerant would be removed in increments of 4 ounces or 5
DOE notes that when conducting the C condition test for a dedicated condensing system for which this charge removal has occurred as described above, it is possible that the refrigerant leaving the system no longer has measurable subcooling. If the measured subcooling of the refrigerant leaving the condenser is less than 0 °F, its state cannot accurately be determined based on the measurement. The most direct way to determine the state of the refrigerant would be to provide additional cooling to the liquid line after it leaves the condensing unit using a flow of a fluid such as water such that the water mass flow and temperature rise would be measured and such that the refrigerant is subcooled downstream of this heat exchange. Such an approach would allow determination of the enthalpy at the condensing unit exit as the enthalpy of its subcooled downstream state plus the additional cooling provided divided by the mass flow. However, DOE has determined that such an approach would require a chilled water, a refrigerant water heat exchanger, a water flow meter, temperature sensors, and provisions for flow and temperature measurements to be captured by the data acquisition system. DOE has determined that this additional equipment and time required to set up the additional equipment represent an inappropriate increase in test burden. DOE has finalized the test procedure requiring that if the calculated subcooling at the condensing unit exit is less than 0 °F, the liquid at this location will be assumed to be at saturated liquid conditions. DOE has determined that the departure from saturated conditions is likely to be small. Additionally, this change in calculation method would only take place at one of the three test points. These two factors would lead to very little, or no, influence over the final measured AWEF. Further, this would only be necessary when testing units using refrigerant enthalpy-based test methods.
DOE notes that it is also possible for dedicated condensing systems to maintain condensing temperature for low ambient operating conditions using fan controls rather than condenser flooding. Units that use fan control to maintain condenser temperature would not require significantly more refrigerant charge when operating at the C condition compared to the A condition. However, the fan controls of these systems may cause instability in refrigerant conditions at the lower ambient temperatures at the C test condition. As such, DOE has determined that, for dedicated condensing systems that exclusively use fan controls to maintain condensing temperature at low ambient temperatures, charging at the A condition is more appropriate than charging such units at C condition. The refrigerant charging proposals in the April 2022 NOPR sought to minimize test burden while ensuring the repeatability and representativeness of walk-in refrigeration system testing. Stakeholders correctly pointed out that charging at the A test condition would not be representative for systems with flooded-condenser head pressure control. Thus, the change to charging at the C test condition was necessary. However, DOE has determined through testing that it is possible that when such a system is charged under test condition C, it could fail to operate due to high pressure cutout when operating under test condition A. Therefore, in order to ensure that a valid test can be conducted, DOE is adding the additional provisions. DOE believes these amendments are consistent with the intent of proposed changes in the April 2022 NOPR while being responsive to stakeholder feedback. Hence, DOE concludes that charging in the C condition rather than the A condition is appropriate.
HTPG stated that it agrees that the unit under test should be set up according to a hierarchy of conditions. HTPG further stated, however, that it was unclear on the rationale for the inclusion and priority of “High Side Pressure or Saturation Temperature,” “Low Side Pressure or Saturation Temperature,” “Approach Temperature,” and “Charge Weight” in Table III.3. (HTPG, No. 32 at p. 5) HTPG did not provide detail on why these parameters should not be included, or otherwise reprioritized, in the hierarchy. DOE has developed the hierarchy summarized in Table III.3 based on its own testing experience and has observed that these parameters are specified operating conditions for certain units. Through that testing DOE has determined that the priority and inclusion of the methods listed in Table III.3 are appropriate.
Lennox stated that hierarchies in tables 1 and 19 should specify dew vs. bubble point to remove confusion with high-glide refrigerants. (Lennox, No. 35 at p. 4) DOE interprets Lennox's comment to be in reference to Table III.3 in this document, which in the proposed regulatory text was table 1 of appendix C (
AHRI, on behalf of wine cellar manufacturers, KeepRite, and National Refrigeration agreed with the charging hierarchy. (AHRI-Wine, No. 30 at p. 2; KeepRite, No. 36 at p. 2; National Refrigeration, No. 39 at p. 1)
DOE received no comment on the remaining proposals discussed in this section. In this final rule, DOE is adopting the testing hierarchy instructions proposed in the April 2022 NOPR into appendix C, and will also carry these provisions over to appendix C1.
For dedicated condensing units tested alone, subcooling is the primary setup condition. In the April 2022 NOPR, DOE proposed that if the dedicated condensing unit includes a receiver and the subcooling target leaving the condensing unit provided in the installation instructions cannot be met without fully filling the receiver, the subcooling target would be ignored. 87 FR 23920, 23948. Likewise, if the dedicated condensing unit does not include a receiver and the subcooling target leaving the condensing unit cannot be met without the unit cycling off on high pressure, the subcooling target would be ignored. Also, if no instructions for charging or for setting subcooling leaving the condensing unit are provided in the installation instructions, DOE proposed that the refrigeration system would be set up with a charge quantity and/or exit subcooling such that the unit operates during testing without shutdown (
DOE received no comments in response to the proposals discussed in this section. In this final rule, DOE is adopting the dedicated condensing unit charging instructions proposed in the April 2022 NOPR into appendix C, and will also carry these provisions over to appendix C1.
For unit coolers tested alone, superheat is the primary setup condition. Most WICF refrigeration systems use either thermostatic or electronic expansion valves (“EEVs”) that respond either mechanically or through a controller to adjust valve position to control for superheat leaving the unit cooler. If the unit under test is shipped with an adjustable expansion device, DOE proposed in the April 2022 NOPR that this would be the primary method to adjust superheat. 87 FR 23920, 23948. However, DOE has encountered units with expansion devices that are not adjustable or where the expansion device does not provide a sufficient adjustment range to achieve the superheat target. If the expansion valve associated with the unit under test reaches its limit before the superheat target is met, the specified superheat may not be met within the specified tolerance. In this case, DOE proposed in the April 2022 NOPR that the expansion valve should be adjusted to obtain the closest match to the superheat target.
In the April 2022 NOPR, DOE also proposed that an operating tolerance would not apply to superheat. Hence, if the system expansion valve control fluctuates (
If the unit's installation instructions do not include setting superheat for a unit cooler tested alone or as part of a matched pair, DOE proposed in the April 2022 NOPR that the target superheat would be 6.5 °F, the same value required in such circumstances in AHRI 1250-2020 (see Tables 16 and 17 of AHRI 1250-2020).
AHRI commented that unit cooler charging should be done based on the expansion valve controlled by the room, not the supplied expansion valve. (AHRI, No. 30 at p. 6) Lennox stated that it is industry practice to test unit coolers with EEVs, because use of these valves eliminates “hunting” and is more reliable. (Lennox, No. 35 at p. 4) HTPG stated that it disagrees with the proposal in the April 2022 NOPR that operating tolerance would not apply to superheat and believes it conflicts with AHRI 1250-2020, as well as Table III.3. (HTPG, No. 32 at p. 5)
After consideration, DOE has determined that using the expansion valve supplied with the unit cooler is most appropriate for testing because it most closely represents field performance. DOE notes that the expansion device provided with the unit cooler or specified in the unit cooler installation instructions may result in hunting behavior and may fluctuate outside the specified tolerances for superheat. Nevertheless, these results are expected to be more representative of field performance than using a laboratory controlled EEV that provides steady operation. As discussed in the preceding paragraphs, the amended test procedure provides test laboratories with alternatives if the expansion devices shipped with the unit, or specified in the installation instructions, result in hunting that interferes with test measurement tolerances.
DOE is aware that industry test practices are not currently consistent with this approach. As such, DOE recognizes that testing unit coolers with the expansion device shipped with the unit may require manufacturers to retest and recertify their unit cooler basic models. DOE is therefore not adopting the unit cooler expansion device requirements proposed in the April 2022 NOPR in appendix C. DOE is instead adopting those provisions only in appendix C1, which would be required for demonstrating compliance with any future amended WICF energy conservation standards. Manufacturers would therefore have additional time to retest and recertify unit cooler basic models impacted by these requirements.
DOE has identified multiple setup issues while testing single-packaged dedicated systems. Compared to split refrigeration systems,
In the April 2022 NOPR, DOE proposed that one or more pressure gauges (depending on the number of conditions that require a pressure measurement for validation) should be installed during setup according to the manufacturer's installation instructions to evaluate the charge of the unit under test and to accurately measure setup conditions. 87 FR 23920, 23949. The location of the pressure gauge(s) would depend on the test setup conditions given in the installation instructions. If charging is based on subcooling or liquid pressure, DOE proposed that the pressure gauge(s) would be installed at the service valve of the liquid line. If charging is based on superheat, low side pressure, or a corresponding saturation temperature or dew point temperature, DOE proposed that the pressure gauge(s) would be placed in the suction line. 87 FR 23920, 23949.
DOE is aware that installation instructions for some single-packaged dedicated systems recommend against installing charging ports; however, DOE has observed through testing that some such units that recommend against installing charging ports do not operate once installed due to high- or low-pressure compressor cut off, which is often a symptom of under- or over-charging or refrigerant loss. These units are representative of what a contractor
DOE received no comments in response to the proposals in this section. In this final rule, DOE is adopting the single-packaged dedicated system setup instructions proposed in the April 2022 NOPR into appendix C, and will also carry these provisions over to appendix C1.
In DOE's experience, even when all the previously discussed measures are implemented during test setup, some manufacturer-specified setup conditions may not be met. In this case, DOE proposed in the April 2022 NOPR that the unit under test be set up according to a hierarchy of conditions like those used for central air-conditioning systems and heat pumps. 87 FR 23920, 23949. First, the installation instruction hierarchy previously discussed in section III.F.3 would be applied. Specifically, if a refrigerant-related setup instruction in the installation instructions affixed to the unit and a different instruction in the installation instructions shipped with the unit cannot both be achieved within tolerance, the instruction on the label takes precedence. Further, if multiple instructions within the relevant installation instructions cannot be met, the proposed hierarchy outlined in Table III.3 would be applied. The highest priority condition that can be satisfied, based on Table III.3, would need to be met, depending on what kind of expansion device the system uses. This approach would ensure that units are set up consistently across testing facilities, ensuring more consistent results.
DOE received no comments in response to this proposal. In this final rule, DOE is adopting the hierarchy of setup conditions proposed in the April 2022 NOPR into appendix C, and will also carry these provisions over to appendix C1.
Section C3.4.5 of AHRI 1250-2009 requires that refrigerant be subcooled to at least 3 °F and that bubbles should not be visible in a sight glass immediately downstream of the mass flow meter. Section 3.2.3 of appendix C allows use of the sight glass and a temperature sensor located on the tube surface under the insulation to verify sufficient subcooling. DOE testing has shown that even when the subcooling requirement is met downstream of the mass flow meter, the liquid temperature can be warmer upstream. This difference results in less subcooling, and mass flow measurements may not provide capacity within the required tolerances (
First, DOE proposed that the 3 °F subcooling requirement be applied at a location dependent on the location of the liquid-line mass flow meters.
AHRI stated that the proposal to clarify the location where the 3 °F subcooling applies may be sufficient in most, but not all, cases. (AHRI, No. 30 at p. 6) AHRI, KeepRite, and National Refrigeration recommended measuring temperature before and after the mass flow meter and calculating subcooling using the higher of the two temperatures with the pressure downstream of the meter to guarantee fully liquid flow. (AHRI, No. 30 at p. 6; KeepRite, No. 36 at p. 2; National Refrigeration, No. 39 at p. 2)
HTPG recommended insulating the flow meter and line set to guarantee fully liquid flow. (HTPG, No. 32 at p. 5) HTPG also recommended that for dedicated condensing unit testing, the temperature measurement should be made before the flow meter inlet and for unit cooler testing, temperature measurement should be taken after the flow meter outlet.
Lennox and RSG agreed with DOE's proposal to clarify the subcooling condition measurement location. (Lennox, No. 35 at p. 4; RSG, No. 41 at p. 2)
DOE notes that, assuming the mass flow meters are in the same room as the dedicated condensing unit, insulating the flow meter and line set may or may not help ensure fully liquid flow, depending on whether the temperature surrounding the line set and flow meter are higher or lower than the liquid temperature. DOE agrees that HTPG's recommendation for measuring the subcooling before and after the mass flow meters may provide a more rigorous approach for ensuring adequate subcooling throughout the flow meter than the procedure proposed by DOE in the April 2022 NOPR. However, during testing, DOE has found that the subcooling measurement locations proposed in the April 2022 NOPR ensure adequate subcooling through the mass flow meters with reduced test burden. Therefore, DOE is adopting the subcooling measurement locations as proposed in the April 2022 NOPR. DOE is adding the new requirements to appendix C, and will also carry these provisions over to appendix C1.
Second, DOE proposed that active cooling of the liquid line may be used to achieve the required subcooling, because the subcooling at the mass flow meter outlet may not meet the 3 °F requirement when the subcooling at the condensing unit exit is within tolerance of its target. However, DOE also proposed requiring that if active cooling is done when testing a matched pair (not including single-packaged dedicated systems), the temperature also must be measured upstream of the location where cooling is provided, and the temperature used to calculate the enthalpy of the refrigerant entering the unit cooler be increased by the difference between the upstream and downstream measurements. DOE proposed this adjustment so that active cooling of the liquid to obtain a mass flow measurement does not provide a non-representative boost in calculated cooling capacity.
In the April 2022 NOPR, DOE sought comment on its active subcooling and capacity calculation adjustment proposals. 87 FR 23920, 23950. In response, AHRI and KeepRite recommended adjusting test results for
DOE acknowledges these comments and is making the following adjustments to the final test procedure to address stakeholder concerns. Instead of requiring an enthalpy adjustment if active subcooling is used, DOE is requiring that, if active subcooling is used, the line must be reheated such that the refrigerant is at the same temperature as it was upstream of the active subcooling device. This approach allows recording of an accurate mass flow measurement with no impact on the measured capacity of the unit under test. DOE is adopting the rest of the test procedures allowing active subcooling as proposed in the April 2022 NOPR. DOE is adding the new requirements to appendix C, and will also carry these provisions over to appendix C1.
The current DOE test procedure references AHRI 1250-2009 for instrument accuracy and test tolerances with some modifications (
• Change the measurement accuracy for the temperature of air entering or leaving either the evaporator or condenser from ± 0.25 °F.
• Replacing the ASHRAE 23.1 refrigerant mass flow operating tolerance of ± 1 percent of the quantity measured with an operating tolerance of 3 pounds per hour (“lb/h”) or 2 percent of the reading (whichever is greater).
DOE did not receive comment on these proposals in the April 2022 NOPR. In this final rule, DOE is adopting the proposed changes from AHRI 1250-2020 into appendix C. These changes are not expected to impact measured values. DOE is adding the new requirements to appendix C, and will also carry these provisions over to appendix C1.
As discussed in the April 2022 NOPR, CO
DOE has granted test procedure waivers to the manufacturers listed in Table III.1 of this document for certain basic models of walk-in refrigeration systems that use CO
In the April 2022 NOPR, DOE proposed to adopt in appendix C (and also in appendix C1), the alternate test conditions specified in the waivers that DOE granted for CO
AHRI, HTPG, Hussmann, Lennox, and National Refrigeration all agreed with the proposal. (AHRI, No. 30 at p. 7; HTPG, No. 32 at p. 5; Hussmann, No. 38 at p. 6; Lennox, No. 35 at p. 4; National Refrigeration, No. 39 at p. 2) DOE is adopting the test procedure as proposed in the April 2022 NOPR for CO
As discussed in the April 2022 NOPR, DOE is aware of wine cellar (high-temperature) refrigeration systems that fall within the definition of “walk-in” but are unable to be tested under the current version of the walk-in test procedure due to their operation at a temperature range of 45 °F to 65 °F. 87 FR 23920, 23952. Most of the high-temperature refrigeration systems that DOE is aware of are either single-packaged dedicated systems or matched pairs. However, DOE has granted an interim waiver for high-temperature unit coolers that are distributed into commerce without a paired condensing system.
Under the current test procedure, these unit cooler-only models would be tested according to the provisions in the test procedure for unit coolers tested alone, for which the AWEF calculation requires an appropriate EER. DOE has determined that the EER values for medium- and low-temperature unit coolers tested alone are not appropriate for high-temperature applications because this equipment operates with a different suction dew point temperature, and the dedicated condensing units typically paired with medium- and low-temperature units likely use different compressor designs, which would have different efficiencies.
As discussed in the April 2022 NOPR, DOE calculated representative compressor EER levels for wine cellar walk-in unit coolers based on compressor performance data collected by DOE. 87 FR 23920, 23953. DOE used
The LRC Coil interim waiver includes additional test procedure provisions to obtain representations that are representative for high-temperature unit coolers, including both testing requirements and AWEF calculation requirements. 86 FR 47631. These include provisions for testing ducted fan coil unit evaporator systems. 86 FR 47631, 47635.
In the April 2022 NOPR, DOE proposed to include provisions for testing high-temperature unit coolers in appendix C. 87 FR 23920, 23953. These provisions, consistent with the LRC Coil interim waiver, would include conditions for testing these unit coolers at high-temperature refrigeration conditions, as well as the EER values in Table III.4 for calculation of AWEF. DOE also proposed to include these provisions in appendix C1 in the April 2022 NOPR.
DOE notes that high-temperature unit coolers have the same function as medium- and low-temperature unit coolers, however, their suction dew point temperature differs, and counterpart-dedicated condensing units may use high-temperature compressors designed for higher temperatures. Therefore, DOE has concluded that the same test procedure can be used for low-, medium- and high- temperature unit coolers, as long as the EER values presented in Table III.4 are used for high-temperature operation. After consideration of stakeholder comments, DOE is adopting the test procedure provisions for high-temperature unit coolers as proposed in the April 2022 NOPR. DOE is adding the new requirements to appendix C, and will also carry these provisions over to appendix C1.
AHRI also stated that rating high-temperature unit coolers alone without a method to rate high-temperature dedicated condensing units disadvantages matched pairs and single-packaged dedicated systems. (AHRI, No. 30 at p. 2) DOE will evaluate standards for high-temperature equipment, including any appropriate equipment classes, in the ongoing walk-in energy conservation standards rule making. DOE's evaluation of the wine cellar market indicates that specific high-temperature dedicated condensing units are rarely, if ever, sold outside of matched-pair configurations. The dedicated condensing units DOE has encountered that are sold outside of a matched-pair configuration and that may be used in high-temperature applications are general-purpose condensing units often marketed for medium- and high-temperature, or only medium-temperature applications. Based on the definition of walk-in coolers (
In the April 2022 NOPR, DOE proposed to establish a new appendix C1 to subpart R of part 431, which would be required to demonstrate compliance coincident with the compliance date of any amended energy conservation standards that DOE may promulgate as part of a separate standards rulemaking. 87 FR 23920, 23953.
As the changes included in appendix C1 are expected to change measured values for walk-ins, DOE is establishing a new annual walk-in efficiency factor metric, AWEF2, that will replace the current metric, AWEF, once appendix C1 is required for use. In many cases, AWEF2 of a given refrigeration system will not be the same as AWEF. For any amended energy conservation standards that DOE may promulgate as part of a separate standards rulemaking, the standards will be set based on AWEF2.
While AHRI 1250-2009 provides a method for determining off-cycle fan power, AHRI 1250-2020 includes off-cycle power measurement for additional auxiliary components (
The test procedure changes that DOE is adopting as a part of appendix C1 are discussed in the following sections.
For walk-in refrigeration systems, the term “off-cycle” refers to the period when the compressor is not running and defrost (if applicable) is not active. During off-cycle, unit cooler fans and other auxiliary equipment (crankcase heater, receiver heater, etc.)
In the April 2022 NOPR, DOE discussed the recommendation of the ASRAC Working Group (Docket No.
DOE is adopting the off-cycle procedure in sections C3.5, C4.2, and Table C3 in AHRI 1250-2020 with some modifications. The following sections describe DOE's modifications to the off-cycle test method and metric in more detail.
The current DOE test procedure references the 30-minute off-cycle test duration prescribed in section C3.6 of AHRI 1250-2009. AHRI 1250-2020 was updated to include two off-cycle test durations: (1) 30 minutes for evaporator fans and ancillary equipment with controls that are time-varying or respond to ambient or refrigerant temperatures (
DOE has concluded that these durations balance the need to minimize test burden with the need for an accurate and representative test method. In the April 2022 NOPR, DOE proposed to reference these test durations. 87 FR 23920, 23954.
AHRI 1250-2020 also added two sets of test repetition requirements: one for evaporator fans and ancillary equipment with controls that are time-varying or respond to ambient or refrigerant temperatures (
DOE has concluded that the repetition requirements specified by AHRI 1250-2020 are adequate and not overly burdensome. If the variance is small among the first three cycles, then the testing burden is reduced by not requiring any more cycles. If variance exceeds 2 percent of the average when three additional cycles are taken, then the conservative approach is taken by reporting the maximum integrated power reading, and test burden is reduced by not requiring additional tests. In the April 2022 NOPR, DOE proposed to adopt the repetition requirements included in AHRI 1250-2020. 87 FR 23920, 23954.
In response to the off-cycle test durations and repetitions proposed in the April 2022 NOPR, the Efficiency Advocates stated that they supported updating off-cycle testing to include a unit's total input wattage. (Efficiency Advocates, No. 37 at p. 1) Lennox supported DOE proposals regarding off-cycle test duration and repetition. (Lennox, No. 35 at pp. 4-5) In this final rule, DOE is adopting the off-cycle test duration and repetition test procedures as proposed.
In the April 2022 NOPR, DOE proposed to adopt Section C3.5 of AHRI 1250-2020 to establish off-cycle data collection requirements in the DOE test procedure. 87 FR 23920, 23955. AHRI 1250-2020 excludes the first 10 minutes that follow the termination of the compressor on-cycle interval from the general operating tolerances (indoor/outdoor temperatures and power readings) established for the on-cycle steady state test because during this time period, the test room conditioning equipment is transitioning from steady state on-cycle operation into off-cycle operation.
Additionally, AHRI 1250-2020 requires that the minimum data collection rate be increased (with respect to steady-state requirements) from 30 to 60 test readings per hour for temperature measurements and condensing unit electric power measurements, and from 3 to 60 test readings per hour for unit cooler electric power measurements. AHRI 1250-2020 also requires that off-cycle power measurements be integrated and averaged over the recording interval with a sampling rate of no less than 1 second unless an integrating watt/hour meter is used.
In response to the April 2022 NOPR, Lennox commented that it supports DOE's off-cycle power measurement proposals but requested clarification on
Currently, the DOE test procedure specifies measuring off-cycle evaporator fan power and provides no ambient condition detail; however, DOE expects that the integrated power of ancillary equipment may vary with ambient conditions depending on the refrigeration system design. Consequently, in the April 2022 NOPR, DOE proposed that the off-cycle power test described in section III.G.1.a of this document be run at each steady-state ambient test condition as specified in Tables 4 through 17 of AHRI 1250-2020. 87 FR 23920, 23955. Accordingly, DOE proposed that refrigeration systems with dedicated condensing units located indoors would evaluate off-cycle power at a single outdoor ambient condition (90 °F dry-bulb), while systems with dedicated condensing units located outdoors would determine off-cycle power at three ambient conditions (95 °F, 59 °F, and 35 °F dry-bulb). The measured integrated off-cycle power results would then be used to calculate AWEF2, as described in the following section.
In response to the April 2022 NOPR, KeepRite commented that the benefit from additional off-cycle power tests is minimal, capturing less than 1 percent of total system energy. (KeepRite, No. 36 at p. 3) DOE acknowledges that off-cycle power tests account for significantly less energy consumption than on-cycle tests. However, DOE's testing using the three ambient temperature off-cycle load points in AHRI 1250-2020 has measured up to 60 percent more off-cycle power use than the off-cycle power measurements in the current test procedure. This result indicates that the current test procedure does not fully represent off-cycle power use for walk-in refrigeration systems.
HTPG disagreed with the additional off-cycle testing requirement proposed in the April 2022 NOPR (HTPG, No. 32 at p. 6) and stated that it would increase test burden. (HTPG, No. 32 at p. 8) AHRI-Wine stated that they expect the change related to off-cycle power measurement requirements will increase test burden. (AHRI-Wine, No. 30 at p. 3) DOE acknowledges that adopting the off-cycle power measurements in AHRI 1250-2020 may incrementally increase test time. However, in its testing, DOE has found that conducting off-cycle power measurements accounts for less than 10 percent of the overall setup and test duration for walk-in refrigeration systems.
Lennox stated that using a single condition to measure off-cycle power may not be sufficient for indoor matched systems. (Lennox, No. 35 at p. 5) Lennox also recommended working with industry to establish running conditions for equipment that is not part of a matched pair.
DOE is adopting the off-cycle test points for (1) the A test specified in AHRI 1250-2020 for fixed-capacity refrigerator and freezer matched-pair and dedicated condensing units located indoors, (2) the A, B, and C tests specified in AHRI 1250-2020 for refrigerator and freezer matched-pair and dedicated condensing units located outdoors, and (3) the A test specified in AHRI 1250-2020 for refrigerator and freezer unit coolers. DOE clarifies that a single off-cycle test is representative for both split-system unit coolers and indoor matched systems.
In the April 2022 NOPR, DOE proposed to adopt the off-cycle calculations in AHRI 1250-2020, which replace integrated off-cycle evaporator fan power with the combined integrated off-cycle power from the unit cooler and condensing unit in each equation. 87 FR 23920, 23955. Additionally, DOE proposed to adopt the off-cycle calculations in AHRI 1250-2020, which replace integrated off-cycle fan power with integrated off-cycle power in the unit cooler equation.
For outdoor refrigeration systems, DOE proposed to deviate from the AHRI 1250-2020 calculations for off-cycle energy use in the April 2022 NOPR. 87 FR 23920, 23955. DOE notes that the AHRI 1250-2020 equations for average refrigeration system total power input for bin temperature T
For condensing unit off-cycle power, DOE proposed in the April 2022 NOPR to require that off-cycle power for T
For unit cooler off-cycle power, DOE proposed in the April 2022 NOPR that the three unit cooler off-cycle power measurements taken when testing a matched-pair or single-packaged dedicated system would be averaged, and that the resulting average, with no dependence on T
DOE requested comment on its proposals to align the test procedures for appendix C1 with AHRI 1250-2020, except for the use of off-cycle power measurements in the AWEF2 calculations for dedicated condensing units, matched pairs, and single-
In response, KeepRite stated that the AWEF2 calculations could be non-representative depending on what temperature the crankcase heater turns on and recommended an option for constant crankcase heater power below the 35 °F test bins. (KeepRite, No. 36 at p. 3) DOE notes that the proposed AWEF2 calculations are incorporated from AHRI 1250-2020. DOE notes that industry agreed to these calculations during the development of AHRI 1250-2020; therefore, DOE will not consider alternative calculations for representing off-cycle dedicated condensing unit power at this time.
RSG recommended that DOE further define off-cycle unit cooler fan speed as either 50 percent of full speed or the factory low speed setting (if the low-speed setting is less than 50 percent and not adjustable by the end user). (RSG, No. 41 at p. 5) DOE notes that section 4.2 of Appendix C to AHRI 1250-2020 states that for variable-speed unit cooler fan controls, the greater of 50 percent fan speed or the manufacturer's default fan speed shall be used for measuring off-cycle fan energy. Since this is the test practice agreed on by industry, DOE is not allowing fan speeds of less than 50 percent for off-cycle unit cooler testing in this final rule.
Lennox stated that the test procedure requires three measurements at different ambient conditions for matched-pair and single-packaged dedicated systems but does not explicitly state what to do for split-system unit coolers. (Lennox, No. 35, at p. 5) Additionally, Lennox stated that a single test condition may not be sufficient for split-system unit coolers.
In this final rule, DOE is adopting the procedures as proposed in the April 2022 NOPR into appendix C1.
As discussed in the April 2022 NOPR, the Direct Expansion (“DX”) dual instrumentation method is impractical for testing single-packaged dedicated systems. 87 FR 23920, 23958. AHRI 1250-2020 expanded methods of test for single-packaged dedicated systems to include air enthalpy, calorimetry, and compressor calibration. Specifically, AHRI 1250-2020 incorporates the following test procedures by reference:
(1)
(2)
(3)
AHRI 1250-2020 requires two simultaneous measurements of system capacity (
As discussed in the April 2022 NOPR, DOE granted a waiver to Store It Cold for single-packaged dedicated systems on August 9, 2019. 87 FR 23920, 23956. DOE also granted waivers to Air Innovations, CellarPro, Vinotemp, and Vinotheque for walk-in refrigeration systems used in wine cellar applications, where some of the basic models included in these waivers were single-packaged dedicated systems.
In appendix C1, DOE is referencing the methods of test for single-packaged dedicated systems from section C9 of AHRI 1250-2020, with some modifications. Since appendix C1 will be required on the compliance date of any amended energy conservation standards, were such standards to be adopted, the current test procedure waivers for specified single-packaged basic models will expire on the compliance date of appendix C1.
In the April 2022 NOPR, DOE discussed the suitability of the AHRI 1250-2020 test methods for single-packaged dedicated systems. 87 FR 23920, 23957. Specifically, DOE discussed stakeholder feedback from the June 2021 RFI that freezing of the calorimetry loop and the need for a pressure equalizing device on the test chamber are potential issues with the ASHRAE 16-2016 calorimeter method. DOE has tested multiple single-packaged dedicated systems at multiple labs and did not observe freezing of the calorimetry loop. Therefore, DOE has determined that the ASHRAE 16-2016 calorimetry methods are suitable for testing single-packaged dedicated systems. Furthermore, DOE concluded that the equalizer device for calorimeter room testing, which is required in ASHRAE 16-2016, is not necessary for the testing of single-packaged dedicated systems. As a result, DOE did not propose to require an equalizer device for calorimeter room testing in the April 2022 NOPR.
DOE further discussed in the April 2022 NOPR that its testing on single-packaged dedicated systems using the room calorimeter and air enthalpy methods as described in AHRI 1250-2020 appropriately accounted for the thermal losses that are typical for this equipment.
In response to the April 2022 NOPR, the CA IOUs commented that they support DOE including a test method for single-packaged dedicated systems. (CA IOUs, No. 42 at p. 6) Based on DOE's experience testing this equipment and the comments received, DOE is adopting the test procedures for single-packaged dedicated systems in AHRI 1250-2020 as proposed in the April 2022 NOPR into appendix C1.
In the April 2022 NOPR, DOE proposed to adopt a single-packaged refrigerant method similar to the alternate test procedure outlined in RSG's waiver request. 87 FR 23920, 23958. On July 22, 2022, DOE issued an interim waiver to RSG for testing single-packaged dedicated systems with multiple refrigeration circuits using a modified refrigerant enthalpy method. 87 FR 43808.
As previously discussed, AHRI 1250-2020 includes four potential primary and six potential secondary test methods for testing single-packaged dedicated systems (
In the April 2022 NOPR, DOE requested comment on its proposed procedure for testing single-packaged dedicated systems. AHRI recommended allowing DX dual instrumentation testing, since requiring air-side enthalpy testing would impose considerable test burden on test labs that do not have air-side measurement capacity. (AHRI, No. 30 at p. 7) Lennox stated that it can support the proposed refrigerant enthalpy approach as a secondary approach but recommended that the DX dual instrumentation method be maintained as an option. (Lennox, No. 35 at p. 5) Lennox also commented that requiring the air enthalpy test method would impose significant test burden.
AHRI and Lennox commented that piercing a refrigeration system to use the refrigerant enthalpy as a secondary check may not duplicate the primary result. (AHRI, No. 30 at p. 7; Lennox, No. 35 at p. 5) HTPG disagreed with the proposal to use the refrigerant enthalpy test for single-packaged dedicated units, as they are critically charged and piercing their lines could affect measured capacity. (HTPG, No. 32 at p. 6) The proposed procedure requires a primary test to be completed before the system is pierced. The capacity measured from the primary test would be compared to the capacity measured from the secondary test to ensure that the capacity is not affected from piercing the refrigeration system. Based on its testing, DOE has determined that a secondary test that does not materially alter the system operation would duplicate, and serve as a check for, the primary test. DOE also notes that there are secondary test options provided in Table C4 of AHRI 1250-2020 that do not require piercing of the refrigerant lines.
Lennox also stated that the refrigerant enthalpy test should be allowed to penetrate the system for the primary test since the secondary test would require the system to be penetrated. (Lennox, No. 35 at p. 5) DOE interprets this comment to be a request to allow the DX
AHRI-Wine stated that they do not support the proposed refrigerant enthalpy test procedure because they do not see an advantage unless the method is used in parallel with others. (AHRI-Wine, No. 30 at p. 3) DOE notes that the single-packaged refrigerant enthalpy test procedure would be used only as a secondary test when paired with one of the primary options provided in Table C4 of AHRI 1250-2020.
RSG agreed with DOE's proposed test procedure. (RSG, No. 41 at p. 2) DOE is adopting the single-packaged refrigerant enthalpy test method as a secondary test as proposed in the April 2022 NOPR into appendix C1.
In the RSG waiver DOE allowed RSG to use a modified version of the calibrated box method. 87 FR 43808, 43813-43814. As discussed in the notification of interim waiver, the modified calibrated box method involves mounting the system on the calibrated box, like its installation on a walk-in for field use and exchanging air with the box interior to cool it. 87 FR 43808, 43812. The exterior of the calibrated box would be conditioned such that the air conditions entering the single-packaged dedicated system condenser match the specified targets. The warm condensing unit portion of the single-packaged dedicated system and its condenser discharge air may in some cases add to the thermal load imposed on the calibrated box. The interim waiver therefore provided additional optional test methods to quantify this additional thermal load on the calibrated box, and to adjust for it in the determination of system capacity. Determining the additional thermal load requires temperature sensors mounted on the box exterior surface for box calibration and box load determination, rather than measuring air temperature just outside the box (the approach described for the calibrated box method in section C8 of AHRI 1250-2020). Since the modified calibrated box method accounts for the thermal losses associated with single-packaged dedicated systems and is very similar to the indoor room calorimeter method, DOE tentatively determined in the RSG waiver that it would be appropriate for the calibrated box method to be a primary test method (
As mentioned previously, DOE received no stakeholder comments on the RSG waiver. Therefore, DOE is adopting the test provisions outlined in the RSG waiver in addition to the test provisions for single-packaged dedicated systems proposed in the April 2022 NOPR.
As discussed in the April 2022 NOPR, neither the current DOE test procedure nor AHRI 1250-2020 provides a method for testing single-packaged dedicated systems with multiple refrigeration circuits. As previously discussed, DOE granted RSG an interim waiver for testing multi-circuit single-packaged dedicated systems. 87 FR 43808. This test procedure is based on the single-packaged refrigerant enthalpy method discussed in section III.G.2.d of this document. The procedure is duplicated for each refrigeration circuit contained in the unit such that each circuit returns mass flow, enthalpy in, and enthalpy out values. The resultant mass flow and enthalpy values are used to calculate the gross refrigeration capacity for each circuit. Each circuit's gross capacity is then summed to determine the total capacity of the system.
In the April 2022 NOPR, DOE tentatively determined that the alternate approach would provide a reasonable method for determining the capacity of multi-circuit single-packaged dedicated systems. 87 FR 23920, 23958. However, DOE had also determined the approach may not adequately capture the heat loss associated with single-packaged dedicated systems; therefore, DOE proposed to adopt the test procedures in section C8 of AHRI 1250-2020 for testing single-packaged dedicated systems, with the additional requirement that the primary test would be an indoor air refrigeration capacity test where the allowable refrigeration capacity heat balance is 6 percent.
In response to the April 2022 NOPR, HTPG commented that it agreed with DOE's proposal for testing multi-circuit single-packaged dedicated systems. (HTPG, No. 32 at p. 6) DOE is adopting the test procedure as proposed in the April 2022 NOPR into appendix C1.
As discussed in the April 2022 NOPR, the current DOE test procedure for single-packaged dedicated systems does not provide representative values for single-packaged dedicated systems that use CO
In response, HTPG stated that it agreed with DOE's proposal for the air enthalpy test procedure for CO
As discussed in section III.A.2.g, DOE is aware of refrigeration systems that are installed with the evaporator unit exchanging air through the wall or ceiling of the walk-in, but with the condensing unit installed remotely and connected to the evaporator with refrigerant lines. DOE has defined this equipment as a “detachable single-packaged dedicated system.” Neither appendix C nor AHRI 1250-2020 contain provisions for testing detachable single-packaged dedicated systems. DOE is aware that, currently, detachable single-packaged dedicated systems may be tested either with the condensing unit and unit cooler housings separated or mounted adjacent to each other, the latter of which is the more common arrangement for single-packaged dedicated systems. Testing in the latter arrangement would account for the heat loss of the evaporator installation, and any additional heat loss from the condensing unit being mounted to the evaporator unit; therefore, in the April 2022 NOPR, DOE proposed as part of the new appendix C1 and 10 CFR 429.53(a)(2)(i)(C) that detachable single-packaged dedicated systems would be tested using the test procedure for
HTPG and Lennox agreed with the proposal. (HTPG, No. 32 at p. 6; Lennox, No. 35 at p. 5) AHRI, on behalf of wine cellar manufacturers stated that the proposal is sufficient. (AHRI-Wine, No. 30 at p. 4) RSG agreed with the proposal if the calibrated box method is included in allowable test methods. (RSG, No. 41 at p. 2) As discussed in section III.G.2.e, DOE is adopting the test provisions outlined in the interim waiver granted to RSG in July 2022. These include a calibrated box test procedure for single-packaged dedicated systems.
AHRI stated that the current test procedure is sufficient. (AHRI, No. 30 at p. 8) DOE interprets this comment as AHRI stating that the DX dual instrumentation method is sufficient for detachable single-packaged dedicated units. As discussed in section III.G.2.d, DOE's testing, in addition to information received in waivers for testing of single-packaged dedicated systems, indicates that the DX dual instrumentation method is inappropriate for single-packaged units.
Since detachable single-packaged dedicated systems have thermal losses similar to those for single-packaged dedicated systems, DOE is adopting the test procedure for detachable single-packaged dedicated systems as proposed in the April 2022 NOPR (87 FR 23920, 23959) into appendix C1.
AHRI-Wine also requested clarification for whether wine cellar manufacturers must test all configurations or the most common if multiple configurations apply to a single system. (AHRI-Wine, No. 30 at p. 2) The definition of “detachable single-packaged dedicated system” that DOE is adopting in this final rule states that it is a system that can be configured as either a split system or as a single-packaged dedicated system. Based on the procedure DOE is adopting, such a system would be tested as a single-packaged dedicated system.
As discussed in section III.A.2.f, DOE is aware of refrigeration systems that are sold as matched systems and permanently attached to each other with beams. In this final rule, DOE is defining these systems as “attached split systems.” DOE has confirmed through testing that these systems still experience some heat leakage when compared to traditionally installed systems that have the dedicated condensing unit and the unit cooler in separate housings. However, this heat leakage has not been studied extensively and DOE is aware that it may be difficult to calculate.
DOE proposed in the April 2022 NOPR testing attached split systems as a matched pair using refrigerant enthalpy methods. 87 FR 23920, 23959. HTPG agreed with the proposal. (HTPG, No. 32 at p. 7) In this final rule, DOE is adopting the test procedure as proposed in the April 2022 NOPR into appendix C1 and 10 CFR 429.53(a)(2)(i)(D).
As discussed in the April 2022 NOPR, DOE recognizes that testing high-temperature freezer refrigeration systems at a consistent test condition is important to ensure test procedure consistency and to provide comparable performance values in the market. 87 FR 23920, 23961. DOE acknowledges that testing high-temperature freezer refrigeration systems at a temperature less than 35 °F would be more representative of their actual energy use; however, it is not clear if the potential additional test burden justifies including an additional test condition for walk-in cooler refrigeration systems. Therefore, in the April 2022 NOPR, DOE determined that medium-temperature dedicated condensing units used in high-temperature freezer applications would continue to be tested according to appendix C.
In response to the April 2022 NOPR, HTPG stated that it agreed with DOE continuing to test high-temperature freezers in accordance with appendix C. (HTPG, No. 32 at p. 7) The Efficiency Advocates encouraged DOE to establish a standardized rating temperature for high-temperature freezers that is below 35 °F, since it is more characteristic of the temperature that these products operate between. (Efficiency Advocates, No. 37 at p. 3) As discussed in the April 2022 NOPR, DOE acknowledges that testing high-temperature freezer refrigeration systems at a temperature less than 35 °F would be more representative of their actual energy use; however, doing so would require an additional test condition. At this time, DOE does not think the relatively small gain in representativeness that this additional test condition would provide justifies the additional test burden for evaluating the performance of walk-in cooler refrigeration systems. Therefore, DOE is maintaining its determination to keep testing systems for high-temperature freezer applications as medium-temperature systems.
As discussed previously in section III.A.2.c, DOE is aware of wine cellar (high-temperature) refrigeration systems that fall within the definition of “walk-in” but operate at a temperature range of 45 °F to 65 °F and, therefore, are incapable of being tested in a manner that would yield a representative average use cycle under the current version of the walk-in test procedure. DOE has granted waivers or interim waivers to the manufacturers listed in Table I.1 for an alternate test procedure for specific basic models of single-packaged dedicated systems, matched pair, and unit cooler-only high-temperature refrigeration systems.
In the April 2022 NOPR, DOE proposed to include provisions for testing and rating high-temperature matched-pair systems that specify an air entering dry-bulb temperature of 55 °F. 87 FR 23920, 23961. DOE also proposed to test high-temperature refrigeration systems that are single-packaged dedicated systems using one of the following methods, as specified in Table C4 of AHRI 1250-2020: indoor air enthalpy, outdoor air enthalpy, compressor calibration, indoor room calorimeter, outdoor room calorimeter, balanced ambient indoor calorimeter, or balanced ambient outdoor calorimeter.
In response to the April 2022 NOPR, the Efficiency Advocates commented that they support adding unique test procedures for high-temperature walk-ins. (Efficiency Advocates, No. 37 at p. 2)
The alternate test approach in the waivers requires that testing of ducted units be conducted at 50 percent of the maximum external static pressure (“ESP”), subject to a tolerance of −0.00/+0.05 in. wc.
AHRI-Wine stated that wine cellar manufacturers agree with the proposed ESP requirements for ducted units; however, they commented that the proposed procedure for when ESP is not provided represents an unrealistic reduction in airflow. (AHRI-Wine, No. 30 at p. 4) AHRI-Wine provided no data or alternative recommendation for a procedure when ESP is not provided. DOE has determined that the two-thirds air volume rate is an appropriate value to use when no maximum ESP is provided. DOE notes that manufacturers can provide maximum ESP to avoid testing using the two-thirds air volume rate.
AHRI-Wine also commented that wine cellar manufacturers seek clarification about whether the air surrounding the ducted evaporator or ducted condenser must be at the required 90 °F indoor temperature. (AHRI-Wine, No. 30 at p. 3) Furthermore, wine cellar manufacturers recommended that all wine cellar units, regardless of specified condenser location, be tested only at 90 °F to clarify the test procedure and reduce test burden.
In the April 2022 NOPR, DOE proposed test procedures for variable-, two-, and multiple-capacity condensing units. The proposals addressed numerous aspects of how such systems would be tested, including (a) test conditions (saturated suction temperature and suction temperature) for part-load operation, (b) compressor operating levels for part-load testing, (c) default unit cooler fan wattage to use in AWEF2 calculations as a function of compressor operating level, and (d) calculation of AWEF2 using multiple levels of compressor operation. 87 FR 23920, 23962-23967.
In response to the DOE's proposal, some comments addressed the need for test procedures for multi-/variable-capacity condensing units and the potential utility and cost-effectiveness of such systems. Specifically, AHRI and KeepRite commented that the market for such systems is very small, and that the small market size is not driven by lack of test method. AHRI and KeepRite further stated that variable-capacity system purchases are driven by temperature operating tolerance requirements rather than energy savings and suggested that energy cost savings would not offset upfront purchase and installation costs. (AHRI, No. 30 at p. 8; KeepRite, No. 36 at p. 3) National Refrigeration commented that there is no need for multi-/variable-capacity test procedures at this time, indicating also that there is limited to no evidence that variable-capacity units are more efficient. (National Refrigeration, No. 39 at p. 2) In response, DOE notes that the DOE test procedures already include test methods for variable-, two-, and multi-capacity matched-pair refrigeration systems through incorporation by reference of AHRI 1250-2009. With the proposal and this final rule, DOE is extending this test method to dedicated condensing units tested alone, which was included in the ASRAC Term Sheet. (Docket EERE-2015-BT-STD-0016, No. 56 at p. 3, recommendation #6)
Despite questions about the need for test procedures for variable-, two-, and multi-capacity condensing units, AHRI and KeepRite did indicate that the proposal was reasonable. (AHRI, No. 30 at p. 8; KeepRite, No. 36 at p. 4) Other commenters' overall comments were generally supportive regarding DOE's proposed test methods. (RSG, No. 41 at p. 2; CA IOUs, No. 42 at p. 1; Efficiency Advocates, No. 37 at p. 2)
DOE requested comment on its assumptions regarding the unit cooler with which a two-, multi-, or variable-capacity condensing unit rated alone would be paired in the field, including whether the unit cooler fan(s) would have a full speed and a half-speed, the compressor operating level at which the unit cooler fan(s) would switch to half-speed, and the half-speed wattage of the fan(s). 87 FR 23920, 23966.
AHRI and KeepRite commented that a calculation method should be allowed for unit cooler fan power rather than just high or low speed, indicating that some variable compressor systems would reduce capacity only to 75 percent of full capacity and would not realize a gain from unit cooler fan power. (AHRI, No. 30 at pp. 8-9; KeepRite, No. 36 at p. 4) DOE understands this comment to mean that there would be limited efficiency gain for a variable-speed compressor whose lowest capacity is no lower than 75 percent of full capacity, and that it would be important to consider optimization of unit cooler fan speed. National Refrigeration commented that requiring a variable-speed or two-speed unit cooler fan would be ideal, but the effectiveness is unknown and more research is necessary to determine how to handle it. (National Refrigeration, No. 24 at p. 2) Lennox commented that unit coolers with which two-, multi-, and variable-capacity dedicated condensing units are paired may use technology in addition to two-speed fans, such as electronic expansion valves (“EEVs”), dampers, or other electronic control valves. (Lennox, No. 35 at p. 6)
In response, DOE notes that if a manufacturer decides to optimize unit cooler fan operation or other design details for a given condensing unit's compressor technology, the manufacturer has the option of certifying the two components together as a matched pair—this is already an established part of the test procedure for outdoor matched pairs, and DOE is extending the approach to indoor matched pairs in this document (
DOE notes that the test method under consideration applies to dedicated condensing units tested alone—these units would be paired with a unit cooler in the field, so it is not clear what technology the paired unit cooler might have. For this reason, DOE developed the proposal for two-, multi-, and variable-capacity dedicated condensing units based on the assumption of limited unit cooler technology options. DOE's analysis suggests that use of part-load compressor operation has limited to no efficiency benefit when the unit cooler fan(s) run at full speed. However, DOE is aware that many unit coolers are now sold with two-speed fan motors to meet the current energy conservation standards. (No. 44 at p. 2) Hence, DOE determined that it is reasonable to assume that field matches of dedicated condensing units tested alone would involve, at minimum, a unit cooler with
Some commenters indicated that, although unit cooler fans may have two speeds, the low speed may be triggered by the off-cycle rather than by on-cycle compressor operation. (AHRI, No. 30 at p. 8; Lennox, No. 35 at p. 6; National Refrigeration, No. 39 at p. 2) As mentioned, DOE concluded that running unit cooler fans at full speed during part-load operation significantly limits the part-load efficiency benefits. Given the prevalence of unit coolers being sold with two-speed fans, DOE concludes it is reasonable to assume that such unit coolers would be controlled to allow two-speed fan operation during part-load when field-matched with a two-, multi-, or variable-speed dedicated condensing unit.
DOE requested comment on its assumptions regarding the compressor operating level at which the unit cooler fan(s) would switch from full- to half-speed operation. 87 FR 23920, 23966. AHRI commented that no change was needed, and National Refrigeration was supportive. (AHRI, No. 30 at p. 9; National Refrigeration, No. 39 at p. 2) No commenters suggested that switching to half-speed operation should occur at different compressor operating levels. Hence, DOE is finalizing the test procedure using the same 65 percent compressor operating level below which the unit cooler fan(s) would be assumed to operate at half-speed.
DOE requested comment on the proposal that the unit cooler fan half-speed power input would be 20 percent of full speed power. 87 FR 23920, 23966. Several commenters agreed with this approach. (AHRI, No. 30 at p. 9; National Refrigeration, No. 39 at p. 2; Lennox, No. 35 at p. 6) DOE is finalizing its test procedure using the 20 percent half-speed power level.
DOE requested comment on the compressor part-load operating levels for multi- and variable-speed dedicated condensing units tested alone. 87 FR 23920, 23966. Lennox, AHRI, and National Refrigeration supported the proposed levels. (Lennox, No. 35 at p. 6; AHRI, No. 30 at p. 9, National Refrigeration, No. 39 at p. 2) DOE is finalizing the test procedure using the compressor part-load operating levels proposed in the April 2022 NOPR.
Regarding the test conditions proposed for part-load operation of variable-, two-, or multiple-capacity dedicated condensing units, several commenters suggested that the differing refrigerant conditions specified for the different tests were excessively complex and should be simplified. (AHRI, No. 30 at p. 9; Lennox, No. 35 at p. 6; National Refrigeration, No. 39 at p. 2) In response to DOE's specific question about whether a tabular method for specifying test operating conditions or a correlation-based approach should be used, Lennox expressed a clear preference for a tabular approach, indicating that the correlation approach may provide more flexibility but would require more data collection and should be evaluated for accuracy. (Lennox, No. 35 at p. 6) Other commenters did not express a clear position. For example, AHRI commented that, while the correlation approach may provide more flexibility, it should be used only if it is shown to be more accurate. (AHRI, No. 30 at p. 9)
DOE's intent in allowing different suction conditions for testing was to make the test method more representative of actual operation, in which unit cooler effectiveness would improve at part load, suction line pressure drop would decrease, and suction line heat transfer would be more effective. These factors would combine generally to raise the dedicated condensing unit inlet pressure (specified as saturated suction temperature in the test procedures) and also the suction temperature. 87 FR 23920, 23964.
Some commenters indicated that these variations would make little impact in test results. (Lennox, No. 35 at p. 6) DOE analyzed the proposed test conditions to evaluate this statement for outdoor refrigeration systems using R-448A, calculating the impact on compressor EER
DOE proposed in the April 2022 NOPR to establish test procedures for indoor matched-pair and single-
National Refrigeration stated that indoor matched pairs have less potential for part-load energy savings than their outdoor counterparts due to their constant condensing inlet temperature. (National Refrigeration, No. 39 at p. 2) KeepRite stated that the proposed approach for indoor matched pairs is acceptable, even though these units have even less potential for part-load energy savings due to the constant condenser inlet temperature. (KeepRite, No. 36 at p. 4) DOE understands that these commenters were referring to constant condenser air inlet temperature, which would result in constant condensing temperature. Lennox supported the proposal to establish test methods for indoor two-, multi-, or variable-capacity condensing units tested alone. (Lennox, No. 35 at p.6) No commenters indicated that DOE should not establish test methods for such systems. Hence, DOE is adopting the test method as proposed.
In the April 2022 NOPR, DOE proposed to revise the EER calculations for outdoor variable-capacity and multiple-capacity refrigeration systems to use a piecewise linear calculation approach rather than the parabolic equation provided in AHRI 1250-2020. 87 FR 23920, 23966. DOE did not receive any comments specifically addressing this proposal and is finalizing the test procedure with the revisions as proposed.
In the April 2022 NOPR, DOE discussed specific proposals associated with digital compressors. To clarify the test procedure for digital compressors, DOE proposed to define “digital compressor” as a compressor that uses mechanical means for disengaging active compression on a cyclic basis to provide a reduced average refrigerant flow rate in response to an input signal. 87 FR 23920, 23967. DOE received no comments specifically addressing the digital compressor definition and will adopt the definition as proposed.
As discussed in the April 2022 NOPR, DOE had conducted testing and found that the refrigerant enthalpy method for measuring capacity is accurate if the liquid subcooling at the mass flow meter is sufficiently low, as required in section C3.4.5 of AHRI 1250-2020.
DOE also proposed that the selection of the primary test method for measuring capacity would depend on the refrigeration system configuration.
Lennox supported the proposals for the part-load test procedure for refrigeration systems with digital compressors. (AHRI, No. 30 at p. 10; Lennox, No. 35 at p. 7) KeepRite and AHRI commented that the refrigerant enthalpy method may be unreliable for digital compressors because they cannot achieve steady state. However, these commenters did not provide evidence that the method would be unreliable. (KeepRite, No. 36 at p. 4; AHRI, No. 30 at p. 9) KeepRite and AHRI also indicated that 1-second intervals for power measurements would not be sufficient for energy measurement of digital compressors and that integrating power meters must be used.
DOE notes that the industry standard, AHRI 1250-2020, already has a requirement that energy measurements be made using an integrating watt-hour meter and that power measurements be made with a sampling rate of no less than 1 per second (
The current test procedure references section C11 of AHRI 1250-2009 to measure defrost. In section C11 of AHRI 1250-2009, the moisture to provide a frost load is introduced through the infiltration of air at a 75.2 °F dry-bulb temperature and a 64.4 °F wet-bulb temperature into the walk-in freezer at a constant airflow rate that depends on the refrigeration capacity of the tested freezer unit (Equations C11 and C12 in section C11.1.1 of AHRI 1250-2009). A key issue with this approach is the difficulty in ensuring repeatable frost development on the unit under test, despite specifying the infiltration air dry-bulb and wet-bulb temperatures. For example, in addition to frost accumulating on the evaporator of the unit under test, frost may also accumulate on the evaporator of other cooling equipment used to condition the room, which could subsequently affect the rate of frost accumulation on the unit under test by affecting the amount of moisture remaining in the air.
Since there are recognized limitations to the defrost test procedure in section C11 of AHRI 1250-2009, AHRI 1250-
In response to the April 2022 NOPR, HTPG commented that it agreed with the proposal to incorporate the entirety of Section C10 of AHRI 1250-2020, except for section C10.2.1.1. (HTPG, No. 32 at p. 7) HTPG also agreed that all systems would use the same default calculated values to rate defrost power.
The CA IOUs stated that they support DOE adopting a test method for measuring defrost energy use in a future test procedure and that if DOE adopts a test method, DOE should reconsider the frequency at which defrost is used. (CA IOUs, No. 42 at p. 2) DOE will continue to evaluate defrost energy use and may address defrost energy in a future test procedure rulemaking. In this final rule, DOE is adopting the procedures as proposed in the April 2022 NOPR in appendix C1.
Adaptive defrost refers to a factory-installed defrost control system that reduces defrost frequency by initiating defrosts or adjusting the number of defrosts per day in response to operating conditions, rather than initiating defrost strictly based on compressor run time or clock time. 10 CFR 431.303. In the April 2022 NOPR, DOE proposed to maintain its current requirements for adaptive defrost. 87 FR 23920, 23969. DOE received no comments on its proposal. In this final rule, DOE is maintaining the current regulatory approach to include the optional representation strategy for adaptive defrost.
In the April 2022 NOPR, DOE proposed that manufacturers may account for a unit's potential improved performance with hot gas defrost in its market representations. 87 FR 23920, 23970. DOE proposed that this hot gas defrost “credit” may be used in marketing materials for all refrigeration system varieties sold with hot gas defrost (
However, due to the variation of hot gas defrost applications across the refrigeration systems market, and a lack of consensus on the definition of “hot gas defrost” systems (
Refrigerant glide refers to the increase in temperature at a fixed pressure as liquid refrigerant vaporizes during its conversion from saturated liquid (at its bubble point) to saturated vapor (at its dew point). R-404A—a common walk-in refrigerant—has very little glide, while R-407A—another common walk-in refrigerant—can exhibit glide of up to 8 °F.
The current DOE test procedure specifies unit cooler test conditions based on the dew point at the evaporator exit. For zero-glide refrigerants, the average evaporator temperature will typically be equivalent to the specified dew point. However, for high-glide refrigerants, the average evaporator temperature will be significantly lower than the dew point since the refrigerant temperature will increase (up to the dew point) as it travels through the evaporator. As a result, two identical unit coolers, one charged with R-404A and one with R-407A, will be tested at different evaporator-to-air temperature differences (“TD”), but with the same evaporator airflow. Measured capacity is directly correlated with the product of TD and airflow; therefore, the high-glide R-407A unit cooler would achieve a higher rated capacity than the R-404A unit cooler. However, this capacity difference is an artifact of the test procedure, which requires that unit coolers and dedicated condensing units be tested alone. In the field, a unit cooler will be paired with a dedicated condensing unit, and R-407A unit coolers will not actually provide additional capacity when compared to their R-404A counterparts. For these reasons, the current test procedure is not refrigerant-neutral.
In the April 2022 NOPR, DOE discussed how the current test procedure is not refrigerant-neutral in terms of high-glide and zero-glide refrigerants because it uses dewpoint throughout the test procedure. 87 FR 23920, 23970. DOE also discussed the modified midpoint approach, which is more refrigerant-neutral. The modified midpoint approach attempts to standardize the average evaporator temperature, rather than standardizing the evaporator dew point. In doing so, identical unit coolers using zero- and high-glide refrigerants would exhibit identical TDs, thus alleviating concerns of overstated capacity.
While a modified midpoint approach may be more refrigerant-neutral, DOE notes that the AHRI 1250-2020, which DOE is referencing in appendix C1, uses a dewpoint rather than a modified midpoint approach. DOE does not have enough information at this time to justify the use of a modified midpoint approach. As a result, in the April 2022 NOPR, DOE proposed to continue to use dew point throughout the test procedure.
In response to the April 2022 NOPR, HTPG commented that it disagrees with the midpoint approach and suggested maintaining the dew point approach. (HTPG, No. 32 at p. 7) DOE is adopting the proposal from the April 2022 NOPR and continuing to specify refrigerant conditions using dew point.
As discussed in the April 2022 NOPR, the specified superheat in AHRI 1250-2020 differs from the current DOE test procedure for dedicated condensing unit efficiency calculations, but there is no effective difference in where the required pressure and temperature measurements should be taken on the equipment under test. 87 FR 23920, 23971. However, Figure C2 in AHRI 1250-2020 suggests that the use of a suction line mass flow meter for these measurements is not allowed. In the April 2022 NOPR, DOE proposed to clarify that a second mass flow meter in the suction line would be allowed with the adoption of AHRI 1250-2020.
AHRI also commented that DOE should only reference AHRI 1250-2020, not both AHRI 1250-2020 and AHRI 1250-2009, for the location of flow meters. (AHRI, No. 30 at p. 10) DOE is clarifying that only AHRI 1250-2020 will be referenced in appendix C1, and that AHRI 1250-2009 is mentioned in this discussion only to explain the intention of the proposal. Therefore, DOE is adopting the test procedure as proposed in the April 2022 NOPR.
As discussed in section III.B.3.c, Sections 7.9.1 and 7.9.2 of AHRI 1250-2020 add new equations to calculate on-cycle evaporator fan power when testing a dedicated condensing unit alone. These equations are different from those in the current test procedure in appendix C, which calculates on-cycle evaporator fan power based on the cooling capacity of the condensing unit. The equations in AHRI 1250-2020 are based on more test data and analysis than those currently in appendix C. In the April 2022 NOPR, DOE proposed to adopt the calculations for on-cycle evaporator fan power for dedicated condensing units tested alone as prescribed in AHRI 1250-2020. 87 FR 23920, 23971-23972.
AHRI, HTPG, Lennox, and RSG agreed with the proposed on-cycle evaporator fan power calculations. (AHRI, No. 30 at p. 10; HTPG, No. 32 at p. 7; Lennox, No. 35 at p. 7; RSG, No. 41 at p. 2) DOE is adopting the test procedure as proposed in the April 2020 NOPR.
In the April 2022 NOPR, DOE proposed new rounding requirements for AWEF and capacity to ensure greater test procedure consistency. 87 FR 23920, 23972. DOE clarifies here that the rounding requirements proposed in the April 2022 NOPR should have been for AWEF2 and not AWEF, which means that any rounding requirements would become effective when appendix C1 becomes effective.
DOE recognizes that the way values are rounded can affect the resulting capacity and AWEF2 values. To ensure consistency in calculating capacity and AWEF2 values, DOE proposed in the April 2022 NOPR that raw measured data be used in all capacity and AWEF2 calculations.
AHRI, HTPG, KeepRite, Lennox, and National Refrigeration recommended that AWEF2 values be rounded to the nearest 0.01 Btu/(W-h), as current standards are taken to that precision. (AHRI, No. 30 at pp. 10-11; HTPG, No. 32 at p. 8; KeepRite, No. 36 at p. 4; Lennox, No. 35 at p. 7; National Refrigeration, No. 39 at p. 2) DOE agrees that rounding to the nearest 0.05 Btu/(W-h) as proposed may cause confusion. Therefore, DOE is requiring that AWEF2 values be rounded to the nearest 0.01 Btu/(W-h).
AHRI, AHRI-Wine, and RSG agreed with the proposed capacity ranges and respective rounding requirements. (AHRI, No. 30 at p. 10; AHRI-Wine, No. 30 at p. 4; RSG, No. 41 at p. 2) DOE is adopting the capacity rounding requirements as proposed in the April 2022 NOPR and summarized in Table III.7.
Pursuant to the requirements of 10 CFR 429.70, DOE may permit use of an AEDM in lieu of testing equipment for which testing burden may be considerable and for which that equipment's energy efficiency performance may be well predicted by such alternative methods. Although specific requirements vary by product or equipment, use of an AEDM entails development of a mathematical model that estimates energy efficiency or energy consumption characteristics of the basic model, as would be measured by the applicable DOE test procedure. The AEDM must be based on engineering or statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data. A manufacturer must perform validation of an AEDM by demonstrating that the performance, as predicted by the AEDM, agrees with the performance as measured by actual testing in accordance with the applicable DOE test procedure. The validation procedure and requirements, including the statistical tolerance, number of basic models, and number of units tested vary by product or equipment.
Once developed, an AEDM may be used to rate and certify the performance of untested basic models in lieu of physical testing. However, use of an AEDM for any basic model is always at the option of the manufacturer. One potential advantage of AEDM use is that it may free a manufacturer from the burden of physical testing. One potential risk is that the AEDM may not perfectly predict performance, and the manufacturer could be found responsible for having an invalid rating for the equipment in question or for having distributed a noncompliant basic model. The manufacturer, by using an AEDM, bears the responsibility and risk of the validity of the ratings. For walk-ins, DOE currently permits the use of AEDMs for refrigeration systems only. 10 CFR 429.70(f).
In a final rule published on May 13, 2014, DOE established that AEDMs can be used by walk-in refrigeration manufacturers, once certain qualifications are met, to certify compliance and report ratings. 79 FR 27388, 27389. That rule established a uniform, systematic, and fair approach to the use of these types of modeling techniques that has enabled DOE to ensure that products in the marketplace are correctly rated—irrespective of whether they are subject to actual physical testing or are rated using modeling—without unnecessarily burdening regulated entities.
DOE is adopting new test procedures for single-packaged dedicated systems, high-temperature refrigeration systems, and CO
Implementation of appendix C1 will require that all AEDMs for single-packaged dedicated systems are amended to be consistent with the test procedure proposed in appendix C1.
The AEDM validation classes for walk-in refrigeration equipment DOE proposed in the April 2022 NOPR are as follows:
Additionally, DOE proposed in the April 2022 NOPR to maintain the provision that outdoor models within a given validation class may be used to determine represented values for the corresponding indoor class, and additional validation testing is not required. 87 FR 23920, 23973. For example, two medium-temperature outdoor dedicated condensing units may be used to validate an AEDM for both the “Dedicated Condensing Unit, Medium-Temperature, Outdoor System” class and the “Dedicated Condensing Units, Medium-Temperature, Indoor System” class. If indoor models that fall within a given validation class are tested and used to validate an indoor AEDM, however, that test data may not be used to validate the equivalent outdoor validation class.
In the April 2022 NOPR, DOE proposed no additional modifications to the walk-in specific AEDM provisions within 10 CFR 429.70(f).
AHRI, Lennox, National Refrigeration, and RSG agreed with the proposed AEDM validation classes. (AHRI, No. 30 at p. 11; Lennox, No. 35 at p. 8; National Refrigeration, No. 39 at p. 2; RSG, No. 41 at p. 3) HTPG agreed with DOE's proposals to (1) add single-packaged dedicated system validation classes, (2) to rename “unit cooler connected to a multiplex condensing unit” validation classes to “unit cooler,” and (3) to remove medium-/low-temperature indoor/outdoor condensing unit validation classes to eliminate redundancy. (HTPG, No. 32 at p. 8) AHRI-Wine agreed with the proposed validation classes. (AHRI-Wine, No. 30 at p. 4)
AHRI-Wine requested clarification on whether there are AEDM validation classes for high-temperature dedicated condensing units.
DOE is adopting the AEDM validation classes for refrigeration systems as proposed in the April 2022 NOPR.
As discussed in the April 2022 NOPR, DOE uses appendix B to subpart C of 10 CFR part 429 to assess compliance for walk-in refrigeration systems, which is specifically intended for use for covered equipment and certain low-volume covered products. 87 FR 23920, 23973. DOE does not specifically reference which appendix in subpart C of 10 CFR part 429 it uses for determination of compliance for walk-in doors or walk-in panels. In an Enforcement NOPR published on August 31, 2020 (“August 2020 Enforcement NOPR”), DOE proposed to add walk-in cooler and freezer doors and walk-in panels to the list of equipment subject to the low-volume enforcement sampling procedures in appendix B to subpart C of 10 CFR part 429. 85 FR 53691, 53696. DOE noted that this equipment is not currently included within DOE's list because when the current regulations were drafted, walk-in doors and walk-in panels did not have applicable performance standards, only design standards, and therefore sampling provisions were not necessary at the time. In the April 2022 NOPR, DOE proposed to include walk-in doors and walk-in panels in the list of covered equipment and certain low-volume products at 10 CFR 429.110(e)(2). 87 FR 23920, 23973.
AHRI, Hussmann, Bally, and RSG all requested clarification on the definition of “low-volume.” (AHRI, No. 30 at p. 11; Hussmann, No. 34 at p. 4; Bally, No. 40 at p. 5; RSG, No. 41 at p. 3)
DOE does not define a numerical threshold for “low-volume” or “high-volume” products and equipment, and for some products and equipment the Department may consider volume on a case-by-case basis. DOE created the “low-volume” designation to separate built-to-order equipment from pre-manufactured, off the shelf products, providing built-to-order equipment a longer time period to ship a basic model. 76 FR 12421, 12435. In the context of enforcement, 10 CFR 429.110(e)(1) states that DOE will use a sample size of not more than 21 units and follow the sampling plans in appendix A to subpart C of 10 CFR part 429 to determine compliance with the applicable DOE standards for high-volume equipment, while DOE will use a sample size of not more than 4 units and follow the sampling plans in appendix B to subpart C of 10 CFR part 429 to determine compliance with the applicable DOE standards for low-volume equipment. As specified in 10 CFR 429.110(b), units selected for
DOE is adopting the enforcement sampling plan as proposed in the April 2022 NOPR.
Bally also asked for clarification regarding how the low-volume sampling procedures work when coupled with new section 5.4.3 of appendix B to subpart R of 10 CFR part 431. (Bally, No. 40 at p. 5) Bally asked whether appendix B to subpart C of 10 CFR part 429 is a restatement of 10 CFR 429.53(a)(3)(ii)(B)(
In the April 2020 NOPR, DOE proposed a number of non-substantive organizational changes. 87 FR 23920, 23977. As discussed previously, DOE proposed to reorganize appendices A and B so that they are easier for stakeholders to follow as a step-by-step test procedure. Additionally, DOE proposed to remove the specifications at 10 CFR 429.53(a)(2)(i) regarding specific test procedure provisions and instead include these provisions in the uniform test method section at 10 CFR 431.304. The intent of this proposed change was to move provisions of the applicable test procedure to the appropriate place in subpart R, rather than keeping them under the provisions for determining represented values for certification. However, DOE proposed to keep the additional detail regarding the represented values of various configurations of refrigeration systems (
DOE received no comment on these proposals regarding organizational changes and therefore is adopting them as proposed in the April 2022 NOPR.
EPCA requires that test procedures proposed by DOE be reasonably designed to produce test results which reflect energy efficiency and energy use of a type of industrial equipment during a representative average use cycle and not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) The following sections discuss DOE's evaluation of the estimated costs and savings associated with the amendments in this final rule.
In this document, DOE is adopting the following amendments to the test procedures in appendix A for walk-in cooler and freezer doors:
• Referencing NFRC 102-2020 for the determination of U-factor;
• Including AEDM provisions for manufacturers to alternately determine the total energy consumption of display and non-display doors;
• Providing additional detail for determining the area used to convert U-factor into conduction load, A
• Specifying a PTO value of 97 percent for door motors.
The first and third amendments, referencing NFRC 102-2020 and additional detail on the area used to convert U-factor into a conduction load, improve the consistency, reproducibility, and representativeness of test procedure results. The second amendment, including AEDM provisions, intends to provide manufacturers with the flexibility to use an alternative method to testing that provides good agreement for their doors. The fourth amendment, including a PTO value of 97 percent, intends to provide a more representative and consistent means for comparison of walk-in door performance for doors with motors.
DOE has determined that these proposed amendments would improve the representativeness, accuracy, and reproducibility of the test results, and would not be unduly burdensome for door manufacturers to conduct. DOE has also determined that these proposed amendments would not increase testing costs per basic model relative to the current DOE test procedure in appendix A, which DOE estimates to be $10,000 for third-party labs to determine energy consumption of a walk-in door, including physical U-factor testing per NFRC 102-2020.
The cost impact to manufacturers as a result of the reference to NFRC 102-2020 and inclusion of AEDM provisions is dependent on the agreement between tested and simulated values as specified in section 4.7.1 of NFRC 100-2010
For manufacturers of doors that have not been able to achieve the specified agreement between U-factors simulated using the method in NFRC 100-2010 and U-factors tested using NFRC 102-2020, DOE estimates that the test burden would decrease. Under the current requirements, manufacturers may be required to determine U-factor through physical testing of every basic model. With the new test procedure,
DOE expects that the additional detail provided for determining the area used to convert U-factor into conduction load, A
For doors without motors, DOE has concluded that the proposed test procedure would not change energy consumption ratings, which would not require rerating solely as result of DOE's adoption of this amendment to the test procedure. Therefore, DOE has determined all proposed amendments either decrease or result in no additional testing costs to manufacturers of walk-in doors.
To the extent that changes to the test procedure would amend the energy consumption attributable to a door motor, such changes would either not change the calculated energy consumption or result in a lower energy consumption value as compared to the currently granted waivers addressing door motors. As such, DOE expects that manufacturers would be able to rely on data generated under the current test procedure and current waivers. While manufacturers must submit a report annually to certify a basic model's represented values, basic models do not need to be retested annually. The initial test results used to generate a certified rating for a basic model remain valid if the basic model has not been modified from the tested design in a way that makes it less efficient or more consumptive, which would require a change to the certified rating. If a manufacturer has modified a basic model in a way that makes it more efficient or less consumptive, new testing is only required if the manufacturer wishes to make claims using the new, more efficient rating.
In the April 2022 NOPR, DOE requested comment on its understanding of the impact of the test procedure proposals for appendix A. 87 FR 23920, 23979.
AHRI stated that it is unable to determine or comment on impact until it understands the AEDM for doors. (AHRI, No. 30 at p. 11) DOE has provided additional detail regarding AEDMs in section III.C.1 of this document and estimates that the test burden would decrease for the industry as a whole.
Bally commented that the $11,000 estimated cost for U-factor testing doesn't consider the cost of materials. (Bally, No. 40 at p. 5) DOE has determined that the DOE test procedure for walk-in doors is non-destructive and that units can therefore be recovered after testing. For this reason, DOE does not include the cost of the unit under test.
While stakeholders did not specifically recommend including freight costs in the test cost estimates for walk-in doors, they did recommend including freight costs in the test cost estimates for walk-in refrigeration systems (discussed in section III.K.3 of this document). DOE acknowledges that freight costs are an additional expense associated with third-party testing. Therefore, to be consistent with the estimates provided for refrigeration system testing, DOE has estimated the cost of round-trip freight. DOE estimates that the shipping cost for a walk-in box from a manufacturing facility to a test lab can range from $800 to $2,500 depending on the relative locations of the two facilities, the weight and size of the unit being shipped, and the discounts associated with shipping multiple units at one time. Thus, DOE estimates the round-trip freight costs as ranging from $1,600 to $5,000.
In this final rule, DOE is amending the existing test procedure in appendix B for measuring the R-value of insulation of panels by:
• Incorporating by reference the updated version of the applicable industry test method, ASTM C518-17;
• Including provisions specific to measurement of test specimen and total insulation thickness; and
• Providing a method for determining the parallelism and flatness of the test specimen.
The first amendment incorporates by reference the most up-to-date version of the industry standards currently referenced in the DOE test procedure. The second and third amendments include additional instructions intended to improve consistency and reproducibility of test procedure results.
DOE has determined that these proposed amendments would improve the accuracy and reproducibility of the test results and would not be unduly burdensome for manufacturers to conduct, nor would they be expected to increase the testing burden.
DOE expects that the proposed test procedure in appendix B for measuring the R-value of insulation would not increase testing costs per basic model relative to the current DOE test procedure, which DOE estimates to be $1,200 for third-party laboratory testing.
In the April 2022 NOPR, DOE requested comment on its understanding of the impact of the test procedure proposals for appendix B. 87 FR 23920, 23975.
AHRI agreed with DOE's understanding of the impact of the test
Because the test procedure for walk-in panels is destructive and that units cannot be recovered after testing, DOE is including in its evaluation the cost of the unit under test. DOE estimates the cost of a walk-in panel to range from $90 to $300, depending on size and materials used, and when testing a minimum of two units of a basic model as required by 10 CFR 429.53(a)(1), a total cost of $180 to $600 per basic model.
DOE acknowledges that freight costs are an additional expense associated with third-party testing. Therefore, DOE has estimated the cost of freight to the test facility. DOE estimates that the shipping cost for one walk-in box from a manufacturing facility to a test laboratory can range from $800 to $2,500 depending on the relative locations of the two facilities, the weight and size of the unit being shipped, and the discounts associated with shipping multiple units at one time.
DOE is adopting certain changes to appendix C that DOE has determined will improve the accuracy and reproducibility of the test results and would not be unduly burdensome for manufacturers to conduct. DOE has further determined that these changes will not impact testing cost. Additionally, the amended, appendix C measures AWEF per AHRI 1250-2009, and therefore does not contain any changes that will require retesting or rerating. The current testing costs which DOE have determined will be equivalent to the amended appendix C testing costs are summarized in this section. DOE's assessment of the impacts of the amendments of appendix C to include new test procedures for high-temperature refrigeration systems and CO
In response to the April 2022 NOPR, HTPG agreed that proposals to appendix C will not be unduly burdensome or impact cost. (HTPG, No. 32 at p. 8)
DOE is also adopting certain changes in the new appendix C1 that will amend the existing test procedure for walk-in coolers and freezers by:
• Expanding the off-cycle refrigeration system power measurements;
• Adding methods of test for single-packaged dedicated systems; and
• Including a method for testing ducted systems.
DOE has determined that these amendments will improve the representativeness, accuracy, and reproducibility of the test results, and will not be unduly burdensome for manufacturers to conduct. DOE has also determined that these amendments will impact testing costs by equipment type. DOE does not anticipate that the remainder of the amendments adopted in this final rule would impact test costs or test burden. DOE estimates third-party costs for testing to the current DOE test procedure to be:
• $10,000 for outdoor low-temperature and medium-temperature dedicated condensing units tested alone;
• $6,500 for indoor low-temperature and medium-temperature dedicated condensing units tested alone;
• $6,500 for low-temperature unit coolers tested alone;
• $6,000 for medium-temperature unit coolers tested alone;
• $10,000 for single-packaged dedicated systems; and
• $10,000 for high-temperature matched pairs.
As discussed previously in section III.G.1 of this document, DOE is adopting off-cycle test provisions in AHRI 1250-2020 for walk-in cooler and freezer refrigeration systems. The current test procedure requires off-cycle power to be measured at a single ambient condition (
Manufacturers are not required to perform laboratory testing on all basic models. In accordance with 10 CFR 429.53, WICF refrigeration system manufacturers may elect to use AEDMs. DOE estimates the per-manufacturer cost to develop and validate an AEDM for outdoor dedicated condensing units and outdoor matched-pair systems to be $24,600.
As discussed previously in section III.G.2, DOE is adopting the single-packaged dedicated system test procedure for walk-ins in AHRI 1250-2020. The procedure requires air enthalpy tests to be used as the primary test method. In the current test procedure, single-packaged dedicated systems use refrigerant enthalpy as the primary test method. DOE does not estimate a difference in physical testing costs between air and refrigerant enthalpy testing of single-packaged units. DOE estimates the per-unit third-party lab test cost to be $11,000 for outdoor single-packaged dedicated
As discussed in sections III.F.6 and III.G.6, DOE is adopting test procedures for CO
• $11,000 for a high-temperature matched-pair or single-packaged system;
• $6,000 for a high-temperature unit cooler tested alone;
• $6,500 for a low-temperature CO
• $6,000 for a medium-temperature CO
In the April 2022 NOPR, DOE requested comment on its understanding of the impact of the test procedure proposals for refrigeration systems. 87 FR 23920, 23976.
AHRI commented that a third-party lab test of a low-temperature unit cooler would be two to three times more expensive than DOE's $6,500 estimate. (AHRI, No. 30 at p. 12) Lennox stated that, in general, DOE's amendments increase work content of the test and therefore increase test costs. (Lennox, No. 35 at p. 8) Lennox also stated that the costs of their third-party lab tests have been at least double DOE's estimates.
HTPG disagreed with DOE's test cost estimates for AEDMs and stated that 40 hours of labor per refrigerant is more accurate and therefore test costs would be multiplied by the number of refrigerants. (HTPG, No. 32 at p. 8) HTPG also stated that more validation would be done by manufacturers than what was estimated to ensure an AEDM applies across a basic model family.
DOE notes that the estimated AEDM cost is per AEDM and does not make assumptions about the number of AEDMs needed based on the refrigerants used by a given manufacturer. DOE used the minimum number of tests (two) needed to validate an AEDM. While manufacturers may choose to test more units to validate an AEDM, testing more than two is not required.
AHRI stated that small original equipment manufacturers (“OEMs”) represent a significant amount of the market and will be negatively impacted by added complexity and costs. (AHRI, No. 30 at p. 12) NAFEM encouraged DOE to consider the limitation of lab capacity and the financial impacts on small businesses. (NAFEM, No. 33 at p. 2) DOE specifically discusses the test procedure burden imposed on small businesses in section IV.B of this document.
AHRI stated that EPA and DOE regulations will impact small refrigeration OEMs in a relatively immediate time frame. (AHRI, No. 30 at p. 12) NAFEM also commented that DOE should evaluate how various EPA rulemakings may impact energy efficiency improvements in the WICF manufacturing process and available products. (NAFEM, No. 33 at p. 2) DOE acknowledges that while there are other regulations that impact walk-in equipment, DOE will take cumulative regulatory burden into account in the ongoing energy conservation standards rulemaking as part of its manufacturer impact analysis.
AHRI and Lennox commented that the test cost estimates should include freight cost, unit cost, and cost of a unit to run the test. (AHRI, No. 30 at p. 12; Lennox, No. 35 at p. 8) DOE acknowledges that freight costs are an additional expense associated with third-party testing. DOE has determined that the DOE test procedure is non-destructive and that units can therefore be recovered after testing. For this reason, DOE has estimated the cost of round-trip freight, but does not include the cost of the unit under test. Additionally, DOE notes that the test procedure does not specifically require use of the unit matched to the unit under test (
DOE estimates that the shipping cost for one walk-in unit from a manufacturing facility to a test laboratory can range from $250 to $1,000 depending on the relative locations of the two facilities, the weight and size of the unit being shipped, and the discounts associated with shipping multiple units at one time. Thus, DOE estimates the round-trip freight costs as ranging from $500 to $2,000.
DOE additionally notes that it has used third-party laboratory test costs for its estimate of test costs. DOE understands that most walk-in refrigeration system manufacturers have their own test chambers. In these cases, DOE expects that its estimate for test and freight costs is conservative.
The effective date for the adopted test procedure amendment will be 30 days after publication of this final rule in the
Upon the compliance date of test procedure provisions in this final rule, any waivers that had been previously issued and are in effect that pertain to issues addressed by such provisions are terminated. 10 CFR 431.404(h)(3). Recipients of any such waivers are required to test the products subject to the waiver according to the amended test procedure as of the compliance date of the amended test procedure. The amendments adopted in this document pertain to issues addressed by waivers granted to the manufacturers listed in Table III.8.
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to 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 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 final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”),
DOE has conducted a focused inquiry into small business manufacturers of the equipment covered by this rulemaking. DOE used the Small Business Administration's small business size standards to determine whether any small entities would be subject to the requirements of the rule. The size standards are listed by North American Industry Classification System (“NAICS”) code as well as by industry description and are available at
Using these data sources, DOE identified 78 original equipment manufacturers (“OEMs”) of WICFs that could be potentially affected by this rulemaking. DOE screened out companies that do not meet the definition of a “small business” or are foreign-owned and operated. Of these 78 OEMs, 57 are small, domestic manufacturers. DOE notes that some manufacturers may produce more than one of the principal components of WICFs: doors, panels, and refrigeration systems. Forty-one of the small, domestic OEMs manufacture doors; 35 of the small, domestic OEMs manufacture panels; and 18 of the small, domestic OEMs manufacture refrigeration systems.
In response to the Initial Regulatory Flexibility Analysis published as part of the April 2022 NOPR, AHRI noted that while they are unsure of the exact number of small OEMs of WICF panels, doors, and refrigeration systems, they acknowledge that small OEMs represent a significant portion of the WICF market. AHRI asserted that small OEMs would be negatively impacted by what AHRI characterized as the added complexity and related costs. AHRI also noted that EPA and DOE regulatory actions that are not yet fully resolved have impact in a relatively immediate timeframe. (AHRI, No. 30 at p. 12)
DOE agrees with AHRI that small businesses account for the majority of WICF component OEMs operating in the United States. Regarding AHRI's concerns about complexity, DOE evaluates test procedures for each type of covered equipment, including WICFs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1)) DOE has determined that the amendments in this final rule would improve the accuracy, reproducibility, and representativeness of test procedure results, and will not be unduly burdensome for manufacturers to conduct. DOE has determined that the amendments outlined in this final rule will not require retesting or rerating of units.
Regarding the impact of EPA refrigerant regulation and other DOE rulemaking actions on small businesses, DOE would consider the impact on manufacturers of multiple product/equipment-specific regulatory actions pursuant to section 13(g) in appendix A to subpart C of part 430, in any subsequent energy conservation standards rulemaking analysis for WICFs.
RSG commented that it considers DOE's door, panel, and refrigeration system cost estimates to be very low. For refrigeration systems, RSG further stated that there are few outside labs capable of testing to the degree that DOE requires. (RSG, No. 41 at p. 3) DOE notes that the estimated test costs were based on actual laboratory quotes, which DOE has determined are representative of the pricing available to the industry as a whole. Additionally, DOE is aware of third-party laboratories that have the capability to test to the current DOE test procedure.
DOE has determined that retesting and recertification would not be required for walk-in cooler and freezer doors as a result of this rulemaking. DOE is adopting the following amendments to appendix A for walk-in cooler and freezer doors:
1. Referencing NFRC 102-2020 for the determination of U-factor;
2. Including AEDM provisions for manufacturers to alternately determine the total energy consumption of display and non-display doors;
3. Providing additional detail for determining the area used to convert U-factor into conduction load, A
4. Specifying a PTO value of 97 percent for door motors.
DOE has determined that these amendments would not increase testing costs per basic model relative to the current DOE test procedure in appendix A.
DOE expects certification costs for door manufacturers would either remain the same or be reduced, depending on whether manufacturers have been able to achieve the agreement between U-factors simulated using the method in NFRC 100 and U-factors tested using NFRC 102. Manufacturers of doors that have been able to achieve the specified agreement
DOE expects that the additional detail provided for determining the area used to convert U-factor into conduction load, A
For walk-in doors with motors, DOE has determined that the amendments described in section III of this final rule would either not change the measured energy consumption or would result in a lower measured energy consumption and therefore, would not require retesting or recertification as a result of DOE's adoption of the amendments to the test procedures. New testing is only required if the manufacturer wishes to make claims using the new, more efficient rating. Additionally, DOE has determined the amendments would not increase the cost of testing for doors with motors.
DOE concludes that manufacturers of WICF doors, including small manufacturers, will not incur retesting and recertification costs as a result of this final rule.
In this final rule, DOE is amending the existing test procedure in appendix B for measuring the R-value of insulation of panels by:
1. Incorporating by reference the updated version of the applicable industry test method, ASTM C518-17;
2. Including provisions specific to measurement of test specimen and total insulation thickness; and
3. Providing specifications for determining the parallelism and flatness of the test specimen.
The first item incorporates by reference the most up-to-date version of the industry standards currently referenced in the DOE test procedure. Items 2 and 3 include additional instructions intended to improve consistency and reproducibility of test procedure results.
DOE has concluded that the amendments will not change efficiency ratings for walk-in panels, and therefore will not require rerating as result of DOE's adoption of this amendment to the test procedure. Therefore, DOE has determined that these amendments will not add any additional testing costs to small business manufacturers of WICF panels.
In this final rule, DOE is adopting changes to appendix C that DOE has determined would improve the accuracy and reproducibility of the test results and would not be unduly burdensome for manufacturers to conduct. DOE has determined that these changes would not impact testing cost. Additionally, the amended appendix C, measuring AWEF per AHRI 1250-2009, does not contain any changes that would require retesting or rerating.
DOE is also adopting, through incorporations by reference, certain provisions of AHRI 1250-2020 in appendix C1 that will amend the existing test procedure for walk-in cooler and freezer refrigeration systems. DOE notes that the new appendix C1, which establishes new energy efficiency metric AWEF2, would increase testing costs for certain refrigeration system equipment types. This final rule does not require manufacturers to rate equipment using appendix C1. If DOE were to adopt a future energy conservation standard using the AWEF2 metric, that energy conversation standard will cause manufacturers to incur costs for retesting and recertification at the time when the amended standards take effect. The cost of retesting and recertification based on appendix C1 would be incorporated into the analysis of the energy conservation standard adopting the AWEF2 metric, should DOE choose to establish standard using that metric.
Although this test procedure final rule does not require the use of appendix C1 and manufacturers, including small manufacturers, will not incur retesting or recertification costs based on the AWEF2 metric at this time, DOE discusses the potential impacts of adopting certain changes in the new appendix C1 in this section.
As discussed previously in this final rule, DOE is adopting off-cycle test provisions in AHRI 1250-2020 for walk-in refrigeration systems. The current test procedure requires off-cycle power to be measured at the 95 °F ambient condition. The new test procedure requires off-cycle to be measured at 95 °F, 59 °F, and 35 °F ambient conditions for outdoor dedicated condensing units, outdoor matched pair systems, and outdoor dedicated systems. The matched pair and single-packaged dedicated systems include high-temperature refrigeration systems. When the waivers for these high-temperature refrigeration systems were granted, only one off-cycle test was required; therefore, manufacturers with waivers would be required to conduct additional testing as compared to the alternate test procedure currently required. DOE estimates that measuring off-cycle power at these additional ambient conditions may increase third-party lab test cost by $1,000 per unit to a total cost of $11,000 per unit for outdoor dedicated condensing units, outdoor matched pair systems, and outdoor single-packaged dedicated systems. The physical testing cost would be $22,000 per basic model for outdoor dedicated condensing units, outdoor matched pair systems, and outdoor single-packaged dedicated systems, in addition to an estimated $1,000 to $4,000 in round trip shipping costs.
However, manufacturers are not required to perform laboratory testing on all basic models. In accordance with 10 CFR 429.53, WICF refrigeration system manufacturers may elect to use AEDMs. DOE estimates the per-manufacturer cost to develop and validate an AEDM for outdoor dedicated condensing units and outdoor matched pair systems to be approximately $24,581,
DOE estimated the range of potential costs for the five small OEMs that manufacture outdoor dedicated condensing units, outdoor matched pair systems, and outdoor single-packaged dedicated systems. When developing cost estimates for the small OEMs, DOE considers the cost to update the existing AEDM simulation tool, the costs to validate the AEDM through physical testing (including shipping costs to and from the third-party laboratory), and the cost to rate basic models using the AEDM. DOE assumes a high-cost scenario where manufacturers would be required to develop AEDMs for six validation classes.
DOE estimates the impacts based on basic model counts and company revenue. Table IV.1 summarizes DOE's estimates for the five identified small businesses. On average, testing costs represent less than 1 percent of annual revenue for a typical small business.
As previously discussed, the procedure in appendix C1 would only require retesting or recertification when and if a future energy conservation standard takes effect.
As also discussed in the final rule, DOE is adopting the single-packaged dedicated system test procedure for walk-ins in AHRI 1250-2020. The procedure requires air enthalpy tests to be used as the primary test method. In the current test procedure, single-packaged dedicated systems use refrigerant enthalpy as the primary test method. DOE does not estimate a difference in physical testing costs between air and refrigerant enthalpy testing of single-packaged dedicated systems. DOE estimates the per-unit third party lab test cost to be $11,000 for outdoor single-packaged units and $6,500 for indoor single-packaged units. The physical testing cost would be $22,000 per basic model for outdoor single-packaged dedicated systems and $13,000 per basic model for indoor package systems, in addition to an estimated $1,000 to $4,000 in round trip shipping costs for each class.
However, should a manufacturer choose to use an AEDM, it may incur additional costs regarding the development and validation of new AEDMs for single-packaged dedicated systems. DOE estimates the per manufacturer cost to develop and validate an AEDM to be $24,580 for outdoor single-packaged units and $15,580 for indoor single-packaged units, in addition to an estimated $1,000 to $4,000 in round trip shipping costs.
DOE estimated the range of potential costs for the two domestic, small OEMs that manufacture single-packaged dedicated systems. When developing cost estimates for the small OEMs, DOE considered the cost to update the existing AEDM simulation tool, the costs to validate the AEDM through physical testing (including shipping costs to and from the third-party laboratory), and the cost to rate basic models using the AEDM.
Both small businesses manufacture indoor and outdoor, low- and medium-temperature, single-packaged dedicated systems. One small business manufactures 28 basic models of single-packaged dedicated systems with an estimated annual revenue of $110 million. Therefore, DOE estimates the associated re-rating costs for this manufacturer to be approximately $91,250 when making use of AEDMs. The cost for this manufacturer represents less than 1 percent of annual revenue.
The second small business manufactures 38 basic models of single-packaged dedicated systems with an estimated annual revenue of $156 million. Therefore, DOE estimates the associated re-rating costs for this manufacturer to be approximately $91,700 when making use of AEDMs. The cost for this manufacturer represents less than 1 percent of annual revenue.
As previously discussed, the procedure in appendix C1 would only require retesting or recertification when and if a future energy conservation standard takes effect.
As also discussed in this final rule, DOE is adopting test procedures for CO
• $22,000 per basic model for a high-temperature matched pair or single-packaged dedicated system;
• $12,000 per basic model for a high-temperature unit cooler tested alone;
• $13,000 per basic model for a low-temperature CO
• $12,000 per basic model for a medium-temperature CO
However, manufacturers are not required to perform laboratory testing on all basic models. In accordance with 10 CFR 429.53, WICF refrigeration system manufacturers may elect to use AEDMs. DOE estimates the per-manufacturer cost to develop and validate an AEDM for high-temperature systems and low- and medium-temperature CO
DOE estimated the potential costs to manufacturers of high-temperature units as a result of off-cycle requirements using an AEDM. Specifically, DOE estimated the range of potential costs for the five identified domestic, small OEMs that manufacture high-temperature units. When developing cost estimates for the small OEMs, DOE considers the cost to develop the AEDM simulation tool, the costs to validate the AEDM through physical testing (including shipping costs to and from the third-party laboratory), and the cost to rate basic models using the AEDM. DOE assumes a scenario where manufacturers would be required to develop AEDMs for three validation classes.
DOE estimated the impacts based on basic model counts and company revenue. Table IV.2 summarizes DOE's estimates for the five identified small businesses. On average, testing costs represent approximately 1.3 percent of annual revenue for a typical small business.
As previously discussed, the procedure in appendix C1 would only require retesting or recertification when and if a future energy conservation standard takes effect.
Manufacturers of CO
On the basis that the adopted test procedure changes will not require retesting and recertification, DOE certifies that this final rule does not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE will transmit a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
Manufacturers of walk-ins must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, walk-ins. (
DOE is not amending the certification or reporting requirements for walk-ins in this final rule. Instead, DOE may consider proposals to amend the certification requirements and reporting for walk-ins under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for walk-ins. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism 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 examined this final rule and determined that it will 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 equipment that are the subject of this final 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(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
This regulatory action is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a rule authorizes or requires use of commercial standards, the rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.
The modifications to the test procedure for walk-ins adopted in this final rule incorporates testing methods contained in certain sections of the following commercial standards: NFRC 102-2020, ASTM C1199-14, ASTM C518-17, AHRI 1250-2020, AHRI 1250-2020, ANSI/ASHRAE 37-2009, and ANSI/ASHRAE 16-2016. DOE has evaluated these standards and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA (
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
AHRI Standard 1250 (I-P)-2009 is an industry-accepted test procedure for measuring the performance of walk-in cooler and walk-in freezer refrigeration systems. Specifically, the test procedure codified by this final rule references AHRI 1250-2009 for testing walk-in refrigeration units. AHRI 1250-2009 is reasonably available on AHRI's website at
AHRI Standard 1250-2020 is an industry-accepted test procedure for measuring the performance of walk-in cooler and walk-in freezer refrigeration systems. Specifically, the test procedure codified by this final rule references AHRI 1250-2020 for testing walk-in refrigeration units. AHRI 1250-2020 is reasonably available on AHRI's website at
ANSI/AHRI Standard 420-2008 is an industry-accepted test procedure for rating the performance of forced-circulation free-delivery unit coolers for refrigeration and is referenced by AHRI 1250-2009. Specifically, the test procedure codified by this final rule references AHRI 420-2008 for the information that should be recorded when testing unit coolers. AHRI 420-2008 is reasonably available on AHRI's website at
ANSI/ASHRAE Standard 16-2016 is an industry-accepted test procedure for measuring cooling and heating capacity of room air conditioners, packaged terminal air conditioners, and packaged terminal heat pumps and is referenced by AHRI 1250-2020. Specifically, the test procedure codified by this final rule references ANSI/ASHRAE 16-2016 for test provisions related the capacity measurement of single-packaged dedicated systems for the appendix C1 test procedure. ANSI/ASHRAE 16-2016 is reasonably available on ASHRAE's website at
ANSI/ASHRAE Standard 23.1-2010 is an industry-accepted test procedure for rating the performance of positive displacement refrigerant compressors and condensing units that operate at refrigerant subcritical temperatures and is referenced by AHRI 1250-2009 and AHRI 1250-2020. Specifically, the test procedure codified by this final rule references ANSI/ASHRAE 23.1-2010 for test provisions related to capacity measurement of condensing units using the compressor calibration method. ANSI/ASHRAE 23.1-2010 is reasonably available on ASHRAE's website at
ANSI/ASHRAE Standard 37-2009 is an industry-accepted test procedure for testing and rating air-conditioning and heat pump equipment and is referenced by AHRI 1250-2020. Specifically, the test procedure codified by this final rule references ANSI/ASHRAE 37-2009 for test provisions related to capacity measurement of single-packaged dedicated systems for the appendix C1 test procedure. ANSI/ASHRAE 37-2009 is reasonably available on ASHRAE's website at
ANSI/ASHRAE Standard 41.1-2013 is an industry-accepted test procedure for measuring temperature and is referenced by AHRI 1250-2020. Specifically, the test procedure codified by this final rule references ANSI/ASHRAE 41.1-2013 for temperature measurements for all refrigeration unit tests. ANSI/ASHRAE 41.1-2013 is reasonably available on ASHRAE's website at
ANSI/ASHRAE Standard 41.3-2014 is an industry-accepted test procedure for measuring pressure and is referenced by AHRI 1250-2020. Specifically, the test procedure codified by this final rule references ANSI/ASHRAE 41.3-2014 for pressure measurements for all refrigeration unit tests. ANSI/ASHRAE 41.3-12014 is reasonably available on ASHRAE's website at
ANSI/ASHRAE Standard 41.6-2014 is an industry-accepted test procedure for measuring humidity and is referenced by AHRI 1250-2020. Specifically, the test procedure codified by this final rule references ANSI/ASHRAE 41.6-2014 for test provisions related to capacity measurement of single-packaged dedicated systems for the appendix C1 test procedure. ANSI/ASHRAE 41.6-2014 is reasonably available on ASHRAE's website at
ANSI/ASHRAE Standard 41.10-2013 is an industry-accepted test procedure for measuring the mass flow of volatile refrigerants with flowmeter test methods and is referenced by AHRI 1250-2020. Specifically, the test procedure codified by this final rule references ANSI/ASHRAE 41.10-2013 for measuring the flow rates of volatile refrigerants with flow meters for all refrigeration unit tests. ANSI/ASHRAE 41.10-2013 is reasonably available on ASHRAE's website at
ASTM C518-17 is an industry-accepted test procedure for measuring thermal transmission properties using a heat flow meter apparatus. Specifically, the test procedure codified by this final rule references ASTM C518-17 for testing walk-in envelope components. ASTM C518-17 is reasonably available on ASTM's website at
ASTM C1199-14 is an industry-accepted test procedure for measuring the steady state thermal transmittance of fenestration systems and is referenced by NFRC 102-2020. Specifically, the test procedure codified by this final rule references ASTM C1199-14 for testing walk-in envelope components. ASTM C1199-14 is reasonably available on ASTM's website at
NFRC 102-2020 [E0A0], is an industry-accepted test procedure for measuring the steady state thermal transmittance of fenestration systems. Specifically, the test procedure codified by this final rule references NFRC 102-2020 for testing walk-in envelope components. NFRC 102-2020 is reasonably available on NFRC's website at
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, Incorporation by reference, Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on April 12, 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
For the reasons stated in the preamble, DOE is amending parts 429 and 431 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(a) * * *
(2) * * *
(i)
(A)
(B)
(C)
(D)
(3) For each basic model of walk-in cooler and walk-in freezer display and non-display door, the daily energy consumption must be determined by testing, in accordance with § 431.304 of this chapter and the provisions of this section, or by application of an AEDM that meets the requirements of § 429.70 and the provisions of this section.
(i)
(ii)
(A) The mean of the sample, where:
And
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
And
(4) For each basic model of walk-in cooler and walk-in freezer panel and non-display door, the R-value must be determined by testing, in accordance with § 431.304 of this chapter and the provisions of this section.
(i)
(ii)
(A) The mean of the sample, where:
And
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:
And
The revisions and additions read as follows:
(c) * * *
(5) * * *
(viii) * * *
(A) * * *
(f)
(2) * * *
(ii) * * *
(A) For refrigeration systems, which are subject to an energy efficiency metric, the predicted efficiency for each model calculated by applying the AEDM may not be more than five percent greater than the efficiency determined from the corresponding test of the model.
(B) For doors, which are subject to an energy consumption metric the predicted daily energy consumption for each model calculated by applying the AEDM may not be more than five percent less than the daily energy consumption determined from the corresponding test of the model.
(C) The predicted energy efficiency or energy consumption for each model calculated by applying the AEDM must meet or exceed the applicable federal energy conservation standard.
(iii) * * *
(E) For rating doors, an AEDM may not simulate or model components of the door that are not required to be tested by the DOE test procedure. That is, if the test results used to validate the AEDM are for the U-factor test of the door, the AEDM must estimate the daily energy consumption, specifically the conduction thermal load, and the direct and indirect electrical energy consumption, using the nominal values and calculation procedure specified in the DOE test procedure.
(iv)
(B)
(
(5) * * *
(vi)
(h) * * *
(2) * * *
(iv) * * *
(e) * * *
(2) For automatic commercial ice makers; commercial refrigerators, freezers, and refrigerator-freezers; refrigerated bottled or canned vending machines; commercial air conditioners and heat pumps; commercial packaged boilers; commercial warm air furnaces; commercial water heating equipment; and walk-in cooler and walk-in freezer doors, panels, and refrigeration systems, DOE will use an initial sample size of not more than four units and follow the sampling plans in appendix B to this subpart.
(q) * * * Prior to October 31, 2023, the provisions in 10 CFR 429.134, revised as of January 1, 2022, are applicable. On and after October 31, 2023, the following provisions apply.
(2)
(4)
(i) For electricity-consuming devices with controls, the maximum input wattage observed while energizing the device and activating the control shall be considered the measured input power. For anti-sweat heaters that are controlled based on humidity levels, the control may be activated by increasing relative humidity in the region of the controls without damaging the sensor. For lighting fixtures that are controlled with motion sensors, the control may be activated by simulating motion in the vicinity of the sensor. Other kinds of controls may be activated based on the functions of their sensor.
(ii) [Reserved]
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
The additions and revisions read as follows:
CO
(a) Certain material is incorporated by reference into this subpart with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the U.S. Department of Energy (DOE) must publish a document in the
(b)
(1) ANSI/AHRI Standard 420-2008 (“AHRI 420-2008”),
(2) AHRI Standard 1250P (I-P)-2009 (“AHRI 1250-2009”),
(3) AHRI Standard 1250 (“AHRI 1250-2020”),
(c)
(1) ANSI/ASHRAE Standard 16-2016 (“ANSI/ASHRAE 16”),
(2) ANSI/ASHRAE Standard 23.1-2010 (“ASHRAE 23.1-2010”),
(3) ANSI/ASHRAE Standard 37-2009 (“ANSI/ASHRAE 37”),
(4) ANSI/ASHRAE Standard 41.1-2013 (“ANSI/ASHRAE 41.1”),
(5) ANSI/ASHRAE Standard 41.3-2014 (“ANSI/ASHRAE 41.3”),
(6) ANSI/ASHRAE Standard 41.6-2014 (“ANSI/ASHRAE 41.6”),
(7) ANSI/ASHRAE Standard 41.10-2013 (“ANSI/ASHRAE 41.10”),
(d)
(1) ASTM C518-17,
(2) ASTM C1199-14,
(e)
(1) NFRC 102-2020 [E0A0] (“NFRC 102-2020”),
(2) [Reserved]
(b)
(1)
(2)
(3)
(4)
(i)
(ii)
(iii)
Prior to October 31, 2023, representations with respect to the energy use of envelope components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with the applicable provisions of 10 CFR part 431, subpart R, appendix A, revised as of January 1, 2022. Beginning October 31, 2023, representations with respect to energy use of envelope components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with this appendix.
DOE incorporated by reference in § 431.303 the entire standard for ASTM C1199-14 and NFRC 102-2020. However, certain enumerated provisions of these standards, as set forth in sections 0.1 and 0.2 of this appendix are inapplicable. To the extent that there is a conflict between the terms or provisions of a referenced industry standard and the CFR, the CFR provisions control.
(a) Section 1 Scope, is inapplicable,
(b) Section 4 Significance and Use is inapplicable,
(c) Section 7.3 Test Conditions, is inapplicable,
(d) Section 10 Report, is inapplicable, and
(e) Section 11 Precision and Bias, is inapplicable.
(a) Section 1 Scope, is inapplicable,
(b) Section 4 Significance and Use, is inapplicable,
(c) Section 7.3 Test Conditions, is inapplicable,
(d) Section 10 Report, is inapplicable,
(e) Section 11 Precision and Bias, is inapplicable,
(f) Annex A3 Standard Test Method for Determining the Thermal Transmittance of Tubular Daylighting Devices, is inapplicable, and
(g) Annex A5 Tables and Figures, is inapplicable.
1.
This appendix covers the test requirements used to measure the energy consumption of the components that make up the envelope of a walk-in cooler or walk-in freezer.
The definitions contained in § 431.302 are applicable to this appendix.
4.1
4.2
4.4
Determine the U-factor of the entire door or display panel, including the frame, in accordance with the specified sections of NFRC 102-2020 and ASTM C1199-14 at the temperature conditions listed in table A.1 of this appendix.
2.1 For display doors and display panels, thermal transmittance, U
5.2.2 For non-display doors, thermal transmittance, U
5.2.3 Projected area of the test specimen,
6.1.1 Determine the U-factor of the display panel in accordance with section 5.1 of this appendix, in units of Btu/(h-ft
6.1.2 Calculate the temperature differential, ΔT
6.1.3 Calculate the conduction load through the display panel, Q
6.1.4 Calculate the total daily energy consumption, E
6.2.1.1 Determine the U-factor of the display door in accordance with section 5.1 of this appendix, in units of Btu/(h-ft
6.2.1.2 Calculate the temperature differential, ΔT
6.2.1.3 Calculate the conduction load through the display doors, Q
6.2.1.4 Calculate the total daily energy consumption due to conduction thermal load, E
Electrical components associated with display doors could include but are not limited to: heater wire (for anti-sweat or anti-freeze application); lights; door motors; control system units; and sensors.
6.2.2.1 Select the required value for percent time off (PTO) for each type of electricity-consuming device per table A.2 of this appendix, PTO
6.2.2.2 Calculate the power usage for each type of electricity-consuming device, P
Calculate the additional refrigeration energy consumption due to thermal output from electrical components sited inside the display door, C
Calculate the total energy, E
6.3.1.1 Determine the U-factor of the non-display door in accordance with section 5.1 of this appendix, in units of Btu/(h-ft
6.3.1.2 Calculate the temperature differential of the non-display door, ΔT
6.3.1.3 Calculate the conduction load through the non-display door: Q
6.3.1.4 Calculate the total daily energy consumption due to thermal load, E
Electrical components associated with non-display doors comprise could include, but are not limited to: heater wire (for anti-sweat or anti-freeze application), lights, door motors, control system units, and sensors.
6.3.2.1 Select the required value for percent time off for each type of electricity-consuming device per table A.2 of this appendix, PTO
6.3.2.2 Calculate the power usage for each type of electricity-consuming device, P
6.3.2.3 Calculate the total electrical energy consumption for interior and exterior power, P
6.3.2.4 Calculate the total electrical energy consumption, P
Calculate the additional refrigeration energy consumption due to thermal output from electrical components associated with the non-display door, C
Calculate the total energy, E
Prior to October 31, 2023, representations with respect to the R-value for insulation of envelope components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with the applicable provisions of 10 CFR part 431, subpart R, appendix B, revised as of January 1, 2022. Beginning October 31, 2023, representations with respect to R-value for insulation of envelope components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with this appendix.
DOE incorporated by reference in § 431.303 the entire standard for ASTM C518-17. However, certain enumerated provisions of ASTM C518-17, as set forth in paragraph 0.1 of this appendix, are inapplicable. To the extent there is a conflict between the terms or provisions of a referenced industry standard and the CFR, the CFR provisions control.
(a) Section 1 Scope, is inapplicable,
(b) Section 4 Significance and Use, is inapplicable,
(c) Section 7.3 Specimen Conditioning, is inapplicable,
(d) Section 9 Report, is inapplicable,
(e) Section 10 Precision and Bias, is inapplicable,
(f) Section 11 Keywords, is inapplicable,
(g) Annex A2 Equipment Error Analysis, is inapplicable,
(h) Appendix X1 is inapplicable,
(i) Appendix X2 Response of Heat Flux Transducers, is inapplicable, and
(j) Appendix X3 Proven Performance of a Heat Flow Apparatus, is inapplicable.
The following sections of this appendix provide additional instructions for testing. In cases where there is a conflict, the language of this appendix takes highest precedence, followed by ASTM C518-17. Any subsequent amendment to a referenced document by the standard-setting organization will not affect the test procedure in this appendix, unless and until the test procedure is amended by DOE. Material is incorporated as it exists on the date of the approval, and a notification of any change in the incorporation will be published in the
This appendix covers the test requirements used to measure the R-value of non-display panels and non-display doors of a walk-in cooler or walk-in freezer.
The definitions contained in § 431.302 apply to this appendix.
4.1
5.1
5.2.1
5.2.1.1 At least 8 thickness measurements shall be taken around the perimeter of the envelope component, at least 2 inches from the edge region, and avoiding any regions with hardware or fixtures.
5.2.1.2 The average of the thickness measurements taken around the perimeter of the envelope component shall be the thickness around the perimeter of the envelope component,
5.2.1.3 Measure and record the width,
5.2.2.
5.2.2.1. Determine the center of the envelope component relative to its height and its width.
5.2.2.2. Cut a sample from the envelope component that is at least the length and width dimensions of the heat flow meter, and where the marked center of the sample is at least 3 inches from any cut edge.
5.2.2.3. If the center of the envelope component contains any non-foam components (excluding facers), additional samples may be cut adjacent to the previous cut that is at least the length and width dimensions of the heat flow meter and is greater than 12 inches from the edge region.
5.2.3.
5.2.3.1. At least 2 thickness measurements shall be taken in each quadrant of the cut sample removed from the envelope component per section 5.2.2 of this appendix, for a total of at least 8 measurements.
5.2.3.2. The average of the thickness measurements of the cut sample removed from the envelope component shall be the overall thickness of the cut sample,
5.2.3.3. Measure and record the width and height of the cut sample removed from the envelope component. The surface area of the cut sample removed from the envelope component,
5.2.4.
5.2.4.1. Remove the facers on the envelope component sample, while minimally disturbing the foam.
5.2.4.2. Measure the thickness of each facer in 4 locations for a total of 4 measurements if 1 facer is removed, and a total of 8 measurements if 2 facers are removed. The average of all facer measurements shall be the thickness of the facers,
5.2.4.3. The average total thickness of the foam,
5.2.5.
5.2.5.1. Cut a 1 ± 0.1-inch-thick specimen from the center of the cut envelope sample. The 1-inch-thick test specimen shall be cut from the point that is equidistant from both edges of the sample (
5.2.5.2. Document through measurement or photographs with measurement indicators that the specimen was taken from the center of the sample.
5.2.5.3 After the 1-inch specimen has been cut, and prior to testing, place the specimen on a flat surface and allow gravity to determine the specimen's position on the surface. This will be side 1.
5.2.5.4 To determine the flatness of side 1, take at least nine height measurements at equidistant positions on the specimen (
5.2.5.5 To determine the flatness of side 2, turn the specimen over and allow gravity to determine the specimen's position on the surface. Repeat section 5.2.5.4 to determine the flatness of side 2.
5.2.5.6 To determine the parallelism of the specimen for side 1, calculate the theoretical height of the least squares plane at the furthest corners (
5.2.5.7 To determine the parallelism of the specimen for side 2, repeat section
5.2.5.8 The average thickness of the test specimen,
5.3
5.3.1
5.3.1.1 For freezer envelope components, the K-factor of the specimen shall be determined at an average specimen temperature of 20 ± 1 degrees Fahrenheit.
5.3.1.2 For cooler envelope components, the K-factor of the specimen shall be determined at an average specimen temperature of 55 ± 1 degrees Fahrenheit.
5.4 R-value Calculation.
5.4.1 For envelope components consisting of one homogeneous layer of insulation, calculate the R-value, h-ft
5.4.2 For envelope components consisting of two or more layers of dissimilar insulating materials (excluding facers or protective skins), determine the K-factor of each material as described in sections 5.1 through 5.3 of this appendix. For an envelope component with N layers of insulating material, the overall R-value shall be calculated as follows:
5.4.3 K-factor test results from a test sample 1 ± 0.1-inches in thickness may be used to determine the R-value of envelope components with various foam thicknesses as long as the foam throughout the panel depth is of the same final chemical form and the test was completed at the same test conditions that the other envelope components would be used at. For example, a K-factor test result conducted at cooler conditions cannot be used to determine R-value of a freezer envelope component.
The additions and revisions read as follows:
Prior to October 31, 2023, representations with respect to the energy use of refrigeration components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with the applicable provisions of 10 CFR part 431, subpart R, appendix C, revised as of January 1, 2022. Beginning October 31, 2023, representations with respect to energy use of refrigeration components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with this appendix.
For any amended standards for walk-in coolers and freezers published after January 1, 2022, manufacturers must use the results of testing under appendix C1 to this subpart to determine compliance. Representations related to energy consumption must be made in accordance with appendix C1 when determining compliance with the relevant standard. Manufacturers may also use appendix C1 to certify compliance with any amended standards prior to the applicable compliance date for those standards.
The definitions contained in § 431.302 and AHRI 1250-2009 (incorporated by reference; see § 431.303) apply to this appendix. When definitions contained in the standards DOE has incorporated by reference are in conflict or when they conflict with this section, the
The term “unit cooler” used in AHRI 1250-2009, AHRI 420-2008, and this subpart shall be considered to address both “unit coolers” and “ducted fan coil units,” as appropriate.
3.1.1. In Table 1, Instrumentation Accuracy, refrigerant temperature measurements shall have an accuracy of +/−0.5 °F for unit cooler in/out. When testing high-temperature refrigeration systems, measurements used to determine temperature or water vapor content of the air (
For medium-temperature CO
For high-temperature cooler unit coolers, conduct tests using the test conditions specified in table 19 of this appendix.
In AHRI 1250-2009 appendix C, section C3.1.6, any refrigerant temperature measurements entering and leaving the unit cooler may use sheathed sensors immersed in the flowing refrigerant instead of thermometer wells. When testing a condensing unit alone, measure refrigerant liquid temperature leaving the condensing unit using thermometer wells as described in AHRI 1250-2009 appendix C, section C3.1.6 or sheathed sensors immersed in the flowing refrigerant. For all of these cases, if the refrigerant tube outer diameter is less than
In appendix C, section C3.4.5 of AHRI 1250-2009 (incorporated by reference; see § 431.303), and in section 7.1.2 of ASHRAE 23.1-2010 (incorporated by reference; see § 431.303) when verifying subcooling at the mass flow meters, only the sight glass and a temperature sensor located on the tube surface under the insulation are required. Subcooling shall be verified to be within the 3 °F requirement downstream of flow meters located in the same chamber as a condensing unit under test and upstream of flow meters located in the same chamber as a unit cooler under test, rather than always downstream as indicated in AHRI 1250-2009, section C3.4.5 or always upstream as indicated in section 7.1.2 of ASHRAE 23.1-2010. If the subcooling is less than 3 °F, cool the line between the condensing unit outlet and this location to achieve the required subcooling. When providing such cooling while testing a matched pair, (a) set up the line-cooling system and also set up apparatus to heat the liquid line between the mass flow meters and the unit cooler, (b) when the system has achieved steady state without activation of the heating and cooling systems, measure the liquid temperature entering the expansion valve for a period of at least 30 minutes, (c) activate the cooling system to provide the required subcooling at the mass flow meters, (d) if necessary, apply heat such that the temperature entering the expansion valve is within 0.5
Manufacturer installation instructions refer to the instructions that are applied to the unit (
3.2.6.1
3.2.6.1.1 If a manufacturer installation instruction provided on the label(s) applied to the unit conflicts with the manufacturer installation instructions that are shipped with the unit, the instructions on the unit's label take precedence.
3.2.6.1.2 Manufacturer installation instructions provided in any documents that are packaged with the unit take precedence over any manufacturer installation instructions provided online.
3.2.6.2 For testing of attached split systems, the manufacturer installation instructions for the dedicated condensing unit shall take precedence over the manufacturer installation instructions for the unit cooler.
3.2.6.3 Unit setup shall be in accordance with the manufacturer installation instructions (laboratory installation instructions shall not be used).
3.2.6.4 Achieving test conditions shall always take precedence over installation instructions.
3.2.7.
All dedicated condensing systems (dedicated condensing units tested alone, matched pairs, and single packaged dedicated systems) that use flooding of the condenser for head pressure control during low-ambient-temperature conditions shall be charged, and superheat and/or subcooling shall be set, at Refrigeration C test conditions unless otherwise specified in the installation instructions.
If after being charged at Refrigeration C condition the unit under test does not operate at the Refrigeration A condition due to high pressure cut out, refrigerant shall be removed in increments of 4 ounces or 5 percent of the test unit's receiver capacity, whichever quantity is larger, until the unit operates at the Refrigeration A condition. All tests shall be run at this final refrigerant charge. If less than 0 °F of subcooling is measured for the refrigerant leaving the condensing unit when testing at B or C condition, calculate the refrigerant-enthalpy-based capacity (
All dedicated condensing systems that do not use a flooded condenser design shall be charged at Refrigeration A test conditions unless otherwise specified in the installation instructions.
If the installation instructions give a specified range for superheat, sub-cooling, or refrigerant pressure, the average of the range shall be used as the refrigerant charging parameter target and the test condition tolerance shall be ±50 percent of the range. Perform charging of near-azeotropic and zeotropic refrigerants only with refrigerant in the liquid state. Once the correct refrigerant charge is determined, all tests shall run until completion without further modification.
3.2.7.1. When charging or adjusting superheat/subcooling, use all pertinent instructions contained in the installation instructions to achieve charging parameters within the tolerances. However, in the event of conflicting charging information between installation instructions, follow the installation instruction hierarchy listed in section 3.2.6. of this appendix. Conflicting information is defined as multiple conditions given for charge adjustment where all conditions specified cannot be met. In the event of conflicting information within the same set of charging instructions (
3.2.7.2.
3.2.8.
In appendix C, section C6.2 of AHRI 1250-2009, for applicable system configurations (matched pairs, single-packaged refrigeration systems, and standalone unit coolers), the unit under test may be used to aid in achieving the required test chamber conditions prior to beginning any steady state test. However, the unit under test must be inspected and confirmed to be free from frost before initiating steady state testing.
3.3. * * *
3.3.1. For unit coolers tested alone, use test procedures described in AHRI 1250-2009 for testing unit coolers for use in mix-match system ratings, except that for the test conditions in tables 15 and 16 of this appendix, use the Suction A saturation condition test points only. Also, for unit coolers tested alone, other than high-temperature unit coolers, use the calculations in section 7.9 of AHRI 1250-2009 to determine AWEF and net capacity described in AHRI 1250-2009 for unit coolers matched to parallel rack systems.
3.3.3.
3.3.3.1.
For ducted fan coil units with ducted evaporator air, or that can be installed with or without ducted evaporator air: Connect ductwork on both the inlet and outlet connections and determine external static pressure as described in ASHRAE 37 (incorporated by reference; see § 431.303), sections 6.4 and 6.5. Use pressure measurement instrumentation as described in ASHRAE 37, section 5.3.2. Test at the fan speed specified in manufacturer installation instructions—if there is more than one fan speed setting and the installation instructions do not specify which speed to use, test at the highest speed. Conduct tests with the external static pressure equal to 50 percent of the maximum external static pressure allowed by the manufacturer for system installation within a tolerance of −0.00/+0.05 in. wc. Set the external static pressure by symmetrically restricting the outlet of the test duct. Alternatively, if using the indoor air enthalpy method to measure capacity, set external static pressure by adjusting the fan of the airflow measurement apparatus. In case of conflict, these requirements for setting evaporator airflow take precedence over airflow values specified in manufacturer installation instructions or product literature.
3.3.3.2.
Use appendix C, section C10 of AHRI 1250-2009 for off-cycle evaporator fan testing, with the exception that evaporator fan controls using periodic stir cycles shall be adjusted so that the greater of a 50 percent duty cycle (rather than a 25 percent duty cycle) or the manufacturer default is used for measuring off-cycle fan energy. For adjustable-speed controls, the greater of 50 percent fan speed (rather than 25 percent fan speed) or the manufacturer's default fan speed shall be used for measuring off-cycle fan energy. Also, a two-speed or multi-speed fan control may be used as the qualifying evaporator fan control. For such a control, a fan speed no less than 50 percent of the speed used in the maximum capacity tests shall be used for measuring off-cycle fan energy.
3.3.3.3.
3.3.3.3.1. The evaporator fan power consumption shall be measured in accordance with the requirements in section C3.5 of AHRI 1250-2009. This measurement shall be made with the fan operating at full speed, either measuring unit cooler or total system power input upon the completion of the steady state test when the compressor and the condenser fan of the walk-in system are turned off, or by submetered measurement of the evaporator fan power during the steady state test.
Section C3.5 of AHRI 1250-2009 is revised to read:
The following shall be measured and recorded during a fan power test.
For a given motor winding configuration, the total power input shall be measured at the highest nameplate voltage. For three-phase power, voltage imbalance shall be no more than 2%.
3.3.3.3.2. Evaporator fan power for the off-cycle is equal to the on-cycle evaporator fan power with a run time of 10 percent of the off-cycle time.
3.3.7.
3.3.7.1.
Calculate the AWEF and net capacity using the calculations in AHRI 1250-2009, section 7.9.
3.3.7.2
Calculate AWEF on the basis that walk-in box load is equal to half of the system net capacity, without variation according to high and low load periods, and with EER set according to tested evaporator capacity, as follows:
The net capacity,
3.3.7.3. If the unit cooler has variable-speed evaporator fans that vary fan speed in response to load, then:
3.3.7.3.1. When testing to certify compliance with the energy conservation standards in § 431.306, fans shall operate at full speed during on-cycle operation. Do not conduct the calculations in AHRI 1250-2009, section 7.9.3. Instead, use AHRI 1250-2009, section 7.9.2 to determine the system's AWEF.
3.3.7.3.2. When calculating the benefit for the inclusion of variable-speed evaporator fans that modulate fan speed in response to load for the purpose of making representations of efficiency, use AHRI 1250-2009, section 7.9.3 to determine the system AWEF.
3.4. * * *
3.4.2. * * *
3.4.2.1. For calculating enthalpy leaving the unit cooler to calculate gross capacity, (a) the saturated refrigerant temperature (dew point) at the unit cooler coil exit, T
Prior to October 31, 2023, representations with respect to the energy use of refrigeration components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with the applicable provisions for 10 CFR part 431, subpart R, appendix C, revised as of January 1, 2022. Beginning October 31, 2023, representations with respect to energy use of refrigeration components of walk-in coolers and walk-in freezers, including compliance certifications, must be based on testing conducted in accordance with appendix C to this subpart.
For any amended standards for walk-in coolers and walk-in freezers published after January 1, 2022, manufacturers must use the results of testing under this appendix to determine compliance. Representations related to energy consumption must be made in accordance with this appendix when determining compliance with the relevant standard. Manufacturers may also use this appendix to certify compliance with any amended standards prior to the applicable compliance date for those standards.
DOE incorporated by reference in § 431.303, the entire standard for AHRI 1250-2020, ANSI/ASHRAE 16, ANSI/ASHRAE 23.1-2010, ANSI/ASHRAE 37, ANSI/ASHRAE 41.1, ANSI/ASHRAE 41.3, ANSI/ASHRAE 41.6, and ANSI/ASHRAE 41.10. However, certain enumerated provisions of these standards, as set forth in sections 0.1 through 0.8 of this appendix are inapplicable. To the extent there is a conflict between the terms or provisions of a referenced industry standard and the CFR, the CFR provisions control. To the extent there is a conflict between the terms or provisions of AHRI 1250-2020, ANSI/ASHRAE 16, ANSI/ASHRAE 23.1-2010, ANSI/ASHRAE 37, ANSI/ASHRAE 41.1, ANSI/ASHRAE 41.3, ANSI/ASHRAE 41.6, and ANSI/ASHRAE 41.10, the AHRI 1250-2020 provisions control.
This appendix covers the test requirements used to determine the net capacity and the AWEF2 of the refrigeration system of a walk-in cooler or walk-in freezer.
The definitions contained in § 431.302, AHRI 1250-2020, ANSI/ASHRAE 37, and ANSI/ASHRAE 16 apply to this appendix. When definitions in standards incorporated by reference are in conflict or when they conflict with this section, the hierarchy of precedence shall be in the following order: § 431.302, AHRI 1250-2020, and then either ANSI/ASHRAE 37 or ANSI/ASHRAE 16.
The term “unit cooler” used in AHRI 1250-2020 and this subpart shall be considered to address both “unit coolers” and “ducted fan coil units,” as appropriate.
2.2.1.
2.2.2.
2.2.3.
2.2.4.
2.2.5.
2.2.6.
2.2.7.
Determine the Annual Walk-in Energy Factor (AWEF2) and net capacity of walk-in cooler and walk-in freezer refrigeration systems by conducting the test procedure set forth in AHRI 1250-2020, with the modifications to that test procedure provided in this section. However, certain sections of AHRI 1250-2020, ANSI/ASHRAE 37, and ANSI/ASHRAE 16 are not applicable, as set forth in sections 0.1, 0.2, and 0.3 of this appendix. Round AWEF2 measurements to the nearest 0.01 Btu/Wh. Round net capacity measurements as indicated in table 1 of this appendix.
The following sections of this appendix provide additional instructions for testing. In cases where there is a conflict, the language of this appendix takes highest precedence, followed by AHRI 1250-2020, then ANSI/ASHRAE 37 or ANSI/ASHRAE 16. Any subsequent amendment to a referenced document by the standard-setting organization will not affect the test procedure in this appendix, unless and until the test procedure is amended by DOE. Material is incorporated as it exists on the date of the approval, and a notification of any change in the incorporation will be published in the
Use measuring instruments as described in section 4.1 of AHRI 1250-2020, with the following additional requirement.
3.1.1. Electrical Energy Input measured in Wh with a minimum accuracy of ±0.5% of reading (for Off-Cycle tests per footnote 5 of Table C3 in section C3.6.2 of AHRI 1250-2020).
Test conditions used to determine AWEF2 shall be as specified in Tables 4 through 17 of AHRI 1250-2020. Tables 7 and 11 of AHRI 1250-2020, labeled to apply to variable-speed outdoor matched-pair refrigeration systems, shall also be used for testing variable-capacity single-packaged outdoor refrigeration systems, and also for testing multiple-capacity matched-pair or single-packaged outdoor refrigeration systems. Test conditions used to determine AWEF2 for refrigeration systems not specifically identified in AHRI 1250-2020 are as enumerated in sections 3.5.1 through 3.5.6 of this appendix.
For fixed-capacity high-temperature matched-pair or single-packaged refrigeration systems with indoor condensing units, conduct tests using the test conditions specified in table 2 of this appendix. For fixed-capacity high-temperature matched-pair or single-packaged refrigeration systems with outdoor condensing units, conduct tests using the test conditions specified in table 3 of this appendix. For high-temperature unit coolers tested alone, conduct tests using the test conditions specified in table 4 of this appendix.
For medium-temperature CO
For two-capacity medium-temperature outdoor condensing units tested alone, conduct tests using the test conditions specified in table 7 of this appendix. For two-capacity medium-temperature indoor condensing units tested alone, conduct tests using the test conditions specified in table 8 of this appendix. For two-capacity low-temperature outdoor condensing units tested alone, conduct tests using the test conditions specified in table 9 of this appendix. For two-capacity low-temperature indoor condensing units tested alone, conduct tests using the test conditions specified in table 10 of this appendix.
For variable-capacity or multiple-capacity outdoor medium-temperature condensing units tested alone, conduct tests using the test conditions specified in table 11 of this appendix. For variable-capacity or multiple-capacity indoor medium-temperature condensing units tested alone, conduct tests using the test conditions specified in table 12 of this appendix. For variable-capacity or multiple-capacity outdoor low-temperature condensing units tested alone, conduct tests using the test conditions specified in table 13 of this appendix. For variable-capacity or multiple-capacity indoor low-temperature condensing units tested alone, conduct tests using the test conditions specified in table 14 of this appendix.
For two-capacity indoor medium-temperature matched-pair or single-packaged refrigeration systems, conduct tests using the test conditions specified in table 15 of this appendix. For two-capacity indoor low-temperature matched-pair or single-packaged refrigeration systems, conduct tests using the test conditions specified in table 16 of this appendix.
For variable- or multiple-capacity indoor medium-temperature matched-pair or single-packaged refrigeration systems, conduct tests using the test conditions specified in table 17 of this appendix. For variable- or multiple-capacity indoor low-temperature matched-pair or single-packaged refrigeration systems, conduct tests using the test conditions specified in table 18 of this appendix.
3.3.1 For medium- and low-temperature refrigeration systems with indoor condensing units, calculate walk-in box loads for high and low load periods as a function of net capacity as described in section 6.2.1 of AHRI 1250-2020.
3.3.2 For medium- and low-temperature refrigeration systems with outdoor condensing units, calculate walk-in box loads for high and low load periods as a function of net capacity and outdoor temperature as described in section 6.2.2 of AHRI 1250-2020.
3.3.3 For high-temperature refrigeration systems, calculate walk-in box load as follows.
Calculations used to determine AWEF2 based on performance data obtained for testing shall be as specified in section 7 of AHRI 1250-2020 with modifications as indicated in sections 3.4.7 through 3.4.10 of this appendix. Calculations used to determine AWEF2 for refrigeration systems not specifically identified in sections 7.1.1 through 7.1.6 of AHRI 1250-2020 are enumerated in sections 3.4.1 through 3.4.6 and 3.4.11 through 3.4.14 of this appendix.
3.4.1.1 Unit Cooler Power
Calculate maximum-capacity unit cooler power during the compressor on period
Calculate unit cooler power during the compressor off period
3.4.1.2 Defrost
For freezer refrigeration systems, calculate defrost heat contribution
3.4.1.3 Net Capacity
Calculate steady-state maximum net capacity, q
3.4.1.4 Calculate average power input during the low load period as follows.
If the low load period box load,
If the low load period box load,
3.4.1.5 Calculate average power input during the high load period as follows.
3.4.1.6 Calculate the AWEF2 as follows:
3.4.2.1 Unit Cooler Power
Calculate maximum-capacity unit cooler power during the compressor on period
Calculate unit cooler power during the compressor off period
3.4.2.2 Defrost
Calculate Defrost parameters as described in section 4.4.1.2 of this appendix.
3.4.2.3 Net Capacity
Calculate steady-state maximum net capacity, q
K
3.4.2.4 Calculate average power input during the low load period as follows.
If the low load period box load,
Where
If the low load period box load
3.4.2.5 Calculate average power input during the high load period as follows:
If the high load period box load,
If the high load period box load,
3.4.2.6 Calculate the AWEF2 as follows.
3.4.3.1 Unit Cooler Power
Calculate maximum-capacity unit cooler power during the compressor on period
Calculate unit cooler power during the compressor off period
3.4.3.2 Defrost
Calculate Defrost parameters as described in section 3.4.1.2 of this appendix.
3.4.3.3 Condensing Unit Off-Cycle Power
Calculate Condensing Unit Off-Cycle Power for temperature t
3.4.3.4 Net Capacity and Condensing Unit Power Input
Calculate steady-state maximum net capacity, q
If t
If 59 °F < t
3.4.3.5 Calculate average power input during the low load period as follows.
Calculate the temperature, t
For t
Where
For t
3.4.3.6 Calculate average power input during the high load period as follows.
Calculate the temperature, t
Calculate the temperature, t
For t
For t
For t
3.4.3.7 Calculate the AWEF2 as follows:
3.4.4.1 Unit Cooler Power
Calculate maximum-capacity unit cooler power during the compressor on period
Calculate unit cooler power during the compressor off period
3.4.4.2 Defrost
Calculate Defrost parameters as described in section 3.4.1.2 of this appendix.
3.4.4.3 Condensing Unit Off-Cycle Power
Calculate Condensing Unit Off-Cycle Power for temperature, t
3.4.4.4 Net Capacity and Condensing Unit Power Input
Calculate steady-state maximum net capacity, q
If t
If 59 °F < t
3.4.4.5 Calculate average power input during the low load period as follows.
Calculate the temperature, t
Calculate the temperature, t
For t
Where,
For t
For t
3.4.4.6 Calculate average power input during the high load period as follows.
Calculate the temperature t
Calculate the temperature t
For t
For t
For t
3.4.4.7 Calculate the AWEF2 as follows:
3.4.5.1 Defrost
For freezer refrigeration systems, defrost heat contribution
3.4.5.2 Calculate average power input during the low load period as follows.
If the low load period box load
If the low load period box load
3.4.5.3 Calculate average power input during the high load period as follows.
3.4.5.4 Calculate the AWEF2 as follows:
3.4.6.1 Defrost
For freezer refrigeration systems, defrost heat contribution
3.4.6.2 Calculate average power input during the low load period as follows.
If the low load period box load
If the low load period box load
3.4.6.3 Calculate average power input during the high load period as follows.
If the high load period box load
If the high load period box load
3.4.6.4 Calculate the AWEF2 as follows.
Calculate AWEF2 as described in section 7.6 of AHRI 1250-2020, with the following revisions.
3.4.7.1 Condensing Unit Off-Cycle Power
Calculate condensing unit off-cycle power for temperature t
3.4.7.2 Unit Cooler Off-Cycle Power
Set unit cooler Off-Cycle power
3.4.7.3 Average Power During the Low Load Period
Calculate average power for intermediate-capacity compressor operation during the low load period
For t
For t
3.4.7.4 Average Power During the High Load Period
Calculate average power for intermediate-capacity compressor operation during the high load period
For t
For t
Calculate AWEF2 as described in section 7.5 of AHRI 1250-2020, with the following revisions for Condensing Unit Off-Cycle Power and Unit Cooler Off-Cycle Power. Calculate condensing unit off-cycle power for temperature t
Calculate AWEF2 as described in section 7.4 of AHRI 1250-2020, with the following revision for Condensing Unit Off-Cycle Power and Unit Cooler Off-cycle Power. Calculate condensing unit off-cycle power for temperature t
Calculate AWEF2 as described in section 7.9 of AHRI 1250-2020, with the following revision for Condensing Unit Off-Cycle Power. Calculate condensing unit off-cycle power for temperature t
3.4.11.1 Calculate Load Factor LF as follows:
3.4.11.2 Calculate the AWEF2 as follows:
3.4.12.1 Calculate Load Factor LF(t
3.4.12.2 Calculate the AWEF2 as follows:
3.4.13.1 Calculate Refrigeration System Power Input as follows:
3.4.13.2 Calculate the load factor LF as follows:
3.4.13.3 Calculate AWEF2 as follows:
Calculate AWEF2 for CO
Test the Refrigeration System in accordance with AHRI 1250-2020 to determine refrigeration capacity and power input for the specified test conditions, with revisions and additions as described in this section.
In Appendix C, section C5.2.2 of AHRI 1250-2020, for applicable system configurations (matched pairs, single-packaged refrigeration systems, and standalone unit coolers), the unit under test may be used to aid in achieving the required test chamber conditions prior to beginning any steady state test. However, the unit under test must be inspected and confirmed to be free from frost before initiating steady state testing.
3.5.2.1 Refrigerant Temperature Measurements
When testing a condensing unit alone, measure refrigerant liquid temperature leaving the condensing unit, and the refrigerant vapor temperature entering the condensing unit as required in section C7.5.1.1.2 of Appendix C of AHRI 1250-2020 using the same measurement approach specified for the unit cooler in section C3.1.3 of Appendix C of AHRI 1250-2020. In all cases in which thermometer wells or immersed sheathed sensors are prescribed, if the refrigerant tube outer diameter is less
3.5.2.2 Mass Flow Meter Location
When using the DX Dual Instrumentation test method of AHRI 1250-2020, applicable for unit coolers, dedicated condensing units, and matched pairs, the second mass flow meter may be installed in the suction line as shown in Figure C1 of AHRI 1250-2020.
3.5.2.3 Subcooling at Refrigerant Mass Flow Meter
In section C3.4.5 of Appendix C of AHRI 1250-2020, when verifying subcooling at the mass flow meters, only the sight glass and a temperature sensor located on the tube surface under the insulation are required. Subcooling shall be verified to be within the 3 °F requirement downstream of flow meters located in the same chamber as a condensing unit under test and upstream of flow meters located in the same chamber as a unit cooler under test, rather than always downstream as indicated in AHRI 1250-2009, section C3.4.5. If the subcooling is less than 3 °F when testing a unit cooler, dedicated condensing unit, or matched pair (not a single-packaged system), cool the line between the condensing unit outlet and this location to achieve the required subcooling. When providing such cooling while testing a matched pair (a) set up the line-cooling system and also set up apparatus to heat the liquid line between the mass flow meters and the unit cooler, (b) when the system has achieved steady state without activation of the heating and cooling systems, measure the liquid temperature entering the expansion valve for a period of at least 30 minutes, (c) activate the cooling system to provide the required subcooling at the mass flow meters, (d) if necessary, apply heat such that the temperature entering the expansion valve is within 0.5 °F of the temperature measured during step (b), and (e) proceed with measurements once condition (d) has been verified.
3.5.2.4 Installation Instructions
Manufacturer installation instructions or installation instructions described in this section refer to the instructions that come packaged with or appear on the labels applied to the unit. This does not include online manuals.
3.5.2.5. Refrigerant Charging and Adjustment of Superheat and Subcooling.
All dedicated condensing systems (dedicated condensing units tested alone, matched pairs, and single packaged dedicated systems) that use flooding of the condenser for head pressure control during low-ambient-temperature conditions shall be charged, and superheat and/or subcooling shall be set, at Refrigeration C test conditions unless otherwise specified in the installation instructions.
If after being charged at Refrigeration C condition the unit under test does not operate at the Refrigeration A condition due to high pressure cut out, refrigerant shall be removed in increments of 4 ounces or 5 percent of the test unit's receiver capacity, whichever quantity is larger, until the unit operates at the Refrigeration A condition. All tests shall be run at this final refrigerant charge. If less than 0 °F of subcooling is measured for the refrigerant leaving the condensing unit when testing at B or C condition, calculate the refrigerant-enthalpy-based capacity (
All dedicated condensing systems that do not use a flooded condenser design shall be charged at Refrigeration A test conditions unless otherwise specified in the installation instructions.
If the installation instructions give a specified range for superheat, sub-cooling, or refrigerant pressure, the average of the range shall be used as the refrigerant charging parameter target and the test condition tolerance shall be ±50 percent of the range. Perform charging of near-azeotropic and zeotropic refrigerants only with refrigerant in the liquid state. Once the correct refrigerant charge is determined, all tests shall run until completion without further modification.
3.5.2.5.1. When charging or adjusting superheat/subcooling, use all pertinent instructions contained in the installation instructions to achieve charging parameters within the tolerances. However, in the event of conflicting charging information between installation instructions, follow the installation instruction hierarchy listed in section 3.5.2.4. Conflicting information is defined as multiple conditions given for charge adjustment where all conditions specified cannot be met. In the event of conflicting information within the same set of charging instructions (
3.5.2.5.2.
If the Dedicated Condensing Unit includes a receiver and the subcooling target leaving the condensing unit provided in installation instructions cannot be met without fully filling the receiver, the subcooling target shall be ignored. Likewise, if the Dedicated Condensing unit does not include a receiver and the subcooling target leaving the condensing unit cannot be met without the unit cycling off on high pressure, the subcooling target can be ignored. Also, if no instructions for charging or for setting subcooling leaving the condensing unit are provided in the installation instructions, the refrigeration system shall be set up with a charge quantity and/or exit subcooling such that the unit operates during testing without shutdown (
3.5.2.5.3.
3.5.2.5.4.
3.5.2.5.4.1. Install a pressure gauge in the liquid line if charging is on the basis of subcooling, or high side pressure or corresponding saturation or dew point temperature.
3.5.2.5.4.2. Install a pressure gauge in the suction line if charging is on the basis of superheat, or low side pressure or corresponding saturation or dew point temperature. Install this gauge as close to the evaporator as allowable by the installation instructions and the physical constraints of the unit. Use methods for installing pressure gauge(s) at the required location(s) as indicated in the installation instructions if specified.
3.5.2.5.4.3. If the installation instructions indicate that refrigerant line pressure gauges should not be installed and the unit fails to operate due to high-pressure or low-pressure compressor cut off, then a charging port shall be installed, and the unit shall be evacuated of refrigerant and charged to the nameplate charge.
3.5.2.6 Ducted Units
For systems with ducted evaporator air, or that can be installed with or without ducted evaporator air: Connect ductwork on both the inlet and outlet connections and determine external static pressure (ESP) as described in sections 6.4 and 6.5 of ANSI/ASHRAE 37. Use pressure measurement instrumentation as described in section 5.3.2 of ANSI/ASHRAE 37. Test at the fan speed specified in the installation instructions—if there is more than one fan speed setting and the installation instructions do not specify which speed to use, test at the highest speed. Conduct tests with the ESP equal to 50% of the maximum ESP allowed in the installation instructions, within a tolerance of −0.00/+0.05 inches of water column. If the installation instructions do not provide the maximum ESP, the ESP shall be set for testing such that the air volume rate is
If testing using either the indoor or outdoor air enthalpy method to measure the air volume rate, adjust the airflow measurement apparatus fan to set the external static pressure—otherwise, set the external static pressure by symmetrically restricting the outlet of the test duct. In case of conflict, these requirements for setting airflow take precedence over airflow values specified in manufacturer installation instructions or product literature.
3.5.2.7. Two-Speed or Multiple-Speed Evaporator Fans. Two-Speed or Multiple-Speed evaporator fans shall be considered to meet the qualifying control requirements of section C4.2 of Appendix C of AHRI 1250-2020 for measuring off-cycle fan energy if they use a fan speed no less than 50% of the speed used in the maximum capacity tests.
3.5.2.8. Defrost
Use section C10.2.1 of Appendix C of AHRI 1250-2020 for defrost testing. The Test Room Conditioning Equipment requirement of section C10.2.1.1 of Appendix C of AHRI 1250-2020 does not apply.
3.5.2.8.1 Adaptive Defrost
When testing to certify compliance to the energy conservation standards, use N
3.5.2.8.2 Hot Gas Defrost
When testing to certify compliance to the energy conservation standards, remove the hot gas defrost mechanical components and disconnect all such components from electrical power. Test the units as if they are electric defrost units, but do not conduct the defrost tests described in section C10.2.1 of AHRI 1250-2020. Use the defrost heat and power consumption values as described in section C10.2.2 of AHRI 1250-2020 for the AWEF2 calculations.
3.5.2.9 Dedicated condensing units that are not matched for testing and are not single-packaged dedicated systems.
The temperature measurement requirements of sections C3.1.3 and C4.1.3.1 appendix C of AHRI 1250-2020 shall apply only to the condensing unit exit rather than to the unit cooler inlet and outlet, and they shall be applied for two measurements when using the DX Dual Instrumentation test method.
3.5.2.10. Single-packaged dedicated systems
Use the test method in section C9 of appendix C of AHRI 1250-2020 (including the applicable provisions of ASHRAE 16-2016, ASHRAE 23.1-2010, ASHRAE 37-2009, and ASHRAE 41.6-2014, as referenced in section C9.1 of AHRI 1250-2020) as the method of test for single-packaged dedicated systems, with modifications as described in this section. Use two test methods listed in table 20 of this appendix to calculate the net capacity and power consumption. The test method listed with a lower “Hierarchy Number” and that has “Primary” as an allowable use in table 20 of this appendix shall be considered the primary measurement and used as the net capacity.
3.5.2.10.1 Single-Packaged Refrigerant Enthalpy Method
The single-packaged refrigerant enthalpy method shall follow the test procedure of the DX Calibrated Box method in AHRI 1250-2020, appendix C, section C8 for refrigerant-side measurements with the following modifications:
3.5.2.10.1.1 Air-side measurements shall follow the requirements of the primary single-packaged method listed in table 20 of this appendix. The air-side measurements and refrigerant-side measurements shall be collected over the same intervals.
3.5.2.10.1.2 A preliminary test at Test Rating Condition A is required using the primary method prior to any modification necessary to install the refrigerant-side measuring instruments. Install surface mount temperature sensors on the evaporator and condenser coils at locations not affected by liquid subcooling or vapor superheat (i.e., near the midpoint of the coil at a return bend), entering and leaving the compressor, and entering the expansion device. These temperature sensors shall be included in the regularly recorded data.
3.5.2.10.1.3 After the preliminary test is completed, the refrigerant shall be removed from the equipment and the refrigerant-side measuring instruments shall be installed. The equipment shall then be evacuated and recharged with refrigerant. Once the equipment is operating at Test Condition A, the refrigerant charge shall be adjusted until, as compared to the average values from the preliminary test, the following conditions are achieved:
(a) Each on-coil temperature sensor indicates a reading that is within ±1.0 °F of the measurement in the initial test,
(b) The temperatures of the refrigerant entering and leaving the compressor are within ±4 °F, and
(c) The refrigerant temperature entering the expansion device is within ±1 °F.
3.5.2.10.1.4 Once these conditions have been achieved over an interval of at least 10 minutes, refrigerant charging equipment shall be removed and the official tests shall be conducted.
3.5.2.10.1.5 The lengths of liquid line to be added shall be 5 feet maximum, not including the requisite flow meter. This maximum length applies to each circuit separately.
3.5.2.10.1.6 Use section C9.2 of appendix C of AHRI 1250-2020 for allowable refrigeration capacity heat balance. Calculate the single-packaged refrigerant enthalpy (secondary) method test net capacity
UA
T
T
T
3.5.2.10.1.7 For multi-circuit single-packaged systems utilizing the single-packaged refrigerant enthalpy method, apply the test method separately for each circuit and sum the separately-calculated refrigerant-side gross refrigeration capacities.
3.5.2.10.2 Calibrated Box Test Procedure
3.5.2.10.2.1 Measurements. Refer to section C3 of AHRI 1250-2020 (including the applicable provisions of ASHRAE 41.1-2013, ASHRAE 41.3-2014, and ASHRAE 41.10-2013, as referenced in section C3 of AHRI 1250-2020) for requirements of air-side and refrigerant-side measurements.
3.5.2.10.2.2 Apparatus setup for Calibrated Box Calibration and Test. Refer to section C5 of AHRI 1250-2020 and section C8 of AHRI 1250-2020 for specific test setup.
3.5.2.10.2.3 The calibrated box shall be installed in a temperature-controlled enclosure in which the temperature can be maintained at a constant level. When using the calibrated box method for Single-Packaged Dedicated Systems, the enclosure air temperature shall be maintained such that the condenser air entering conditions are as specified for the test.
3.5.2.10.2. The temperature-controlled enclosure shall be of a size that will provide clearances of not less than 18 in at all sides, top and bottom, except that clearance of any one surface may be reduced to not less than 5.5 inches.
3.5.2.10.2.5 The heat leakage of the calibrated box shall be noted in the test report.
3.5.2.10.2.6 Refrigerant lines within the calibrated box shall be well insulated to avoid appreciable heat loss or gain.
3.5.2.10.2.7 Instruments for measuring the temperature around the outside of the calibrated box to represent the enclosure temperature T
3.5.2.10.2.8 One of the following two approaches shall be used for the box external temperature measurement. Box calibration and system capacity measurement shall both be done using the same one of these approaches. 1: Air temperature sensors. Each temperature sensor shall be at a distance of 6 inches from the calibrated box. If the clearance from a surface of the box (allowed for one surface only) is less than 12 inches, the temperature measuring instruments shall be located midway between the outer wall of the calibrated box and the adjacent surface. 2: Surface temperature sensors. Surface temperature sensors shall be mounted on the calibrated box surfaces to represent the enclosure temperature, T
3.5.2.10.2.9 Additional surface temperature sensors may be used to measure external hot spots during refrigeration system
3.5.2.10.2.11 The average air dry-bulb temperature in the calibrated box during Single-Packaged Dedicated System tests and calibrated box heat leakage tests shall be the average of eight temperatures measured at the corners of the box at a distance of 2 inches to 4 inches from the walls. The instruments shall be shielded from any cold or warm surfaces except that they shall not be shielded from the adjacent walls of the box. The Single-Packaged Dedicated System under test shall be mounted such that the
3.5.2.10.2.12 Calibration of the Calibrated Box. Calibration of the Calibrated Box shall occur prior to installation of the Single-Packaged Dedicated System. This shall be done either (a) prior to cutting the opening needed to install the Single-Packaged Dedicated System, or (b) with an insulating panel with the same thickness and thermal resistance as the box wall installed in the opening intended for the Single-Packaged Dedicated System installation. Care shall be taken to avoid thermal shorts in the location of the opening either during calibration or during subsequent installation of the Single-Packaged Dedicated System. A calibration test shall be made for air movements comparable to those expected for Single-Packaged Dedicated System capacity measurement,
3.5.2.10.2.13 The heat input shall be adjusted to maintain an average box temperature not less than 25.0 °F above the test enclosure temperature.
3.5.2.10.2.14 The average dry-bulb temperature inside the calibrated box shall not vary more than 1.0 °F over the course of the calibration test.
3.5.2.10.2.15 A calibration test shall be the average of 11 consecutive hourly readings when the box has reached a steady-state temperature condition.
3.5.2.10.2.16 The box temperature shall be the average of all readings after a steady-state temperature condition has been reached.
3.5.2.10.2.17 The calibrated box has reached a steady-state temperature condition when: The average box temperature is not less than 25 °F above the test enclosure temperature. Temperature variations do not exceed 5.0 °F between temperature measuring stations. Temperatures do not vary by more than 2 °F at any one temperature- measuring station.
3.5.2.10.2.18 Data to be Measured and Recorded. Refer to Table C5 in section C6.2 of AHRI 1250-2020 for the required data that need to measured and recorded.
3.5.2.10.2.19 Refrigeration Capacity Calculation.
The heat leakage coefficient of the calibrated box is calculated by
For each Dry Rating Condition, calculate the Net Capacity:
3.5.2.10.3 Detachable single-packaged systems shall be tested as single-packaged dedicated refrigeration systems.
3.5.2.11
3.5.2.11.1 Manufacturer-Provided Equipment Overrides
Where needed, the manufacturer must provide a means for overriding the controls of the test unit so that the compressor(s) operates at the specified speed or capacity and the indoor blower operates at the speed consistent with the compressor operating level as would occur without override.
3.5.2.11.2 Compressor Operating Levels
For variable-capacity and multiple-capacity compressor systems, the minimum capacity for testing shall be the minimum capacity that the system control would operate the compressor in normal operation. Likewise, the maximum capacity for testing shall be the maximum capacity that the system control would operate the compressor in normal operation. For variable-speed compressor systems, the intermediate speed for testing shall be the average of the minimum and maximum speeds. For digital compressor systems, the intermediate duty cycle shall be the average of the minimum and maximum duty cycles. For multiple-capacity compressor systems with three capacity levels, the intermediate operating level for testing shall be the middle capacity level. For multiple-capacity compressor systems with more than three capacity levels, the intermediate operating level for testing shall be the level whose displacement ratio is closest to the average of the maximum and minimum displacement ratios.
3.5.2.11.3 Refrigeration Systems with Digital Compressor(s)
Use the test methods described in section 3.5.2.10.1 of this appendix as the secondary method of test for refrigeration systems with digital compressor(s) with modifications as described in this section. The Test Operating tolerance for refrigerant mass flow rate and suction pressure in Table 2 of AHRI 1250-2020 shall be ignored. Temperature and pressure measurements used to calculate shall be recorded at a frequency of once per second or faster and based on average values measured over the 30-minute test period.
3.5.2.11.3.1 For Matched pair (not including single-packaged systems) and Dedicated Condensing Unit refrigeration systems, the preliminary test in sections 3.5.2.10.1.2 and 3.5.2.10.1.3 of this appendix is not required. The liquid line and suction line shall be 25 feet ± 3 inches, not including the requisite flow meters. Also, the term in the equation to calculate net capacity shall be set equal to zero.
3.5.2.11.3.2 For Dedicated Condensing Unit refrigeration systems, the primary capacity measurement method shall be balanced ambient outdoor calorimeter, outdoor air enthalpy, or outdoor room calorimeter.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service or USFWS), finalize the designation of critical habitat for slickspot peppergrass (
This rule is effective June 5, 2023.
This final rule is available on the internet at
The coordinates or plot points or both from which the maps are generated are included in the decision file for this critical habitat designation and are available at
Lisa Ellis, State Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
The critical habitat we are designating in this rule, consisting of four units and seven subunits comprising 31,569 ha (78,009 ac) for slickspot peppergrass, constitutes our current best assessment of the areas that meet the definition of critical habitat for the species.
On December 7, 2009, slickspot peppergrass was listed as a threatened species throughout its range (74 FR 52014, October 8, 2009). On May 10, 2011, we published a proposed rule to designate critical habitat for slickspot peppergrass (76 FR 27184). On August 8, 2012, the District Court of Idaho vacated the final rule listing slickspot peppergrass as a threatened species under the Act and remanded the rule to the Service for further consideration consistent with the Court's opinion (
Our July 23, 2020, revised proposed critical habitat rule (85 FR 44584) detailed changes from the previous
1. We added six new Element Occurrences (EOs) (recorded species locations) that were occupied at the time of listing but had not been evaluated in our proposed rule for physical or biological features (PBFs) essential to the conservation of the species. For this final rule, we determined that these six EOs contained one or more PBFs. See the Criteria and Methodology Used To Identify Critical Habitat section, below, for details.
2. In our proposed rule, we did not include E.O. 57 based on surveys that indicated it did not meet our PBF criteria. However, we re-evaluated the PBFs for E.O. 57 and determined that it contained one or more PBFs; therefore, we are including it in our final critical habitat designation. See the Criteria and Methodology Used to Identify Critical Habitat section, below, for details.
3. We included D-ranked EOs, which represent the lowest ranked occupied EOs. The E.O. alphabetical ranking system measures viability of a species or ecological integrity of the community and was developed by NatureServe (2002, 2020
4. We increased the buffer around EOs from 250 meters (m) (820 feet (ft)) to 500 m (1,640 ft). This increase is based on foraging distances of most of the important pollinators of slickspot peppergrass instead of using the foraging distance of a single pollinator (solitary bee), which was how we determined the buffer size in our proposed rule. We provided additional citations on foraging distances of the other pollinator species to support this increase in the section Physical or Biological Features Essential to the Conservation of the Species, below.
5. We excluded approximately 2,736 ha (6,761 ac) of State of Idaho land and 4,508 ha (11,141 ac) of private and municipal (county and city) land from our critical habitat designation under section 4(b)(2) of the Act, as detailed in Considerations of Impacts under Section 4(b)(2) of the Act, below.
6. We clarified our description of the PBFs to provide more context but did not change their meaning. A description of PBFs is in the section Physical or Biological Features Essential to the Conservation of the Species with additional discussion provided under Criteria and Methodology Used to Identify Critical Habitat, below.
7. We deleted “honeybees” from our description of PBF 4 under the
8. We made small, nonsubstantive clarifications and corrections throughout this final rule to ensure consistency, clarify information, reduce redundancy, update scientific names of plants, and update or add new references.
The combined effect of the changes we have made from our July 23, 2020, proposed rule (85 FR 44584) to this final rule result in an increase from a proposed designation of critical habitat of 17,049 ha (42,129 ac) to a final designation of critical habitat of approximately 31,569 ha (78,009 ac). The reasons for this increase are mentioned in the list above and explained more thoroughly in the following sections of the preamble.
In 2011, we sought comments from five independent specialists to ensure that our proposed critical habitat designation was based on scientifically sound data and analyses regarding the 2011 proposed rule. We received responses from three of the individuals. In 2020, we completed a species status assessment (SSA) report for slickspot peppergrass. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
The final economic analysis (dated March 12, 2012), which documents the potential economic effects of the designation, considered all public comments and any new information as of 2011 (IEc 2012).
The final SSA report (USFWS 2020) and final economic analysis (IEc 2012) are available at
In our revised proposed rule published on July 23, 2020 (85 FR 44584), we requested that all interested parties submit written comments on the proposal by September 21, 2020. We also stated in the July 23, 2020, revised proposed rule (85 FR 44584) that comments submitted during the previous comment periods for the May 10, 2011, proposed rule (76 FR 27184) and the February 12, 2014, revised proposed rule (79 FR 8402) would be considered. For all comment periods, we reached out to appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and inviting them to comment on the proposal. Newspaper legal notices requesting public comments were published in the Idaho Statesman. We did not receive any requests for a public hearing during any of our comment periods.
During the first comment period (76 FR 27184, May 10, 2011), we received 16 comment letters addressing the proposed critical habitat designation for slickspot peppergrass. Of these comments, 3 were from peer reviewers and 13 were from public organizations or individuals. During the second comment period (79 FR 8402, February 12, 2014), we received 17 comment letters addressing the proposed critical habitat designation or the draft economic analysis. For the most recent comment period (85 FR 44584, July 23, 2020), we received 23 comment letters on the proposed rule to designate
We solicited expert opinion in 2011 from five appropriate and independent specialists regarding the May 10, 2011, proposed rule (76 FR 27184). We received input from three of the individuals. Since that time, we have implemented a standard practice of developing an SSA as the scientific foundation to inform our section 4 rulemaking (
Regarding our use of peer-reviewed literature based on research conducted in Germany, we used the best available scientific information on pollinator foraging ranges. Although the studies were conducted in Germany and not in sagebrush-steppe habitat, the information pertained to flight distances based on bee body size, which we can extrapolate to similarly sized bees occurring in sagebrush-steppe habitat.
As stated in the proposed rule (85 FR 44584, July 23, 2020), and in this final rule, areas are included in critical habitat if they contain one or more of the PBFs; PBFs do not have to occur simultaneously to constitute critical habitat for slickspot peppergrass.
As the commenters noted, a portion of the EO ranking score was based on the EO/sub-EO size. While EO size is not identified as a specific PBF, population size does contribute to the resiliency of a species; therefore, we clarified in the Criteria and Methodology Used To Identify Critical Habitat section, below, that we used the IDFG rankings as surrogates to help us determine which EOs provide the PBFs essential to the conservation of the species that may need special management. Also, please see our response to
With respect to the State's comment regarding which EOs meet our definition of critical habitat, based on comments received during the public comment period on our revised proposed critical habitat rule (85 FR 44584, July 23, 2020), we reevaluated our criteria for determining which EOs contain PBFs and meet our definition of critical habitat. The proposed rule did not include EOs ranked D or lower; however, in this final rule we included all areas that were occupied at the time of listing that are ranked B-D (there are currently no EOs ranked A or AB). Our rationale for including D-ranked EOs is provided in the Criteria and Methodology Used To Identify Critical Habitat section, below.
As a conservation tool, a critical habitat designation ensures that when actions with a Federal nexus are proposed within critical habitat, the Federal action agency reviews the proposed action and, if needed, consults with the Service to determine if the action will adversely modify critical habitat. Critical habitat does not require a Federal agency or a private landowner proposing an action with a Federal nexus to perform any conservation actions, although the Service and the Federal action agency may identify conservation recommendations that can be voluntarily implemented.
The analysis of economic impacts of a critical habitat designation involves evaluating the baseline condition under two scenarios: one with critical habitat and one without critical habitat. The impacts of critical habitat equal the difference, or “increment,” between these two scenarios. This is known as an “incremental analysis.” Measured differences may include changes in land or resource use, environmental quality, or time and effort expended on administrative and other activities by Federal landowners, Federal action agencies, State and local governments, or private third parties. Any differences that are attributable solely to critical habitat are considered an incremental impact of the designation. Most of the examples of impacts offered by commenters were effects attributable to other conservation measures for slickspot peppergrass that are already in place because of the listing of the species (
Currently, and as described in our final economic analysis, we do not foresee a circumstance in which designation of critical habitat will change the outcome or alter the timing
While some uncertainty will always exist, the information used in this final rule represents the best available information upon which to make a critical habitat designation for slickspot peppergrass. It also does not preclude future survey, monitoring, and analyses for this species and its habitat, and it is not limited to critical habitat boundaries. We will be developing a recovery plan with input from stakeholders and partners that will establish priorities and measures to recover the species, and which will consider ecological range characteristics and address habitat fragmentation. During the recovery planning process, a range of conservation tools, data, and analyses will be used to determine how best to recover the species.
In reference to grazing allotment management, areas are included in critical habitat if they are occupied by slickspot peppergrass (
The commenter also questioned what science there is to demonstrate that slickspot peppergrass pollination and seed production is different between adjacent sagebrush habitat and non-sagebrush habitat and requested information that substantiates the necessity to include adjacent sagebrush habitat in the critical habitat designation.
On Federal land, it is the responsibility of the appropriate land management agency to develop and implement resource management plans. Projects with a Federal nexus would require section 7 consultation under the adverse modification standard if they affected designated critical habitat (see the
Regarding the comment about climate change not being addressed in our July 23, 2020, revised proposed rule (85 FR 44584), we have included a brief discussion in our Criteria and Methodology Used to Identify Critical Habitat section, below. Information identified in the SSA indicates that climate change has already amplified the effects of wildfire and invasive,
In addition, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of slickspot peppergrass, both inside and outside a critical habitat designation, would continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species.
In this final rule, we are also excluding State and private lands from designation of critical habitat. Therefore, there are no section 7 critical habitat consultation requirements on those lands, although they will still be subject to section 7 consultation on the species if there is a Federal nexus. Therefore, we still find that the conclusion of the 2012 final economic analysis applies to this final rule.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those PBFs that are essential to the conservation of the species (such as space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the PBFs that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
With rare exception, slickspot peppergrass occurs only in slick spot microsites scattered within the greater, semiarid, sagebrush-steppe ecosystem of southwestern Idaho. Slick spots provide habitats that are representative of the historical, geographical, and ecological distribution of slickspot peppergrass, and provide nutrients and water for reproduction, germination, and seed dispersal. The restricted distribution of slickspot peppergrass is likely due to its adaptation to the specific conditions within these slick spot habitats. Slick spots are distinguished from the surrounding sagebrush habitat as having the following characteristics: microsites where water pools when rain falls (Fisher et al. 1996, pp. 2, 4); sparse native vegetation; distinct soil layers with a columnar or prismatic structure, higher alkalinity and clay content, and natric (sodic, high sodium) properties (Fisher et al. 1996, pp. 15-16; Meyer and Allen 2005, pp. 3-5, 8; Palazzo et al. 2008, p. 378); and reduced levels of organic matter and nutrients due to lower biomass production (Meyer and Quinney 1993, pp. 3, 6; Fisher et al. 1996, p. 4). Although the low permeability of slick spots appears to help hold moisture (Moseley 1994, p. 8), once the thin crust dries out, the survival of slickspot peppergrass seedlings depends on the ability of the plant to extend the taproot into the argillic horizon (soil layer with high clay content) to extract moisture from the deeper natric zone (Fisher et al. 1996, p. 13).
Ecologically functional slick spots have the following three primary layers: the surface silt layer, the middle restrictive layer, and an underlying moist clay layer. Although slick spots can appear homogeneous on the surface, the actual depth of the silt and restrictive layer can vary throughout the slick spot (Meyer and Allen 2005, Tables 9, 10, and 11). The top two layers (surface silt and restrictive) of slick spots are normally very thin; the surface silt layer varies in thickness from a 0.25 to 3 centimeters (cm) (0.1 to 1.2 inches (in)) in slick spots known to support slickspot peppergrass, and the restrictive layer varies in thickness from 1 to 3 cm (0.4 to 1.2 in) (Meyer and Allen 2005, p. 3). Fisher et al. (1996, p. 4) describe the smooth surface layer of slick spots as crustlike, with prominent vesicular pores. Below the surface layer, the soil clay content increases abruptly and creates a strongly structured, finely textured boundary (horizon) formed by the concentration of silicate clay materials, known as an argillic horizon.
Slick spot soil profiles are distinctive and distinguished from the surrounding
The biological soil crust, also known as a microbiotic crust or cryptogamic crust, is another component of quality habitat for slickspot peppergrass. Such crusts are commonly found in semiarid and arid ecosystems, and are formed by living organisms, primarily bryophytes (mosses), lichens, algae, and cyanobacteria (blue-green algae), that bind together surface soil particles (Moseley 1994, p. 9; Johnston 1997, p. 4). Microbiotic crusts play an important role in stabilizing the soil and preventing erosion, increasing the availability of nitrogen and other nutrients in the soil, and regulating water infiltration and evaporation levels (Johnston 1997, pp. 8-10). In addition, an intact crust appears to aid in preventing the establishment of invasive plants (Brooks and Pyke 2001, p. 4; Serpe et al. 2006, pp. 174, 176). These crusts are sensitive to disturbances that disrupt crust integrity, such as compression due to livestock trampling or off-road vehicle use and are also vulnerable to damage by fire. Recovery from disturbance is possible but occurs very slowly (Johnston 1997, pp. 10-11).
The native, semiarid sagebrush-steppe habitat of southwestern Idaho where slickspot peppergrass is found can be divided into two plant associations, each dominated by the shrub Wyoming big sagebrush (
Slickspot peppergrass is primarily an outcrossing species requiring pollen from separate plants for more successful fruit production; it exhibits low seed set in the absence of insect pollinators (Robertson 2003, p. 9; Robertson and Klemash 2003, p. 338; Robertson and Ulappa 2004, p. 1707; Billinge 2006, p. 40; Robertson et al. 2006, p. 40; Billinge and Robertson 2008, pp. 1005-1006). Insects from 25 families have been observed on slickspot peppergrass flowers (Robertson and Klemash, 2003, pp. 335-336). Of those 25 insect families, the primary slickspot peppergrass pollinators include several families of bees (Anthophoridae, Apidae, Colletidae, Halictidae, Sphecidae, and Vespidae), flies (Bombyliidae, Syrphidae, Calliphoridae, and Tachinidae), beetles (Cerambycidae, Dermestidae, Melyridae), and moths (Gelechiidae) (Robertson and Hannon 2003, p. 6; Robertson and Klemash 2003, p. 336; Robertson and Leavitt 2011, p. 384).
Pollinators need a diversity of native plants with overlapping bloom times to provide flowers for foraging throughout their active season; nesting and egg-laying sites (
To determine the size of the pollinator-use area or buffer, we evaluated the pollinators of slickspot peppergrass and the distance that those pollinators were likely to fly in search of food. Although slickspot peppergrass is pollinated by a variety of insects, its primary pollinators are composed of families of small- to medium-sized solitary bees and flies, and larger, thread-waisted sphecid wasps (Sphecidae), meloid beetles, moths, and butterflies (Robertson and Leavitt 2011, pp. 384-385; Robertson 2020, pers. comm.). Flight distances are generally correlated with body size in bees; larger bees can fly farther than smaller bees (Gathmann and Tscharntke 2002, entire; Greenleaf et al. 2007, pp. 592-594; Kendall et al. 2022, p. 4). While researchers have reported that some solitary bee species, particularly larger bodied ones, are capable of foraging greater than 1 kilometer (km) (0.6 mile (mi)) (Zurbuchen et al. 2010, pp. 671-672), the majority of these species are central-place foragers (
In addition, honeybees were identified as a pollinator of slickspot peppergrass in our 2020 proposed rule (85 FR 44584). However, they are a nonnative species and compete for floral resources with native insect pollinators and spread diseases to native bees (Cane and Tepedino 2017, entire; Wojcik et al. 2018, pp. 827-829; Alger et al. 2019, pp. 5-7; Iwasaki and Hogendoorn 2022, pp. 7-8). Because of the potential negative impact they may have on the diverse native pollinator community associated with slickspot peppergrass, we do not consider them essential to the conservation of the species in this final rule.
The areas designated as critical habitat will ensure maintenance and continuity of foraging and nesting habitats for insect pollinators adjacent to occupied slick spots, thus promoting
Based on our current knowledge of habitat characteristics required to sustain the species' life-history processes, we determine that the PBFs essential to the conservation of slickspot peppergrass are:
(1) Ecologically functional microsites or “slick spots” that are characterized by:
(a) A high sodium and clay content, and a three-layer soil profile, which allows for successful seed germination, seedling growth, and maintenance of the seed bank. The surface horizon consists of a thin, silty, vesicular, pored (small cavity) layer that forms a physical crust (the silt layer). The subsoil horizon is a restrictive clay layer with an abruptic (referring to an abrupt change in texture) boundary with the surface layer, that is natric or natric-like in properties (a type of argillic (clay-based) horizon with distinct structural and chemical features) (the restrictive layer). The second argillic subsoil layer (that is less distinct than the upper argillic horizon) retains moisture through part of the year (the moist clay layer); and
(b) Sparse vegetation with invasive, nonnative plant species cover absent or limited to low to moderate levels.
(2) Relatively intact, native Wyoming big sagebrush (
(3) A diversity of native plants whose blooming times overlap to provide pollinator species with flowers for foraging throughout the seasons and to provide nesting and egg-laying sites; appropriate nesting materials; and sheltered, undisturbed places for hibernation and overwintering of pollinator species. In order for genetic exchange of slickspot peppergrass to occur, pollinators must be able to move freely between slick spots. Alternative pollen and nectar sources (other plant species within the surrounding sagebrush vegetation) are needed to support pollinators during times when slickspot peppergrass is not flowering, when distances between slick spots are long, and in years when slickspot peppergrass is not a prolific flowerer.
(4) Sufficient pollinators for successful fruit and seed production, particularly pollinator species of the sphecid and vespid wasp families, species of the bombyliid and tachnid fly families, and halictid bee species, most of which are solitary insects that nest outside of slick spots in the surrounding sagebrush-steppe vegetation, both in the ground and within the vegetation.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. A detailed discussion of the threats affecting the PBFs essential to the conservation of slickspot peppergrass, and that may require special management consideration or protection, can be found in the final listing rule published in the
The primary threats to the PBFs for slickspot peppergrass include the following direct and indirect effects: the current wildfire regime (
In the 2009 listing rule (74 FR 52014, October 8, 2009), climate change in and of itself was not considered to represent a significant range-wide threat to slickspot peppergrass; however, it was acknowledged that climate change potentially plays an important supporting role in intensifying the primary threats to the species. Information identified in the SSA (USFWS 2020, pp. 79-82) indicated that climate change has already amplified the effects of wildfire and invasive, nonnative plants on slickspot peppergrass, and through its influence on invasive, nonnative annual grass spread, climate change may have been a factor in the continuing downward trend in slickspot peppergrass population numbers observed over the past decade. Other, less significant factors that have the potential to impact the species include the effects from rangeland revegetation projects, wildfire management practices, recreation, and military use.
All areas of critical habitat may require some level of management to address current and future threats to slickspot peppergrass and to maintain or restore the PBFs. Special management to protect the features essential to the conservation of slickspot peppergrass from the effects of the current wildfire regime may include preventing or restricting the establishment of invasive, nonnative plant species, post-wildfire restoration with native plant species, and reducing the likelihood of wildfires affecting the nearby plant community components. Rapid response to wildfires from local and government fire agencies can potentially limit the size of wildfires and the spread of wildfire into slickspot peppergrass habitat. For fires that do occur in critical habitat, post-fire restoration plans can identify ways to limit invasive, nonnative vegetation and restore habitat using native plants.
Special management to protect the features essential to the conservation of
Special management to protect the features essential to the conservation of slickspot peppergrass from the effects of livestock use may include conservation measures and actions to minimize the effects of livestock use on these lands. Existing conservation plans and land use plans contain numerous measures to avoid, mitigate, and monitor the effects of livestock use on slickspot peppergrass. For example, livestock-grazing conservation measures are implemented through the conservation agreement between the Bureau of Land Management (BLM) and the Service (BLM 2014, pp. 8-12) and the Mountain Home Air Force Base Integrated Natural Resources Management Plan (INRMP; U.S. Air Force 2017, p. 192). Existing conservation measures include prescribing a minimum distance for the placement of salt and water troughs, identifying livestock use restrictions to reduce trampling of slick spots during wet periods, constructing fences, or potentially modifying current livestock use. We recognize the potential for negative impacts to slickspot peppergrass populations and slick spots that may result from seasonal, localized trampling events. However, under current management conditions, we do not consider livestock use to pose a significant threat to slickspot peppergrass. We encourage the continued implementation of conservation measures and associated monitoring to ensure potential impacts of livestock trampling to slickspot peppergrass are avoided or minimized.
Special management to protect the features essential to the conservation of slickspot peppergrass from the effects of residential and agricultural development may include the following: (1) creating managed plant reserves and open spaces, (2) limiting disturbances to and within suitable habitats, (3) increasing compliance inspections with livestock grazing permit holders, (4) requiring project fencing with adjacent construction activities, (5) disallowing new roads, and (6) evaluating the need for, and conducting, restoration efforts or revegetation of native plants in open spaces, plant preserves, or disturbed areas.
Special management to protect the features essential to the conservation of slickspot peppergrass from the effects of Owyhee harvester ant seed predation are addressed under the special management considerations for the current wildfire regime and invasive nonnative plants.
Finally, the protection of pollinators and their habitat is essential to the conservation of slickspot peppergrass. General pollinator management practices include: (1) maintaining a diversity of native plants with overlapping bloom times to provide flowers for foraging throughout the pollinators' active season, (2) nesting and egg-laying sites (
The designation of critical habitat does not imply that lands outside of critical habitat do not play an important role in the conservation of slickspot peppergrass. Activities with a Federal nexus that may affect those areas outside of critical habitat, such as development, agricultural, or road construction activities, are still subject to review under section 7 of the Act if they may affect slickspot peppergrass.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not designating any areas outside the geographical area occupied by the species at the time of listing because we did not identify any unoccupied areas that were essential for the conservation of the species and, therefore, met the definition of critical habitat.
We delineated critical habitat units within the three geographic areas where slickspot peppergrass occurs in order to represent genetic variability across the species' range. These areas include the Foothills, the Snake River Plain, and the Jarbidge (USFWS 2020, p. 5). Each critical habitat unit contains polygons of critical habitat consisting of slickspot peppergrass populations known as Element Occurrences (EO) and associated pollinator buffers that extend 500 m (1,640 ft) from the outer edge of the EOs. EOs are based on the standards and methods developed by NatureServe (NatureServe 2002, entire; NatureServe 2020
As per the NatureServe guidance, IDFG botanists ranked slickspot peppergrass EOs based on three factors: size, condition, and landscape context (Kinter and Miller 2016, p. 3). Possible EO ranks include A, B, C, D, E, F, H, or X; higher rankings (the highest rank is A) indicate sites with greater habitat quality and larger population sizes, which we infer are more likely to persist and sustain the species. Rankings of B, BC, C, CD, and D refer to states of decreased abundance and quality of detectable plants, native plant community, habitat condition, and overall landscape context within 1 km (0.6 mi) of occupied slick spots. Areas ranked E are those records with confirmed slickspot peppergrass presence but for which no additional habitat information is available. Rankings of F indicate areas where slickspot peppergrass was previously found, but no individuals were found when last visited by a qualified surveyor. Areas ranked H indicate historical occurrences where old location information is too vague to allow the EO to be found again. Rankings of X denote extirpated occurrences due to habitat destruction associated with development or agricultural conversion.
We based our criteria for the identification of critical habitat on IDFG's EO rankings. EO rankings are used for assessing estimated viability or probability of persistence as well as for prioritizing conservation planning or actions (NatureServe 2020
• 33 percent of the EO ranking score was based on the EO/sub-EO size (highest number of plants observed in at least 1 of up to the past 6 years of available IDFG data);
• 45 percent of the EO ranking score was based on habitat condition within EOs/sub-EOs as documented during IDFG recent field reviews; and
• 22 percent of the EO ranking score was based on habitat condition of the landscape within 1 km (0.6 mi) of EOs/sub-EOs as documented during IDFG recent field reviews.
These IDFG rankings do not necessarily correlate directly to the PBFs. For example, as described above in
Based on comments received during the public comment period on our revised proposed critical habitat rule (85 FR 44584, July 23, 2020), we reevaluated our criteria for determining which EOs contain PBFs and meet our definition of critical habitat. The proposed rule included slickspot peppergrass EOs with IDFG rankings of B, BC, C, and CD as designated critical habitat. However, in this final rule, we also included all areas that were occupied at the time of listing that are ranked D. Although some of the EOs with D rankings often have PBFs with degraded conditions and may need special management, we determined that including these lower ranked EOs is essential to the conservation of the species in part because we no longer have any excellent (A-ranked) or excellent to good (AB ranked) EOs, and we need these lower ranked EOs to increase the redundancy of populations across the species' range. Since 2006, there have been no A- or AB-ranked EOs of slickspot peppergrass (Kinter and Miller 2016, p. 8; Colket et al. 2006, p. 11; IFWIS database (IDFG Database 2021)). Ultimately, we conclude that every EO included in critical habitat was occupied at the time of listing and has one or more of the PBFs sufficient to justify designation.
Slickspot peppergrass is a species endemic to southwest Idaho with a relatively small geographic range and limited, finite habitat. Slick spot microsites are believed to have formed during the Pleistocene, and current climate conditions may not allow for the formation of new slick spots; therefore, the loss of slick spot microsites within the range of slickspot peppergrass seems to be permanent (USFWS 2020, pp. 6-7). A statistical analysis of 11 years of range-wide monitoring data demonstrated that across all three geographic areas, slickspot peppergrass is declining (Bond 2017, p. 11), and without new tools and management to reduce or ameliorate the primary threats (increased wildfire and invasive plants) to the species, slickspot peppergrass is predicted to continue to decline into the future (USFWS 2020, pp. 121, 124-130).
In addition, we expect climate change to magnify the severity and scope of the primary threats of changing wildfire regimes and invasive nonnative plants to slickspot peppergrass, thereby reducing resiliency, representation, and redundancy of slickspot peppergrass populations rangewide (USFWS 2020, pp. 79-82). In the 2009 listing rule (74 FR 52014, October 8, 2009), we did not consider climate change to represent a significant range-wide threat to slickspot peppergrass. However, information identified in the SSA indicates that climate change has already amplified the effects of wildfire and invasive, nonnative plants on slickspot peppergrass. Through its influence on the spread of invasive, nonnative annual grasses, climate change may have been a factor in the continuing downward trend in slickspot peppergrass population numbers observed over the past decade.
Elevations for slickspot peppergrass populations range from a low of 756 m (2,480 ft) at EO 68 south of New Plymouth, Idaho, in the Foothills geographic area to a high of 1,654 m (5,425 ft) at EO 97 south of the Juniper Butte Range in the Jarbidge geographic area. Both extremes of low- and high-elevation areas contain slickspot peppergrass populations assessed by IDFG as having good population viability (B-ranked), although the lower elevation populations of the Foothills geographic area are smaller in area and more isolated, likely due to more fragmented habitats. The current higher fragmentation levels and projected future increased risk for wildfire and invasive, nonnative plants (particularly cheatgrass) make lower elevation populations more vulnerable to the effects of climate change than the higher elevation populations in the Jarbidge geographic area because these threats are likely to be amplified in lower elevation areas as temperatures increase. Most plant species cannot naturally shift their geographic ranges fast enough to keep up with predicted high projected rates of climate change in most landscapes. However, by designating critical habitat in all three geographic areas (Foothills, Snake River Plain, and Jarbidge) where the species occurs, including all B-D ranked EOs as well as the 500-m (1,640-ft) pollinator buffer around designated EOs, we have determined that these areas will help support slickspot peppergrass under potential climate change scenarios in the future.
We also continue to include areas that may have been partially degraded in the past by threats such as wildfire. The Act defines critical habitat as the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protections. A combination of special management activities such as habitat enhancement or threat-reduction actions may be appropriate to maintain (and possibly increase) slickspot-peppergrass population resiliency and species persistence over time. Including lower ranked EOs (CD and D) will help ensure we retain the flexibility to consider various paths to recovery. In summary, after considering the best available information, we determined that all
We have determined that 113 EOs (42 B-ranked, 2 BC-ranked, 33 C-ranked, 7 CD-ranked, and 29 D-ranked) meet our criteria for critical habitat designation. These 113 EOs reflect the merging of 2 C-ranked EOs (EOs 19 and 41) into B-ranked EO 18, the addition of CD-ranked EOs 23 and 57 that were not included in the proposed rule (85 FR 44584, July 23, 2020), and the addition of 6 new EOs. These six EOs include EO 122 (Unit 3a; C rank) and EOs 123, 124, 727, 728, and 729 (Unit 4, B rank). These EOs were ranked by the IDFG after publication of our July 23, 2020, revised proposed rule (85 FR 44584) and meet our definition of critical habitat. EO 122 was occupied at the time of listing (2016). The other five EOs were found in 2017 and were likely occupied at the time of listing because these slick spots had not been surveyed prior to 2017, and slickspot peppergrass is not likely to colonize new areas to the extent to which these EOs were populated (number of plants ranged from 13 to 766 per EO) within a year. Therefore, all six EOs are included in our final critical habitat designation.
In the 2009 final listing rule (74 FR 52014, October 8, 2009), we described the total area of known EOs (that is, area covered by the EOs themselves) as being approximately 6,500 hectares (ha) (16,000 acres (ac)). This area reflected only the known locations of individuals of the plant, as recognized in the IDFG IFWIS database as of 2009, and is a small portion of the overall geographic range of the species. In the May 10, 2011, proposed critical habitat rule (76 FR 27184), we described in detail the criteria used to identify critical habitat, including a 250-m (820-ft) buffer around EO polygons to provide areas for pollinator support and to minimize disturbance to the plant's habitat. We have since reassessed the size of the pollinator buffer and, in this final rule, we are increasing the buffer around EOs to 500 m (1,640 ft) (see the section Physical or Biological Features Essential to the Conservation of the Species, above, for details).
In this final rule, we used Geographic Information System (GIS) software (ESRI ArcGIS 10.7.1) to more precisely map areas that meet the definition of critical habitat rather than the mapping methodology we used in our 2011 and 2014 proposed rules (76 FR 27184, May 10, 2011; 79 FR 8402, February 12, 2014), which used the Public Land Survey System Quarter-Quarter section method. The GIS-based method involves delineation of B- through D-ranked slickspot peppergrass EOs surrounded by 500-m (1,640-ft) pollinator buffers to create polygons of slickspot peppergrass critical habitat. In contrast, critical habitat maps in 2011 and 2014 were created by selecting all Quarter-Quarter sections that intersected with B- through CD-ranked EOs or their surrounding 250-m (820-ft) pollinator buffers. The use of Quarter-Quarter sections, which represent land survey boundaries rather than biologically based boundaries, resulted in large areas outside of the GIS-generated polygons being included as proposed critical habitat in the 2011 proposed critical habitat rule (76 FR 27184, May 10, 2011) and the 2014 revised proposed critical habitat rule (79 FR 8402, Feb. 12, 2014). Use of GIS-based information represents a more precise method of delineating critical habitat that does not include extraneous areas.
The use of B- through D-ranked EO polygons and their surrounding 500-m (1,640-ft) pollinator buffers to create a more biologically sound critical habitat designation method is feasible, and is consistent with current Service regulations (77 FR 25611, May 1, 2012; 81 FR 7414, Feb. 11, 2016; 84 FR 45020, August 27, 2019) as well as with other Service critical habitat rules (
When determining final critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack PBFs necessary for slickspot peppergrass. These areas lacking PBFs were identified in GIS using aerial imagery from the ArcGIS World Imagery layer, aerial imagery from Google Earth Pro, and the 2019 National Agricultural Imagery Program (NAIP) Idaho layer, which has a spatial resolution of a 60-centimeter ground sample distance. Areas that lacked PBFs were then manually clipped out of our critical habitat polygons. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the final rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification, unless the specific action will affect the PBFs in the adjacent critical habitat.
Therefore, we are designating as critical habitat lands that we determined were occupied at the time of listing (
The final critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, and presented at the end of this document under Regulation Promulgation. We will make the coordinates or plot points or both on which each map is based available to the public on
We are designating approximately 31,569 ha (78,009 ac) of critical habitat in four units and seven subunits for slickspot peppergrass. The four units are the: (1) Payette and Gem Counties Unit, (2) Gem and Ada Counties Unit, (3) Ada and Elmore Counties Unit, and (4) Owyhee County Unit. Table 1 shows the critical habitat units and the approximate area of each unit. All units are considered occupied at the time of listing. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for slickspot peppergrass.
We present brief descriptions of all final critical habitat units, identify the EOs included in each, and provide the reasons why they meet the definition of critical habitat for slickspot peppergrass, below.
Critical habitat in Unit 1 (Payette and Gem Counties Unit) consists of 704 ha (1,741 ac) located in portions of Payette and Gem Counties within the Foothills geographic area. The northern boundary of Unit 1 is approximately 7.0 km (4.3 mi) south of New Plymouth, Idaho. This unit contains five slickspot peppergrass EOs: 66, 68, 69, 70, and 114, all of which were occupied at the time of the species' listing. All designated critical habitat is federally managed by either the BLM Four Rivers Field Office area (695 ha (1,718 ac)) or the Bureau of Reclamation (BOR) (9 ha (23 ac)). We have excluded 76 ha (188 ac) of private land from portions of all five EOs in this unit (see
Critical habitat in Unit 2 (Gem and Ada Counties Unit) consists of 8,661 ha (21,402 ac) divided into four subunits: 2a, 2b, 2c, and 2d. This unit contains 26 slickspot peppergrass EOs split among the 4 subunits. All designated critical habitat in this unit is federally managed by the BLM (8,643 ha (21,357 ac)) and BOR (18 ha (45 ac)). All subunits contain the PBFs essential to the conservation of the species, as described in more detail below. This unit is important to the conservation of slickspot peppergrass because it contains a large remaining intact area of sagebrush-steppe habitat that has experienced little impact from wildfire.
Subunit 2a lies within the Foothills geographic area and contains the city of Eagle, Idaho, and the southern boundary of the subunit is approximately 1.8 km (1.1 mi) northwest of Boise, Idaho. Subunit 2a contains five EOs: 52, 56, 76, 108 and 118, all of which were occupied at the time of the species' listing. Approximately 874 ha (2,160 ac) of subunit 2a are federally managed by the BLM. We have excluded 1,572 ha (3,886 ac) of private land and 41 ha (102 ac) of State land from portions of EOs 52, 56, 76, 108, and 118 and wholly from EOs 12, 23, 36, 38, 65, and 107 (see
The northern boundary of Subunit 2b is approximately 3.2 km (2.0 mi) south of Kuna, Idaho, within the Snake River Plain geographic area. Critical habitat in Subunit 2b comprises 5,423 ha (13,401
The northern boundary of Subunit 2c is approximately 6.0 km (3.7 mi) southwest of Boise, Idaho, within the Snake River Plain geographic area. It contains four EOs: 32, 48, 49, and 102, all of which were occupied at the time of the species' listing. Critical habitat in Subunit 2c consists of approximately 657 ha (1,623 ac) of BLM land within the Four Rivers Field Office area. We have excluded 793 ha (1,959 ac) of private land and 149 ha (367 ac) of State land from portions of EOs 32, 48, 49, and 102 and wholly from EOs 22, 64, and 101 (see
The northern boundary of subunit 2d is approximately 23.0 km (14.3 mi) southeast of Boise, Idaho, within the Snake River Plain geographic area. Subunit 2d contains nine EOs: 27, 28, 54, 67, 72, 77, 103, 104, and 119, all of which were occupied at the time of the species' listing. Critical habitat in Subunit 2d consists of approximately 1,707 ha (4,218 ac) of land managed by the BLM (1,689 ha (4,173 ac)) and the BOR (18 ha (45 ac)). We have excluded 112 ha (277 ac) of private land and 1,182 ha (2,921 ac) of State land from portions of EOs 27, 54, 67, 72, 77, 103, and 104 (see
Subunit 2d is located, in part, within the boundary of the BLM Morley Nelson Snake River Birds of Prey National Conservation Area. This subunit helps to maintain the geographic range of the species and provide an opportunity to expand slickspot peppergrass populations. Subunit 2d critical habitat polygons contain one or more PBFs: slick spot microsites, suitable vegetation composition and structure, sufficient habitat components to support insect pollinators, and insect pollinators to allow for sufficient fruit and seed production. In Subunit 2d, special management considerations or protection of the PBFs may be required to address the threats posed by the current wildfire regime, invasive nonnative plant species, and incompatible livestock use. These threats are being addressed or coordinated with our partners, including the BLM and BLM livestock permittees, to implement needed actions for species recovery.
Critical habitat in Unit 3 (Ada and Elmore Counties Unit) consists of 5,996 ha (14,816 ac) within the Snake River Plain geographic area that is managed by the BLM (5,845 ha (14,444 ac)) and the BOR (150 ha (372 ac)). It contains three subunits: 3a, 3b, and 3c. This unit is composed of 26 slickspot peppergrass EOs. All subunits contain the PBFs essential to the conservation of the species, as described in more detail below. Unit 3 is important to the conservation of the species because it contains EOs with higher quality habitat, represents a substantial portion of the species' range, and contains several EOs with high numbers of slickspot peppergrass plants.
The northern boundary of Subunit 3a is approximately 6.3 km (3.9 mi) south of Mayfield, Idaho, while the southern boundary is approximately 19.6 km (12.2 mi) northwest of Mountain Home, Idaho. Subunit 3a is composed of seven EOs: 15, 20, 30, 31, 60, 112, and 122, all of which were occupied at the time of the species' listing. Critical habitat in Subunit 3a consists of approximately 1,554 ha (3,839 ac) of land managed by the BLM (1,502 ha (3,711 ac)) and the BOR (52 ha (128 ac)). We have excluded 1,059 ha (2,618 ac) of private land from portions of all seven EOs in this unit (see
The boundaries of Subunit 3b include the city of Mountain Home, Idaho, while the northern boundary is approximately 55.7 km (34.6 mi) southeast of Boise, Idaho. Subunit 3b is composed of 14 EOs: 10, 21, 29, 50, 51,
The southern boundary of Subunit 3c is approximately 1.6 km (1.0 mi) northeast of Hammett, Idaho, while the western boundary is 19.6 km (12.2 mi) southeast of Mountain Home, Idaho. This subunit is composed of four EOs: 8, 26, 63, and 106, all of which were occupied at the time of the species' listing. Critical habitat in Subunit 3c consists of approximately 2,485 ha (6,142 ac) of land managed by the BLM (2,453 ha (6,062 ac)) and the BOR (32 ha (80 ac)). We have excluded 643 ha (1,589 ac) of private land from portions of EOs 8, 26, and 63 (see
Critical habitat in Unit 4 (Owyhee County Unit) consists of 16,310 ha (40,303 ac) of land managed by the BLM within the Jarbidge geographic area. The northern boundary of Unit 4 is approximately 83.8 km (52.1 mi) south of Mountain Home, Idaho, while the eastern boundary is 52.0 km (32.3 mi) west of Rogerson, Idaho. This unit is important to the conservation of slickspot peppergrass because it contains the largest amount of contiguous habitat with little fragmentation or development, helps to maintain the geographic range of the species, and provides an opportunity for population growth. In addition, it contains the most high-elevation habitat, which will be more resilient to climate change. This unit is composed of 24 EOs (EOs 73, 74, 75, 78, 79, 80, 81, 83, 84, 85, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 123, 124) and 22 sub-EOs (sub-EOs 700, 701, 702, 703, 704, 705, 706, 708, 709, 712, 715, 716, 717, 719, 720, 721, 722, 725, 726, 727, 728, 729), which are components of the EO 16 metapopulation. The EO 16 metapopulation is a “parent” EO to all sub-EOs numbered 700 or greater. Each of these EOs and sub-EOs were occupied at the time of the species' listing. We have excluded 3 ha (7 ac) of private land and 1,059 ha (2,618 ac) of State land from portions of EOs 74, 75, 80, 83, 84, 85, 96, 97, 124, and sub-EOs 700-729 (see
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.
We published a final regulation with a revised definition of “destruction or adverse modification” on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the Act's section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
Compliance with the requirements of section 7(a)(2) is documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation: (1) if the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action.
In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.
The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support PBFs essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to: Actions that would remove a significant number of slick spot microsites, a significant portion of remnant native sagebrush steppe habitat, or a significant amount of pollen and nectar source plants, and actions that would result in significant ground disturbance. Such activities could include, but are not limited to, residential and commercial development, infrastructure projects, and conversion to agricultural fields. These activities could permanently eliminate or reduce the habitat necessary for the growth and reproduction of slickspot peppergrass.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyzed INRMPs developed by military installations located within the range of the proposed critical habitat designation for slickspot peppergrass to determine if they met the criteria for exemption from critical habitat under section 4(a)(3) of the Act. The following areas are designated for the use of DoD with completed, Service-approved INRMPs.
Military activities within the range of slickspot peppergrass include ordnance-impact areas, training activities, and military development. Military-training activities occur at, or near, four EOs: three at the OCTC in the Snake River Plain area, and a portion of one EO at the U.S. Air Force Juniper Butte Range
The Idaho Army National Guard's OCTC on the Snake River Plain has had an INRMP in place since 1991. Subsequent revisions and reviews were completed in 1997, 2004, and 2013 and included conservation benefits for slickspot peppergrass. Because the last INRMP revision was in 2013, the Idaho Army National Guard is in the process of reviewing and renewing the INRMP. In the meantime, OCTC is currently managed under an Operational INRMP that includes continued implementation of all slickspot peppergrass conservation measures from the 2013 INRMP until the INRMP revision and review is completed (Stitt 2022, in litt., entire).
In addition, the Idaho Army National Guard is adding approximately 11,505 ha (28,430 ac) of land to the OCTC under the revised INRMP (Stitt 2022, in litt., entire; IDARNG 2021, p. 1). This new area is called the Simco Training Area and contains 124 ha (307 ac) of land that meets the definition of slickspot peppergrass critical habitat but is exempted under the Operational INRMP (Stitt 2022, in litt., entire). These lands will be managed to avoid or minimize impacts on slickspot peppergrass, slick spot microsites, and sagebrush-steppe habitats.
With the addition of the Simco Training Area land, the OCTC contains 4,898 ha (12,102 ac) of occupied slickspot peppergrass habitat and represents a majority of the highest quality, occupied slickspot peppergrass habitat in the Snake River Plain area. The continuing high quality of this habitat indicates the conservation measures are effective in maintaining generally intact, native-plant vegetation and limiting anthropogenic disturbances on the OCTC (Sullivan and Nations 2009, p. 91).
The INRMP for the OCTC provides a framework for managing natural resources. Conservation measures included in the INRMP help the Idaho Army National Guard avoid or minimize impacts on slickspot peppergrass, slick spot microsites, and sagebrush-steppe habitat, while allowing for the continued implementation of the Idaho Army National Guard's mission. These measures include management actions such as restricting off-road motorized vehicle use, intensive wildfire suppression efforts, and the restriction of ground-operated military training to areas where the plants are not found. For example, the INRMP includes objectives for maintaining and improving slickspot peppergrass habitat and restoring areas damaged by wildfire. The plan specifies that the OCTC will use native species and broadcast seeding, collecting, and planting small amounts of native seed not commercially available, and will monitor the success of seeding efforts (Idaho Army National Guard (IDARNG) 2013, pp. 104, 107-108). Since 1991, the OCTC, using historical records, has restored several areas using native seed and vegetation that was present prior to past wildfires.
The Idaho Army National Guard continues to use restoration methods that avoid or minimize impacts to slickspot peppergrass or its habitat, with an emphasis on maintaining representation of species that were present in presettlement times (IDARNG 2013, p. 34). Since 1987, the Idaho Army National Guard has demonstrated that efforts to suppress wildfire, along with the use of native species with minimal ground-disturbing activities, are effective in reducing the wildfire threat, as well as in reducing rates of spread of nonnative, invasive species associated with wildfire management activities (IDARNG 2013, p. 34). In 2008, the Idaho Army National Guard also initiated maintenance on a series of identified fuel breaks on the OCTC. These fuel breaks are designed to act as barriers to prevent fires ignited by military training activities from spreading into adjacent slickspot peppergrass habitat (BLM 2008, p. 20).
Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the Idaho Army National Guard's OCTC INRMP and that conservation efforts identified in the INRMP are being actively implemented, are effective, and will provide a benefit to slickspot peppergrass occurring in habitats within or adjacent to the OCTC. Therefore, lands within this installation are exempt from critical habitat designation under section 4(a)(3)(B)(i) of the Act. Through use of GIS-based critical habitat designation methodology, we determined that 4,898 ha (12,102 ac) of habitat within the OCTC currently meet our definition of critical habitat; however, we are not including these 4,898 ha (12,102 ac) of habitat in the final critical habitat designation because of this exemption.
The U.S. Air Force, Mountain Home Air Force Base, which includes the Juniper Butte Range in the Jarbidge area, has an INRMP that has been in place for this military training facility since 2004. The Mountain Home Air Force Base 2017 INRMP remains active (Echeverria 2022, pers. comm.). The U.S. Air Force manages occupied slickspot peppergrass habitat within the Juniper Butte Range. Conservation measures and implementation actions for slickspot peppergrass include reseeding disturbed areas with native vegetation, eradicating noxious weeds prior to their spreading, cleaning vehicles and equipment to remove nonnative invasive plants, avoiding pesticide use within 8 m (25 ft) of slick spots, and delaying livestock turnout onto the range if slick spot microsites are saturated (U.S. Air Force 2017, pp. 183-185, 189, 191-192, 200). The INRMP contains specific measures developed to minimize the impacts from military training at the local level, or general measures designed to improve the ecological condition of native, sagebrush-steppe vegetation at a landscape scale, inclusive of areas supporting slickspot peppergrass, while allowing for the continued implementation of the Air Force mission. For example, the U.S. Air Force has a number of ongoing efforts to address wildfire prevention and suppression on the entire 4,913 ha (12,141 ac) Juniper Butte Range. Prevention measures that are implemented on the Juniper Butte Range include reducing standing fuels and weeds, planting fire-resistant vegetation in areas with a higher potential for ignition sources, such as along roads, and using wildfire indices to determine when to restrict military activities when the wildfire hazard rating is extreme (U.S. Air Force 2017, pp. 215-218). As a result of implementing these measures, the threat from wildfire to slickspot peppergrass associated with U.S. Air Force training activities has been effectively reduced within the Juniper Butte Range.
Based on the above considerations, and in accordance with section
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy)—both of which were developed jointly with the National Marine Fisheries Service (NMFS). We also refer to a 2008 Department of the Interior Solicitor's opinion entitled “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act” (M-37016). We explain each decision to exclude areas, as well as decisions not to exclude, to demonstrate that the decision is reasonable. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
Section 4(b)(2) of the Act and the implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis which, together with our narrative and interpretation of effects, we consider our economic analysis of the critical habitat designation and related factors (Industrial Economics (IEc) 2011). We made the draft analysis, dated July 22, 2011, available for public review and comment from October 26, 2011, through December 12, 2011 (76 FR 66250). Following the close of the comment period, we developed a final analysis (FEA, dated March 12, 2012) of the potential economic effects of the designation, taking into consideration the public comments and any new information (IEc 2012). In developing this final revised critical habitat designation, we found that the economic impacts will be similar to levels described in the 2012 FEA. Our rationale regarding the applicability of the 2012 FEA to this final critical habitat designation is described in further detail below.
The intent of the FEA is to evaluate the potential economic impacts associated with the designation of critical habitat for slickspot peppergrass. The analysis first describes existing conservation plans and other provisions that provide protection to slickspot peppergrass and its habitat. We consider these existing protections and conservation measures already in place—whether due to the listed status of the species, other statutory or regulatory provisions, or ongoing voluntary efforts—to be “baseline” protections for slickspot peppergrass that would contribute to both costs and conservation of the species even absent the designation of critical habitat. We analyze the incremental economic impact of the final critical habitat designation by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario is the “baseline” for the incremental analysis. The baseline, therefore, represents the impacts that would occur regardless of whether or not critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation, and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures the extent to which the designation may reduce economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on transportation projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA considers potential economic impacts to activities from 2012 through 2031 (IEc 2012, p. 4-1). The FEA focuses analysis of the potential impacts on the following categories of activity:
(1) Wildfire and invasive nonnative species management;
(2) Commercial and residential development;
(3) Utility and transportation activities; and
(4) Livestock use.
The analysis concludes that critical habitat designation of slickspot peppergrass is not likely to affect levels of economic activity or conservation measures being implemented within the proposed critical habitat areas. The incremental impacts of critical habitat designation for slickspot peppergrass will likely be limited to additional administrative costs of section 7 consultations associated with considering the potential for adverse modification of critical habitat. The total value incremental impacts of critical habitat for slickspot peppergrass were estimated to be $161,000 (IEc 2012, p. 4-1). Therefore, the incremental costs associated with critical habitat are unlikely to exceed $100 million in any single year and, therefore, would not be significant (see
The primary reason critical habitat is unlikely to generate economic impacts beyond administrative costs of consultation is that approximately 99 percent of the critical habitat is Federal land managed by the BLM, which is a party to a binding conservation agreement established for the purpose of slickspot peppergrass conservation. All projects and activities on these public lands within the critical habitat designation are already subject to section 7 consultation for slickspot peppergrass. The BLM currently consults for slickspot peppergrass on projects within 805 m (2,641 ft) around occupied slickspot peppergrass areas and implements conservation measures within these areas. As such, the BLM is currently implementing conservation within an area larger than the 500-m (1,640-ft) buffer area around occupied EOs that are included in the final critical habitat designation (IEc 2012, p. 3-3). Even though our final designation has changed since the FEA was published in 2012, we do not expect the changes to have any meaningful practical effect on consultation costs because the BLM, as the primary Federal action agency, continues to conduct section 7 consultation on the potential effects of their actions on the species to an additional 302 m (991 ft) beyond the 500-m (1,640-ft) final critical habitat buffer. As stated in the FEA, we do not expect additional conservation efforts as a result of designation of critical habitat since the conservation measures currently specified in the BLM's conservation agreement are being applied across BLM lands and are sufficiently protective to avoid adverse modification of slickspot peppergrass habitat (IEc 2012, p. ES-6). The BLM has indicated that any increase in cost associated with critical habitat section 7 compliance would be limited to increases in BLM staff costs, which have been minimal since 2012 when the economic analysis was completed, but not an increase in time needed to conduct section 7 compliance (Kershaw 2020, pers. comm.). Therefore, the conclusions of the 2012 final economic analysis still apply to the final designation of critical habitat.
In addition, the FEA notes that across the entire area proposed for critical habitat designation, project proponents and land managers are already aware of the presence of the listed slickspot peppergrass EOs and the requirement to consult on projects with a Federal nexus that may affect the species or its habitat. The IDFG IFWIS database has mapped slickspot peppergrass habitat, and this information is made available to landowners and project proponents. In addition, previous proposed slickspot peppergrass critical habitat rules, which included maps of occupied EOs, along with a current range map, are available on the Service's website at
Non-Federal lands are excluded from the final critical habitat designation. Therefore, section 7 consultation of slickspot peppergrass critical habitat is not required on these lands, and thus there is no incremental impact of the designation of slickspot peppergrass critical habitat on non-Federal lands. Potential impacts from projects with a Federal nexus that may affect slickspot peppergrass plants on non-Federal land will continue to be subject to section 7 consultation to ensure that those projects do not jeopardize the continued existence of the species. Given that all projects and activities occurring on public lands within critical habitat are already subject to section 7 consultation for the species, and non-Federal lands have been excluded from final critical habitat designation, we conclude that the incremental impacts of our final designation of critical habitat for slickspot peppergrass will similarly be limited to the additional administrative costs of section 7 consultations associated with considering the potential for adverse modification of critical habitat, and that administrative costs of section 7 consultations will not appreciably change from levels described in the 2012 final economic analysis.
We considered the economic impacts of the critical habitat designation. The Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for slickspot peppergrass based on economic impacts.
A copy of the FEA with supporting documents may be obtained by contacting the Idaho Fish and Wildlife Office (see
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. Other relevant impacts may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), Federal lands, and conservation plans, agreements, or partnerships. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the area, such as habitat conservation plans, safe harbor agreements, or candidate conservation agreements with assurances (CCAAs), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation, or in the continuation, strengthening, or encouragement of partnerships. In addition, continued implementation of an ongoing management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential PBFs; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as well as additional public comments we received, and the best scientific data available, we evaluated whether certain lands in our four final critical habitat units are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation. In the paragraphs below, we provide a detailed balancing analysis of the areas being excluded under section 4(b)(2) of the Act.
We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement or in partnership with the Service.
We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement.
(i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical or biological features (if present) for the species.
(ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.
(iii) The demonstrated implementation and success of the chosen conservation measures.
(iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership.
(v) The extent of public participation in the development of the conservation plan.
(vi) The degree to which there has been agency review and required determinations (
(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321
(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.
For the slickspot peppergrass, we have evaluated these factors with respect to Idaho State Endowment Lands and to private lands.
In response to our May 10, 2011, proposed critical habitat rule (76 FR 27184), we received a request from the State of Idaho to exclude State lands covered by their candidate conservation agreement (CCA). The BLM, State of Idaho Governor's Office of Species Conservation (OSC), IDFG, IDL, Idaho National Guard, and several nongovernmental cooperators signed a CCA in 2003 (State of Idaho et al. 2003, entire) and renewed the plan in 2006 (State of Idaho et al. 2006, entire). The Service did not sign the CCA but provided technical advice towards its development (State of Idaho et al. 2006, entire). Finally, this 2006 CCA should not be confused with CCAs developed between the Service and Federal partners, or with a candidate conservation agreement with assurances that is developed between the Service and non-Federal entities.
The CCA as signed in 2006 included range-wide efforts intended to achieve the following goals: address the need to maintain and enhance slickspot peppergrass habitat; reduce intensity, frequency, and size of natural- and human-caused wildfires; minimize loss of habitat associated with wildfire suppression activities; reduce the potential for invasion by nonnative plant species after wildfire; minimize habitat loss associated with rehabilitation and restoration techniques; minimize the establishment of invasive nonnative species; minimize habitat loss or degradation from off-highway vehicle use; mitigate the negative effects of military training and other associated activities on the OCTC; and minimize the impact of ground disturbances caused by livestock trampling saturated soils (State of Idaho et al. 2006, p. 3). Some specific conservation measures the BLM and
In the July 23, 2020, revised proposed critical habitat rule (85 FR 44584), we requested information with respect to the ongoing implementation of the 2006 CCA and the performance or completion of any additional activities that provide for the conservation of slickspot peppergrass under the CCA. Based on current information and any information submitted during the comment period, we stated we would consider whether to exclude under section 4(b)(2) of the Act State lands that are covered by the CCA. During the comment period, the State of Idaho (OSC and IDL) stated that IDL continues to implement conservation measures outlined in the 2006 CCA on State lands designated as revised proposed critical habitat (OSC 2020, p. 6). To memorialize the State of Idaho's commitment to implementing ongoing conservation measures on State lands, the State of Idaho (IDL and OSC) and the Service entered into a new conservation agreement in 2021 for the continued conservation of slickspot peppergrass on State lands managed by IDL (USFWS et al. 2021, entire).
The purpose of the new conservation agreement is to “provide a framework for communication, coordination, cooperation, and implementation of conservation actions between the Service, OSC and IDL for the conservation of slickspot peppergrass and its habitat on State endowment lands managed by IDL” (USFWS et al. 2021, p. 1). Roles and responsibilities of IDL under this conservation agreement include addressing the primary threats of wildfire and invasive annual grasses to slickspot peppergrass through the support of Rangeland Fire Protection Associations (RFPA) and the implementation of fuel-management activities, such as through grazing, fuel breaks, and post-fire restoration activities; including terms and conditions in grazing leases within slickspot peppergrass habitat to minimize impacts from livestock grazing; and working adaptively with the Service, OSC, and other partners to address habitat and management concerns for the species. The OSC has committed to continue addressing the primary threats to slickspot peppergrass through supporting RFPA's fuel management activities; working with grazing permittees, private landowners, and citizens of Idaho; and working adaptively with IDL, the Service, and other partners to support slickspot peppergrass recovery efforts. We have committed to assist OSC and IDL with monitoring as staffing and funding allows; to maintain close communication to share management concerns, latest science, and funding opportunities; and to continue working adaptively with IDL, OSC, and other partners to support slickspot peppergrass recovery efforts. The agreement will be reviewed by all parties at least once every five years, and the parties will sign an addendum to document their review.
The educational benefit of mapping the habitat essential for the recovery of slickspot peppergrass on State lands is limited. The economic analysis on the proposed designation reports, “As the location of occupied habitat for the species on private lands is well-known, having been mapped by the Idaho Natural Heritage Program, it is unlikely that critical habitat will provide new information to local land managers and developers regarding the presence of the species” (IEc 2012, p. 4-14). Because the State is already aware of the presence of slickspot peppergrass and its conservation needs on their lands and is already implementing positive conservation actions for the benefit of the species, we conclude there is little, if any, educational benefit from designating critical habitat for this species on State lands. Furthermore, we are not aware of any additional State, County, or Federal conservation benefits to the species that would be triggered by the critical habitat designation. Based on the above, we conclude there is, at best, a very limited conservation benefit to including the 2,736 ha (6,761 ac) of Idaho State lands within the designation of critical habitat for slickspot peppergrass.
Our economic analysis of the proposed designation of critical habitat for slickspot peppergrass does not support the State's argument in full. The State was a signatory to the CCA for slickspot peppergrass and has affirmed that it is carrying out the conservation
We do agree, however, that there is some potential for reduction in value of the State's trust lands for future exchange, due to the perception that such lands may be encumbered by additional regulatory restrictions due to the designation of critical habitat. The final economic analysis of the designation states, “In some cases, the public may perceive that critical habitat designation may result in limitations on private property uses above and beyond those associated with anticipated conservation efforts and regulatory uncertainty described above. Public attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed” (IEc 2012, p. 2-10). The avoidance of any potential reduction in the value of State trust lands could be a benefit of exclusion from critical habitat.
In addition, in weighing the benefits of inclusion versus exclusion, we considered the value of our conservation partnership with the State of Idaho. They have demonstrated success by partnering with public and private entities to further conservation in Idaho for a variety of fish and wildlife species (Uriarte 2021, pers. comm.). These efforts include, but are not limited to, helping to develop a CCA and conservation agreement for slickspot peppergrass (State of Idaho et al. 2006, entire; USFWS et al. 2021, entire); leading the Sage-grouse Actions Team to strategically put State legislative funding and partner funding on the ground for the conservation of the greater sage-grouse (
The State was an active signatory to the CCA for slickspot peppergrass between the State (IDL and OSC), BLM, Idaho National Guard, and private landowners (State of Idaho et al. 2006, entire). This 2006 CCA contains measures intended to address the need to maintain and enhance slickspot peppergrass habitat by minimizing the impact to the species from wildfires, implementing rehabilitation and restoration techniques, managing invasive nonnative species, and limiting off-highway vehicle use and livestock use (State of Idaho et al. 2006, p. 3). Since 2006, the CCA appears to have reduced the impacts of livestock use on slickspot peppergrass (USFWS 2020, pp. 100-101) but has been less effective at reducing or eliminating the most significant threats to the species from wildfire and invasive annual grasses (USFWS 2020, p. 165). The State of Idaho confirms that they continue to implement conservation measures of the CCA on State lands proposed for critical habitat designation (IEc 2012, p. 3-6; OSC 2020, p. 6). In addition, in the State's comments submitted on the proposed rule (85 FR 44584, July 23, 2020), they highlight the importance of the conservation measures implemented through the CCA, particularly regarding livestock management.
In 2021, OSC, IDL, and the Service entered into a conservation agreement to further conservation for slickspot peppergrass on IDL lands (USFWS et al. 2021, entire). This conservation agreement contains conservation measures targeted to reduce threats to slickspot peppergrass that would not be implemented if not for this conservation agreement or a Federal nexus requiring section 7 consultation. This conservation agreement also builds upon conservation measures in the 2006 CCA by identifying additional roles and responsibilities for IDL, OSC, and the Service to more effectively address the primary threats of wildfire and annual invasive grasses to slickspot peppergrass (USFWS et al. 2021, entire). Lastly, the conservation agreement emphasizes continued communication, coordination, cooperation, and implementation of slickspot peppergrass conservation measures by the Service, OSC, and IDL. On State lands, these protections are equal to or better than what the designation of critical habitat would provide, as described above under “Benefits of Inclusion.” Exclusion of these State lands from critical habitat will help maintain and strengthen our conservation partnership with the State of Idaho and may foster future partnerships for the benefit of other species as well.
Based on the above, we find that the exclusion of State lands from the final designation would have the following benefits:
• Avoidance of any possible reduction in the value of State trust lands due to public perception of increased potential for regulatory restrictions due to critical habitat;
• Continued implementation of conservation measures provided in the 2021 conservation agreement for slickspot peppergrass, including but not limited to minimizing the impact of ground disturbance by livestock, minimizing the establishment of nonnative plant species, and reducing the intensity, frequency, and size of natural and human-caused fires;
• The opportunity to build upon a positive conservation partnership with the State, by recognizing the efforts the State contributes to the conservation of slickspot peppergrass;
• Laying the foundation for future partnerships with the State that would benefit other listed or candidate species, such as the greater sage-grouse; and
• Increasing the potential for understanding and acceptance of proposed critical habitat designations for other species in the State of Idaho.
Based on the above considerations, we conclude there are important benefits to be gained by excluding the 2,736 ha (6,761 ac) of State lands within
We find that the benefits of exclusion, on the other hand, are significant. The benefits that would stem from the exclusion of State lands would be to alleviate any concerns that State trust lands could decline in value due to perceived regulatory restrictions, as well as to strengthen our conservation partnership with the State by recognizing their efforts toward conservation of slickspot peppergrass through implementation of the conservation measures provided in the conservation agreement. The exclusion of State trust lands could lay the groundwork for future partnerships for the benefit of other species in conservation need. Because of the importance of State trust lands to the State of Idaho, and the relevant impact of critical habitat to our relationship with the State and other current and future conservation partnerships, we have determined that the benefits of excluding these State lands outweigh the benefits of including them in the designation of critical habitat.
During the public comment period for our July 23, 2020, revised proposed critical habitat rule (85 FR 44584), the State of Idaho commented that a critical habitat designation provides no new conservation measures across any land ownership. In addition, they stated that designating private land as critical habitat can cause land values to decrease and possibly expose slickspot peppergrass to threats that cannot be addressed by a section 7 consultation. For these reasons, the State of Idaho expressed the view that the benefits of exclusion outweigh the benefits of including private land in the final critical habitat designation for slickspot peppergrass (OSC 2020, p. 2).
Since publication of our July 23, 2020, revised proposed rule (85 FR 44584) to designate critical habitat for slickspot peppergrass, we entered into a Memorandum of Understanding (MOU) with the State of Idaho's OSC to provide non-Federal landowners (private and municipal) an opportunity to enter into voluntary conservation agreements for slickspot peppergrass (USFWS and OSC 2021, entire). These conservation agreements can serve to memorialize existing conservation efforts and outline commitments to maintain suitable habitat for the species on specified lands into the future.
Any educational benefit of mapping the habitat essential for the recovery of slickspot peppergrass on private lands is likely minimal and may in fact serve as a conservation disincentive. The economic analysis on the proposed designation reports, “As the location of occupied habitat for the species on private lands is well-known, having
Based on the above, we conclude there is little, if any, conservation benefit to including the 4,508 ha (11,141 ac) of privately owned lands within the designation of critical habitat for slickspot peppergrass.
This CCA garnered interest from private landowners. Twenty individual nongovernmental cooperators/permittees were signatories to this CCA, along with representatives from the BLM, State of Idaho, and Idaho National Guard (State of Idaho et al. 2006, pp. 138-141). Six individual private landowners signed on through Memorandum of Agreements (MOAs) under the CCA covering 6,898 ha (17,045 ac). These MOAs detailed specific conservation measures to implement on enrolled private lands (State of Idaho et al. 2006, p. 162), which included monitoring, livestock and pasture management, and invasive weed control (State of Idaho et al. 2006, pp. 282-285). The CCA and its conservation measures, since expired, were developed in an effort to preclude the need to list slickspot peppergrass.
As stated above, the Service and State of Idaho recently entered into a new MOU in 2021 whose purpose is to provide non-Federal landowners (private and municipal) the opportunity to enter into voluntary conservation agreements for slickspot peppergrass that can serve to memorialize existing conservation efforts and outline commitments to maintain suitable habitat for slickspot peppergrass on specified lands into the future. This MOU contains roles and responsibilities for the Service and the State of Idaho, including outreach, providing technical assistance to landowners, maintaining membership on the slickspot peppergrass Technical Team, and exploring funding sources to obtain financial assistance to implement conservation actions on private and municipal lands. The MOU also contains responsibilities for monitoring to document and report success, along with adaptive management that ensures current science is incorporated into management. In addition, there is a non-exhaustive list of proven and effective Best Management Practices for conserving slickspot peppergrass and its habitat that can be included in individual conservation agreements with private and municipal landowners (USFWS and OSC 2021, entire; USFWS 2020, p. 101). Therefore, we find that a conservation benefit would accrue to slickspot peppergrass over time by encouraging voluntary participation in the measures provided in the MOU and landowner-specific conservation agreements.
In addition, we considered the value of our conservation partnership with private landowners within the range of the slickspot peppergrass in our weighing of the benefits of inclusion versus exclusion. Private landowners have demonstrated success by partnering with public and private entities to further conservation in Idaho for a variety of wildlife and fish species (Uriarte 2021, pers. comm.).
In addition, we considered the value of our conservation partnership with the State of Idaho in our weighing of benefits of inclusion versus exclusion of private lands. The State of Idaho has been instrumental in working with private landowners on various conservation efforts throughout Idaho. These partnering efforts include, but are not limited to, helping to develop the 2006 CCA for slickspot peppergrass; leading the Sage-grouse Actions Team to strategically put State legislative funding and partner funding on the ground for the conservation of the greater sage-grouse; and working closely with IDL and nine RFPAs to provide State legislative funding to ensure these organizations have the necessary equipment and coordination for initial attack and wildfire suppression efforts (Uriarte 2021, pers. comm.).
The final economic analysis of the designation states, “In some cases, the public may perceive that critical habitat designation may result in limitations on private property uses above and beyond those associated with anticipated conservation efforts and regulatory uncertainty described above. Public attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed” (IEc 2012, p. 2-10). Although the economic analysis concluded that any real economic impacts to private landowners are unlikely given the low probability of a Federal nexus occurring on their lands, it is clear from comments we received that critical habitat is nonetheless perceived as an example of Federal Government intrusion into private property rights in the State of Idaho. As described above, we find that successful conservation partnerships with private landowners are integral to the achievement of recovery for the slickspot peppergrass and designation of critical habitat could be detrimental to those efforts. Therefore, we conclude that the exclusion of private lands from slickspot peppergrass critical habitat will achieve greater benefits than designating critical habitat by encouraging continued conservation of the species as well as future conservation efforts due to the perceived avoidance of a regulatory burden.
Based on the above, we have determined that the exclusion of private lands from the final designation would have several potentially significant benefits:
• Demonstrating the Service's good-faith effort to recognize the value of voluntary conservation partnerships by excluding private lands from critical habitat, and encouraging future partnerships that would benefit other listed or candidate species, such as the greater sage grouse;
• The conservation benefit that would accrue to slickspot peppergrass over time by encouraging voluntary participation in the measures provided in the MOU;
• The opportunity to maintain and build positive conservation partnerships with private landowners, by recognizing the efforts these parties may contribute to the conservation of slickspot peppergrass; and
• Improving the perception of the Service as not imposing unnecessary regulatory burdens on private landowners, potentially increasing the understanding and acceptance of proposed critical habitat designations for other species in the State of Idaho.
We conclude that there are important conservation benefits that may be gained by excluding the 4,508 ha (11,141 ac) of privately owned lands within the designation of critical habitat for slickspot peppergrass, stemming
The benefits of exclusion, on the other hand, are significant. Exclusion of these private lands would help build landowner trust, encourage increased cooperation with private landowners, encourage implementation of any ongoing and new voluntary measures identified in the MOU for the conservation of slickspot peppergrass, and potentially enable us to pursue future conservation partnerships on privately owned lands—not only for slickspot peppergrass, but for other candidate or listed species in the State of Idaho as well.
Some of the comments received during the public comment period indicated strong support for the exclusion of these lands from the final critical habitat designation. We are committed to fostering working relationships with communities, including these private landowners, to foster the conservation of slickspot peppergrass and other threatened and endangered species. Therefore, in consideration of the relevant impact to our relationship with these private landowners and other current and future conservation partnerships, and for other reasons mentioned above, we determined that the benefits of excluding these lands outweigh the benefit of including them in the designation of critical habitat for the slickspot peppergrass.
As discussed above, based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. We have determined that certain areas totaling 7,265 hectares, or 17,956 acres, within the critical habitat units were appropriate for exclusion from this final designation. Table 2 shows the areas we are excluding from critical habitat designation for slickspot peppergrass.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Under the RFA, as amended, and following recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities will be directly regulated by this rulemaking, we certify that this critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule, we reviewed and evaluated all information submitted during the comment period on the July 23, 2020, proposed rule (85 FR 44584) that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this critical habitat would significantly affect energy supplies, distribution, or use. Furthermore, although it does include areas where powerlines and power facility construction and maintenance may occur in the future, it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a `significant regulatory action' under the Unfunded Mandates Reform Act. Therefore, this action is not a significant energy action, and no statement of energy effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not
(2) We do not believe this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments and, as such, a small government agency plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for slickspot peppergrass in a takings implications assessment. The Act does not authorize us to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of critical habitat for slickspot peppergrass does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this rule does not have significant federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in Idaho. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, this rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The critical habitat designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the PBFs of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the final rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this rule identifies the elements of PBFs essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this rulemaking are the staff members of the Idaho Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we hereby amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(h) * * *
(a)
(1) Critical habitat units are depicted for Ada, Elmore, Gem, Owyhee, and Payette, Counties, Idaho, on the maps in this entry.
(2) Within these areas, the specific physical or biological features (PBFs) essential to the conservation of slickspot peppergrass consist of four components:
(i) Ecologically functional microsites or “slick spots” that are characterized by:
(A) A high sodium and clay content, and a three-layer soil profile, which allows for successful seed germination, seedling growth, and maintenance of the seed bank. The surface horizon consists of a thin, silty vesicular, pored (small cavity) layer that forms a physical crust (the silt layer). The subsoil horizon is a restrictive clay layer, with an abruptic (referring to an abrupt change in texture) boundary with the surface layer, that is natric or natric-like in properties (a type of argillic (clay-based) horizon with distinct structural and chemical features); this is the restrictive layer. The second argillic subsoil layer (that is less distinct than the upper argillic horizon) retains moisture through part of the year (the moist clay layer).
(B) Sparse vegetation, with invasive, nonnative plant species cover absent or limited to low to moderate levels.
(ii) Relatively intact, native Wyoming big sagebrush (
(iii) A diversity of native plants whose blooming times overlap to provide pollinator species with flowers for foraging throughout the seasons and to provide nesting and egg-laying sites; appropriate nesting materials; and sheltered, undisturbed places for hibernation and overwintering of pollinator species. In order for genetic exchange of slickspot peppergrass to occur, pollinators must be able to move freely between slick spots. Alternative pollen and nectar sources (other plant species within the surrounding sagebrush vegetation) are needed to support pollinators during times when slickspot peppergrass is not flowering, when distances between slick spots are long, and in years when slickspot peppergrass is not a prolific flowerer.
(iv) Sufficient pollinators for successful fruit and seed production, particularly pollinator species of the sphecid and vespid wasp families, species of the bombyliid and tachnid fly families, and halictid bee species, most of which are solitary insects that nest outside of slick spots in the surrounding sagebrush-steppe vegetation, both in the ground and within the vegetation.
(3) Critical habitat does not include human-made structures (such as buildings, aqueducts, runways, roads, and other paved areas), cultivated agricultural fields, areas dominated by turf grass such as parks, and the land on which they are located existing within the legal boundaries on June 5, 2023.
(4) Data layers defining map units were developed using ESRI ArcGIS 10.7.1 mapping software along with various spatial layers. Feature class data for element occurrences (EOs) were derived from the Idaho Department of Fish and Game's Idaho Fish and Wildlife Information System (IFWIS) database (July 2021). EOs were depicted as points or polygons in the IFWIS database, and an E.O. could consist of one or more points or polygons. For ArcGIS analyses, we dissolved a 500-m (1,640-ft) exterior insect pollinator buffer on each point or polygon that comprised an E.O. and calculated acreages based on these dissolved, buffered polygons. Overlapping polygons were merged to prevent a double count of critical habitat hectares. Critical habitat polygon outlines are exaggerated (using 1- or 2-point size,
(i) Lands that visually lacked the necessary PBFs were manually removed from the critical habitat polygons; any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule are excluded by this text and are not designated as critical habitat. Areas that lack PBFs include land covered in human-made structures (such as buildings, roads, runways, and other paved areas), cultivated farmland, and riparian areas.
(ii) The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's internet site at
(5) Index map follows:
(6)
(i)
(ii) Map of Unit 1 follows:
(7)
(i)
(ii) Map of Unit 2, Subunit 2a follows:
(iii)
(iv) Map of Unit 2, Subunit 2b follows:
(v)
(vi) Map of Unit 2, Subunit 2c follows:
(vii)
(viii) Map of Unit 2, Subunit 2d follows:
(8)
(i)
(ii) Map of Unit 3, Subunit 3a follows:
(iii)
(iv) Map of Unit 3, Subunit 3b follows:
(v)
(vi) Map of Unit 3, Subunit 3c follows:
(9)
(i)
(ii) Map of Unit 4 follows:
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is proposing to withdraw the existing Texas Sulfur Dioxide (SO
For more information on the virtual public hearing,
Submit your comments, identified by Docket ID No. EPA-R06-OAR-2016-0611 to the Federal eRulemaking Portal:
To pre-register to attend or speak at the virtual public hearing, please use the online registration form available at
Michael Feldman, Air and Radiation Division, SO
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
There are two dockets supporting this action, EPA-R06-OAR-2016-0611 and EPA-HQ-OAR- EPA-HQ-OAR-2016-0598. Docket No. EPA-R06-OAR-2016-0611 contains information specific to BART requirements for Texas, including this notice of proposed rulemaking and prior rulemakings related to Texas BART, previous submittals from the State, and the Technical Support Documents for this action. Docket No. EPA-HQ-OAR-2016-0598 contains previous actions and information related to CSAPR as a BART alternative. All comments regarding this proposed action should be made in Docket No. EPA-R06-OAR-2016-0611. For additional submission methods, please email
The EPA is holding a virtual public hearing to provide interested parties the opportunity to present data, views, or arguments concerning the proposal. The EPA will hold a virtual public hearing to solicit comments on May 19, 2023. The hearing will convene in two sessions. Session 1 will convene at 1 p.m. Central Time (CT) and will conclude at 3 p.m. CT, or 15 minutes after the last pre-registered presenter in attendance has presented if there are no additional presenters. Session 2 will convene at 4 p.m. Central Time (CT) and will conclude at 7 p.m. CT, or 15 minutes after the last pre-registered presenter in attendance has presented if
The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. Each commenter will have approximately 3 to 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically by including it in the registration form or emailing it to
The EPA is asking all hearing attendees to pre-register, even those who do not intend to speak. The EPA will send information on how to join the public hearing to pre-registered attendees and speakers.
Please note that any updates made to any aspect of the hearing will be posted online at
If you require the services of a translator or a special accommodation such as audio description/closed captioning, please pre-register for the hearing and describe your needs by May 11, 2023. The EPA may not be able to arrange accommodations without advance notice.
The CAA's visibility protection program was created in response to a national goal set by Congress in 1977 to remedy and prevent visibility impairment in certain national parks, such as Grand Canyon National Park, and national wilderness areas, such as the Okefenokee National Wildlife Refuge. Vistas in these areas are often obscured by visibility impairment such as regional haze, which is caused by emissions from numerous sources located over a wide geographic area.
In response to this Congressional directive, the EPA promulgated regulations to address visibility impairment in 1999. These regulations, which are commonly referred to as the Regional Haze Rule, established an iterative process for achieving Congress's national goal by providing for multiple, approximately 10-year “planning periods” in which State air agencies must submit to EPA plans that address sources of visibility-impairing pollution in their States. The first State plans were due in 2007 for the planning period that ended in 2018. The second State plans were due in 2021 for the period that ends in 2028. This proposal focuses on obligations from the first planning period of the regional haze program.
A central element of these first planning period State plans was the requirement for certain older stationary sources to install the Best Available Retrofit Technology (BART) for the purpose of making reasonable progress towards Congress's national goal of eliminating visibility impairment within our nation's most treasured lands. The Regional Haze Rule provided two approaches a State could take to fulfill its BART obligations: (1) conduct source-by-source evaluations for covered sources, or (2) implement an alternative program, such as an emissions trading program, that achieves greater reasonable progress than source-by-source BART.
One such BART alternative that 19 States have relied on for over a decade to fulfill some or all of their BART obligations with respect to visibility-impairing pollution from power plants is participation in the EPA's Cross-State Air Pollution Rule (CSAPR), an emissions trading program that was promulgated in 2011. Changes to the CSAPR program over the years, particularly with respect to the status of the State of Texas, have required the EPA to reexamine on several occasions whether the program continues to achieve greater reasonable progress than source-by-source BART for participating States. Most recently, after removing Texas from certain aspects of the CSAPR program, the EPA reaffirmed the viability of the CSAPR program as a BART alternative in 2017 and then again in 2020 when the EPA denied a petition for reconsideration of the 2017 reaffirmation.
Texas submitted its first State plan to address regional haze in 2009, relying at that time on the now-defunct predecessor program to CSAPR to satisfy the BART requirement for its power plants.
This proposal seeks to address both the BART requirements for Texas's power plants and an outstanding petition that once again calls into question the continued viability of the CSAPAR program as a BART alternative for participating States due to the status of Texas, and the complicated interactions between these two regulatory regimes. Specifically, the EPA is proposing to withdraw the intrastate trading program on the basis that it does not achieve greater reasonable progress than source-by-source BART. In its place, the EPA is proposing to promulgate source-by-source BART emission limits for covered sources in Texas. If finalized, these emission limits would reduce emissions from these sources by more than 80,000 tons of SO
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area. These sources and activities emit fine particulate matter (PM
In section 169A of the 1977 Amendments to the Clean Air Act (CAA), Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the remedying of any existing, anthropogenic impairment of visibility in 156 national parks and wilderness areas designated as mandatory Class I areas.
To address regional haze visibility impairment, the RHR established an iterative planning process that requires States in which Class I areas are located and States from which emissions may reasonably be anticipated to cause or contribute to any impairment of visibility in a Class I area to periodically submit SIP revisions to address regional haze visibility impairment.
Section 169A of the CAA directs States to evaluate the use of retrofit controls at certain larger, older stationary sources to address visibility impacts from these sources, whose emissions are often uncontrolled or poorly controlled. Specifically, section 169A(b)(2) of the CAA requires States to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the national visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate BART as determined by the State applying five statutory factors. On July 6, 2005, the EPA published the
States must make source-specific BART determinations for all “BART-eligible” sources determined to be subject to BART. However, as an alternative to making these “source-specific” BART determinations, States may adopt an emissions trading program or other alternative program for all or a portion of their BART-eligible sources, so long as the alternative achieves greater reasonable progress towards improving visibility than BART would for those sources, and the alternative meets certain other requirements. Several options are available for making BART-alternative demonstrations, and these are discussed in greater detail in Section IV.B and Section V.
States generally undertook the BART determination process during the regional haze program's first implementation period. While the BART requirement is considered a one-time requirement, BART-eligible sources, including sources found subject to BART and for which a BART emission limit was established, may need to be re-assessed for additional controls in future implementation periods under the CAA's reasonable progress provisions. Thus, the EPA has stated that States should treat BART-eligible sources the same as other reasonable progress sources going forward.
The procedural history leading up to this proposed action is set forth in detail in this section. On March 31, 2009, Texas submitted a regional haze SIP (the 2009 Regional Haze SIP) to the EPA that included reliance on Texas's participation in trading programs under the Clean Air Interstate Rule (CAIR) as an alternative to BART for SO
Following the issuance of CSAPR, the EPA determined that CSAPR would achieve greater reasonable progress towards improving visibility than would source-specific BART in CSAPR States (a determination often referred to as “CSAPR Better-than-BART”).
In December 2014, we proposed an action to address the remaining regional haze obligations for Texas.
On October 26, 2016, the EPA finalized an update to CSAPR to address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS (CSAPR Update).
On November 10, 2016, in response to the D.C. Circuit's remand in
On January 4, 2017, we proposed a FIP to address the BART requirements for Texas's BART-eligible EGUs. With respect to NO
The January 4, 2017, proposed action addressing the SO
In the January 2017 proposal, we also proposed to disapprove the portion of the 2009 Texas Regional Haze SIP that made BART determinations for PM from EGUs, on the grounds that the demonstration in the 2009 Texas Regional Haze SIP relied on underlying assumptions as to how the SO
The EPA received public comments on this 2017 proposal encouraging the agency to consider other potentially viable methods of implementing a BART alternative for SO
At the time, the EPA modeled the Texas SO
In our final action on October 17, 2017, we also finalized our January 2017 proposed determination that Texas's participation in CSAPR's trading program for ozone-season NO
On November 28, 2017, Sierra Club and the National Parks Conservation Association (NPCA) submitted a petition for partial reconsideration of our September 2017 finding affirming that CSAPR continues to satisfy requirements as a BART alternative.
On December 15, 2017, the EPA received a separate petition from Sierra Club, NPCA, and the Environmental Defense Fund (EDF) requesting reconsideration of certain aspects of the October 2017 final rule focused mainly on issues related to the Texas SO
On November 14, 2019, partly in response to comments received on its 2018 proposed affirmation, the EPA issued a supplemental proposal to amend certain parts of the Texas SO
On June 29, 2020, in two separate but concurrent actions, former EPA Administrator Andrew Wheeler signed a final rule affirming, with the proposed modifications from the supplemental proposal described above, the Texas SO
On August 28, 2020, the Sierra Club, NPCA, and Earthjustice submitted a petition for partial reconsideration under CAA section 307(d)(7)(B) of the EPA's 2020 Denial of their November 2017 petition for reconsideration (August 2020 petition).
On October 13, 2020, we received a separate petition for partial reconsideration from NPCA, Sierra Club, and Earthjustice, on our 2020 final rule affirming that the Texas SO
By letter dated June 22, 2021, the EPA acknowledged receipt of the petition for partial reconsideration and, without conceding that the conditions for mandatory reconsideration were necessarily met pursuant to CAA section 307(d)(7)(B), the agency recognized that aspects of this action warrant careful review, and potential modification, to ensure our actions are fully consistent with the requirements of the Clean Air Act and the Regional Haze Rule.
The Regional Haze Rule requires that a State, or the EPA if promulgating a FIP, consult with FLMs before adopting and submitting a required SIP or SIP revision or a required FIP or FIP revision. Under 40 CFR 51.308(i)(2), a State, or the EPA if promulgating a FIP, must provide an opportunity for consultation no less than 60 days prior to holding any public hearing or other public comment opportunity on a SIP or SIP revision, or FIP or FIP revision, for regional haze. The EPA must include a description of how it addressed comments provided by the FLMs when considering a FIP or FIP revision. We consulted with the FLMs (specifically, U.S. Fish and Wildlife Service, U.S. Forest Service, and the National Park Service) on December 6, 2022. During the consultation we provided an overview of our proposed actions. The FLMs signaled support for our proposed action.
In this notice of proposed rulemaking, the EPA proposes an action with several interrelated components. As more fully explained in the following sections, on reconsideration, and due to concerns that our justification for the Texas SO
As previously stated, on August 12, 2020, the EPA published a final rule affirming our 2017 final rule that the Texas SO
The EPA proposes to correct its Texas Regional Haze BART FIP by proposing to withdraw the Texas SO
Section 110(k)(6) of the CAA provides the EPA with the authority to make corrections to actions on CAA implementation plans that are subsequently found to be in error.
While CAA section 110(k)(6) provides the EPA with the authority to correct its own “error,” nowhere does this provision or any other provision in the CAA define what qualifies as “error.” Thus, the EPA believes that the term should be given its plain language, everyday meaning, which includes all unintentional, incorrect, or wrong actions or mistakes.
In addition to the error correction provision of CAA section 110(k)(6), the EPA also has the inherent administrative authority to withdraw the Texas SO
Additionally, it is well-established that the EPA has discretion to revisit existing regulations. Specifically, agencies have inherent authority to reconsider past decisions and to revise, replace, or repeal a decision to the extent permitted by law and supported by a reasoned explanation.
As such, we find that our inherent ability to reconsider past actions also provides us the authority to withdraw the Texas SO
The EPA acknowledges the potential for reliance interests to be affected by our reconsideration of a prior rule. However, the EPA is not aware of any substantial commitment of resources or capital, or that the EGUs covered by the Texas SO
We propose that, in attempting to demonstrate that the Texas SO
The Regional Haze Rule's BART provisions generally direct States to identify all BART-eligible sources; determine which of those BART-eligible sources are subject to BART requirements based on whether the sources emit air pollutants that may reasonably be anticipated to cause or contribute to visibility impairment in a Class I area; determine source-specific BART for each source that is subject to BART requirements, based on an analysis taking specified factors into consideration; and include emission limitations reflecting those BART determinations in their SIPs. However, the Regional Haze Rule also provides
States, or the EPA if promulgating a FIP, that opt to rely on an alternative program in lieu of source-specific BART, must meet the requirements under 40 CFR 51.308(e)(2) and, if applicable, (e)(3). These requirements for alternative programs establish the criteria for demonstrating that the alternative program will achieve greater reasonable progress than would be achieved through the installation and operation of BART (
Under 40 CFR 51.308(e)(2), the State, or the EPA, must conduct an analysis of the best system of continuous emission control technology available and the associated emission reductions achievable for each source subject to BART covered by the alternative program, termed a “BART benchmark.”
Alternatively, pursuant to 40 CFR 51.308(e)(2)(i)(E), a third test is available under which States may show that the BART alternative achieves greater reasonable progress than BART “based on the clear weight of evidence.” As stated in the EPA's revisions to the Regional Haze Rule governing alternatives to source-specific BART determinations, such demonstrations attempt to make use of all available information and data which can inform a decision while recognizing the relative strengths and weaknesses of that information in arriving at the soundest decision possible.
Under 40 CFR 51.308(e)(2)(iii) and (iv), all emission reductions for the alternative program must take place during the period of the first long-term strategy (
The EPA has long maintained that the CSAPR trading programs can function as a BART alternative for the relevant covered visibility pollutants for the EGU BART sources that are covered by the relevant CSAPR trading program. The EPA promulgated CSAPR, a revised multistate trading program to replace CAIR, in 2011 (and revised it in 2012).
As we explained in our June 2020 affirmation of the Texas SO
Such reliance is inconsistent with the requirements of the Regional Haze Rule's requirements for a BART alternative in 40 CFR 51.308(e)(2), which requires a comparison between the BART alternative and the BART benchmark for the relevant sources.
Furthermore, although the Texas SO
Second, CSAPR was designed as a regional trading program that involved the participation of sources from many States over a wide geographic area, as compared to the Texas SO
However, while CSAPR leads to greater emissions reductions overall over the modeled region, we explained that for certain CSAPR States, application of source-specific BART was projected to lead to greater emission reductions than through participation in CSAPR. We explained that this could occur in CSAPR States that have numerous BART-eligible EGUs.
Thus, we propose that it was an error to allow the Texas SO
Because the 2017 Texas BART FIP and subsequent affirmation improperly relied on CSAPR to support the validity of the Texas SO
For purposes of determining whether it is appropriate to now withdraw the Texas SO
As we explained earlier in Section II and in our June 2020 affirmation of the Texas SO
We note, however, that this comparison of emissions of the Texas SO
Because the Texas SO
To estimate emissions for BART sources, we multiplied the average heat input from 2016-2020 by a presumptive BART emission rate of 0.15 lb/MMBtu.
Table 1 shows 2021 annual emissions in one column, and the other column shows estimated emissions under the presumptive BART assumptions plus the maximum annual emissions from the 2016-2020 period for those non-BART units as described in the paragraph above. The 2021 emissions are the most recent annual emissions available at the time of this action and represent emissions under the Texas SO
Because the
This finding that the Texas SO
If the proposed source-specific BART requirements in Texas are finalized, the analytical basis within the EPA's withdrawal of Texas from the CSAPR trading programs for annual NO
CSAPR (76 FR 48208; Aug. 8, 2011) implements a series of emissions trading programs for sulfur dioxide (SO
In the EPA's 2012 action promulgating CSAPR Better-Than-BART, the EPA used air quality modeling to show CSAPR met the two-pronged numerical test for a BART alternative.
To account for certain CSAPR State-budget increases that were made after the initial modeling was conducted, the 2012 CSAPR Better-Than-BART determination also included a sensitivity analysis (2012 sensitivity analysis) that examined the effect of those budget increases on the modeled visibility impacts for the CSAPR + BART-Elsewhere scenario.
The 2012 sensitivity analysis identified sets of Class I areas that are most impacted by emissions in Texas (9 areas) and Georgia (7 areas) and assumed that
The original 2011 CSAPR action was largely upheld by the Supreme Court in 2014.
To address the remand, in November 2016, the EPA proposed to remove Texas EGUs from the CSAPR SO
In September 2017, the EPA finalized the withdrawal of Texas EGUs from the
As to the second prong, the EPA assumed that the availability of 22,300 additional allowances would result in a 22,300-ton increase in emissions in the remaining Group 2 States, but observed that the potential adverse visibility impacts of those emissions would be more than offset by the favorable visibility impacts of at least 127,300 tons of reduced emissions in Texas under presumptive source-specific SO
As explained in Section II.C, rather than finalize source-specific BART SO
On November 28, 2017, the Sierra Club and NPCA submitted a petition for partial reconsideration (2017 petition) under CAA section 307(d)(7)(B) of our September 29, 2017 action withdrawing Texas from the CSAPR trading programs for SO
With respect to the BART requirements in Texas, the petitioners argued that the final rule was “impermissibly based upon a factual predicate that no longer exists—namely, that sulfur dioxide emission reductions associated with the installation of presumptive source-specific BART would be install [sic] at Texas EGUs.”
Concurrently with the affirmation of the Texas SO
On August 28, 2020, the Sierra Club, NPCA, and Earthjustice submitted a petition for partial reconsideration under CAA section 307(d)(7)(B) of the EPA's 2020 Denial of their November 2017 petition for reconsideration (2020 petition).
Specifically, Petitioners note that had the EPA's results been reformatted to display two decimal places instead of one, the average visibility improvement for the CSAPR + BART-Elsewhere scenario would have been less than that of the Nationwide BART scenario on two of the four metrics used.
Sierra Club, NPCA, and Earthjustice also filed a petition for judicial review of the 2020 Denial in the U.S. Court of Appeals for the District of Columbia.
The EPA is now proposing to deny the 2020 petition in this action.
Under section 307(d)(7)(B) of the Act, “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment . . . may be raised during judicial review.”
The EPA proposes to deny the 2020 petition because the objections raised to the 2020 Denial are not “centrally relevant” under a scenario in which the EPA finalizes the proposal to withdraw the present BART-alternative intrastate trading FIP for Texas EGUs and replaces those requirements with source-specific SO
For purposes of the 2012 analytic demonstration that CSAPR provides for greater reasonable progress than BART, the EPA treated Texas EGUs as subject to CSAPR for SO
As discussed below, if the EPA's proposal in this action to implement source-specific BART requirements at certain EGUs in Texas is finalized, the analytical basis for the EPA's September 2017 conclusions will be restored, and that analysis will continue to support the conclusion that CSAPR participation would achieve greater reasonable progress than BART, despite the change in the treatment of Texas EGUs. Consequently, by virtue of this proposed action that relates to Texas, the EPA is also able to propose to reaffirm the continued validity of the CSAPR better-than-BART provision, 40 CFR 51.308(e)(4), which authorizes the use of CSAPR participation as a BART alternative for BART-eligible EGUs for a given pollutant in States whose EGUs continue to participate in a CSAPR trading program for that pollutant. In the September 2017 Final Rule, the EPA evaluated whether a revised CSAPR scenario reflecting the removal of Texas EGUs from the CSAPR SO
As the EPA concluded in the September 2017 Final Rule, Texas EGUs are ineligible to rely on CSAPR as an SO
As modeled, treating Texas EGUs in the CSAPR + BART-Elsewhere scenario as subject to source-specific SO
With a return to source-specific SO
In summary, the EPA proposes to affirm that if the information regarding the proposed withdrawal of CSAPR FIP requirements for SO
Lower SO
Therefore, the EPA proposes to deny the 2020 petition for partial reconsideration and proposes to again affirm the use of CSAPR as a BART alternative for all States whose EGUs continue to participate in the CSAPR trading programs as to the relevant pollutants. Specifically, the EPA proposes to conclude that, if the present proposal and the restoration of the analytical premise for the findings of the September 2017 Final Rule are finalized, the objections that the 2020 petition for partial reconsideration raised as to the analysis the EPA presented in the 2020 Denial will be resolved and are therefore not of “central relevance” to the September 2017 Final Rule. We are providing the opportunity for, and invite, public comment on this proposed denial of the petition for partial reconsideration.
Under section 110(c) of the CAA, whenever the EPA disapproves a mandatory SIP submission in whole or in part, the EPA is required to promulgate a FIP within 2 years unless we approve a SIP revision correcting the deficiencies before promulgating a FIP. The term “Federal implementation plan” is defined in Section 302(y) of the CAA in pertinent part as a plan promulgated by the Administrator to correct an inadequacy in a SIP.
Beginning in 2012, following the limited disapproval of the Texas Regional Haze SIP, the EPA has had the authority and obligation to promulgate a FIP to address BART for Texas EGUs for SO
The EPA proposes that its prior approval of a portion of Texas's 2009 Regional Haze SIP related to its finding that no EGUs were subject to BART requirements for PM (PM BART) was in error under CAA section 110(k)(6). Section 110(k)(6) of the CAA provides the EPA with the authority to make corrections to actions that are subsequently found to be in error.
In the 2009 Texas Regional Haze SIP, Texas conducted a screening analysis of the visibility impacts from PM emissions in isolation and determined that no EGUs were subject to BART for PM based on an assumption that BART requirements for EGUs for both SO
In our 2017 Texas BART FIP, we created the Texas SO
Accordingly, the EPA is proposing to correct its previous approval of the Texas 2009 Regional Haze SIP submittal related to PM BART for EGUs by proposing to disapprove Texas's pollutant-specific PM screening analysis and determination that PM BART emission limits are not required for any
As discussed in Section IV of this action, we are proposing to withdraw the Texas SO
In January 2016, we approved Texas's determination of which non-EGU sources in the State are BART-eligible and the determination that none of the State's BART-eligible non-EGU sources are subject to BART because they are not reasonably anticipated to cause or contribute to visibility impairment at any Class I areas.
Because we are now proposing to withdraw the Texas SO
Some of the BART-eligible sources that were included in the Texas SO
To determine which of those remaining BART-eligible sources listed in Table 2 are anticipated to cause or contribute to visibility impairment in any Class I area (subject-to-BART),
For States (or the EPA in the case of a FIP) using modeling to determine the applicability of BART to single sources, the first step in the BART Guidelines is to set a contribution threshold to assess whether the impact of a single source (collectively the BART-eligible units at a specific facility) is sufficient to cause or contribute to visibility impairment at a Class I area. The BART Guidelines preamble advises that, “for purposes of determining which sources are subject to BART, States should consider a 1.0 deciview (dv) change or more from an individual source to `cause' visibility impairment, and a change of 0.5 dv to `contribute' to impairment.”
In this action we conducted modeling using both CALPUFF
As recommended in the BART Guidelines, we performed stand-alone, source-specific CALPUFF modeling on several of the remaining BART-eligible sources included in Table 2 to determine which of the BART-eligible sources in Table 2 cause or contribute to visibility impairment in nearby Class I areas. CALPUFF is a multi-species non-steady-state puff dispersion model that simulates the effects of pollution transport, dispersion, transformation, and removal of emissions from modeled sources for transport distances beyond 50 km using general background concentrations to represent air pollution levels that the modeled sources emissions interact. Relevant guidance
Consistent with the BART Guidelines, for those sources modeled with CALPUFF, we compared the 98th percentile (equivalent to the 8th highest daily value in each year modeled) impact from the three modeled years to the 0.5 dv screening threshold following the modeling protocol described in the 2023 BART Modeling TSD.
For this proposed action, we conducted modeling using a baseline period of emissions data of 2016-2020 and used meteorological data for 2016-2018 to evaluate source visibility impacts to Class I areas. Our selection of this baseline period for subject-to-BART screening modeling was made based on consideration of a number of factors. We note that most BART screening analyses, including the BART screening in the 2009 Texas Regional Haze SIP, were based on a 2000-2004 baseline period, used 2001-2003 meteorological data, and used 2002 in the baseline modeling to project 2018 visibility conditions for the first planning period SIPs. Our 2017 proposed rule also used this period.
We selected the 2016-2020 emissions baseline period for subject-to-BART screening in this instance because recent actual emissions more accurately reflect future anticipated emissions which is required in evaluating controls. In addition, this emissions baseline period is consistent with the 2016-2018 meteorological period modeled. In this manner, the screening, visibility benefit analysis, cost analysis, and consideration of existing controls are all based on consideration of the same baseline meteorological time period, operating conditions, and emissions. The 2000-2004 baseline period is no longer representative of anticipated future emissions or current operations because more recent regulatory actions, such as the MATS rule, and market pressures have impacted how these units now operate. We also note that our previous use of baseline emissions data from 2000-2004 reflected steady-state operating conditions during periods of high-capacity utilization and was appropriate for the screening nature of the analysis rather than any specific federally enforceable limit in effect at that time. We believe this same approach, updated for 2016-2020, continues to serve the same function and provides a suitable estimate of emissions during high utilization for each of these sources. Additionally, it also allows the screening, visibility benefit analysis, cost analysis, and consideration of existing controls to all be based on the same baseline period for meteorological data, operating conditions, and emissions. Using an appropriate, updated baseline is also the foundation for evaluating control costs once a source is determined to be subject to BART. The BART determination includes consideration of past practices, existing controls, and anticipated future operation. The BART Guidelines state that in evaluating the costs of controls as part of the five-factor analysis for sources determined to be subject to BART, baseline annual emissions utilized for control cost analyses should be a realistic depiction of anticipated annual emissions for the source and calculated based upon continuation of past practice
For both the CALPUFF and CAMx modeling, the maximum 24-hour emission rate (lb/hr) for NO
As previously discussed, while the BART Guidelines recommend the use of CALPUFF to determine which sources are anticipated to contribute to visibility impairment, the Guidelines also allow the use of another “appropriate model” to predict the visibility impacts from a single source at a Class I area. Because some of these BART-eligible sources (included in Table 2) are beyond the distance to Class I areas for which CALPUFF modeling is typically used, we used photochemical grid modeling (CAMx) to evaluate the visibility impacts of those sources. In addition, we also used CAMx to evaluate the other BART-eligible coal-fired EGUs with SO
Since CAMx modeling differs in several ways from CALPUFF modeling, we are using different metrics to evaluate BART visibility impacts from CAMx. For CAMx modeling, we utilize the maximum daily impact as the primary metric for BART screening and assessment of visibility impacts as compared to the use of the 98th percentile metric with CALPUFF. As explained in the 2023 BART Modeling TSD, this approach recognizes differences in the models and model inputs and their application in determining whether the source is anticipated to cause or contribute to visibility impairment. For example, one difference is that compared to CALPUFF, CAMx utilizes a more robust chemistry mechanism, thus the primary concern that drove the selection of the 98th percentile value for CALPUFF based modeling are not applicable. Furthermore, because the CAMx modeling uses a more limited meteorological data period (one year of meteorology instead of three years used for CALPUFF modeling), and CAMx modeling also uses only one receptor for the Class I area
For this proposed action, our CAMx modeling platform began with TCEQ's 2016 Modeling Platform,
Using the BART Guidelines recommended maximum daily emissions and post-processing approach, if the source (which is the aggregate of all BART-eligible units at a specific facility) is shown to contribute less than 0.5 dv to visibility impairment at all modeled Class I areas on all modeled days, then it is said to be “not subject to BART” and may be excluded from further steps in the BART process. The maximum modeled impact for each source, taking into account the annual average natural background conditions at the Class I areas, was compared to the 0.5 dv contribution threshold. See the 2023 BART Modeling TSD for additional details on the CAMx modeling.
Table 3 shows the CALPUFF modeling results for the screening analysis. The Graham, Newman, Stryker Creek, and Wilkes BART-eligible units (all gas-fired or gas/fuel oil-fired BART-eligible units) that were included in the Texas SO
Table 4 summarizes the results of the CAMx screening analysis. These results also establish the baseline impacts for further modeling analyses of potential visibility benefits of controls. We note that all six sources analyzed with CAMx PSAT modeling had impacts greater than 0.5 dv at one or more Class I areas. Table 4 also shows that the CAMx-predicted visibility impacts range from 0.52 dv to 6.69 dv for these six sources at individual Class I areas on their maximum impact day. Additionally, Table 4 shows the number of days impacted over 0.5 dv and 1.0 dv at the maximum impacted Class I areas for each source. We note that maximum impacts from Fayette
Based on the modeling analysis, the BART-eligible sources in Table 5 have been determined to cause or contribute to visibility impairment at a nearby Class I area; therefore, we propose to find the six sources are subject to BART. We must establish emission limits for visibility impairing pollutants SO
CPS Energy operates the Calaveras Power Station which is comprised of O. W. Sommers Units 1 and 2, J. T. Deely Units 1 and 2,
To bolster our current analysis, we also compared the modeled SO
Table 6 compares the NO
The purpose of the BART analysis is to identify and evaluate the best system of continuous emission reduction based on the BART Guidelines.
STEP 1—Identify All Available Retrofit Control Technologies,
STEP 2—Eliminate Technically Infeasible Options,
STEP 3—Evaluate Control Effectiveness of Remaining Control Technologies,
STEP 4—Evaluate Impacts and Document the Results, and
STEP 5—Evaluate Visibility Impacts.
The following sections treat these steps individually for SO
The BART Guidelines state that in identifying all available retrofit control options,
[Y]ou must identify the most stringent option and a reasonable set of options for analysis that reflects a comprehensive list of available technologies. It is not necessary to list all permutations of available control levels that exist for a given technology—the list is complete if it includes the maximum level of control each technology is capable of achieving.
Adhering to this, we will identify a reasonable set of SO
The subject-to-BART units identified in Table 5 can be organized into three broad categories, based on their fuel type and the potential types of SO
For the coal-fired EGUs without an existing scrubber, we have identified four potential control technologies: (1) coal pretreatment, (2) Dry Sorbent Injection (DSI), (3) dry Flue Gas Desulfurization (FGD), and (4) wet FGD. For the coal-fired EGUs with existing scrubbers, we will examine whether those scrubbers can be upgraded.
Gas-fired EGUs that do not burn oil (W. A. Parish Unit WAP4) have inherently very low SO
Available SO
Coal pretreatment, or coal upgrading, has the potential to reduce emissions by reducing the amount of coal that must be burned in order to result in the same heat input to the boiler. Coal pretreatment broadly falls into two categories: coal washing and coal drying.
Coal washing is often described as preparation (for particular markets) or cleaning (by reducing the amount of mineral matter and/or sulfur in the product coal).
Coal washing takes place offsite at large dedicated coal washing facilities, typically located near where the coal is mined. Coal washing carries with it a number of problems:
• Coal washing is not typically performed on the types of coals used in
• Coal washing poses significant energy and non-air quality considerations under section 51.308(e)(1)(ii)(A). For instance, it results in the use of large quantities of water,
Because of these issues, we do not consider coal washing as a part of our reasonable set of options for analysis as BART SO
In general, coal drying consists of reducing the moisture content of lower rank coals, thereby improving the heating value of the coal and so reducing the amount of coal that has to be combusted to achieve the same power, thus improving the efficiency of the boiler. In the process, certain pollutants are reduced as a result of (1) mechanical separation of mineralized sulfur (
Coal drying could be considered a potential BART control. Great River Energy has developed a patented process which is being successfully utilized at the Coal Creek facility in North Dakota and is potentially available for installation at other facilities.
Although coal drying may be a potential option for generally improving boiler efficiency and obtaining some reduction in SO
DSI is not a stand-alone, add-on air pollution control system but a modification to the combustion unit or ductwork. DSI is performed by injecting a dry reagent into the hot flue gas, which chemically reacts with SO
There are many examples of DSI being used on coal-fired EGUs. However, DSI may not be technically feasible at every coal-fired EGU. For example, DSI technology is not a technically feasible control option for boilers that burn fuels with sulfur content greater than 2 lb SO
In contrast to DSI, SO
Excluding the DSI installations,
We consider some of the other scrubber system types (
The BART Guidelines explain that:
A possible outcome of the BART procedures discussed in these guidelines is the evaluation of multiple control technology alternatives which result in essentially equivalent emissions. It is not our intent to encourage evaluation of unnecessarily large numbers of control alternatives for every emissions unit. Consequently, you should use judgment in deciding on those alternatives for which you will conduct the detailed impacts analysis (Step 4 below).
We believe that evaluation of SDA and wet FGD covers a reasonable range of control efficiencies offered by available SO
Wet FGD and SDA installations account for approximately 79 percent of all scrubber installations in the U.S. and as such constitute a reasonable set of SO
In our 2016 Texas-Oklahoma FIP,
The Fayette Units 1 and 2 are currently equipped with high performing wet FGDs. Both units have demonstrated the ability to maintain a SO
Based on our subject to BART screening analysis, W. A. Parish Unit WAP4 is the only gas-fired unit we determined to be subject to BART. Because the BART screening analysis is done on a facility-wide basis, Unit WAP4 is only subject to BART because it is collocated with two BART-eligible coal-fired units. Gas-fired EGUs have inherently low SO
In the following subsections, we evaluate the control levels each technically feasible technology can achieve for the coal units. In so doing, we consider the maximum level of control each technology is capable of delivering based on a 30 BOD period. As the BART Guidelines direct, “[y]ou should consider a boiler operating day to be any 24-hour period between 12:00 midnight and the following midnight during which any fuel is combusted at any time at the steam generating unit.”
DSI involves pneumatically injecting a sorbent either directly into a coal-fired boiler or into ducting downstream of where the coal is combusted. The sorbent interacts with various pollutants in the flue gas, including SO
The most common sodium-based sorbents used in DSI systems are trona and sodium bicarbonate. Sodium bicarbonate is more effective in removing SO
In developing our BART analysis for DSI, we relied on the EPA's April 2017 version of the Integrated Planning Model (IPM) DSI documentation
According to the April 2017 IPM DSI documentation, the assumed maximum DSI performance level using milled trona is 80 percent SO
It is not our intent to require analysis of each possible level of efficiency for a control technique as such an analysis would result in a large number of options. It is important, however, that in analyzing the technology you take into account the most stringent emission control level that the technology is capable of achieving. You should consider recent regulatory decisions and performance data (
Adhering to this, we are evaluating each unit at its assumed maximum achievable DSI performance level according to the April 2017 IPM DSI documentation. All the units we are evaluating for DSI controls have existing baghouses with the exception of Harrington Unit 061B, which has an ESP. For Coleto Creek Unit 1 and W. A. Parish Units WAP5 and WAP6, we are evaluating DSI at 90 percent SO
We recognize that there is some variation based on facility-specific circumstances which could affect whether a given unit is actually capable of achieving these assumed maximum performance levels. There is typically a direct correlation with DSI between the targeted SO
Site-specific information based on individual performance testing is typically needed to be able to accurately determine the maximum DSI SO
Recognizing that DSI has a wide range of SO
You may encounter cases where you may wish to evaluate other levels of control in addition to the most stringent level for a given device. While you must consider the most stringent level as one of the control options, you may consider less stringent levels of control as additional options. This would be useful, particularly in cases where the selection of additional options would have widely varying costs and other impacts.
We invite comments on the range and maximum control efficiency that can be achieved with DSI at the evaluated units. We are especially interested in any site-specific DSI testing for the units we evaluated to determine the range and maximum control efficiency that can be achieved at those units. Any data to support the range and maximum control efficiency for a particular unit should be submitted along with those comments. We will further consider DSI site-specific information provided to us during the public comment period in making our final decision and potentially re-evaluate DSI and the control efficiency for one or more particular units.
We have assumed a wet FGD level of control to be a maximum of 98 percent not to go below 0.04 lb/MMBtu, in which case, we assume the percentage of control equal to 0.04 lb/MMBtu. As we discuss later in this proposal, we conducted our wet FGD control cost analysis using the EPA's “Air Pollution Control Cost Estimation Spreadsheet For Wet and Dry Scrubbers for Acid Gas Control,”
IPM Model—Updates to Cost and Performance for APC Technologies, Dry Sorbent Injection for SO
IPM Model—Updates to Cost and Performance for APC Technologies, SDA FGD Cost Development Methodology, Final January 2017, Project 13527-001, Eastern Research Group, Inc., Prepared by Sargent & Lundy. Documentation for v.6: Chapter 5: Emission Control Technologies, Attachment 5-2: SDA FGD Cost Methodology, downloaded from
IPM Model—Updates to Cost and Performance for APC Technologies, Wet FGD Cost Development Methodology, Final January 2017, Project 13527-001, Eastern Research Group, Inc., Prepared by Sargent & Lundy. Documentation for v.6: Chapter 5: Emission Control Technologies, Attachment 5-1: Wet FGD Cost Methodology, downloaded from
Assuming a wet FGD level of control to be a maximum of 98 percent not to go below 0.04 lb/MMBtu is also consistent with our determination in the 2011 Oklahoma FIP.
In evaluating the control effectiveness for SDA, the Control Cost Manual identifies the 12-month average emission rate for the top performing 50 percent of SDA systems as 0.06 lb/MMBtu.
Of the units we are proposing to determine are subject to BART, Martin Lake Units 1, 2, and 3 are currently equipped with wet FGDs that are not high-performing. Based on information we received from the facility, which we obtained in response to our previous CAA Section 114(a) information collection request, we find that upgrades to the existing scrubbers should be considered as potential BART controls for these Martin Lake units. Because the company asserted a CBI claim for much of the information supplied to us, as provided in 40 CFR 2.203(b), we are limited in what information we can include in this section. The following summary is based on information not claimed as CBI.
• The absorber system could be upgraded to perform at an SO
• The SO
• Additional modifications necessary to eliminate the bypass could be performed using proven equipment and techniques.
• The additional SO
Given that we lack Continuous Emissions Monitoring Systems (CEMS) data for the inlet of the scrubbers and only have CEMS data for the outlet of the scrubbers, we calculated the current removal efficiency of each scrubber by utilizing the reported sulfur content and tonnages of the fuels burned and reported to EIA
The BART Guidelines offer the following with regard to how Step 4 should be conducted:
After you identify the available and technically feasible control technology options, you are expected to conduct the following analyses when you make a BART determination:
Impact analysis part 1: Costs of compliance,
Impact analysis part 2: Energy impacts, and
Impact analysis part 3: Non-air quality environmental impacts.
Impact analysis part 4: Remaining useful life.
We evaluate the cost of compliance on a unit by unit basis because control cost analysis depends on specific factors that can vary from unit to unit. However, we generally evaluate the energy impacts, non-air quality impacts, and the remaining useful life for all the units in question together because there are usually no appreciable differences in these factors from unit to unit.
As we discuss in Section VII.B.2. and in our 2023 BART FIP TSD associated with this notice, we evaluated each unit at the assumed maximum SO
For the coal units without any SO
The cost algorithm used in the “Air Pollution Control Cost Estimation Spreadsheet For Wet and Dry Scrubbers for Acid Gas Control” calculates the Total Capital Investment, Direct Annual Cost, and Indirect Annual Cost. The Total Capital Investment for wet FGD is a function of the absorber island capital costs, reagent preparation equipment costs, waste handling equipment costs, balance of plant costs, and wastewater treatment facility costs. For SDA, the Total Capital Investment is a function of the absorber island capital costs that include both an absorber and a baghouse, reagent preparation and waste recycling/handling costs, and balance of plant costs. The Direct Annual Costs consist of annual maintenance cost, annual operator cost, annual reagent cost, annual make-up water cost, annual waste disposal cost, and annual auxiliary power cost. Additionally, the Direct Annual Costs for wet FGD also include annual wastewater treatment cost and the replacement cost of a mercury monitor (replaced once every 6 years). The Indirect Annual Cost consists of administrative charges and capital recovery costs.
To estimate the costs for DSI, we relied on the EPA's April 2017 IPM DSI documentation
IPM Model—Updates to Cost and Performance for APC Technologies, Dry Sorbent Injection for SO
As we discuss in Section VII.B.2.a, we expect that by the time this proposal is published in the
The cost models used in IPM version 6 were based on 2016 dollars. Thus, in
In our 2023 BART FIP TSD associated with this proposed rulemaking, we analyze those units listed in Table 7 of this notice that have an existing SO
Martin Lake was the highest emitting EGU facility for SO
The cost of scrubber upgrades at coal-fired power plants has been evaluated in many other instances in both the context of BART and reasonable progress for both the first and second planning periods for regional haze. Based on what we have seen in other regional haze actions, upgrading an underperforming SO
In the Texas Regional Haze SIP for the Second Planning Period recently submitted to us by TCEQ, the State evaluated Martin Lake Units 1, 2, and 3 for controls under the reasonable progress requirements for the regional haze second planning period.
In our cost analysis of scrubber upgrades for the Martin Lake units, we are using information we received from the facility in response to our previous CAA Section 114(a) information collection request. We are limited in what information we can include in this section because the facility claimed this information as CBI. We can disclose that we previously used this information claimed as CBI by the facility to calculate the total annualized costs for the Martin Lake units in our 2016 Texas-Oklahoma FIP.
We recognize that the information we used in our cost analysis on scrubber upgrades was provided by the facility several years ago and that our escalation of the total annualized costs from 2013 to 2020 dollars introduces some level of uncertainty in our cost estimates. We acknowledge that it is reasonable to assume that the cost information we received from the facility may have changed in the interim, due to changes in the costs of various materials and services, as well as possible recent upgrades to the scrubbers that may have already been implemented at these units that would no longer need to be considered in our cost analysis. However, based on the information presented in this subsection, we find that the cost of scrubber upgrades at the Martin Lake units is so low in terms of dollars per ton reduced such that even if we had updated cost information, we expect that scrubber upgrades would continue to be very cost-effective. Accordingly, we would still propose to require upgrades to these SO
The Fayette Units 1 and 2 are currently equipped with high performing wet FGDs. Both units have demonstrated the ability to maintain a SO
Regarding the analysis of energy impacts, the BART Guidelines advise, “You should examine the energy requirements of the control technology and determine whether the use of that technology results in energy penalties or benefits.”
Neither the CAA nor the BART Guidelines specifically require the examination of grid reliability considerations because utilities may shut down or retire a unit rather than comply with a more stringent emission limit or limits. However, the Guidelines recognize there may be cases where the installation of controls, even when cost-effective, would “affect the viability of continued plant operations.”
Should any of the units faced with a final BART emission limit choose instead to explore retirement, such a decision would presumably be made on the basis of a determination that the retirement of the unit would be the more economical choice, taking into account any and all regulatory requirements impacting the source and market conditions. Further, the relevant grid operator would follow their planning requirements to ensure that sufficient reserve capacity is available.
We have also reviewed available information regarding the grids operating in Texas to provide data on these generation units and reserve capacity. The Welsh and Harrington facilities operate as part of the Southwest Power Pool (SPP).
One way to evaluate potential changes to the grid is to examine forecasted peak demand and generation capacity for summer and winter. These five coal-fired units represent 3,737 MW of summer capacity.
ERCOT's November 2022 Report on the Capacity, Demand and Reserves
The SO
To further evaluate the potential changes to the grid due to retirements, we also examined ERCOT's December 2017 Report on the Capacity, Demand and Reserves,
Regarding the analysis of non-air quality environmental impacts, the BART Guidelines advise:
Such environmental impacts include solid or hazardous waste generation and discharges of polluted water from a control device. You should identify any significant or unusual environmental impacts associated with a control alternative that have the potential to affect the selection or elimination of a control alternative. Some control technologies may have potentially significant secondary environmental impacts. Scrubber effluent, for example, may affect water quality and land use. Alternatively, water availability may affect the feasibility and costs of wet scrubbers. Other examples of secondary environmental impacts could include hazardous waste discharges, such as spent catalysts or contaminated carbon. Generally, these types of environmental concerns become important when sensitive site-specific receptors exist or when the incremental emissions reductions potential of the more stringent control is only marginally greater than the next most-effective option. However, the fact that a control device creates liquid and solid waste that must be disposed of does not necessarily argue against selection of that technology as BART, particularly if the control device has been applied to similar facilities elsewhere and the solid or liquid waste is similar to those other applications. On the other hand, where you or the source owner can show that unusual circumstances at the proposed facility create greater problems than experienced elsewhere, this may provide a basis for the elimination of that control alternative as BART.
The SO
Regarding water related impacts, we recognize that wet FGD requires additional amounts of water as compared to SDA and DSI. Furthermore, based on recent Effluent Limitation Guidelines (ELG), it is expected that all future wet FGD installations will require the facility to incorporate a wastewater treatment facility.
Regarding the remaining useful life, the BART Guidelines advise:
You may decide to treat the requirement to consider the source's “remaining useful life” of the source for BART determinations as one element of the overall cost analysis. The “remaining useful life” of a source, if it represents a relatively short time period, may affect the annualized costs of retrofit controls. For example, the methods for calculating annualized costs in EPA's OAQPS Control Cost Manual require the use of a specified time period for amortization that varies based upon the type of control. If the remaining useful life will clearly exceed this time period, the remaining useful life has essentially no effect on control costs and on the BART determination process. Where the remaining useful life is less than the time period for amortizing costs, you should use this shorter time period in your cost calculations.
We have no reason to conclude that the remaining useful life of any SO
Some of the facilities we have analyzed for BART in this action have announced plans to retire or refuel to natural gas within the next several years.
If a facility owner were to enter into a federally enforceable commitment to shut down or refuel by a date certain, that date would be used to revise the remaining useful life and the annualized costs weighed in making the BART determination. Whether that adjustment in analysis would ultimately alter our final BART determinations from this proposal would depend on the outcome of an updated BART analysis with the inclusion of the shutdown or refuel date. Should an owner decide to shut down or refuel a unit before the compliance date set out for the proposed BART controls, the shutdown or refueling to natural gas would also achieve the required SO
The 2023 BART Modeling TSD describes in detail the modeling runs we conducted, our methodology and selection of emission rates, modeling results, and final modeling analyses that we used to evaluate the benefits of the proposed controls and their associated emission decreases on visibility impairment values. In this section, we present a summary of our analyses and our proposed findings regarding the estimated visibility benefits of emission reductions based on the CALPUFF and/or CAMx modeling results. For those sources that are within 450 km of a Class I area (Martin Lake, Harrington, and Welsh), we utilized both CALPUFF and CAMx modeling results to assess the visibility benefits of potential controls. For the remaining coal-fired sources (Coleto Creek, Fayette, and W. A. Parish), only CAMx modeling was utilized, as these sources are located at greater distances from the nearest Class I areas than typically modeled with the CALPUFF model for BART analyses. The CAMx modeling provides unit specific impacts and also total facility impacts where the CALPUFF modeling was performed such that only total facility impacts were generated. Therefore, we do not have unit specific CALPUFF results. Additional details regarding our approach to using CAMx and CALPUFF modeling are within Section VII.A.1 and the 2023 BART Modeling TSD.
To assess the visibility benefits of controls, we modeled the sources with emissions reflecting a low control level and a high control level.
We also modeled the visibility benefits of improved efficiency on the existing scrubbers at Martin Lake. We assumed the same 95 percent control level represented by an emission limit of 0.08 lb/MMBtu used in our control cost analyses for the high control level. We also modeled a lower control level based on an emission rate of 0.32 lb/MMBtu. This emission rate is consistent with the limit included in an Agreed Order
As discussed in Section VII.B.1.b, Fayette Units 1 and 2 have scrubbers that are operating consistently at a high control level. Accordingly, we modeled both units at an emission rate of 0.04 lb/MMBtu for the high control level, which is consistent with emission rates from the past several years. For the low control scenario, we evaluated the visibility impacts at the current permitted emission rates, which is higher than the current actual emissions. These model runs do not correspond to “low control” and “high control” specifically. We discuss the model results for Fayette further in Section VIII.B. As discussed elsewhere, we found that for these units no additional controls or upgrades were necessary.
Tables 12 and 13 present a summary of the modeled visibility impacts for the baseline at the Class I areas most impacted by each source, and the visibility benefits from the low and high control scenarios, as predicted by CAMx
To further illustrate the CAMx modeled visibility benefits provided by both the low and high control levels, we compared the visibility benefits of the low and high control levels to the baseline impacts in terms of percent reduction in visibility impacts. To make this comparison, we used the maximum impact for each Class I area and compared these values for the low control and high control with the baseline impacts, looking at the values for the highest impacted Class I area and the average of the 15 Class I areas from the baseline modeling to show the benefit for the control levels. For Martin Lake, low and high control resulted in a reduction of visibility impacts at Caney Creek by 49 percent and 75 percent, respectively, and an average reduction of visibility impacts at the 15 Class I areas of 54 percent and 83 percent, respectively. For W.A. Parish, low and high control resulted in a reduction of visibility impacts at Wichita Mountains by 44 percent and 91 percent, respectively, and an average reduction of visibility impacts at the 15 Class I areas of 43 percent and 87 percent, respectively. For Harrington, low and high control resulted in a reduction of visibility impacts by 36 percent and 67 percent, respectively, and an average reduction of visibility impacts at the 15 Class I areas of 39 percent and 71 percent, respectively. For Coleto Creek, low and high control resulted in a reduction of visibility impacts by at Caney Creek 43 percent and 89 percent, respectively, and an average reduction of visibility impacts at the 15 Class I areas of 46 percent and 91 percent, respectively. For Welsh, low and high control resulted in a reduction of visibility impacts at Caney Creek by 30 percent and 68 percent, respectively, and an average reduction of visibility impacts at the 15 Class I areas of 39 percent and 79 percent, respectively. For Fayette, high control resulted in a reduction of visibility impacts at Caney Creek by 0 percent and an average reduction of visibility impacts at the 15 Class I areas of 5 percent. We provide additional analysis of the visibility benefits of the different control levels in Section VIII and in the 2023 BART FIP TSD and 2023 BART Modeling TSD.
For each of the facilities, CAMx predicted a large decrease in the number of days with visibility impacts greater than 0.5 dv with the high level of controls. Aside from impacts on the Caney Creek Class I area, CAMx predicted zero days over 1.0 dv with the high level of controls on the Martin Lake facility. Additional unit-specific information for these sources can be found in the 2023 BART Modeling TSD.
As discussed in prior sections, when using CALPUFF, the visibility benefit (dv) is derived from the 98th percentile (eighth highest day for each year) for each Class I area. We provide additional analysis of the benefits of the different control levels in Section VIII and in the 2023 BART FIP TSD and 2023 BART Modeling TSD. As shown in Table 13, CALPUFF predicted large reductions in the number of days over the 1.0 dv threshold under the high control level for all three facilities. For Harrington, CALPUFF results predicted one day with visibility impacts over 1.0 dv compared to baseline impacts of 16 days. For Welsh, CALPUFF results predicted only one day over 1.0 dv compared to baseline impacts of 16 days. For Martin Lake, CALPUFF results predicted 54 days over 1.0 dv compared to baseline impacts of 366 days.
To further illustrate the CALPUFF modeled visibility benefits provided by both the low and high control levels, we also compared the visibility benefits of the low and high control levels to the baseline impacts in terms of percent reduction in visibility impacts as we did in analyzing CAMx benefits. To make this comparison, we first calculated the average of the 98th percentile for the three years modeled for each Class I area. We then compared these values for the low control and high control with the baseline impacts, looking at the values for the highest impacted Class I area and the average of the Class I areas from the baseline modeling to show the benefit for the control levels. For Harrington, Salt Creek was the highest impacted of the seven Class I areas and low and high control resulted in a reduction of visibility impacts by 33 percent and 58 percent, respectively, and an average reduction of visibility impacts at the seven Class I areas of 34 percent and 61 percent, respectively. For Martin Lake, Caney Creek was the highest impacted of the three Class I areas and low and high control resulted in a reduction of visibility impacts by 50 percent and 65 percent, respectively, and an average reduction of visibility impacts at the three Class I areas of 52 percent and 71 percent, respectively. For Welsh, Caney Creek was the highest impacted of the three Class I areas and low and high control resulted in a reduction of visibility impacts by 30 percent and 45 percent, respectively and an average reduction of visibility impacts at the three Class I areas of 34 percent and 57 percent, respectively. As further discussed in the 2023 BART Modeling TSD, CALPUFF model results are not directly comparable to CAMx results due to difference in the modeling analysis as discussed elsewhere (years modeled, receptor(s) modeled, etc.) and difference in the model including the simplified chemistry in CALPUFF. The potential to overestimate nitrate impacts in the CALPUFF model may limit (resulting in an underestimation) the amount of modeled visibility benefits (improvement) on both the 98th percentile days and the number of days above a threshold that result from decreases in SO
In our 2017 Texas BART FIP, we approved Texas's determination in its 2009 Regional Haze SIP that no PM BART controls were appropriate for its EGUs, based on a screening analysis of the visibility impacts from just PM emissions and the premise that EGU SO
The BART Guidelines permit us to conduct a streamlined analysis of PM BART for PM sources subject to MACT standards. Unless there are new technologies subsequent to the MACT standards which would lead to cost-effective increases in the level of control, the Guidelines state it is permissible to rely on MACT standards for purposes of BART.
All coal-fired EGUs that are subject to BART are currently equipped with either Electrostatic Precipitators (ESPs) or baghouses, or both, as illustrated in Table 14:
We began
The particulate matter control efficiency of ESPs varies somewhat with design, resistivity of the particulate
Nevertheless, we will examine the potential cost of retrofitting a typical 500 MW coal- fired unit with a baghouse. Using our baghouse cost algorithms as employed in version 6 of our IPM model,
We did not calculate the cost-effectiveness resulting from replacing an ESP with a baghouse because we expect that the tons of additional PM removed by a baghouse over an ESP to be very small, which would result in a very high cost-effectiveness figure. For this reason, we did not model the visibility benefit of replacing an ESP with a baghouse. As noted previously, our visibility impact modeling indicates that the contributions to visibility impairment from the baseline PM emissions of these units are very small, and thus we expect the visibility improvement from replacing an ESP with a baghouse to be minimal. For instance, our CAMx baseline modeling shows that on a source-wide level, impacts from PM emissions on the maximum impacted days was at most 7 percent in the case of Fayette, a few were near 1 percent, and others were less than 1 percent of the total visibility impairment, as calculated as the percent of total extinction due to the source(s) at each subject to BART facility. Similarly, our CALPUFF modeling indicates that visibility impairment from PM is also a small fraction (at most 3 percent for Harrington) of the total visibility impairment due to each source. Therefore, additional PM controls are anticipated to result in very little visibility benefit on the maximum impacted days.
Accordingly, we believe an appropriately stringent PM BART control level that would be met with existing, or otherwise-required, controls is a filterable PM limit of 0.030 lb/MMBtu for each of the coal-fired units subject to BART. This limit is consistent with the Mercury and Air Toxics (MATS) Rule, which establishes an emission standard of 0.030 lb/MMBtu filterable PM (as a surrogate for toxic non-mercury metals) as representing Maximum Achievable Control Technology (MACT) for coal-fired EGUs.
As explained in Section VII.A, W. A. Parish Unit WAP4 is the only gas fired unit that we are proposing to find subject to BART. With respect to gas-fired units, which have inherently low emissions of PM (as well as SO
In this section, we present our reasoning for our proposed BART determinations for 12 EGUs in Texas, based on our analysis and weighing of the five statutory BART factors for the following unit types: (1) proposed SO
In previous sections of this proposal, we have described how we assessed the five BART factors. We will now discuss how we weigh these factors in our BART determinations. As a general matter, cost effectiveness and visibility benefits are the driving factors for most of our BART determinations. However, site specific considerations can impact the evaluation of control options and establishing an appropriate BART limit. As defined in the BART Guidelines, “BART means an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant which is emitted by . . . [a BART-eligible source].” Through this process, we will establish emission limits that represent a system of continuous emission reduction for specific pollutants based on consideration of the technology available, the costs of compliance, the energy and non-air quality environmental impacts of compliance, any pollution control equipment in use or in existence at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.
In considering cost-effectiveness and visibility benefit, we do not eliminate any controls based solely on the magnitude of the cost-effectiveness value, nor do we use cost-effectiveness as the primary determining factor. Rather, we compare the cost-effectiveness to the anticipated visibility benefit, and we take note of any additional considerations. Also, in judging the visibility benefit we do not simply examine the highest value for a given Class I area, or a group of Class I areas, but we also consider the cumulative visibility benefit for all affected Class I areas, the number of days in a calendar year in which we see significant improvements, and other factors.
The visibility benefits and cost-effectiveness of all of the controls that form the basis of our proposed BART determinations are within a range found to be acceptable in other BART actions nationwide, with the exception of SDA on Harrington Unit 061B which is discussed in further detail in Section VIII.A.2.a.
In regards to the costs of compliance, we found that the revised average and incremental cost-effectiveness of LNB/SOFA + SCR is in line with what we have found to be acceptable in our other FIPs. The average cost-effectiveness per unit ranges from $4,375 to $4,461/ton, while the incremental cost-effectiveness ranges from $5,449 to $5,871/ton. We believe that these costs are reasonable, especially in light of the significant visibility improvement associated with LNB/SOFA + SCR. As a result, we are finalizing our proposed disapproval of the State's NO
In addition, the EPA approved several BART SIP decisions that required controls with similar cost-effectiveness values. For example, the EPA approved Colorado's determination that NO
In this section, we compare DSI, SDA, and wet FGD using the five BART factors for the six coal-fired units with no SO
For the units with existing baghouses where we evaluated DSI at 50 percent and 90 percent control, in comparing the 50 percent control level to the higher control level, we found DSI to have similar or slightly higher (up to around 10 percent higher) $/ton average cost-effectiveness at 90 percent control compared to 50 percent control.
In comparing DSI at 50 percent control level with SDA and wet FGD, we found that DSI at the 50 percent control level was more cost-effective than either SDA or wet FGD. In general, DSI systems have low capital costs in comparison to SDA or wet FGD. At 50 percent control level, the ongoing annual operation and maintenance costs of DSI are comparable to those of SDA and wet FGD. Given the relatively low initial capital costs of DSI as compared to the installation of SDA or wet FGD, DSI may be a more favorable control option from a cost perspective for a coal-fired EGU that may have plans to retire in the next several years. However, we are not aware of any federally enforceable and permanent commitment to cease operations for these sources that would impact the remaining useful life of controls.
As we indicate elsewhere in our proposal, both SDA and wet FGD are mature technologies that are in wide use throughout the United States. In comparing wet FGD versus SDA, wet FGD is slightly less cost-effective than SDA in all cases evaluated for this proposed action. Wet FGD has slightly higher SO
Industry data from “Current Capital Cost and Cost-effectiveness of Power Plant Emissions Control Technologies” prepared by J. E. Cichanowicz for the Utility Air Regulatory Group (UARG) in 2012 to 2014 were used by Sargent & Lundy LLC (S&L) to update the wet FGD cost algorithms from 2013. The published data were significantly augmented by the S&L in-house database of recent wet FGD and wet FGD wastewater treatment system projects. Due to recently published Effluent Limitation Guidelines (ELG), it is expected that all future wet FGDs will have to incorporate a wastewater treatment facility.
The anticipated need for a wastewater treatment facility for all future wet FGDs also contributes to the higher capital and operating costs of wet FGD compared to SDA. We discuss the cost differences and the factors that result in wet FGD being slightly less cost-effective than SDA for the evaluated units in greater detail in our 2023 BART FIP TSD. We solicit comment on any additional factors or information that may affect the costs of wet FGD and/or SDA for the evaluated units and weigh in favor of one control option or the other. Although wet FGD would offer slightly greater SO
We discuss in further detail our consideration of the cost-effectiveness and anticipated visibility benefits of controls for each of the facilities. Tables 15 thru 17 and 19 thru 26 provide summary CAMx and CALPUFF model results of the benefits from the recommended BART controls. The CAMx model results shown in the following tables for each evaluated BART source summarize the benefits from the recommended controls at the three Class I areas most impacted by the source or unit in the baseline modeling. The benefit is calculated as the difference between the maximum impact modeled for the baseline and the maximum impact level modeled under the control scenario. Also summarized are the cumulative benefit and the number of days impacted over 0.5 and 1.0 dv. Cumulative benefit is calculated as the difference in the maximum visibility impacts from the baseline and control scenario summed across the 15 Class I areas included in the CAMx modeling. The baseline total cumulative number of days over 0.5 (1.0) dv is calculated as the sum of the number of modeled days at each of the 15 Class I area impacted over the threshold in the baseline modeling. The reduction in number of days is calculated as the sum of the number of days over the chosen threshold across the 15 Class I areas included in the CAMx modeling for the baseline scenario subtracted by the number of days over the threshold for the control scenario.
In addition to these metrics, to further inform the impacts and potential benefits of emission reductions, we also provide the average of modeled potential impacts from CAMx on a broader set of high impact days. The CAMx model results tables include the average impact across the top ten highest impacted days at the most impacted class I areas (and cumulative across all Class I areas) for the baseline and the recommended control scenario, as well as the calculated visibility benefits, to assess the potential visibility benefits that could be anticipated due to
For Coleto Creek, Parish and Welsh units, we also present the benefits of SDA control levels for comparison with wet FGD, though these SDA control levels were not directly modeled in CAMx. To evaluate SDA control levels using the available CAMx model results, we calculated an estimate of the visibility benefits using a mathematical extrapolation method, which is further discussed in the 2023 BART Modeling TSD.
The CALPUFF model results in the following tables for the evaluated BART sources include the 98th percentile modeled impact and the number of days impacted over 0.5 and 1.0 dv for those Class I areas within the range of CALPUFF typically used for BART. See the 2023 BART Modeling TSD for a complete summary of our visibility benefit analysis of controls, including modeled benefits and impacts at all Class I areas included in the modeling analyses, plus additional metrics considered in the assessment of visibility benefits.
In reviewing Coleto Creek Unit 1, we conclude that the installation of SDA or wet FGD results in significant visibility benefits. We summarize some of these visibility benefits in Table 15 and discuss them after the table.
The visibility benefits predicted by CAMx with wet FGD control levels applied to Coleto Creek Unit 1 are summarized in Table 15. We also present the estimated benefits of SDA (shown in parentheses) for the visibility improvement at the top three impacted Class I areas. The small difference in visibility benefits between SDA and wet FGD is consistent with the relatively small difference in control efficacy, with an estimated difference between wet FGD and SDA on the maximum impacted day of 0.04 dv at Caney Creek and an average top 10 days difference of 0.02 dv at Caney Creek and Wichita Mountains.
CAM
We also conclude that both SDA and wet FGD are cost-effective at $2,692/ton and $2,911/ton (respectively) and, as discussed in Section VIII, well within a range that we have previously found to be acceptable. Wet FGD is less cost-effective than SDA and we estimate that it would have only a slight additional visibility benefit over SDA. As discussed earlier, in weighing the factors between SDA and wet FGD, we determined the additional visibility benefits did not outweigh the additional cost, water requirements, and wastewater treatment requirements associated with wet FGD. We consider the significant visibility benefits that will result as justification for the cost of SDA at the Coleto Creek Unit 1. We therefore propose that SO
From our identification of available controls, we conclude that both DSI and SDA are technically feasible on both Harrington units. Harrington Unit 061B is distinct from the other coal-fired units we evaluated in that it has an existing ESP rather than a fabric filter. Additionally, this unit had relatively low utilization at times during the 2016-2020 baseline we used in our BART analysis, which has resulted in a cost per SO
In order to evaluate visibility benefits of control options for the Harrington units, we performed modeling using both CALPUFF and CAM
As in Section VII, we compared the visibility benefits (as predicted by CALPUFF) of the SDA control levels on both units to the baseline impacts in terms of percent reduction in visibility impacts. To make this comparison, we first calculated the average of the 98th percentile (8th highest value) for the three years modeled for each Class I area and the average for the seven Class I areas. For Harrington, Salt Creek was the highest impacted of the seven Class I areas and SDA control on both units compared to baseline resulted in a reduction of visibility impacts by 58 percent, from 0.54 dv to 0.23 dv. At the second highest impacted Class I area, Wichita Mountains, SDA on both units result in a reduction of visibility impacts by 58 percent, from 0.52 dv to 0.22 dv. SDA on both units also resulted in an average reduction of visibility impacts across the seven Class I areas combined of 61 percent. Using the CALPUFF modeling results from the baseline, we determined the total number of days when facility impacts were greater than 0.5 dv and 1.0 dv. Harrington had a total of 87 days with visibility impacts above 0.5 dv and 16 days above 1.0 dv at the seven Class I areas modeled with CALPUFF. In comparison, SDA on both units results in a large reduction in impacted days with only six days still above 0.5 dv and one day above 1.0 dv at the same seven Class I areas. In conclusion, the CALPUFF modeling results show that SDA on both units would provide notable visibility improvements.
The CAMx results reinforce that installation of SDA at the Harrington units would provide significant visibility benefits. CAMx modeling results indicate SDA on the individual Harrington units will eliminate all days impacted over 0.5 dv at all Class I areas. When considering the combined impacts of the two units, visibility benefits from SDA installed on both units predicts only one day to exceed the 0.5 dv threshold at each of the White Mountain and Salt Creek Class I areas. This is an overall (cumulative Class I areas) reduction from 44 days over 0.5 dv in the baseline to a total of only two days with SDA. The overall cumulative visibility improvement is 9.08 dv on the maximum impacted days and 5.0 dv improvement when considering the average of the top ten days across all 15 Class I areas.
For Harrington Unit 061B, the CAMx results show that SDA would eliminate all days impacted over 0.5 dv for that unit. On the maximum impacted day at White Mountain, SDA results in 0.96 dv improvement over baseline (1.43 dv), an additional 0.44 dv improvement over DSI at 50 percent control (from Table 12). On the maximum impacted day at Bandelier, SDA results in 0.64 dv improvement over the baseline (0.83 dv), an additional 0.3 dv improvement over DSI at 50 percent control. Furthermore, the CAMx results predict that the cumulative visibility benefit provided by SDA on just Unit 061B is 4.6 dv, with eight Class I areas seeing improvements of 0.25 dv or more.
A summary of our cost analyses from Section VII.B.3. are presented in Table 18. In our analysis, we find SDA to have a cost of $6,603/ton for Harrington Unit 061B, which is above the range for controls that we have previously found to be cost-effective. It is reasonable to expect that similar controls installed on units that are designed for similar capacity would result in similar tons reduced and cost effectiveness. Units 061B and 062B are designed to produce 360 MW of electricity but based on a review of heat input data from 2010 to 2021, differences in utilization or heat input have resulted in different estimates of tons reduced and cost effectiveness.
As shown in Figure 1, the utilization rate of Unit 061B was much lower than Unit 062B during the 2016-2020 baseline period we evaluated for this proposed action. However, utilization rates both before and after the baseline period have been more consistent between the two units, and the utilization rate at Unit 061B has at times exceeded the annual utilization at Unit 062B. The difference in utilization during the baseline period used for the BART analysis results in a relatively smaller estimated reduction of SO
Further
We find that SDA on Units 061B and 062B provides significant visibility benefits. For Unit 062B we find SDA at $4,857/ton within the range we have previously found to be cost effective for BART. While above the range we have previously found to be cost effective, we still find SDA at $6,603/ton for Unit 061B to be reasonable based on the visibility benefits. Additionally, the estimated higher cost-effectiveness associated with SDA is driven by past lower utilization of Unit 061B during the baseline period. We propose and are taking comment on our determination that BART for Units 061B and 062B is an emission limit of 0.06 lb/MMBtu consistent with the installation and operation of SDA.
Because we recognize the cost effectiveness of SDA at Harrington Unit 061B is above a range of costs we have previously required for BART, we are proposing in the alternative to determine that BART is DSI at a control level of 50 percent, with a requirement to conduct a DSI performance evaluation.
For Harrington, CALPUFF results show installation of DSI at a 50 percent control level on Unit 061B and SDA on Unit 062B resulted in a reduction of visibility impacts by 44 percent from the baseline at the highest impacted Class I area (Salt Creek) from 0.54 dv to 0.31 dv, and an average reduction of visibility impacts across seven Class I areas of 47 percent. For the 2016-2018 modeled years (baseline period), Harrington baseline had a total of 87 days with visibility impacts above 0.5 dv and 16 days above 1.0 dv at the seven Class I areas modeled with CALPUFF. DSI at 50 percent on Unit 061B and SDA on Unit 062B resulted in 24 days above 0.5 dv and two days above 1.0 dv. The incremental visibility benefit between DSI and SDA is larger with the CAMx modeling than with the CALPUFF modeling.
The CAMx results for Harrington for this second control scenario show that White Mountain was the most impacted of the 15 Class I areas, the same as in the first control scenario, which had SDA on both units. From Table 17 of the first control scenario, we calculate that SDA control on both units compared to baseline resulted in a reduction of visibility impacts at White Mountain by 67 percent and an average reduction of visibility impacts across the 15 Class I areas of 71 percent; whereas, from Table 20 we calculate that the 50% DSI on Unit 061B and SDA on Unit 062B
For Unit 061B, by itself, DSI at 50 percent control results in visibility benefits approximately one half of those achieved through SDA. On the maximum impacted day at White Mountain, DSI at 50 percent on Unit 061B results in 0.52 dv improvement compared to 0.96 dv with SDA on that unit; at Bandelier, DSI at 50 percent results in 0.34 dv improvement compared to 0.64 dv with SDA on that unit. The cumulative visibility benefit across all Class I areas on the maximum impacted days for Unit 61B with DSI at 50 percent is 2.56 dv compared to 4.61 dv with SDA. For the average of the top 10 most impacted days, SDA provides for a 0.43 dv benefit at Salt Creek compared to 0.23 dv for DSI at 50 percent control, and SDA provides for 0.35 dv benefit at White Mountain compared to 0.19 dv for DSI at 50 percent control—almost twice the improvement with SDA over DSI at 50% on Unit 061B.
When considering the combined benefits of DSI for Unit 061B and SDA for Unit 062B, the visibility improvement at White Mountain Class I area is estimated to be more than 1.3 (1.78 minus 0.44) dv on the highest impact day, while the average of the top 10 most impacted days visibility improvement is approximately 0.6 (0.86 minus 0.20) dv at Salt Creek. Overall, for the visibility improvement at the cumulative Class I areas from the Harrington facility, CAMx predicts an average improvement of almost 4.0 (5.00 minus 1.14) dv across all the Class I areas evaluated on the top 10 days and an improvement on the maximum impacted days of approximately 7.0 (9.08 minus 2.05) dv with SDA controls on Unit 062B and DSI at 50 percent on Unit 061B. Thus, we find that SDA on Unit 062B and DSI at 50 percent control on Unit 061B results in a significant reduction in visibility impacts from these units and that the benefits are spread across a number of Class I areas in New Mexico, Texas, and Oklahoma. As previously discussed, SDA on both units provides an additional cumulative visibility benefit (the difference between DSI at 50 percent control and SDA on Unit 061B) on the average of the top 10 days from the Harrington facility of 1.14 dv across all the Class I areas evaluated and an additional improvement on the maximum impacted days of 2.05 dv. However, DSI at 50 percent control for Harrington is more cost-effective ($2,742/ton for Unit 062B and $3,740/ton for Unit 061B) than SDA ($4,857/ton for Unit 062B and $6,603/ton for Unit 061B) and is well within the range of what we have previously found to be acceptable in other BART actions. For Harrington Unit 062B, we consider SDA to also be cost-effective and within the range of what we have previously found to be acceptable in other BART actions. As discussed earlier, the cost of SDA at Unit 061B is above the range we have previously found to be cost-effective, and the incremental cost-effectiveness of SDA (going from DSI at 50 percent control efficiency to SDA) is $10,377, which we consider to be relatively high. The cost of SDA at Unit 061B is relatively high, but we still find SDA to be reasonable based on the important visibility benefits of SDA on this unit. However, given the relatively high cost of SDA at Unit 061B, we propose in the alternative that BART for this unit is based on DSI. While the visibility benefits of DSI are approximately half those from SDA on Unit 061B using the CAMx results, installation of DSI is significantly less costly than SDA. Therefore, we are proposing in the alternative that BART for Unit 061B is 0.27 lb/MMBtu based on DSI at 50 percent, with a compliance period of no later than two (2) years from the effective date of the final rule.
We believe Unit 061B is likely capable of achieving an SO
Additionally, we recognize that Xcel Energy has announced its intent to convert Harrington Station to natural gas by January 1, 2025. We understand this has been formalized further in an Agreed Order with TCEQ,
In reviewing the modeling results for Welsh Unit 1, we conclude that the installation of a wet FGD or SDA will provide significant visibility benefits. As discussed in Section VII.A.1, we modeled Welsh Unit 1 with both CALPUFF and CAMx. The visibility benefits for Welsh are summarized in Tables 21 and 22.
The Welsh facility is within 450 km of three Class I areas (Caney Creek, Wichita Mountains, and Upper Buffalo), and therefore, within the range that the CALPUFF model has been used for assessing visibility impacts in BART analyses. CALPUFF results for Welsh indicate that installation of wet FGD or SDA resulted in a reduction of visibility impacts by 45 percent (0.39 dv average visibility benefit) and 44 percent (0.38 dv average visibility benefit), respectively from the baseline (0.86 dv) at the highest impacted Class I area (Caney Creek), and an average reduction of visibility impacts across the three Class I areas of 57 percent and 55 percent respectively.
Using three years (2016-2018) CALPUFF modeling results, we assessed the annual number of days when the facility impacts were greater than the 0.5 dv and 1.0 dv threshold at each of the Class I areas and then summed this value for all Class I areas to determine the total number of days in the 2016-2018 modeled period where visibility impacts were above 0.5 dv and 1.0 dv. These results indicate that the installation of wet FGD or SDA will eliminate 78 days (81 percent decrease) and 76 days (79 percent decrease) respectively where visibility is greater than 0.5 dv and 12 days (92 percent decrease) where visibility is greater than 1.0 dv over the three modeled years for these three Class I areas. Comparing the CALPUFF modeled improvement with the installation of wet FGD versus SDA on Unit 1 indicates the visibility benefits are very similar (within 1.3-5.4 percent of each other).
Table 22 displays the visibility benefits predicted by CAMx with wet FGD control levels applied to Welsh Unit 1. We also present the estimated benefits of SDA (shown in parentheses). Since SDA is slightly less effective at reducing SO
CAMx modeling results indicate that wet FGD on Welsh Unit 1 will eliminate all days impacted by the unit over 0.5 dv at all Class I areas, from 46 days in the baseline to zero with wet FGD, and SDA controls eliminate all but one day with impacts over 0.5 dv. At the most impacted Class I areas, wet FGD control results in visibility improvements of up to 1.35 dv on the maximum impacted day at Wichita Mountains and 1.29 dv with SDA control compared to the baseline maximum impact of 1.54 dv. Similarly, wet FGD control results in visibility improvements of up to 1.08 dv on the maximum impacted day at Caney Creek and 1.02 dv with SDA control compared to the baseline maximum impact of 1.58 dv. For the average of the top 10 most impacted days, wet FGD control results in 0.82 dv, while SDA results in 0.79 dv visibility improvements at Caney Creek (baseline impact 1.11 dv). For the average of the top 10 most impacted days, wet FGD control results in 0.60 dv, while SDA results in 0.57 dv visibility improvements at Wichita Mountains (baseline impact 0.71 dv).
Overall, there is a cumulative improvement to the average of the top 10 days of approximately 3.2 dv with wet FGD across all impacted Class I areas and approximately 5.3 dv cumulative improvement on the maximum impacted day. The 2023 BART Modeling TSD shows that DSI control achieved approximately 39 percent average improvement in visibility, while wet FGD averaged 79 percent overall visibility improvement. At Caney Creek, DSI results in improvement on the maximum impacted day of 0.48 dv compared to 1.08 dv for wet FGD and 1.02 dv for SDA. At Wichita Mountains, DSI results in improvement on the maximum impacted day of 0.69 dv compared to 1.35 dv for wet FGD and 1.29 dv for SDA. At Caney Creek, the baseline had 27 days over 0.5 dv and 6 days over 1.0 dv, but with DSI these number of days were reduced to 8 and 1, respectively, and further reduced with wet FGD to zero days over 0.5 dv and zero days over 1.0 dv. At Wichita Mountains, the baseline had 6 days over 0.5 dv and 2 days over 1.0 dv, but with DSI these number of days were reduced to 2 and zero, respectively, and further reduced with wet FGD to zero days over 0.5 dv and zero days over 1.0 dv.
We conclude that both SDA and wet FGD are cost-effective at $4,370/ton and $4,497/ton (respectively) and remain within a range that we have previously found to be acceptable. Wet FGD is less cost-effective than SDA and as discussed in the preceding paragraphs, it would have only a slight additional visibility benefit over SDA. As discussed earlier, in weighing the factors between SDA and wet FGD, we determined the additional visibility benefits did not outweigh the additional cost, water requirements, and wastewater treatment requirements associated with wet FGD. DSI at 50 percent control is more cost-effective but results in much less visibility benefit. We consider the significant visibility benefits that will result from the installation of SDA at Welsh Unit 1 to justify the cost, and therefore, we propose that SO
We recognize that at $4,370/ton, the cost of SDA for Welsh Unit 1 is in the upper range of cost-effectiveness of controls found to be acceptable in other BART actions nationwide. Nevertheless, we consider it to be cost-effective and provides for significant visibility benefit. Since BART is defined as an emission limitation,
As discussed in Sections VII.B.2.a and VII.B.3.a, we also invite comments on the range and maximum control efficiency that can be achieved with DSI at Welsh Unit 1 and estimates of the range of associated costs. We are especially interested in any site-specific DSI testing for Welsh Unit 1 to determine the range and maximum control efficiency that can be achieved with DSI at this unit. Any data to support the control efficiency range, maximum control efficiency, and cost of DSI for the unit should be submitted along with those comments. We will further consider site-specific information provided to us during the public comment period in making our final decision on SO
W. A. Parish Unit WAP4 is the only gas-fired unit we determined to be subject to BART. Gas-fired EGUs have inherently low SO
In evaluating W. A. Parish Units WAP5 and WAP6, we conclude that the installation of wet FGD or SDA will result in significant visibility benefits. We summarize some of these visibility benefits in Table 23.
Table 23 displays the visibility benefits predicted by CAMx modeling with wet FGD control levels applied to Units WAP5 and WAP6. We also present the estimated benefits of SDA (shown in parentheses) for each unit individually. Since SDA is slightly less effective at reducing SO
CAMx modeling results indicate that wet FGD installed on each of Units WAP5 and WAP6 will eliminate all days impacted by each unit over 0.5 dv at all Class I areas, and our estimates for SDA control also show no days over 0.5 dv at any Class I areas. When considering the combined impacts from all three units taken together with wet FGD on WAP5 and WAP6, the CAMx results predict one day to exceed the 0.5 dv threshold (at Caney Creek).
Installation of wet FGD on both units results in 3.61 dv improvement (91 percent reduction of 3.97 dv baseline) on the maximum impact day at Wichita Mountains and a 1.56 dv improvement (91 percent reduction of 1.71 dv baseline) on the top 10 average days at Wichita Mountains. Installation of wet FGD on both units results in 2.59 dv improvement (83 percent reduction of 3.13 dv baseline) on the maximum impact day at Caney Creek and a 1.91 dv improvement (86 percent reduction of 2.22 dv baseline) on the top 10 average days at Caney Creek. SDA visibility benefits on a unit basis result in 95 percent or more of the visibility benefit of wet FGD on a unit basis. At the most impacted Class I areas, either wet FGD or SDA on each unit will each result in visibility improvements of more than 1.8 dv per unit at Wichita Mountains, and the top 10 days average visibility improvement for the individual units are more than 0.9 dv at Caney Creek for each unit with wet FGD or SDA. Across all impacted Class I areas, the top 10 days average improvement from all three units combined is predicted to be approximately 9.5 dv, or approximately 89 percent reduction in visibility impairment due to wet FGD controls or SDA. As provided in Section VII.B.4, DSI operated at 50 percent control (“low control scenario”) results in 43 percent visibility improvement for the overall three units, whereas wet FGD visibility benefits result in 87 percent improvement at the most impacted Class I areas for the three units and the cumulative 15 Class I areas included in the modeling.
We conclude that both SDA and wet FGD are cost-effective at $3,044/ton and $3,074/ton (respectively) for Unit WAP5 and $2,651/ton and $2,717/ton (respectively) for Unit WAP6 and remain well within a range that we have previously found to be acceptable. While DSI at 50 percent control is more cost-effective at $2,262/ton for Unit WAP5 and $2,244/ton for Unit WAP6, it results in less visibility benefit. The incremental cost-effectiveness of SDA (going from DSI at 50 percent control efficiency to SDA) is $4,006/ton for Unit WAP5 and $3,155/ton for Unit WAP6, which we consider to be reasonable. Thus, we conclude that the resulting visibility benefit offered by scrubbers outweighs the possible advantage DSI at 50 percent control may hold in cost-effectiveness.
Wet FGD is slightly less cost-effective than SDA and we estimate based on scaling of our CAMx modeling results that it would have only a slight additional visibility benefit over SDA. As discussed earlier, in weighing the factors between SDA and wet FGD, we determined the additional visibility benefits did not outweigh the additional cost, water requirements and wastewater treatment requirements associated with wet FGD. We consider the cost of SDA at the two W. A. Parish units to be justified by the significant visibility benefits that will result. We therefore propose that SO
The BART Guidelines state that underperforming scrubber systems should be evaluated for upgrades.
In evaluating Martin Lake, there are three Class I areas (Caney Creek, Upper Buffalo, and Wichita Mountains) within the typical 450 km range that CALPUFF has been used for assessing visibility impacts. The modeled scrubber upgrades result in large visibility improvements of over 2.2 dv at Caney Creek and 1.7 dv at Upper Buffalo. Visibility benefits at Wichita Mountains also exceed 1.0 dv. CALPUFF results for Martin Lake indicate that upgrading the scrubbers resulted in a reduction of visibility impacts by 65 percent from the baseline at the highest impacted Class I area (Caney Creek), and an average reduction of visibility impacts at the three Class I areas of 71 percent. Using the three years (2016-2018) of CALPUFF modeling results, we assessed the annual average number of days, averaged across the three years, when the facility impacts were greater than 0.5 dv at each Class I area; we also looked at the cumulative number of days summed across the three years at all the Class I areas (three in this case). The reduction in the number of days (annual average) was calculated using the cumulative value of the number of days (three-year total) over the 0.5 dv threshold across the three Class I areas for the baseline scenario minus the cumulative number of days (three-year total) over the threshold for the control scenario. For the three Class I areas, 2016-2018 CALPUFF modeling results indicate that upgraded scrubbers on the three units will eliminate 152 days annually (3-year average), or 458 days cumulatively across the 3 years, when the facility has impacts greater than 0.5 dv in the baseline. The same analysis for the 1.0 dv threshold, as reported in Table 24, has 104 days (312 days total) reduced on annual average. CALPUFF modeling results indicate large improvements at the individual Class I areas and the cumulative improvement of almost 5 dv; these scrubber upgrades markedly improve the overall cumulative predicted visibility by approximately 71 percent from the baseline.
Table 25 includes each affected Martin Lake unit and the combined facility along with the resulting CAMx-modeled visibility benefits from upgrading Martin Lake's existing scrubbers.
Table 25 shows that the Martin Lake units individually cause or contribute to visibility impairment at Wichita Mountains, Caney Creek, and Upper Buffalo on a large number of days. CAMx predicts baseline impacts for these combined three units to be more than the 0.5 dv visibility threshold 150 days of the year at Caney Creek, 111 days of the year at Upper Buffalo, 51 days of the year at Wichita Mountains, and in total for 209 days per year for the other 12 Class I areas modeled. The average visibility impact across the top 10 days for the combined units is more than 5.2 dv at Caney Creek and more than 3.8 dv at Upper Buffalo. CAMx modeling results indicate that upgrades to Martin Lake's wet FGD scrubbers to 95 percent control efficiency installed on each of the units will eliminate all but two days impacted by each individual unit over 0.5 dv at all Class I areas. When considering the combined impacts from all three units, the modeling results show an overall (across all impacted Class I areas) reduction from 521 days over 0.5 dv in the baseline to a total of 47 days over the threshold after the scrubber upgrades are installed, for an overall reduction of more than 90 percent in the number of days over the threshold. With the modeled scrubber upgrades, the number of days impacted over 1.0 dv are reduced from 101 days to 7 days at Caney Creek. Days over the 1.0 dv threshold at all other Class I areas are eliminated, decreasing from 200 in the baseline to zero with the scrubber upgrades. At the most impacted Class I Areas, the scrubber upgrades on each unit will each result in visibility improvements of approximately 2.0 dv on the most impacted days at Caney Creek, and the top 10 days average visibility improvement for the individual units is more than 1.5 dv at Caney Creek. Across all 15 Class I areas, the top 10 days average impact from all three units combined dropped from baseline of 22.2 dv to 3.7 dv after control upgrades, for an overall cumulative improvement of approximately 83 percent reduction due to improved scrubber efficiency. Similarly, across all 15 Class I areas, the maximum daily impact from scrubber upgrades results in a visibility improvement of 27.91 dv compared to the 33.79 dv baseline total, which is a reduction of 83 percent.
As we state elsewhere in this proposal, we estimate scrubber upgrades at the Martin Lake units to be very cost-effective and less than $1,200/ton. We conclude that these scrubber upgrades are very cost-effective and result in very significant visibility benefits, significantly reducing the impacts from these units and reducing the number of days that Class I areas are impacted over 1.0 dv and 0.5 dv. We propose SO
Fayette Units 1 and 2 are currently equipped with high performing wet FGDs. Both units have demonstrated the ability to maintain a SO
Fayette modeling shows increased visibility impacts when modeling the existing permit limit (Title V permit level of 0.2 lb/MMBtu to meet NSPS UUUUU). At this higher permitted rate, the Fayette source would have visibility impacts greater than 1 dv at Caney Creek and Wichita Mountains. However, Fayette routinely emits at rates less than this permit limit. We also modeled wet FGD at 0.04 lb/MMBtu, which these units already consistently meet on a 30-day BOD basis. The results are very similar to baseline modeling results reflecting the maximum 24-hr emissions from 2016-2020, but did result in a slight overall benefit from baseline conditions. Therefore, we propose that additional scrubber upgrades for Fayette are not necessary and that Fayette Units 1 and 2 maintain a 30 BOD rolling average SO
As discussed in Section VI.B, we propose to disapprove the portion of the Texas Regional Haze SIP that sought to address the BART requirement for EGUs for PM. We present our analysis of the BART factors and the potential costs and visibility benefits of PM controls in Section VII.B.5. All the coal-fired units are either currently fitted with a baghouse, an ESP and a polishing baghouse, or an ESP. As part of our BART determination, we propose to conclude that the cost of retrofitting the subject units (Harrington Unit 061B, Martin Lake Units, and Fayette Units) with a baghouse would be extremely high compared to the visibility benefit for any of the units currently fitted with an ESP. The BART Guidelines state it is permissible to rely on MACT standards for purposes of BART unless there are new technologies subsequent to the MACT standards which would lead to cost-effective increases in the level of control. Because the costs of installing a baghouse would be extremely high, we propose that PM BART for the coal-fired units is an emission limit of 0.030 lb/MMBtu along with work practice standards. This limit is consistent with the MATS Rule, which establishes an emission standard of 0.030 lb/MMBtu filterable PM (as a surrogate for toxic non-mercury metals) as representing MACT for coal-fired EGUs.
For the gas-fired BART unit, W. A. Parish Unit WAP4, there are no appropriate add-on controls and the status quo reflects the most stringent controls. We are proposing to make the requirement to burn pipeline natural gas federally enforceable. We are proposing that PM BART for W. A. Parish Unit WAP4 is to limit fuel to pipeline natural gas, as defined at 40 CFR 72.2.
We are proposing to withdraw the Texas SO
We propose that SO
We propose that the following sources comply with these limits within five years of the effective date of our final rule: Coleto Creek Unit 1; Harrington Units 061B (for a limit consistent with scrubber retrofit) and 062B; W. A. Parish Units WAP5 and WAP6; and Welsh Unit 1. This is the maximum amount of time allowed under the Regional Haze Rule for BART compliance. We based our cost analysis on the installation of wet FGD and SDA scrubbers for these units, and in past actions we have typically required that scrubber retrofits under BART be operational within five years.
We are proposing an alternative BART limit based on DSI at 50 percent for Harrington Unit 061B with a proposed compliance date within two years of the effective date of our final rule. We believe that two years is appropriate as the installation of DSI systems is less complex and time consuming than the construction of a scrubber. We also propose to require a DSI performance evaluation, as more fully described in Section IX.A.3, within one year of the effective date of our final rule. In Section VIII.A.2 we also provide an option for Harrington to agree as part of this FIP to convert to natural gas by no later than January 1, 2025.
For Martin Lake Units 1, 2, and 3, we propose that compliance with these limits be within three years of the effective date of our final rule. We believe that three years is appropriate for these units, as we based our cost analysis on upgrading the existing wet FGD scrubbers of these units, which we believe to be less complex and time consuming than the construction of a new scrubber.
For Fayette Units 1 and 2, we propose that compliance with these limits be within one year. We believe that one year is appropriate for these units because the Fayette units have already demonstrated their ability to meet these emission limits.
In our 2023 BART FIP TSD, we discuss how we calculated the SO
(1) The affected unit should comment why it believes it cannot attain the SO
(2) After considering those comments, and responding to all relevant comments in a final rulemaking action, should we still require a scrubber upgrade in our final FIP we will provide the company the following option in the FIP to seek a revised emission limit after taking the following steps:
(a) Install a CEMS at the inlet to the scrubber.
(b) Pre-approval of a scrubber upgrade plan conducted by a third party engineering firm that considers the kinds of improvements (
(c) Installation of the scrubber upgrades.
(d) Pre-approval of a performance testing plan, followed by the performance testing itself.
(e) A pre-approved schedule for 2.a through 2.d.
(f) Should we determine that a revision of the SO
We are proposing that SO
Should we require an SO
(1) The performance evaluation must be conducted by a third-party engineering firm and must determine the potential lowest sustainable SO
(a) DSI with the existing ESP for particulate removal;
(b) DSI with a new ESP installation for particulate removal;
(c) DSI with a new fabric filter installation for particulate removal.
(2) The performance evaluation must include an estimate of the costs for each of the three control scenarios specified in 1.a through 1.c. The cost estimates must include a detailed breakdown of the capital costs and annual operation and maintenance costs for each control scenario as well as an estimate of the annual SO
(3) The facility must submit a detailed report of the performance evaluation and all supporting documentation to the EPA no later than one year from the effective date of our final BART FIP.
Based on the DSI performance evaluation, we will determine whether a revision of the SO
We propose that PM BART limits for the coal-fired units, Martin Lake Units 1, 2, and 3; Coleto Creek Unit 1; W. A. Parish Units WAP5 and WAP6; Welsh Unit 1; Harrington Units 061B and 062B; and Fayette Units 1 and 2 are 0.030 lb/MMBtu and work practice standards, shown in Table 28.
We propose that compliance with these emissions standards and work practice standards be the effective date of our final rule, as the affected facilities should already be meeting them.
We propose that PM BART for W. A. Parish WAP4 is to limit fuel to pipeline natural gas, as defined at 40 CFR 72.2.
We propose that, if this proposal to implement source-specific BART requirements at certain EGUs in Texas is finalized, the EPA's analytical basis for our 2017 CSAPR Better-than-BART determination will be restored,
The 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.” The 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 EPA conducted the screening analyses using EJScreen, an EJ mapping and screening tool that provides the EPA with a nationally consistent dataset and approach for combining various environmental and demographic indicators.
The EPA prepared EJScreen reports covering buffer areas of approximately 6-mile radii around the BART facilities. From those reports, one BART facility, Harrington Station, showed EJ indices greater than the 80th national percentiles,
This action is proposing to promulgate a FIP to address BART requirements that are not adequately satisfied by the Texas Regional Haze SIP. The proposed rule is proposing SO
This action is exempt from review by the Office of Management and Budget (OMB) because the proposed FIP, if finalized, would not constitute a rule of general applicability, as it proposes source specific requirements for electric generating units at six different facilities located in Texas.
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0667. Because the proposed source specific BART emission limits apply to only six different facilities, the Paperwork Reduction Act does not apply.
Additionally, the proposed withdrawal of the Texas SO
I certify that this action will not have a significant impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The proposed FIP action, if finalized, will apply to EGUs at six facilities, none of which are small entities as defined by the RFA.
The EPA has determined that Title II of UMRA does not apply to this proposed rule. In 2 U.S.C. 1502(1) all terms in Title II of UMRA have the meanings set forth in 2 U.S.C. 658, which further provides that the terms “regulation” and “rule” have the meanings set forth in 5 U.S.C. 601(2). Under 5 U.S.C. 601(2), “the term `rule' does not include a rule of particular applicability relating to . . . facilities.” Because this proposed rule is a rule of particular applicability relating to specific EGUs located at six named facilities, the EPA has determined that it is not a “rule” for the purposes of Title II of UMRA.
This proposed 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 proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. Since this action does not concern human health, EPA's Policy on Children's Health also does not apply.
This proposed action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, the EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. The EPA
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/or Indigenous peoples) and low-income populations.
The EPA believes that the human health or environmental conditions that exist prior to this action have the potential to result in disproportionate and adverse human health or environmental effects on people of color, low-income populations and/or Indigenous peoples. As explained further in Section X, the EPA's screening analysis provides an assessment of indicators related to environmental justice and overall pollution burden and demonstrates the potential for disproportionate and adverse effects on the areas located near at least one of the facilities subject to this action.
The EPA believes that this action, if finalized, is not likely to change the human health or environmental conditions, unrelated to SO
For informational purposes in a manner consistent with both the CAA and E.O. 12898, the EPA conducted an EJScreen analysis, considered a large radius around the BART facilities as well as environmental indicators beyond the scope of this action, as discussed in Section X. The EPA intends to promote fair treatment and provide meaningful involvement in developing the final action through the public notice and comment process. This will include a virtual public hearing and public comment period, as well as additional outreach to promote public engagement. Information related to this action will be available on the EPA's website as well as in the docket for this action.
The information supporting this Executive Order review is contained in Section X of this Preamble as well as throughout the Preamble, and all supporting documents have been placed in the public docket for this action.
Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the U.S. Court of Appeals for the D.C. Circuit: (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the Administrator complete discretion whether to invoke the exception in (ii).
This proposed action, if finalized, will be “nationally applicable” within the meaning of CAA section 307(b)(1). As set forth in Section V, the EPA proposes to deny the 2020 petition for partial reconsideration of our September 2017 Final Rule affirming 40 CFR 51.308(e)(4) and our subsequent 2020 denial of a 2017 petition for reconsideration of that rule. This denial, if finalized, will once again reaffirm the continued validity of the CSAPR better-than-BART provision at 40 CFR 51.308(e)(4), which is a nationally applicable regulation. The EPA's proposed denial of the 2020 petition for partial reconsideration is dependent on the EPA's promulgation of source-specific BART emissions limits in Texas. As explained in Section IV, the proposed withdrawal of the Texas SO
In the alternative, to the extent a court finds this proposal, if finalized, to be locally or regionally applicable, the Administrator intends to exercise the complete discretion afforded to him under the CAA to make and publish a finding that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1).
The Administrator intends to find that this is a matter on which national uniformity is desirable, to take advantage of the D.C. Circuit's administrative law expertise, and to facilitate the orderly development of the basic law under the Act. The Administrator also intends to find that consolidated review of this action in the D.C. Circuit will avoid piecemeal litigation in the regional circuits, further judicial economy, and eliminate the risk of inconsistent results for different States, and that a nationally consistent approach to implementation of CSAPR trading programs at EGUs nationwide to satisfy BART requirements constitutes the best use of agency resources.
For these reasons, this action, if finalized, will be nationally applicable or, alternatively, the Administrator intends to exercise the complete discretion afforded to him under the CAA to make and publish a finding that this action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1).
This proposed action is subject to the provisions of section 307(d). CAA section 307(d)(1)(B) provides that section 307(d) applies to, among other things, “the promulgation or revision of an implementation plan by the Administrator under [CAA section 110(c)].” 42 U.S.C. 7407(d)(1)(B). This action, if finalized, among other things, promulgates a Federal implementation plan pursuant to the authority of section 110(c). To the extent any portion of this proposed action is not expressly identified under section 307(d)(1)(B), the Administrator determines that the provisions of section 307(d) apply to this proposed action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides, Visibility, Interstate transport of pollution, Regional haze, Best available retrofit technology.
Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements, Sulfur dioxides.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements, Sulfur dioxides.
For the reasons stated in the preamble, the EPA proposes to amend 40 CFR parts 52, 78 and 97 as follows:
42 U.S.C. 7401
(a)
(b)
(c)
(1) Coal-Fired Units:
(2) W. A. Parish WAP4 shall burn only pipeline natural gas, as defined in 40 CFR 72.2. Compliance for this unit shall be as of [EFFECTIVE DATE OF FINAL RULE].
(d)
(1) Coal-Fired Units at Martin Lake Units 1, 2, and 3; Coleto Creek Unit 1; W. A. Parish WAP5 and WAP6; Welsh Unit 1; Harrington Units 061B and 062B; and Fayette Units 1 and 2.
(i) Normal operations: Filterable PM limit of 0.030 lb/MMBtu.
(ii) Work practice standards specified in 40 CFR part 63, subpart UUUUU, Table 3, and using the relevant definitions in 63.10042.
(2) W. A. Parish WAP4 shall burn only pipeline natural gas, as defined in 40 CFR 72.2.
(3) Compliance for the units included in paragraph (d) of this section shall be as of [EFFECTIVE DATE OF FINAL RULE].
(e)
(2) Continuous emissions monitoring shall apply during all periods of operation of the units covered under paragraph (c)(1) of this section, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments. Continuous monitoring systems for measuring SO
(3) Compliance with the requirement for the unit covered under paragraphs (c)(2) and (d)(2) of this section shall be determined from documentation demonstrating the use of pipeline natural gas as defined in 40 CFR 72.2.
(4) Compliance with the PM emission limits for units in paragraph (d)(1) of this section shall be demonstrated by the filterable PM methods specified in 40 CFR part 63, subpart UUUUU, table 7.
(f)
(1) For each SO
(2) For each day, provide the total SO
(3) For the unit covered under paragraphs (c)(2) and (d)(2) of this section, records sufficient to demonstrate that the fuel for the unit is pipeline natural gas.
(4) Records for demonstrating compliance with the SO
(g)
(h)
(2) Emissions in excess of the level of the applicable emission limit or requirement that occur due to a malfunction shall constitute a violation of the applicable emission limit.
(f)
(3) The deficiencies associated with PM with respect to best available retrofit technology under section 169A of the Clean Air Act, as identified in EPA's disapproval of the regional haze plan submitted by Texas on March 31, 2009, are satisfied by § 52.2287.
The revision reads as follows:
(a) The Texas source-specific BART limits set forth in § 52.2287 constitute the Federal Implementation Plan provisions fully addressing Texas' obligations with respect to best available retrofit technology under section 169A of the Act and the deficiencies associated with EPA's disapprovals in
42 U.S.C. 7401-7671q.
42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651,