This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Agreement and Order No. 989, as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California. Part 989 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers and handlers of raisins operating within the area of production, and a public member.

The Agricultural Marketing Service (AMS) is issuing this final rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this final rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, California raisin handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate will be applicable to all assessable raisins beginning on August 1, 2023, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Section 989.79 provides authority for the Committee, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2018-2019 and subsequent crop years, an assessment rate of $22 per assessable ton of raisins handled (84 FR 2049) was in place. That rate continues in effect from crop year to crop year until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other information available to AMS. This final rule increases the assessment rate from $22 per ton to $24 per ton of assessable raisins for the 2023-2024 and subsequent crop years.

Prior to arriving at this assessment rate, the Committee considered information from its Audit Subcommittee (Subcommittee), which met on June 21, 2023. The Subcommittee discussed alternative spending levels before making a recommendation to the full Committee. On June 28, 2023, the full Committee discussed the recommendation of the Subcommittee and voted unanimously to recommend a budget of $5,241,000 and an assessment rate of $24 per ton as reasonable and necessary to properly administer the Order.

The Committee last amended the assessment rate in 2019 to $22 per ton, which continues to remain in effect; however, California raisin acreage and volume have steadily declined since 2019. The Committee determined the level of assessment revenue under the current rate is now insufficient to meet the rising costs of program operations given a production estimate of 192,000 tons of assessable raisins for the 2023-2024 crop year.

The assessment rate of $24 is $2 higher than the rate currently in effect and is expected to generate assessment income of approximately $4,608,000 ($24 per ton multiplied by 192,000 assessable tons) for the 2023-2024 crop year. This assessment revenue, combined with other Committee income and monetary reserves is sufficient to cover the budget balance of $633,000 ($5,241,000 minus $4,608,000).

The major expenditures recommended by the Committee for the 2023-2024 crop year include $3,303,000 for marketing promotion; $1,205,000 for salaries and employee related costs; $658,000 for administrative expenses; $55,000 for compliance activities; and $20,000 for research and studies. Budgeted expenditures for the 2022-2023 crop year were $3,592,000; $1,232,000; $703,900; $55,000; and $45,000, respectively. The assessment rate increase will cover the expenditures for the 2023-2024 crop year, while reducing the amount of money needing to be expended from reserves.

This assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or AMS. Committee meetings are open to the public and interested persons may express their views at these meetings. AMS will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's budget for subsequent crop years would be reviewed and, as appropriate, approved by AMS.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the AMS has considered the economic impact of this final rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 1,700 producers of California raisins and approximately 17 handlers subject to regulation under the marketing order. Small agricultural producers of raisins are defined by the Small Business Administration (SBA) as those having annual receipts equal to or less than $4.0 million (NAICS code 111332, Grape Vineyards) and small agricultural service firms are defined as those whose annual receipts are equal to or less than $34.0 million (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201).

Using USDA National Agricultural Statistics Service (NASS) data, the 2022 season average value of utilized production of California processed raisin-type grapes (most of which are dried into raisins) is $376.618 million. Dividing that figure by 1,700 producers yields an annual average revenue per producer of $221,540, well below the SBA large farm size threshold of $4.0 million. Therefore, in terms of average annual sales of processed raisin-type grapes, the majority of California raisin producers may be classified as small entities.

To make a similar computation for handlers, the first step is to estimate a representative handler price received per pound for packaged raisins. Recent USDA purchases under the Commodity Procurement Program provide such an estimate. For the most recent raisin crop year used by the Committee (August 2022-July 2023), the average price paid for packaged raisins purchased by the USDA for food assistance programs was $1.56 per pound. For that time period, the Committee provided a list of quantities delivered by handlers. When multiplied by the $1.56 price per pound, the results showed that 5 handlers had annual raisin receipts greater than $34 million, the SBA threshold level for a large handler. The remaining 12 handlers out of 17 are small handlers, using the SBA criterion.

This final rule will increase the assessment rate collected from handlers for the 2023-2024 and subsequent crop years from $22 to $24 per ton of assessable raisins acquired by handlers. The Committee reviewed its ongoing activities and determined the expenses that would be reasonable and necessary to continue program operations for the 2023-2024 crop year. Additionally, the Committee considered that California raisin acreage and volume have steadily declined. Consequently, the revenue collected from assessments also decreased, while program operating costs have continued to increase. Ultimately, the Committee recommended budget totals $5,241,000 for the 2023-2024 crop year. With the current assessment of $22 per ton, and an operating budget of $5,241,000, the Committee would face a deficit of over $1 million. At the rate of $24 per ton, the anticipated assessment income would be $4,608,000 and will reduce the estimated deficit by approximately $384,000.

The major expenditures recommended by the Committee for the 2023-2024 crop year include $3,303,000 for marketing promotion; $1,205,000 for salaries and employee related costs; $658,000 for administrative expenses; $55,000 for compliance activities; and $20,000 for research and studies. Budgeted expenditures for the 2022-2023 crop year were $3,592,000; $1,232,000; $703,900; $55,000; and $45,000, respectively. The increased assessment rate is necessary to help cover the expenditures for the 2023-2024 crop year, while reducing the amount of money needing to be expended from reserves.

The Order provides authority for the Committee to formulate an annual budget of expenses and an assessment rate to cover such expenses is authorized by AMS. Prior to arriving at this budget and assessment rate, the Committee considered alternative spending levels at its June 28, 2023, meeting but ultimately decided that the recommended budget and assessment rate were reasonable and necessary to properly administer the Order.

This final rule increases the assessment obligation imposed on handlers. While the increased assessment rate will impose some additional costs on handlers, the costs are minimal and applied uniformly on all handlers. Some of the additional costs may be passed on to producers. However, these costs will be offset by the benefits derived by the industry from the operation of the Order.

The Committee's meetings were widely publicized throughout the production area. The raisin industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the June 28, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. In addition, interested persons were invited to submit comments on this rule, including the regulatory and information collection impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This final rule will not impose any additional reporting or recordkeeping requirements on either small or large California raisin handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

A proposed rule concerning this action was published in the Federal Register on November 16, 2023 (88 FR 78679). Copies of the proposed rule were provided to all raisin handlers. The proposal was also made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending December 18, 2023, was provided for interested persons to respond to the proposal.

Three comments in opposition to the proposed assessment rate change were received. Of the three, two comments are attributed to the same person. The first commenter described the proposal as undermining farmers economically by forcing them to impart a substantial portion of their crop earnings to pay assessments. As stated in the proposal, California raisin handlers, not farmers, are subject to assessments. Essentially, these assessments help to cover the costs of administering the Order. Such costs may be passed on to farmers from handlers; however, continuous support for the Order from California raisin growers suggests the benefits of orderly marketing outweigh these costs. The comment further states that raisin farmers no longer enjoy the right to sell their own produce and that the Committee gives or sells raisins to Federal agencies and foreign governments because they are often the lowest bidders. First, the Order regulates the handling of raisins, not raisin growers, and by no means prevents raisin growers from packing, processing, or selling their own fruit. Finally, Order provisions do not provide the Committee with authority to acquire, give or sell raisins either domestically or internationally.

The other commenter suggested USDA redirect assessment funds from other non-specialty crops to fund the Order due to decreases in raisin acreage and growth. The Committee collects assessments, not USDA, and such funds may only be collected and used in accordance with the Act and the terms and provisions specified in the Order. Further, Federal marketing orders are issued pursuant to the Act, and the rules issued thereunder are unique and brought about through group action of essentially small entities acting on their own behalf. Both commenters suggested a concern for the welfare of raisin farmers; however, each indicate a lack of understanding of the authority, operations, and funding of this Order. Accordingly, no changes will be made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, AMS has determined that this final rule is consistent with and will effectuate the purposes of the Act.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 989 as follows:

In a final rule that was published in the Federal Register on September 14, 2023 (88 FR 62993-63004, Docket No. APHIS-2016-0033), and effective on October 16, 2023, we amended the regulations in 9 CFR part 93 governing the importation of equines to better align our regulations with international standards, as well as to add a number of miscellaneous changes that clarified existing policy or intent, and corrected inconsistencies or outdated information.

One of these miscellaneous changes included amending § 93.306 to provide APHIS' policies in the rare instances that a horse arriving at the port of entry is dead upon presentation. In the final rule, we stated that cohort horses arriving in the same shipment as a horse dead upon presentation will also be refused entry. We explained that this change was necessary because diagnostic testing for these horses would not be feasible, as determining what additional testing and quarantine would be necessary to mitigate foreign animal disease risk would require a necropsy of the dead horse, and dead horses are refused entry.

During implementation of the final rule, it was brought to our attention that this neglected to account for situations in which the mortality could be directly attributed to a cause other than foreign animal disease, such as in the case of obvious physical trauma sustained during transport. In these situations, a necropsy of the dead horse would not be necessary because determining whether the cohort horses pose a risk of spreading foreign animal disease would be feasible through current policies for foreign animal disease testing and import quarantine.

We are therefore correcting § 93.306 to account for these situations and state that horses arriving in the same shipment as horses dead upon presentation will be refused entry unless the cause of death can be determined to be unrelated to foreign animal disease.

In the preamble to the final rule, we also stated that we were making non-substantive editorial changes to § 93.317(a), which addresses requirements for horses imported from Canada, to improve readability. During implementation of the final rule, the Competent Authority of Canada alerted us that we had changed this paragraph to read that certificates for horses from Canada must be issued and endorsed, rather than issued or endorsed, by a salaried veterinarian of the Canadian Government. This is incorrect and is not current practice; horses from Canada are accepted for entry into the United States with a certificate that is either issued or endorsed by a salaried veterinarian of the Canadian Government, and we did not propose nor intend to change this regulation. We are therefore correcting § 93.317(a) to read that certificates required for horses from Canada must be issued or endorsed by a salaried veterinarian of the Canadian Government.

Accordingly, we are amending 9 CFR part 93 as follows:

In July of 1996, the United States Department of Energy (“DOE” or “the Department”) issued a final rule that codified DOE's “Procedures, Interpretations and Policies for Consideration of New or Revised Energy Conservation Standards for Consumer Products” at 10 CFR part 430, subpart C, appendix A (“appendix A”). 61 FR 36974 (July 15, 1996) (“July 1996 Final Rule”). The July 1996 Final Rule acknowledged that the guidance contained in appendix A would not apply to every rulemaking and that the circumstances of a particular rulemaking should dictate application of these generally applicable practices. 61 FR 36979.

On February 14, 2020, DOE published a final rule (“February 2020 Final Rule”) in the Federal Register that made significant revisions to appendix A. 85 FR 8626. DOE also published a companion final rule on August 19, 2020 (“August 2020 Final Rule”), that clarified how DOE would conduct a comparative analysis across all energy conservation standard “trial standard levels” (“TSLs”) when determining whether a particular TSL was economically justified. See 85 FR 50937. Contrary to the July 1996 Final Rule, the revisions made in the February 2020 Final Rule sought to create a standardized rulemaking process that was binding on the Department. 85 FR 8626, 8634. In creating this “one-size-fits-all” approach, the February 2020 Final Rule and the August 2020 Final Rule also added additional steps to the rulemaking process that are not required by any applicable statute.

Subsequent events have caused DOE to reconsider the merits of a one-size-fits-all rulemaking approach to establishing and amending energy conservations standards and test procedures. Two of these events are particularly salient. First, on October 30, 2020, a coalition of non-governmental organizations filed suit under EPCA alleging that DOE has failed to meet rulemaking deadlines for 25 different consumer products and commercial equipment. 1 On November 9, 2020, a coalition of States filed a virtually identical lawsuit. 2 In response to these lawsuits, DOE has reconsidered whether the benefits of a one-size-fits-all rulemaking approach outweigh the increased difficulty such an approach poses in meeting DOE's statutory deadlines and obligations under EPCA. As mentioned previously, the July 1996 Final Rule allowed for “case-specific deviations and modifications of the generally applicable rule.” 61 FR 36974, 36979. This allowed DOE to tailor rulemaking procedures to fit the specific circumstances of a particular rulemaking. For example, under the July 1996 Final Rule, minor modifications to a test procedure would not automatically result in a 180-day delay before DOE could issue a notice of proposed energy conservation standards. Eliminating these unnecessary delays would better enable DOE to clear this backlog of missed rulemaking deadlines in a timely manner and meet future obligations and deadlines under EPCA while not affecting the ability of any interested person, including small entities, to participate in DOE's rulemaking process. Further, the sooner new or amended energy conservation standards eliminate less-efficient covered products and equipment from the market, the greater the resulting energy savings and environmental benefits.

Second, on January 20, 2021, the White House issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037 (Jan. 25, 2021). Section 1 of that order lists a number of policies related to the protection of public health and the environment, including reducing greenhouse gas emissions and bolstering the Nation's resilience to climate change. Id. at 86 FR 7037, 7041. Section 2 of the order instructs all agencies to review “existing regulations, orders, guidance documents, policies, and any other similar agency actions (agency actions) promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, [these policies].” Id. Agencies are then directed, as appropriate and consistent with applicable law, to consider suspending, revising, or rescinding these agency actions and to immediately commence work to confront the climate crisis. Id. Under that same section, for certain explicitly enumerated agency actions, including the February 2020 and the August 2020 Final Rules, the order directs agencies to consider publishing for notice and comment a proposed rule suspending, revising, or rescinding the agency action within a specific time frame. Under this mandate, DOE was directed to propose any major revisions to these two rules by March 2021, with any remaining revisions to be proposed by June 2021. Id. at 86 FR 7038.

In light of these events, DOE has identified several aspects of the February 2020 and the August 2020 Final Rules that present obstacles to DOE's ability to expeditiously clear the backlog of missed rulemaking deadlines while meeting future obligations under EPCA. In accordance with E.O. 13990, DOE proposed major revisions to appendix A in a notice of proposed rulemaking (“NOPR”) that was published on April 12, 2021 (“April 2021 NOPR”). 86 FR 18901. DOE proposed additional revisions to appendix A in a second NOPR that was published on July 7, 2021 (“July 2021 NOPR”). 86 FR 35668. DOE finalized the major revisions from the April 2021 NOPR in a final rule published on December 13, 2021 (“December 2021 Final Rule”). 86 FR 70892.

In this document, DOE is finalizing the revisions listed in table I.1. As noted in the table, DOE is not finalizing any of the proposed revisions that would have updated the methodology sections in appendix A to reflect the Department's current rulemaking practice. Prior to issuing the July 2021 NOPR, DOE had entered into a contract with the National Academies of Sciences, Engineering, and Medicine (“NAS”) to conduct a peer review of the analytical methods used in the Department's energy conservation standards rulemakings. The peer review was originally scheduled to be completed in May of 2020. However, when DOE began to consider revisions to appendix A in early 2021, the NAS peer review process was still ongoing without a definitive completion date. At that point, DOE decided that the benefits of updating the analytical methodology in the July 1996 Final Rule to reflect the Department's current practice outweighed the potential inefficiency of having to amend these methods again in a subsequent proceeding. As a result, the July 2021 NOPR contained proposed revisions to the methodology sections in appendix A. DOE stated that if it made any revisions to its analytical methods based on the NAS peer review, the Department would propose any necessary corresponding revisions to appendix A in a subsequent proceeding. Id. at 86 FR 35677.

In response to the July 2021 NOPR, DOE received numerous comments from stakeholders that the Department should wait to revise its analytical methodologies until NAS had completed its peer review. ( See, e.g., Carrier, No. 54 at p. 4; Lutron, No. 64 at p. 4; GEA, No. 72 at p. 4; Joint Industry Commenters, No. 62 at pp. 10-11)  3 While DOE was in the process of considering those comments, NAS completed the peer review and transmitted to DOE its report, “Review of Methods Used by the U.S. Department of Energy in Setting Appliance and Equipment Standards” (“NAS Report”), on January 7, 2022. 4 In light of the publication of the NAS report and stakeholder comments in response to the July 2021 NOPR, DOE has decided not to finalize the proposed revisions to the methodology sections in appendix A in this rule. Instead, DOE will consider changes to its methodologies in a separate notice-and-comment process that is informed by the results of the NAS Report.

Title III, Parts B  5 and C  6 of the Energy Policy and Conservation Act, as amended, (“EPCA” or “the Act”), Public Law 94-163 (42 U.S.C. 6291-6317, as codified), established the Energy Conservation Program for Consumer Products and Certain Industrial Equipment. 7 Under EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) testing; (2) certification and enforcement procedures; (3) establishment of Federal energy conservation standards; and (4) labeling. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, water use (as applicable), or estimated annual operating cost of each covered product and covered equipment during a representative average use cycle or period of use. (42 U.S.C. 6293; 42 U.S.C. 6314) Manufacturers of covered products and covered equipment must use the prescribed DOE test procedure when certifying to DOE that their products and equipment comply with the applicable energy conservation standards adopted under EPCA and when making any other representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s); 42 U.S.C. 6314(a); and 42 U.S.C. 6316(a)) Similarly, DOE must use these test procedures to determine whether the products comply with energy conservation standards adopted pursuant to EPCA. (42 U.S.C. 6295(s); 42 U.S.C. 6316(a))

In addition, pursuant to EPCA, any new or amended energy conservation standard for covered products (and at least certain types of equipment) must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A); 42 U.S.C. 6316(a)) In determining whether a standard is economically justified, EPCA requires DOE, to the greatest extent practicable, to consider the following seven factors: (1) the economic impact of the standard on the manufacturers and consumers; (2) the savings in operating costs, throughout the estimated average life of the products ( i.e., life-cycle costs), compared with any increase in the price of, or in the initial charges for, or operating and maintaining expenses of, the products which are likely to result from the imposition of the standard; (3) the total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard; (4) any lessening of the utility or the performance of the products likely to result from the imposition of the standard; (5) the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of the standard; (6) the need for national energy and water conservation; and (7) other factors DOE finds relevant. (42 U.S.C. 6295(o)(2)(B)(i)) Furthermore, the new or amended standard must result in a significant conservation of energy (42 U.S.C. 6295(o)(3)(B); 42 U.S.C. 6313(a)(6); and 42 U.S.C. 6316(a)) and comply with any other applicable statutory provisions.

DOE conducted an effort between 1995 and 1996 to improve the process it follows to develop energy conservation standards for covered appliance products. As part of this effort, DOE reached out to many different stakeholders, including manufacturers, energy-efficiency advocates, trade associations, State agencies, utilities, and other interested parties for input on the procedures, interpretations, and policies used by DOE in considering whether to issue new or amended energy conservation standards. This process resulted in publication of the July 1996 Final Rule which codified these procedures, interpretations, and policies in appendix A. The goal of the July 1996 Final Rule was to elaborate on the procedures, interpretations, and policies that would guide the Department in establishing new or revised energy conservation standards for consumer products. The rule was issued without notice and comment under the Administrative Procedure Act's (“APA”) exception for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” (5 U.S.C. 553(b)(A))

On December 18, 2017, DOE issued a request for information (“RFI”) on potential revisions to appendix A. 82 FR 59992. DOE subsequently published a NOPR regarding appendix A in the Federal Register on February 13, 2019. 84 FR 3910. On July 26, 2019, DOE subsequently issued a notice of data availability (“NODA”) in the Federal Register . 84 FR 36037 (“July 2019 NODA”). After considering the comments it received DOE then published a final rule in the Federal Register on February 14, 2020, which significantly revised appendix A. 85 FR 8626.

While DOE issued the July 1996 Final Rule without notice and comment as an interpretative rule, general statement of policy, or rule of agency organization, procedure, or practice, the February 2020 Final Rule was issued with notice and comment. As discussed in the December 2021 Final Rule, DOE believes appendix A is best described and utilized not as a legislative rule but instead as generally applicable guidance that may guide, but not bind, the Department's rulemaking process. In accordance with Executive Order 13990, DOE used a notice and comment process to revise appendix A. 86 FR 7037. DOE held a public webinar for the July 2021 NOPR on August 10, 2021.

In response to the July 2021 NOPR and public webinar, DOE received comments from the following parties:

In addition to specifying a list of covered products and equipment, EPCA contains provisions that enable the Secretary of Energy to classify additional types of consumer products and commercial/industrial equipment as “covered” within the meaning of EPCA. (42 U.S.C. 6292(b); 42 U.S.C. 6312(b)) This authority allows DOE to consider regulating additional products and equipment to further the goals of EPCA, i.e., to conserve energy, as long as certain statutory requirements are met. Under 42 U.S.C. 6312(b), DOE is required to include commercial/industrial equipment as covered equipment “by rule.” While there is no corresponding requirement to include consumer products as covered products by rule, 8 DOE conducts coverage determination rulemakings for both commercial/industrial equipment and consumer products.

In the February 2020 Final Rule, DOE added a section on coverage determination rulemakings. Among other things, the new section provided that DOE will: (1) initiate a coverage determination rulemaking with a notice of proposed determination; (2) publish final coverage determinations as separate notices prior to the initiation of any test procedure or energy conservation standard rulemaking and at least 180 days prior to publication of a test procedure NOPR; and (3) finalize any changes to an existing scope of coverage before proceeding with a test procedure or energy conservation standard rulemaking. 85 FR 8626, 8648-8653.

As discussed in the July 2021 NOPR, DOE has reconsidered whether the benefits of a one-size-fits-all rulemaking approach that lacks flexibility and includes extra procedural steps not required by EPCA outweigh the increased difficulty such an approach poses in achieving EPCA's goal of increased energy conservation. First, with respect to the requirement that DOE initiate a coverage determination rulemaking with a notice of proposed determination, DOE noted in the July 2021 NOPR that in some cases it may be necessary to gather information about a consumer product or commercial/industrial equipment before issuing a proposed determination of coverage. DOE went on to state that it may only classify a consumer product as a covered product if it is necessary or appropriate to carry out the purposes of EPCA and the average annual per-household energy use of the consumer product is likely to exceed 100 kilowatt-hours per year. As such, DOE explained that it may be beneficial to first issue an RFI or other document to solicit comment on whether a consumer product is likely to meet these requirements. Accordingly, DOE proposed to clarify that it may issue an RFI or other pre-rule document prior to a notice of proposed coverage determination. 86 FR 35668, 35672.

Second, regarding the requirements to finalize coverage determinations prior to the initiation of any test procedure or energy conservation standard rulemaking and at least 180 days prior to publication of a test procedure NOPR, DOE noted in the July 2021 NOPR that coverage determination, test procedure, and energy conservation standard rulemakings are interdependent. Id. A coverage determination defines the product/equipment scope for which DOE can establish test procedures and energy conservation standards. It also signals that inclusion of the consumer product or commercial/industrial equipment is necessary to carry out the purposes of EPCA, i.e., to conserve energy and/or water. In order to make this determination, DOE needs to consider whether a test procedure and energy conservation standard can be established for the consumer product or commercial/industrial equipment. If DOE cannot develop a test procedure that measures energy use during a representative average use cycle and is not unduly burdensome to conduct (42 U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2)) or prescribe energy conservation standards that result in significant energy savings (42 U.S.C. 6295(o); 42 U.S.C. 6316(a)), then making a coverage determination is not necessary as it will not result in the conservation of energy. Thus, DOE explained in the July 2021 NOPR that it was important that the Department be able to initiate test procedure and energy conservation standard rulemakings while considering whether to establish coverage for a new consumer product or commercial equipment. Accordingly, DOE proposed to eliminate the requirement that coverage determination rulemakings must be finalized prior to initiation of a test procedure or energy conservation standard rulemaking. 86 FR 35668, 35672.

As for the requirement that a coverage determination be finalized 180 days prior to publication of a test procedure NOPR, DOE explained in the July 2021 NOPR that there are significant differences between the benefits of finalizing a coverage determination prior to publishing a test procedure NOPR and the benefits of finalizing a test procedure prior to publishing an energy conservation standards NOPR. Id. As discussed in the December 2021 Final Rule, a delay between publication of a test procedure final rule and an energy conservation standards NOPR may be beneficial in some cases as it could allow stakeholders to gain greater familiarity with complex test procedure amendments before providing comment on a proposal to amend standards. 86 FR 70892, 70911. But DOE does not see a corresponding potential benefit for delaying publication of a test procedure NOPR after a coverage determination, which establishes the scope of coverage, i.e., a definition, for the newly covered product or equipment, is finalized. Accordingly, DOE proposed to eliminate the 180-day period and require that coverage determination rulemakings be finalized prior to publication of a test procedure NOPR. 86 FR 35668, 35672.

Finally, the February 2020 Final Rule also stated that, if DOE finds it necessary and appropriate to expand or reduce the scope of a finalized coverage determination during a test procedure or standards rulemaking, the Department will initiate a new coverage determination process prior to moving forward with the test procedure or standards rulemaking. As DOE would be expanding or reducing the scope of an existing coverage determination, DOE proposed in the July 2021 NOPR to clarify that in instances where DOE needed to modify the scope of a coverage determination, DOE would simply amend that determination, as opposed to initiating an entirely new coverage determination. 86 FR 35668, 35670.

A number of commenters supported DOE's proposal to allow for early stakeholder input prior to issuing a notice of proposed coverage determination. ( See, e.g., ASAP, No. 53 at p. 14; Carrier, No. 54 at p. 2; Lutron, No. 64 at p. 2; NEEA, No. 71 at p. 2; Advocacy Groups, No. 70 at p. 2; State Commenters, No. 67 at p. 6) For example, State Commenters noted that DOE's proposal would allow the Department to collect necessary information prior to issuing a proposed coverage determination. (State Commenters, No. 67 at p. 6) Similarly, Lutron also favored allowing DOE to obtain public input before issuing a proposed coverage determination. (Lutron, No. 64 at p. 2)

Several commenters also supported DOE's proposal to remove the requirement that coverage determinations be finalized before initiating test procedure and standards rulemakings. ( See, e.g., ASAP, No. 53 at p. 14; Carrier, No. 54 at p. 2; Lutron, No. 64 at p. 2; CA IOUs, No. 69 at p. 2; NEEA, No. 71 at p. 2; CEC, No. 55 at p. 2; State Commenters, No. 67 at p. 6; Advocacy Groups, No. 70 at p. 2) Appliance Standards Awareness Project (ASAP), in expressing its support, noted that information learned during test procedure and standards rulemakings can help inform the coverage determination and avoid potential delays resulting from DOE having to amend a coverage determination after it was initially finalized. (ASAP, No. 53 at p. 14) The California Investor-Owned Utilities (CA IOUs) also cited several successful negotiated rulemakings where standards, test procedures, and scope were considered simultaneously as evidence of the potential benefits of DOE's proposal. (CA IOUs, No. 69 at p. 2) While recognizing that information obtained during a test procedure rulemaking may help inform a coverage determination, Carrier and Lutron emphasized that test procedure and NOPRs should not be issued before a coverage determination is finalized. (Carrier, No. 54 at p. 2; Lutron, No. 64 at p. 2)

DOE also received support for its proposal to eliminate the 180-day required period between finalization of a coverage determination and publication of a test procedure NOPR. ( See, e.g., NEEA, No. 71 at p. 2; CEC, No. 55 at p. 2; State Commenters, No. 67 at p. 5) In particular, Northwest Energy Efficiency Alliance (NEEA) supported removal of the 180-day requirement between a finalized coverage determination and a test procedure NOPR as there are times when completing these rulemakings in parallel would be the most efficient use of DOE's and stakeholders' time. NEEA stated that DOE should consider the appropriate timeline between a coverage determination and a test procedure NOPR on a case-by-case basis, as there are many circumstances when a 6-month delay may be unnecessary. (NEEA, No. 71 at p. 2) State Commenters also agreed with DOE that a mandatory delay between finalization of a coverage determination and issuance of a test procedure NOPR did not offer the same benefits as a delay between finalization of a test procedure and issuance of a standards NOPR. (State Commenters, No. 67 at p. 5)

While many commenters expressed support for most, if not all, of DOE's proposals, some commenters expressed concerns with and/or alternatives to DOE's proposed revisions to its coverage determination rulemaking process. These concerns and alternative proposals were centered around DOE's proposed elimination of the 180-day period between finalization of a coverage determination and publication of a test procedure NOPR. ( See, e.g., ASAP, No. 53 at p. 14; Grundfos, No. 53 at p. 16; Carrier, No. 54 at p. 2; ABMA, No. 61 at p. 2; Lutron, No. 64 at p. 2)

Several of these commenters stated that some period of time between finalization of a coverage determination and publication of a test procedure NOPR is necessary. For example, the American Boiler Manufacturers Association (ABMA) stated that although it supported the 180-day delay between finalization of a coverage determination and publication of a test procedure NOPR, it is also sensitive to DOE's concerns about delays to the rulemaking process that jeopardize its ability to meet statutory deadlines. Consequently, ABMA suggested a compromise approach of shortening the required spacing from 180 days to 90 days. (ABMA, No. 61 at p. 2) Lutron and the Joint Industry Commenters stated that there could be a number of reasons why adequate time is needed between those two events, so DOE should consider whether such time is necessary in each case and seek stakeholder feedback on that matter during the coverage determination process. (Lutron, No. 64 at p. 2; Joint Industry Commenters, No. 62 at p. 4) The Joint Industry Commenters specifically mentioned a scenario where a standards development organization is developing a test procedure as a reason for having some period of time between finalization of a coverage determination and publication of a test procedure NOPR. Similarly, Carrier recommended that DOE should make it a standard practice to seek early public input through an RFI (or other appropriate mechanism) to obtain input on the appropriate time needed between a coverage final rule and a test procedure NOPR. (Carrier, No. 54 at p. 2)

In contrast to these comments requesting some period of time between finalization of a coverage determination and publication of a test procedure NOPR, DOE also received comments to eliminate the requirement altogether that DOE finalize coverage determinations prior to publishing test procedure NOPRs. ASAP suggested that DOE should be able to finalize a coverage determination concurrent with finalization of any energy conservations standards. ASAP contended that allowing the Department to incorporate information learned during the rulemaking process into the coverage determination would avoid any potential delays associated with having to amend the coverage determination after it was initially finalized. (ASAP, No. 53 at p. 14) Similarly, the Advocacy Groups encouraged DOE to adopt an approach allowing for concurrent coverage and standards finalizations. They noted that the proposed regulatory text would still require DOE to finalize a coverage determination prior to publishing a proposed test procedure and, in their view, this requirement would limit DOE's ability to incorporate information learned during the related test procedure and standards rulemakings into the coverage determination, which could result in unnecessary delays if DOE is required to pause the rulemaking process to amend the coverage determination. (Advocacy Groups, No. 70 at p. 2)

In response to comments, DOE first notes a large majority of commenters, representing a wide variety of stakeholders, supported both the elimination of the requirement to begin a coverage determination rulemaking with a notice of proposed determination and the requirement that a coverage determination be finalized prior to initiation of a test procedure or standards rulemaking. In both cases, commenters recognized that allowing for more early stakeholder input, including information on prospective test procedures and standards, will help make for a better, more-informed coverage determination rulemaking process. Accordingly, for the reasons discussed in the July 2021 NOPR and this document, DOE is removing the requirements from section 5 of appendix A that a coverage determination begin with a notice of proposed determination and be finalized prior to initiation of a test procedure or standards rulemaking.

Additionally, DOE did not receive any comments regarding its proposed clarification that, if DOE finds it necessary and appropriate to expand or reduce the scope of a finalized coverage determination during a test procedure or standards rulemaking, the Department will amend the existing coverage determination prior to moving forward with the test procedure or standards rulemaking. Accordingly, for the reasons discussed in the July 2021 NOPR and this document, DOE is revising section 5(d) of appendix A to clarify that, if necessary and appropriate, the Department will amend the existing coverage determination prior to moving forward with a test procedure or standards rulemaking.

As for the comments regarding the 180-day period and sequencing of the coverage determination, test procedure, and standards rulemakings, DOE first notes that several commenters stated there could be potential benefits of having a period of time between finalization of a coverage determination and publication of a test procedure NOPR. Specifically, the Joint Industry Commenters gave an example of where a delay between finalization of a coverage determination and publication of a test procedure may allow a standards development organization more time to develop an industry test procedure. DOE does not disagree with these commenters in that a delay between finalization of a coverage determination and publication of a test procedure NOPR may offer some benefits in certain cases. But, as stated throughout this rulemaking process, DOE has reconsidered whether the benefits of a one-size-fits-all rulemaking approach that lacks flexibility and includes extra procedural steps not required by EPCA outweigh the increased difficulty such an approach poses in accomplishing the purposes of EPCA, i.e., to conserve energy. So, while a 180-day period in between finalization of a coverage determination and publication may offer benefits in certain situations, in other cases it will simply result in a 180-day delay in implementing energy conservation standards without benefiting the rulemaking process. Thus, DOE is declining to adopt a specific time frame associated with the sequencing of a coverage determination and test procedure rulemaking.

As for those comments suggesting DOE allow concurrent finalization of coverage determinations and energy conservation standards, the Department believes any benefits from concurrent finalization of coverage determinations and energy conservation standards are more than outweighed by the uncertainty this would add to the rulemaking process. The commenters argued that concurrent determinations could avoid potential delays by incorporating information learned during the standards rulemaking process into the final coverage determination. But DOE's proposal already allows for coverage determination rulemakings to be informed by the preliminary stages of test procedure and standards rulemakings. Further, DOE notes that the negotiated rulemaking process allows stakeholders to simultaneously consider scope of coverage, test procedures, and energy conservation standards. 9

Accordingly, for the reasons discussed in the July 2021 NOPR and this document, DOE is revising section 5 of appendix A to eliminate the 180-day required period between finalization of a coverage determination and publication of a test procedure and, instead, provide that coverage determinations be finalized prior to publication of a test procedure NOPR.

As part of the February 2020 Final Rule, DOE made a number of changes to its process for developing energy conservation standards. The February 2020 Final Rule, among other changes: (1) required that DOE initiate a standards rulemaking with an early assessment RFI; (2) required that the preliminary stages of a standards rulemaking include either a framework document/preliminary analysis or an advance notice of proposed rulemaking (“ANOPR”); and (3) set minimum comment periods for NOPR and pre-NOPR documents. 85 FR 8626, 8704-8706.

As discussed throughout this rulemaking process, DOE has reconsidered whether the benefits of a one-size-fits-all rulemaking approach that lacks flexibility and includes extra procedural steps not required by EPCA outweigh the increased difficulty such an approach poses in meeting DOE's statutory deadlines and obligations under EPCA. As such, DOE proposed additional revisions to the process for developing energy conservation standards in the July 2021 NOPR. First, DOE proposed to eliminate the requirement for an early assessment RFI. DOE reasoned that because stakeholders can comment on whether a new or amended standard would meet the relevant statutory criteria at any stage of the rulemaking process, a separate rulemaking document limited to only that topic ( i.e., the early assessment RFI) may delay the overall process without adding an appreciable benefit. Instead, DOE noted that it would welcome the same type of information in the context of an RFI, preliminary analysis, ANOPR, or some other pre-NOPR document, while at the same time asking other relevant questions and gathering information in the event that the Department decides to proceed with an energy conservation standards rulemaking. 86 FR 35668, 35673.

Second, in conjunction with the proposal to eliminate the early assessment RFI, DOE also proposed to eliminate the requirement that the pre-NOPR stage of a standards rulemaking include either a framework document/preliminary analysis or an ANOPR. DOE tentatively concluded that one round of pre-NOPR input may be sufficient for some rulemakings. For instance, DOE is required to revisit final determinations that energy conservation standards do not need to be amended within three years. (42 U.S.C. 6295(m)(3)(B)) In such cases, it may not be necessary to issue a framework document/preliminary analysis or an ANOPR, as an RFI or NODA may be sufficient to update DOE's rulemaking analysis in preparation for proposing amended standards or a determination that standards do not need to be amended. Another example for which a single round of pre-NOPR input may be sufficient would be if a product has been subject to multiple rounds of rulemaking, relies on mature technologies, and for which the market is well-understood. As such, DOE proposed to publish one or more documents in the Federal Register during the pre-NOPR stage of a rulemaking to gather information on key issues. Such document(s) could take several forms depending upon the specific proceeding, including a framework document, RFI, NODA, preliminary analysis, or ANOPR. 86 FR 35668, 35673.

Finally, DOE proposed revisions to the comment periods for pre-NOPR and NOPR rulemaking documents. For pre-NOPR documents, which do not have a statutorily required minimum comment period, DOE proposed to eliminate the 75-day minimum public comment period and, instead, determine the appropriate comment period for these documents on a case-by-case basis. This would allow DOE to establish comment periods that are commensurate with the nature and complexity of the issues presented in a pre-NOPR document, while also allowing DOE to proceed more expeditiously with its rulemaking process. Id. DOE also proposed to eliminate the 75-day minimum public comment period for standards NOPRs and revert to the Department's prior practice, consistent with EPCA, of requiring a 60-day minimum public comment period. DOE stated that 60 days offers an adequate amount of time for comment in most standards rulemakings, while helping to streamline the rulemaking process. And, for those rulemakings involving more complex issues, DOE noted that 60 days is the minimum comment period, and the Department may extend comment periods as appropriate. 86 FR 35668, 35673-35674.

Several commenters supported DOE's proposal to eliminate the requirement for an early assessment RFI and instead clarify that DOE will issue one or more pre-NOPR documents intended to gather information on key issues, including whether new or amended standards would satisfy the relevant statutory criteria. ( See, e.g., ABMA, No. 61 at p. 3; Grundfos, No. 53 at pp. 24-25; ASAP, No. 53 at p. 24; CA IOUs, No. 69 at pp. 1-2; NEEA, No. 71 at p. 2) In expressing their support, the CA IOUs stated that the decision of whether a rulemaking should move forward can be made through a normal RFI, rather than through a formal, mandatory early assessment stage. (CA IOUs, No. 69 at pp. 1-2) Similarly, ASAP supported DOE's proposal to eliminate the requirement for an early assessment RFI because the Department can elicit the same type of information through other types of pre-NOPR documents, and DOE should be allowed the flexibility to determine the specific rulemaking documents that are appropriate in each case. (ASAP, No. 53 at p. 24) Grundfos and ABMA supported eliminating the early assessment RFI as long as DOE continued to provide opportunities for early stakeholder input. The Advocacy Groups supported DOE's proposal because it would provide DOE with the flexibility to determine the specific rulemaking steps that are appropriate in individual cases, thereby avoiding unnecessary delays while continuing to provide an opportunity for early stakeholder input. (Advocacy Groups, No. 70 at p. 4)

Several commenters also expressed their support for DOE's proposal to determine comment periods for pre-NOPR documents on a case-by-case basis and revise the minimum comment period for standard NOPRs to be consistent with EPCA. ( See ASAP, No. 53 at p. 24; NEEA, No. 71 at pp. 2-3; Advocacy Groups, No. 70 at p. 3; NPCC, No. 52 at p. 2) The Advocacy Groups noted that the proposal would avoid unnecessary delays by allowing DOE to select appropriate comment periods for pre-NOPR documents, while continuing to provide an opportunity for early stakeholder input. (Advocacy Groups, No. 70 at p. 4) In expressing their support for the proposal, ASAP also noted that the requirements are for minimum comment periods and DOE is free to set longer comment periods where merited. (ASAP, No. 53 at p. 24)

Several commenters opposed DOE's proposal to eliminate the requirement for an early assessment RFI and instead clarify that DOE will issue one or more pre-NOPR documents intended to gather information on key issues, including whether new or amended standards would satisfy the relevant statutory criteria. ( See, e.g., AHAM, No. 53 at p. 27; Lutron, No. 64 at p. 3; Mercatus, No. 48 (Attachment) at pp. 3-4; Lennox, No. 60 at p. 6; Joint Industry Commenters, No. 62 at p. 5; GEA, No. 72 at p. 3) In expressing their support for the early assessment process laid out in the February 2020 Final Rule, AHAM stated that the early assessment procedure could help DOE streamline its process by prioritizing rules that satisfy EPCA's requirements, thereby conserving DOE and stakeholder resources and allowing DOE to meet its deadlines more often. (AHAM, No. 53 at p. 27) Similarly, Lutron stated that the early assessment process will help prevent time and resources being invested in standards rulemakings that cannot meet the applicable statutory criteria. (Lutron, No. 64 at p. 3) Mercatus argued in favor of retaining the early assessment process as it would ensure that a wide variety of viewpoints are considered by DOE prior to a regulation being formally proposed. In its view, once a regulation has been proposed, an agency has already made up its mind about what it wants to do, and public input comes too late to matter. (Mercatus, No. 48 (Attachment) at pp. 3-4)

In addition to opposing the elimination of the early assessment RFI, the Joint Industry Commenters offered their own proposal on what an early assessment process should entail. They first suggested that DOE issue a pre-rulemaking document of its choice aimed at obtaining comment on whether a standard should be amended using the criteria in 42 U.S.C. 6295(n)(2). They added that the pre-rulemaking document used by DOE should also: (1) present data and information DOE has gathered during informal, pre-rulemaking stakeholder engagement; (2) identify and seek comment on design options; (3) identify and seek comment on the existence of or opportunity for voluntary, nonregulatory action; (4) seek comment on cumulative regulatory burden; (5) identify significant subgroups of consumers and manufacturers that merit analysis; and (6) seek comment on whether, if DOE moves forward with rulemaking, DOE should pursue negotiated rulemaking. The Joint Industry Commenters remarked that their suggested approach did not differ dramatically from DOE's proposal but would include a NODA/Preliminary Analysis step after the initial pre-NOPR document. In their view, the inclusion of a pre-Technical Support Document (“TSD”) as part of this process is important in initiating a vital exchange of information early in the rulemaking process. (Joint Industry Commenters, No. 62 at p. 6)

Several commenters also opposed DOE's proposal to determine comment periods for pre-NOPR documents on a case-by-case basis and revise the minimum comment period for standards NOPRs to be consistent with EPCA. ( See, e.g., Grundfos, No. 53 at pp. 25-26; Carrier, No. 54 at pp. 3, 4; BWC, No. 63 at p. 2; Joint Industry Commenters, No. 62 at pp. 7-8; Lennox, No. 60 at p. 3) For example, Lennox stated that at least 60 days should be provided for comment for pre-NOPR documents as DOE regulations are typically complex, often may involve significant market and manufacturing changes, and pre-NOPR documents by definition are early in the regulatory process, so the timing of their release is generally unpredictable and stakeholder personnel are not necessarily immediately available to assess them. (Lennox, No. 60 at p. 3) BWC opposed shortening the standards NOPR comment period from 75 days to 60 days, noting that manufacturers and all other stakeholders are expected to read, analyze, and investigate substantial documentation between a NOPR itself and an associated TSD. BWC argued that these documents take DOE and its consultants' months to prepare, and to expect a complete and thorough analysis by stakeholders in 60 calendar days is unreasonable, especially when considering the necessary effort in managing other regulatory activities that currently impact it. (BWC, No. 63 at p. 2)

In response to these comments, DOE first notes that commenters raised several valid points about the benefits of the early assessment process and longer comment periods. For instance, DOE agrees that early stakeholder input is essential in the rulemaking process. It would also be beneficial, from an allocation of resources standpoint, to determine as early as possible whether a new or amended standard would satisfy the applicable statutory criteria. And that is why DOE did not propose to eliminate the early assessment process in the July 2021 NOPR. Instead, DOE proposed to eliminate the requirement that the Department solicit information on whether a new or amended standard would meet the applicable statutory criteria in a rulemaking document limited to only that topic, i.e., the early assessment RFI. 86 FR 35668, 35673. DOE stated it would issue one or more pre-NOPR rulemaking documents and made it clear that the Department would welcome the same type of early assessment information in these documents, while at the same time asking other relevant questions. Id. With respect to the early assessment proposal from the Joint Industry Commenters, DOE notes that the commenters remarked on the similarities with DOE's own proposal, with the only notable difference being the requirement to issue a NODA or preliminary analysis after the initial pre-NOPR document. While DOE acknowledges that many rulemakings may involve an RFI followed by a NODA or preliminary analysis, that certainly is not the case for all rulemakings. For example, if DOE is revisiting a decision not to amend standards within the 3-year period specified under 42 U.S.C. 6295(m)(3), a pre-NOPR RFI requesting any information relevant to the previous analysis may be sufficient to proceed with a proposed determination that standards do not need to be amended. As such, a requirement to issue a NODA or preliminary analysis would consume time and resources without providing an appreciable benefit to DOE or the public.

Finally, regarding the benefits of early stakeholder input, DOE strongly disagrees with the assertion from Mercatus that DOE does not properly consider stakeholder input received in response to NOPRs. DOE values stakeholder input at every stage of the rulemaking process and has made changes to proposed test procedures and standards in response to stakeholder comments. For example, in an energy conservation standards rulemaking for dishwashers in which DOE initially proposed more stringent standards, DOE determined, in part, based on comments received raising concerns with potential impacts on consumer utility that more stringent standards were not justified. 81 FR 90072, 90114 (Dec. 13, 2016). In the January 10, 2020, final rule establishing energy conservation standards for portable air conditioners DOE updated its equation for calculating the combined energy efficiency ratio from that presented in the proposed rule based on information and data submitted by stakeholders. 85 FR 1378, 1398.

DOE also recognizes that the standards rulemaking process is necessarily complex. And stakeholders need sufficient time to comment on rulemaking documents. But there are also instances where DOE issues rulemaking documents of limited scope and a 30-day comment period, or even less, is more than sufficient. For example, as discussed previously, DOE is required to revisit a determination not to amend standards within three years. In such cases, DOE may issue an RFI on whether there have been any material changes to the market that would affect the analysis conducted in the previous determination not to amend standards. As the scope of the RFI is limited, a 30-day comment period may be more than sufficient to allow stakeholders a meaningful opportunity to comment. With respect to NOPRs, EPCA requires at least a 60-day comment period. (42 U.S.C. 6295(p)(2)) Similarly, Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), states that in most cases a comment period should not be less than 60 days. As stated previously, DOE's main purpose in revising appendix A is to minimize the inefficiencies and unnecessary delays that come with a one-size-fits-all rulemaking approach. DOE sees no reason to establish a longer minimum comment period than required by EPCA or recommended under E.O. 12866, which applies to other Federal agencies that conduct rulemaking analyses of comparable complexity.

Accordingly, for the reasons discussed in the July 2021 NOPR and this document, DOE is revising section 6 of appendix A to specify that the Department will issue one or more pre-NOPR rulemaking documents and comment periods for standards rulemaking documents will be determined on a case-by-case basis with a minimum 60-day comment period for NOPRs.

As part of the February 2020 Final Rule, DOE made a number of changes to its process for developing test procedures. The February 2020 Final Rule, among other changes: (1) required that DOE initiate a test procedure rulemaking with an early assessment RFI; and (2) required that DOE identify any necessary modifications to established test procedures prior to initiating the standards development process. 85 FR 8626, 8653-8654, 8676-8682, 8707-8708.

As discussed throughout this rulemaking process, DOE has reconsidered whether the benefits of a one-size-fits-all rulemaking approach that lacks flexibility and includes extra procedural steps not required by EPCA outweigh the increased difficulty such an approach poses in meeting DOE's statutory deadlines and obligations under EPCA. As such, DOE proposed additional revisions to the process for developing test procedures in the July 2021 NOPR. First, DOE proposed to eliminate the requirement for an early assessment RFI. Because interested parties are free to raise the matter of the need for an amended test procedure at any preliminary stage of the rulemaking, DOE tentatively concluded that a separate rulemaking document limited to only that topic ( i.e., the early assessment RFI) unnecessarily delays the overall process without appreciable benefit. Consequently, DOE proposed to issue one or more pre-NOPR documents that would welcome the same type of early assessment information, while at the same time asking relevant questions and gathering information about other test procedure issues, such as the applicability of any industry test procedure. 86 FR 35668, 35674.

Second, for pre-NOPR documents for which there is no statutorily required comment period, DOE proposed to clarify that the Department would determine an appropriate comment period for pre-NOPR documents on a case-by-case basis. This would allow DOE to account for the nature and complexity of the test procedure rulemaking at issue. Id. at 86 FR 35675. DOE also proposed to clarify that it will provide a minimum 60-day public comment period with at least one public hearing or workshop for test procedure NOPR documents. Id. DOE has historically provided a 75-day comment period for test procedure NOPRs, consistent with the comment period requirement for technical regulations in the North American Free Trade Agreement, U.S.-Canada-Mexico (“NAFTA”), Dec. 17, 1992, 32 I.L.M. 289 (1993); the North American Free Trade Agreement Implementation Act, Public Law 103-182, 107 Stat. 2057 (1993) (codified as amended at 10 U.S.C.A. 2576) (1993) (“NAFTA Implementation Act”); and Executive Order 12889, “Implementation of the North American Free Trade Agreement,” 58 FR 69681 (Dec. 30, 1993). However, Congress repealed the NAFTA Implementation Act and has replaced NAFTA with the Agreement between the United States of America, the United Mexican States, and the United Canadian States (“USMCA”), Nov. 30, 2018, 134 Stat. 11, thereby rendering E.O. 12889 inoperable. Consequently, since USMCA is consistent with EPCA's public comment period requirements and normally requires a minimum comment period of 60 days for technical regulations, DOE proposed to provide a minimum 60-day public comment period for test procedure NOPRs. 86 FR 35668, 35675.

Finally, DOE proposed to eliminate the requirement that the Department identify any necessary test procedure modifications prior to initiating the standards development process. Id. As DOE recognized in the December 2021 Final Rule, it is important that test procedures be finalized prior to proposing standards so stakeholders can properly evaluate and provide comment on the proposed standards. 86 FR 70892, 70911. But this reasoning does not extend to requiring DOE to identify test procedure modifications prior to initiating a standards rulemaking. Conducting preliminary standards-related work and information gathering in concert with the test procedure proceeding can lead to a more-efficient rulemaking process without sacrificing the quality of DOE's analyses or the opportunity for public input.

Several commenters expressed their support for DOE's proposal to eliminate the requirement for an early assessment RFI and instead clarify that DOE will issue one or more pre-NOPR documents intended to gather information on key issues, including whether a new or amended test procedure would satisfy the relevant statutory criteria. ( See, e.g., NEEA, No. 71 at p. 2; Advocacy Groups, No. 70 at p. 4; State Commenters, No. 67 at p. 6; Grundfos, No. 53 at p. 33; CA IOUs, No. 69 at pp. 1-2) In expressing their support, the CA IOUs stated that the decision of whether a rulemaking should move forward can be made through a normal RFI, rather than through a formal, mandatory early assessment stage. (CA IOUs, No. 69 at pp. 1-2) The Advocacy Groups supported DOE's proposal because it would provide DOE with the flexibility to determine the specific rulemaking steps that are appropriate in individual cases, thereby avoiding unnecessary delays while continuing to provide an opportunity for early stakeholder input. (Advocacy Groups, No. 70 at p. 4) Similarly, the State Commenters noted that requiring DOE to commence test procedure rulemakings with an early assessment request for information unnecessarily imposes a one-size-fits-all approach on DOE's rulemaking course and constrains the agency's discretion to pursue rulemaking in the most expeditious manner possible. (State Commenters, No. 67 at p. 6)

Several commenters also supported DOE's proposal to determine comment periods for pre-NOPR documents on a case-by-case basis and revise the minimum commenter period for test procedure NOPRs to be consistent with EPCA and USMCA. ( See, e.g., NEEA, No. 71 at p. 3; CEC, No. 55 at p. 3; CA IOUs, No. 53 at p. 32) The Advocacy Groups noted that the proposal would avoid unnecessary delays by allowing DOE to select appropriate comment periods for pre-NOPR documents on a case-by-case basis, while continuing to provide an opportunity for early stakeholder input. (Advocacy Groups, No. 70 at p. 4)

Finally, DOE also received comments supporting its proposal to remove the requirement that the Department identify any necessary test procedure modifications prior to initiating the standards development process. For example, the Advocacy Groups supported DOE's proposal to clarify that it would not be precluded from issuing pre-rulemaking documents for standards prior to a test procedure final rule, asserting that this clarification would help avoid unnecessary delays to DOE's rulemaking process. In their view, test procedure and standards rulemakings inform each other and providing DOE with the ability to conduct the initial stages of a standards rulemaking prior to finalizing a test procedure will allow issues identified in the early phases of the standards rulemaking related to the test procedure to be addressed in the test procedure rulemaking. (Advocacy Groups, No. 70 at p. 4) Similarly, the CA IOUs supported DOE's proposed clarification that preliminary work may begin on energy conservation standards prior to completion of a test procedure rulemaking. The CA IOUs reasoned that this refinement would help DOE to expedite its rulemaking process and reduce its backlog of rulemakings. (CA IOUs, No. 69 at pp. 2-3)

Several commenters opposed DOE's proposal to eliminate the requirement for an early assessment RFI. For example, Lutron argued that eliminating the early assessment RFI would negatively impact DOE's analysis and reduce commenters' ability to provide meaningful input. (Lutron, No. 64 at p. 3) The Gas Industry Joint Commenters urged that DOE retain appendix A's current early opportunities for providing public comment and input on potential standards and test procedure rulemakings. In their view, it would be better for DOE to take additional time needed to produce a good regulation rather than to take less time to produce a poorer regulation. (Gas Industry Joint Commenters, No. 57 at pp. 4-5) Similarly, the Joint Industry Commenters stated that the early assessment process offers DOE streamlining opportunities by helping it to identify potential test procedure issues prior to the initiation of a standards rulemaking proposal. (Joint Industry Commenters, No. 62 at p. 9)

Several commenters also opposed DOE's proposal to determine comment periods for pre-NOPR documents on a case-by-case basis and revise the minimum comment period for test procedure NOPRs to be consistent with EPCA and USMCA. ( See, e.g., Carrier, No. 54 at pp. 3, 4; AHAM, No. 53 at p. 5; Joint Industry Commenters, No. 62 at pp. 7-8; Lennox, No. 60 at p. 3) For example, Lennox stated that commenting on test procedures often involves testing personnel and lab time that typically do not have immediate availability and rulemaking activities compete with lab time and personnel for product development, regulatory and other demands for product testing and assessment. As such, Lennox opposed shortening the 75-day comment period for test procedure NOPRs and suggested a minimum 60-day comment period for pre-NOPR comment periods. (Lennox, No. 60 at p. 3) The Joint Industry Commenters made similar arguments regarding the complexity of issues involved in evaluating proposed test procedures. They stated that the evaluation process can—and often does—include conducting the proposed test procedure along with the collection and analysis of testing data to assist DOE in analyzing the proposed procedure's accuracy, repeatability, and reproducibility, all of which take time to complete. If DOE decides to shorten the comment period for test procedure proposals, the Joint Industry Commenters asked that DOE continue to freely grant reasonable requests for comment period extensions, which they expected to be more frequent with the shortening of the comment period. (Joint Industry Commenters, No. 62 at pp. 7-8) GEA stated that mandatory comment periods with sufficient time for in-depth analysis and commentary are necessary to provide predictability and fairness to stakeholders. (GEA, No. 72 at p. 3)

Finally, DOE also received comments opposing its proposal to remove the requirement that the Department identify any necessary test procedure modifications prior to initiating the standards development process. For example, the Joint Industry Commenters asserted that the test procedure process should be finalized before the standards rulemaking process begins. They stressed the relevance of the test procedure to the standards analysis, noting that responses on pre-NOPR energy conservation standards documents will often be highly dependent on the test procedure, particularly since knowing what the test procedure will measure will affect how the stringency of potential standards will be assessed. (Joint Industry Commenters, No. 62 at p. 9) Similarly, Lutron stated that eliminating the required sequencing of test procedure and standards rulemakings would negatively impact DOE's analysis on both test procedures and standards and would reduce commenters' ability to provide meaningful input, especially during the early rulemaking phases for new or amended standards. (Lutron, No. 64 at p. 3)

In response to these comments, DOE first notes that commenters raised several of the same issues about the benefits of an early assessment process and longer comment periods that were discussed in the preceding section on the process for developing energy conservation standards. And, as stated previously, DOE agrees that early stakeholder input is essential and that some rulemaking documents require a longer comment period in order to give stakeholders sufficient time to develop their comments. DOE again notes that it did not propose to eliminate the early assessment process in the July 2021 NOPR. Instead, DOE proposed to eliminate the requirement that the Department solicit information on whether an amended test procedure would meet the applicable statutory criteria in a rulemaking document limited to only that topic, i.e., the early assessment RFI. 86 FR 35668, 35674. DOE proposed to issue one or more pre-NOPR rulemaking documents and made clear that the Department would welcome the same type of early assessment information in these documents, while at the same time asking other relevant questions. Id.

DOE also recognizes that test procedures are complex, and stakeholders need sufficient time to formulate comments. But, as noted previously, there are also instances where DOE issues rulemaking documents of limited scope and a 30-day comment period, or even less, is more than sufficient. For example, in evaluating the potential establishment of test procedures for portable air conditioners, DOE issued an RFI to provide information on investigative testing of existing industry test procedures that could be used to measure cooling capacity and energy use for portable air conditioners. 79 FR 26639 (May 9, 2014). Given that DOE was requesting information regarding existing industry test procedures, DOE provided a 30-day comment period. Id. With respect to test procedure NOPRs, EPCA requires at least a 60-day comment period for covered products (42 U.S.C. 6293(b)(2)) and at least a 45-day comment period for covered equipment (42 U.S.C. 6314(b)), while USMCA normally requires a minimum comment period of 60 days for technical regulations. 10 As stated previously, DOE's main purpose in revising appendix A is to minimize the inefficiencies and unnecessary delays that come with a one-size-fits-all rulemaking approach. DOE sees no reason to establish a longer minimum comment period than required by EPCA or USMCA, which applies to other Federal agencies that issue technical regulations of comparable complexity.

With respect to eliminating the requirement that DOE identify any necessary modifications to the test procedure prior to initiating a standards rulemaking, DOE agrees with the Advocacy Groups that test procedure and standards rulemakings inform each other and providing DOE with the ability to conduct the initial stages of a standards rulemaking prior to finalizing a test procedure will allow issues identified in the early phases of the standards rulemaking related to the test procedure to be addressed in the test procedure rulemaking. DOE also agrees with the CA IOUs that eliminating this requirement would lead to a more efficient rulemaking process.

Accordingly, for the reasons discussed in the July 2021 NOPR and this document, DOE is revising section 8 of appendix A to specify that the Department will issue one or more pre-NOPR rulemaking documents and comment periods for test procedure rulemaking documents will be determined on a case-by-case basis with a minimum 60-day comment period for NOPRs. DOE is also eliminating the requirement in section 8 that the Department identify any necessary modifications to a test procedure prior to initiating a standards rulemaking.

In EPCA, Congress established a separate and unique regulatory scheme pertaining to DOE rulemakings of certain covered equipment addressed by ASHRAE Standard 90.1, Energy Standard for Buildings Except Low-Rise Residential Buildings, including specific requirements for both energy conservation standards and test procedures. See 42 U.S.C. 6313(a)(6) and 42 U.S.C. 6314(a)(4), respectively. In the February 2020 Final Rule, DOE added a section to appendix A specifically addressing ASHRAE equipment for the first time. 85 FR 8626, 8708. While DOE sees value in setting forth the statutory requirements and the Department's regulatory process for covered ASHRAE equipment, a subsequent review suggested that DOE's initial efforts to explain the applicable ASHRAE requirements could be improved, both in terms of better delineating the rulemaking process for covered ASHRAE equipment and removing constraints that are neither compelled by the statute nor consistent with DOE's past practice.

First, with respect to the rulemaking process for ASHRAE equipment laid out in EPCA, DOE proposed to separate out the statutory requirements for energy conservation standards and test procedures, as the February 2020 Final Rule erroneously applied EPCA's timelines for energy conservation standards to test procedures as well. Id. at 86 FR 35675-35676. DOE also proposed to clarify what type of action on the part of ASHRAE would trigger a DOE review for amended energy conservation standards and test procedures. With respect to amended energy conservation standards, DOE proposed to only consider ASHRAE to have acted in a manner triggering DOE review when an updated version of ASHRAE Standard 90.1 publishes ( i.e., not at the time that an addendum to ASHRAE Standard 90.1 is released or approved), and the updated version includes an increase in the stringency of standard levels or a new design requirement relative to the current Federal standards. With respect to test procedures, DOE proposed to only consider ASHRAE to have acted in a manner triggering DOE review when an updated version of ASHRAE Standard 90.1 publishes ( i.e., not at the time that an addendum to ASHRAE Standard 90.1 is released or approved), and that updated version adopts a new or amended test procedure that updates the technical methodology. This approach is consistent with the ASHRAE-specific provisions in EPCA and generally consistent with past DOE practice. Id. at 86 FR 35676. Finally, DOE also proposed to clarify that ASHRAE's review and reaffirmance ( i.e., not amending) of either a standard or test procedure does not trigger a DOE review or affect the timing of DOE's separate obligation under EPCA to periodically review standards and test procedures for each class of covered equipment. Id.

Additionally, DOE proposed to clarify that it has some flexibility in adopting an amended test procedure under ASHRAE Standard 90.1 as EPCA does not require DOE to adopt a test procedure identical to the industry test standard. Id. Instead, EPCA directs DOE to amend its test procedure “to be consistent with the amended industry test procedure . . . unless the Secretary determines, by rule, published in the Federal Register and supported by clear and convincing evidence” that the amended industry test standard would not be representative of the equipment's energy efficiency, energy use, or estimated operating cost during a representative average use cycle and not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(4)(B)) Id. DOE further clarified that in such cases, DOE may then develop its own test procedure which does meet these statutory requirements related to representativeness and burden, even if the test procedure is not consistent with the amended industry test standard. Id. DOE also noted that the statutory language “consistent with” itself provides some flexibility in adopting the amended industry test procedure, and that as EPCA does not require DOE to adopt a test procedure identical to applicable industry test standard, DOE may make modifications that are consistent with the applicable industry test standard. Id.

In addition, DOE proposed to clarify that it is not required to adopt or align with sections of the industry test standard that are not necessary for the method of test for metrics included in the DOE test procedure ( e.g., sections of the industry test procedure regarding the selection of models for testing under an industry certification program, verification of represented values and the associated tolerances, and operational requirements). These proposals were consistent with the Department's longstanding historic practice. 86 FR 35668, 35676.

In the July 2021 NOPR, DOE also proposed to remove the statement that DOE will adopt the revised ASHRAE levels or the industry test procedure, except in very limited circumstances. The circumstances under which DOE will adopt a more-stringent standard than the ASHRAE standard or a different test procedure are laid out in the statute. DOE will issue a more-stringent standard than the ASHRAE standard if DOE determines, supported by clear and convincing evidence, that the more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II)) “Very limited circumstances” is an ambiguous description for a process that is delineated in EPCA. As a result, DOE proposed to remove this description of the circumstances under which DOE will not adopt the amended ASHRAE standard or industry test procedure. 86 FR 35668, 35676. Similarly, DOE proposed to remove the discussion of what constitutes clear and convincing evidence. Id. As DOE previously noted in the February 2020 Final Rule, the clear and convincing evidence standard has a specific meaning that the courts have routinely addressed through case law. See 85 FR 8626, 8642 (discussing in detail the application of the “clear and convincing” evidentiary standard by courts and legal commentators); see also Am. Pub. Gas Ass'n v. United States Dep't of Energy, 22 F.4th 1018, 1025 (D.C. Cir. 2022) (“[C]lear and convincing evidence requires a factfinder (in this case the Secretary) to have an `abiding conviction' that her findings (in this case that a more stringent standard would result in significant additional conservation of energy, would be technologically feasible, and is economically justified) are `highly probable' to be true.”). DOE does not believe the discussion of clear and convincing evidence in appendix A adds anything to the already extensive case law pertaining to the clear and convincing evidence threshold.

DOE also proposed to remove the statement that DOE believes that ASHRAE not acting to amend Standard 90.1 is tantamount to a decision that the existing standard remain in place and clarify that ASHRAE reviewing and reaffirming a standard or test procedure does not have any effect on DOE's rulemaking obligations under EPCA. 86 FR 35668, 35676. As discussed previously, DOE initiates an ASHRAE rulemaking because: (1) Standard 90.1 is amended; or (2) it is required under the 6-year lookback review for standards or the 7-year lookback review for test procedures. Neither of these situations would be affected by a decision by ASHRAE to reaffirm an existing standard or test procedure.

Finally, DOE also proposed to make two clarifications regarding its ASHRAE review process consistent with longstanding DOE practice. First, DOE proposed to clarify that it assesses energy savings from amended ASHRAE Standard 90.1 levels as compared to the current Federal standard (or the market baseline in cases where ASHRAE adds new equipment classes or categories not previously subject to Federal standards) and will also assess energy savings from more-stringent standards as compared to the ASHRAE Standard 90.1 levels. Id. And, second, DOE proposed to clarify that it may review all metrics for the equipment category at issue, even though ASHRAE only amended DOE's regulated metric(s), and the Department may also consider changing regulated metrics (while assessing equivalent stringency between metrics). DOE also proposed to clarify that it may also consider changing metrics during a 6-year-lookback or 7-year-lookback review. Id. DOE believes this is consistent with EPCA's requirement that test procedures (and metrics) be representative of an average use cycle.

Several commenters expressed general support for all of DOE's proposed revisions to the ASHRAE provisions in appendix A. ( See, e.g., NPCC, No. 52 at p. 2; NEEA, No.71 at pp. 3-4) With respect to DOE's proposal to create separate provisions for energy conservation standards and test procedures rulemakings because of different statutory requirements, the Joint Industry Commenters agreed that energy conservation standards and test procedure rulemakings are subject to different timelines under the statute. (Joint Industry Commenters, No. 62 at p. 19).

Several commenters supported DOE's proposal to provide clarity tying the triggering event to when ASHRAE publishes an updated version of ASHRAE Standard 90.1. ( See, e.g., BWC, No. 63 at pp. 2-3; NEEA, No. 71 at pp. 3-4; ASHRAE, No. 59 at p. 3) ASHRAE stated that the proposal provides for a regular three-year cadence of reviews and provides clarity. (ASHRAE, No. 59 at p. 3) NEEA recommend that DOE clarify in the regulatory text that addendums to ASHRAE 90.1 or updates to an industry test procedure (TP) that ASHRAE 90.1 references do not trigger a DOE review of energy conservation standard (ECS) and TP. (NEEA, No. 71 at pp. 3-4) BWC also agrees with DOE not triggering a review simply when ASHRAE reviews or affirms a standard. (BWC, No. 63 at pp. 2-3)

Several commenters supported DOE's proposal to remove the language stating that DOE would adopt ASHRAE levels or the industry test procedure, except in very limited circumstances. ( See, e.g., ASAP, No. 53 at pp. 41-42; Advocacy Groups, No. 70 at p. 5; State Commenters, No. 67 at pp. 7-8; NEEA, No. 71 at pp. 3-4) In supporting DOE's proposal, ASAP stated that the “except in very limited circumstances” language was an additional constraint that was inconsistent with the statute and would impede DOE's ability to achieve EPCA's energy conservation purposes. (ASAP, No. 53 at pp. 41-42)

Similarly, several commenters also supported DOE's proposal to remove the discussion of what constitutes clear and convincing evidence from appendix A. ( See, e.g., ASAP, No. 53 at pp. 41-42; CEC, No. 55 at p. 3; Advocacy Groups, No. 70 at p. 5; State Commenters, No. 67 at pp. 7-8) State Commenters noted that further elaboration of the clear and convincing evidence standard either does not change the standard, in which case it is superfluous, or does change the standard, in which case it violates EPCA. (State Commenters, No. 67 at pp. 7-8) The California Energy Commission (CEC) stated that DOE's removal of the clear and convincing evidence discussion in light of the extensive case law covering this topic would ensure that an overly stringent interpretation of the evidentiary threshold does not inhibit the Department from adopting standards that would result in significant additional conservation of energy and are technologically feasible and economically justified. (CEC, No. 55 at p. 3)

One commenter requested that DOE reconsider its proposal tying the triggering event to when ASHRAE publishes an updated version of ASHRAE Standard 90.1. Specifically, CA IOUs requested that DOE consider publication of an addendum to ASHRAE Standard 90.1 to trigger a review, noting that some valuable addenda miss the triannual update deadline but are published shortly afterward, and that DOE's proposed interpretation would result in a delay in compliance state for standards. (CA IOUs, No. 69 at p. 3) CA IOUs also requested that DOE clarify what is meant by updates to ASHRAE 90.1 that modify the referenced industry test procedure; specifically what degree of change is required to trigger DOE. Id. CA IOUs noted that historically ASHRAE has adopted the latest published version of industry test procedures, even if they include only minor changes and clarifications from the previous version, and that DOE typically does not update its test procedure to match ASHRAE in those cases. Id.

With respect to DOE's proposal to clarify that ASHRAE's review and reaffirmance ( i.e., not amending) of either a standard or test procedure does not trigger a DOE review or affect the timing of DOE's separate obligation under EPCA, the Joint Industry Commenters stated that if ASHRAE 90.1 is amended just with respect to the energy conservation standard for an ASHRAE equipment, they would still expect DOE to conduct a “short test procedure rulemaking to simply acknowledge the continued applicability of the test procedure.” (Joint Industry Commenters, No. 62 at p. 20)

Several commenters opposed DOE's proposal to remove the language stating that DOE would adopt ASHRAE levels or the industry test procedure, except in very limited circumstances. ( See, e.g., Carrier, No. 54 at pp. 3, 4; Lutron, No. 64 at pp. 4-5; Joint Industry Commenters, No. 62 at pp. 23-24; BWC, No. 63 at p. 3; ASHRAE, No. 59 at pp. 3-4) In urging DOE to retain this language, the Joint Industry Commenters stated that ASHRAE's open and collaborative process, which involves manufacturers, energy advocates, regulators, academia, and utilities, develops standards that are fair and representative of what are both economically and technologically feasible at the time of the revision. (Joint Industry Commenters, No. 62 at pp. 23-24) Similarly, Lutron stated that industry test procedures are developed by balanced committees and DOE should routinely adopt industry test procedures as a matter of best practice. (Lutron, No. 64 at pp. 4-5) GE Appliances stated that adopting consensus standards speeds up the test procedure rulemaking process, prepares all stakeholders to address standards rulemakings sooner, and reduces the likelihood of litigation or other action regarding test procedures. (GE Appliances, No. 72 at p. 3) Lennox stated that DOE should rarely deviate from industry test procedures metrics given the “clear and convincing evidence” threshold set for deviating from industry test procedures. Id. Lennox stated that the test procedure lookback section indicates that DOE may amend a test procedure “in accordance with this section” (42 U.S.C. 6314(a)(1)(i)), which thereby references the entire section 42 U.S.C. 6314, which includes the ASHRAE “clear and convincing evidence” standard for amending a test procedure in 6314(a)(4)(B). Id.

DOE received several comments opposing the Department's proposal to remove the discussion of what constitutes clear and convincing evidence. ( See, e.g., Spire, No. 53 at p. 43; Carrier, No. 54 at pp. 3, 4; Joint Industry Commenters, No. 62 at p. 24; ASHRAE, No. 59 at pp. 3-4) The Joint Industry Commenters urged DOE to retain the current text regarding what constitutes “clear and convincing” evidence with respect to adopting energy conservation standards more stringent than those adopted in ASHRAE 90.1. In their view, the explanatory text adopted as part of the February 2020 Final Rule clarified the meaning of this phrase in this context, which is to discourage the adoption of higher energy efficiency standards above those set by ASHRAE. (Joint Industry Commenters, No. 62 at p. 24) Spire stated that eliminating the discussion of what constitutes clear and convincing evidence would forgo an opportunity to potentially resolve issues without the need for litigation. (Spire, No. 53 at p. 43)

First, DOE did not receive any comments opposing separate provisions for energy conservation standards and test procedure rulemakings. As noted by the Joint Industry Commenters, energy conservation standards and test procedure rulemakings are subject to different statutory requirements under the ASHRAE provisions in EPCA. Accordingly, for the reasons discussed in the July 2021 NOPR and this document, DOE is revising section 9 of appendix A to create separate provisions for energy conservation standards and test procedure rulemaking requirements.

With respect to DOE's proposal that the ASHRAE provisions are triggered when an updated version of ASHRAE Standard 90.1 is published, the CA IOUs commented that DOE should instead consider the publication of an addendum to ASHRAE Standard 90.1 as the triggering event. In response to the CA IOUs, DOE has determined that the benefit of a clear review cycle provides certainty to the public and does not impact DOE's separate obligation under EPCA to periodically review standards and test procedures, which should alleviate some of the CA IOUs concern over the possibility of extended compliance dates.

With respect to NEEA's request that DOE clarify in the regulatory text that addendums to ASHRAE 90.1 or updates to an industry TP that ASHRAE 90.1 references do not trigger a DOE review of ECS and TP, DOE notes that it was already articulated in the regulatory text with respect to standards, but DOE has included similar language in the regulatory text with respect to test procedures, consistent with the proposal in the NOPR preamble. With respect to the CA IOUs request that DOE clarify what degree of change to an industry test procedure would trigger DOE to act, DOE would only be triggered by ASHRAE updating its reference to an updated industry test procedure that contains modifications to sections of relevance to DOE metrics. Where the referenced industry test procedure makes minor modifications to a section of relevance to DOE metrics, DOE would only consider itself triggered if such modifications make a substantive change to the DOE test procedure.

With respect to DOE's proposal to clarify that ASHRAE's review and reaffirmance ( i.e., not amending) of either a standard or test procedure does not trigger a DOE review or affect the timing of DOE's separate obligation under EPCA, the Joint Industry Commenters stated that if ASHRAE 90.1 is amended just with respect to the energy conservation standard for an ASHRAE equipment, they would still expect DOE to conduct a “short test procedure rulemaking to simply acknowledge the continued applicability of the test procedure.” DOE disagrees with the Joint Industry Commenters. DOE's rulemaking obligations under the ASHRAE provisions in EPCA are very clear. Further, as clarified in this final rule, the requirements for test procedure and standards rulemakings are separate. Being required to initiate an energy conservation standards rulemaking for ASHRAE equipment under either an ASHRAE trigger or a 6-year lookback review, does not, on its own, require DOE to also conduct a test procedure rulemaking. As such, for the reasons discussed in the July 2021 NOPR and this document, DOE is revising section 9 of appendix A to remove language that suggests that ASHRAE not acting to amend a standard is a decision affirming the current standard. However, DOE is not finalizing the language from the July 2021 NOPR that stated that DOE's obligations under the lookback provisions for standards and test procedures are not satisfied by any ASHRAE action, including reviewing, but not amending, a standard or test procedure. DOE believes the statute is already sufficiently clear on this point and the added text is unnecessary.

With respect to DOE's proposed elimination of the language characterizing the circumstances under which the Department would not adopt the ASHRAE levels or test procedure as being very limited, commenters, both in favor of and opposed to retaining this language, seem to think this language implies something more than what is written in the statute. EPCA specifies the circumstances under which DOE will adopt a more-stringent standard than the ASHRAE standard or a different test procedure. For example, DOE will issue a more-stringent standard than the ASHRAE standard if DOE determines, supported by clear and convincing evidence, that the more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II)) DOE agrees with commenters that adding a vague description to these circumstances only raises concerns that DOE may not be properly following a process that is clearly laid out in the statute.

Similarly, the discussion of what constitutes clear and convincing evidence that was added in the February 2020 Final Rule has led to some confusion over whether DOE is applying the clear and convincing evidence threshold required by EPCA or a modified version. Accordingly, for the reasons discussed in the July 2021 NOPR and this document, DOE is revising section 9 of appendix A to remove this language as proposed. DOE disagrees with Lennox's assertion that DOE should rarely deviate from industry test procedure metrics due to their view that the 7-year lookback requires “clear and convincing evidence” to deviate from industry test procedure. Lennox asserts that a reference in 42 U.S.C. 6314(a)(1)—the 7-year lookback provision—to “in accordance with this section” references the entirety of section 42 U.S.C. 6314, including the clear and convincing provision in 42 U.S.C. 6314(4)—the ASHRAE trigger provision. However, a plain language reading does not include this requirement; paragraph (a)(4) of section 6314 is very specific to the ASHRAE trigger; had it been intended for this paragraph to apply to the 7 year lookback as well, it would have been cited specifically, just as the 6 year lookback provision for energy conservation standards in 42 U.S.C. 6313(6)(C) refer back specifically to the ASHRAE trigger provisions in 42 U.S.C. 6313(6)(A) and (B).

During its 7-year lookback review, DOE is directed by EPCA to evaluate whether an amended test procedure would more accurately or fully comply with the representativeness and burden requirements in 42 U.S.C. 6314(a)(2), and if DOE determines an amended test procedure would do so, then DOE is required to prescribe such test procedures for the equipment class. (42 U.S.C. 6314(a)(1)(A)) There is no requirement that DOE's decision to amend a test procedure be supported by clear and convincing evidence. ( Id. ) DOE's 7-year-lookback review under EPCA ensures that DOE is not bound to an industry test procedure that has not been updated when more representative and/or less burdensome test methods are available.

DOE notes that in proposing modifications to the regulatory text for the ASHRAE Equipment section, DOE inadvertently introduced the “clear and convincing” language to the test procedure lookback rulemaking provision. Nowhere in the preamble did DOE state that it intended for this to be the requirement or that it was DOE's interpretation of EPCA. For the reasons discussed above, DOE has removed that clause in this final rule.

Finally, as noted in the July 2021 NOPR, application of the ASHRAE provisions in EPCA typically involve nuances that are not best addressed in appendix A, which contains generally applicable procedures, interpretations, and policies for energy conservation standard and test procedure rulemakings. 86 FR 35668, 35675. DOE received several comments in response to the July 2021 NOPR that further reinforce the need for additional, more-specific guidance on DOE's implementation of the ASHRAE provisions. DOE believes this is best accomplished outside the confines of appendix A in a separate process. As such, DOE is not finalizing proposed revisions from the July 2021 NOPR dealing with regulated metrics, the baseline for energy conservation standards analysis, adoption of industry test procedure sections not relevant to the DOE test procedure, and consistency with the industry TP in this final rule. DOE will further consider these proposals and other ASHRAE-related issues in a separate process.

In late 2019, DOE contracted with the National Academy of Sciences (“NAS”) to conduct a peer review of the Department's methods for setting building and equipment performance standards. 11 As such, in the February 2020 Process Rule, DOE stated that it would consider changes to sections of the Process Rule involving its analytical methodologies in a subsequent proceeding after completion of a peer review. 85 FR 8686-8687. As such, these sections remained largely unchanged from the July 1996 Final Rule. However, when DOE began to consider revisions to appendix A in early 2021, the NAS peer review process was still ongoing without a definitive completion date. At that point, DOE decided that the benefits of updating the analytical methodology in the July 1996 Final Rule to reflect the Department's current practice, which incorporates lessons learned from an additional 25 years of rulemakings, outweighed the potential inefficiency of having to amend these methods again in a subsequent proceeding. As a result, in the July 2021 NOPR, DOE proposed to revise appendix A to reflect the current state of DOE's analytical methodologies. DOE also stated that if it makes any revisions to its analytical methods based on the NAS peer review, the Department will propose any necessary corresponding revisions to the Process Rule in a subsequent proceeding. 86 FR 35668, 35677.

DOE has since had cause to reconsider this position. First, in response to the July 2021 NOPR, DOE received numerous comments from stakeholders that the Department should wait to revise its analytical methodologies until the NAS has completed its peer review. ( See, e.g., Carrier, No. 54 at p. 4; Lutron, No. 64 at p. 4; GEA, No. 72 at p. 4; Joint Industry Commenters, No. 62 at pp. 10-11) Second, the NAS completed the peer review and published their report on January 7, 2022. 12 In light of these two factors, DOE has decided not to finalize any revisions to its analytical methodologies in this document. Instead, DOE will consider changes to its methodologies in a separate notice-and-comment process that is informed by the results of the NAS Report.

In addition to the topics covered in this document, DOE also received a number of other comments on topics not covered in the July 2021 NOPR. For instance, DOE received a number of comments on issues discussed in the April 2021 NOPR, e.g., whether appendix A should be binding. DOE is not addressing these comments in this document as those proposals were finalized in the December 2021 Final Rule.

DOE also received comment on its adherence to EPCA's directive that any new or amended energy conservation standard prescribed by the DOE must be designed to achieve the maximum improvement in energy efficiency, which the Secretary determines is technologically feasible and economically justified, and DOE's application of the associated statutory factors. ( See 42 U.S.C. 6295(o)(2)(A) and (B)(i)(I)-(IV); 42 U.S.C. 6316(a))

The Joint Commenters urged DOE to retain its current practices of analyzing all relevant statutory factors when selecting a final standard rather than focusing sequentially on any one or any specific set of factors. They also suggested that when analyzing whether a potential standard level is economically justified, DOE should continue to use only the economic results to end consumers since, in their view, this is the clear intent of the relevant statutes and end consumer economics should be the sole criterion in determining economic justification. The commenters noted that DOE's national economic and related impact analyses are not measures of end consumer economics and should never be used as a substitute (or supersede) the end customer analysis. (Joint Industry Commenters, No. 62 at p. 13)

The Joint Industry Commenters stated that they would object to DOE's use of the Social Cost of Carbon and other calculations of the monetary value of avoided greenhouse gas emissions being included in DOE's analysis of the factors under EPCA. The commenters asserted that such an approach would be inappropriate under EPCA since the scientific and economic knowledge continues to evolve rapidly as to the contribution of carbon dioxide and other greenhouse gases to changes in the future global climate. They argued that while it may be acceptable for DOE to examine these values as informational (so long as the underlying interagency analysis is transparent and vigorous), the emissions reductions analysis should not impact the trial standard level that DOE selects as a new or amended standard. (Joint Industry Commenters, No. 62 at pp. 13-14)

AHRI asserted that EPCA was intended to focus on energy efficiency, energy costs, and energy savings in the United States. It argued that none of the seven factors  13 that DOE must consider when evaluating whether a potential standard is economically justified focuses on the monetary value of the avoided emissions of greenhouse gases or other air pollutants. It added that Congress' inclusion of the first six factors individually was evidence of its view that these first six factors were significantly important and drive the energy standards analysis. AHRI further asserted that in spite of numerous amendments to EPCA, Congress never included greenhouse gas emissions as a pertinent factor for DOE to consider. AHRI stated that the monetary impacts of avoided greenhouse gas emissions should only be used for informational purposes rather than given any weight as part of DOE's cost-benefit analysis—and DOE should not use its limited resources to conduct an analysis of avoiding these emissions (or the social cost of carbon) when setting efficiency levels. (AHRI, No. 56 at 2-3)

Specifically with respect to ASHRAE equipment, ASHRAE cautioned DOE from going beyond the efficiency standards in Standard 90.1 by overly depending upon factors not explicitly named in the so-called “7 Factor Test”, stating that ASHRAE supports greenhouse gas reductions but noting that almost any higher standard could be “economically justified” by using factors such as monetizing avoided emissions. ASHRAE stated that such monetization should be produced but not overly relied upon in its determination of whether a standard is economically justified. (ASHRAE, No. 59 at p. 5)

AHRI also argued that to the extent DOE calculates greenhouse gas emissions associated with potential standards for informational purposes, the emission increases from other social equity factors must also be considered. AHRI asserted that these other factors have significant impacts on greenhouse gas emissions because new standards that increase the cost of covered equipment result in underserved rural and urban households and small businesses to continue using old, inefficient, and leaky equipment—thereby allowing high global warming potential refrigerants to be released into the atmosphere. (AHRI, No. 56 at p. 3)

IPI commented that DOE should revise its rulemaking approach to ensure the consistent and meaningful consideration of all important effects to the environment, public health, consumers, and energy security, including indoor air quality and toxic air and water pollution. Such significant impacts, including both upstream and downstream emissions, should be considered during—not after—the evaluation of whether standards are economically justified. (IPI, No. 68 (Attachment at pp. 1 and 7-8))

As noted, under EPCA, any new or amended standard must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A); 42 U.S.C. 6316(a)) To ensure that DOE meets this statutory mandate, DOE employs a walk-down process to select energy conservation standard levels. As a first step in the process, DOE screens out technologies for improving energy efficiency that are not feasible. DOE then uses the remaining technologies to create a range of TSLs. Beginning with the max-tech TSL, DOE then determines whether a specific TSL is economically justified. In making that determination, DOE determines, after reviewing public comments and data, whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven factors described in 42 U.S.C. 6295(o)(2)(B)(i). ( See also 42 U.S.C. 6313(a)(6)(B)(ii) (applying the seven factors to ASHRAE equipment); 42 U.S.C. 6316(a) (applying the seven factors to non-ASHRAE equipment))

If DOE determines that the max-tech TSL is economically justified, the analysis ends, and DOE adopts the max-tech TSL as the new or amended standard. However, if DOE determines that the max-tech TSL is not economically justified, DOE walks down to consider the next-most-stringent TSL. This walkdown process continues until DOE determines that a TSL is economically justified or that none of the TSLs are economically justified.

DOE maintains that climate and health benefits associated with the more efficient use of energy are important to take into account when considering the need for national energy and water conservation, which is one of the factors to consider under EPCA. (42 U.S.C. 6295(o)(2)(B)(i)(VI); Zero Zone, Inc. v. United States DOE, 832 F.3d 654, 677 (7th Cir. 2016) (holding that, under 42 U.S.C. (o)(2)(B)(i)(VI), DOE has “the authority under EPCA to consider the reduction in” the social cost of greenhouse gasses)).

The Advocacy Groups provided comment on certain apparent inconsistencies and inaccuracies in sections 6 and 7. The Advocacy Groups noted that the text of section 6(a)(4)(ii) indicates that DOE and its contractors will perform engineering and life-cycle cost analyses of the design options and section 6(a)(4)(v) similarly refers to life-cycle cost analysis of design options. The Advocacy Groups commented that DOE does not perform life-cycle cost analyses of design option but of efficiency levels. Similarly, they also noted that section 7(c)(1) refers to the analysis of design options, which they emphasized DOE does not perform—rather, DOE's analysis is performed on efficiency levels. The Advocacy Group suggested that DOE make changes to reflect this practice. The Advocacy Groups also stated that the current text of section 7(b)(1), which notes that technologies not incorporated into commercial products or in commercially viable, existing prototypes will not be considered further, is inconsistent with DOE's practice of screening out design options which are not incorporated in commercial products or in working prototypes. They commented that DOE evaluates a “max-tech” level (maximum technologically feasible level) regardless of cost and that DOE cannot screen out a design option on the basis of cost, which are separately considered as part of the selection of standard levels. The Advocacy Groups further added that while section 7(c)(3) says that efficiency levels will be identified in pre-NOPR documents, DOE does not always identify efficiency levels in its pre-NOPR documents. (Advocacy Groups, No. 70 at pp. 5-6)

Regarding the Advocacy Groups' comments, DOE will address them as part of the separate notice-and-comment process addressing DOE's rulemaking methodology.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) 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 this preamble, this final regulatory action is consistent with these principles.

This regulatory action is a significant regulatory action under section 3(f)(4) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this regulatory action was subject to review under the Executive order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).

The revisions contained in this regulatory action are procedural changes designed to improve DOE's ability to meet its rulemaking obligations and deadlines under EPCA. These revisions would not impose any regulatory costs or burdens on stakeholders, nor would they limit public participation in DOE's rulemaking process. Instead, these revisions would allow DOE to tailor its rulemaking processes to fit the facts and circumstances of a particular rulemaking for a covered product or equipment.

DOE currently has energy conservation standards and test procedures in place for more than 60 categories of covered products and equipment and is typically working on anywhere from 50 to 100 rulemakings (for both energy conservation standards and test procedures) at any one time. Further, these rulemakings are all subject to statutory or other deadlines. Typically, review cycles for energy conservation standards and test procedures for covered products are 6 and 7 years, respectively. (42 U.S.C. 6295(m)(1); 42 U.S.C 6293(b)(1)) Additionally, if DOE decides not to amend an energy conservation standard for a covered product, the subsequent review cycle is shortened to 3 years. (42 U.S.C. 6295(m)(3)(B)) It is challenging to meet these cyclical deadlines for more than 60 categories of covered products and equipment. In fact, as previously discussed, DOE is faced two lawsuits that allege DOE has failed to meet rulemaking deadlines for 25 different consumer products and commercial equipment. 14

In order to meet these rulemaking deadlines, DOE cannot afford the inefficiencies that come with a one-size-fits-all rulemaking approach. For example, having to issue an early assessment RFI followed by an ANOPR to collect early stakeholder input when a NODA or other pre-rule document would accomplish the same purpose unnecessarily lengthens the rulemaking process and wastes limited DOE resources. Similarly, having to identify any necessary modifications to a test procedure prior to initiating an energy conservation standard rulemaking makes it more difficult for DOE to meet rulemaking deadlines, while offering little to no benefit to stakeholders.

The revisions in this document would allow DOE to eliminate these types of inefficiencies that lengthen the rulemaking process and waste DOE resources, while not affecting the ability of the public to participate in the rulemaking process. Eliminating inefficiencies that lengthen the rulemaking process allows DOE to more quickly develop energy conservation standards that deliver the environmental benefits, including reductions in greenhouse gas emissions, that DOE is directed to pursue under E.O. 13990. Further, the sooner new or amended energy conservation standards eliminate less-efficient covered products and equipment from the market, the greater the resulting energy savings and environmental benefits.

Finally, the revisions in this document would not dictate any particular rulemaking outcome in an energy conservation standard or test procedure rulemaking. DOE will continue to calculate the regulatory costs and benefits of new and amended energy conservation standards and test procedures issued under EPCA in future, individual rulemakings.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996) requires preparation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public comment and a final regulatory flexibility analysis (FRFA) for any such rule that an agency adopts as a final rule, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. A regulatory flexibility analysis examines the impact of the rule on small entities and considers alternative ways of reducing negative effects. Also, as required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website at: www.energy.gov/gc/office-general-counsel.

This final rule details generally applicable guidance that may guide, but not bind, the Department's rulemaking process. The revisions in this rule are intended to improve DOE's ability to meet the obligations and deadlines outlined in EPCA by allowing DOE to tailor its rulemaking procedures to fit the specific facts and circumstances of a particular covered product or equipment, while not affecting the ability of any interested person, including small entities, to participate in DOE's rulemaking process. Because this rule imposes no regulatory obligations on the public, including small entities, and does not affect the ability of any interested person, including small entities, to participate in DOE's rulemaking process, DOE certifies that this final rule will not have a significant economic impact on a substantial number of small entities, and, therefore, no final regulatory flexibility analysis is required. Mid-Tex Elec. Cooperative, Inc. v. F.E.R.C., 773 F.2d 327 (D.C. Cir. 1985).

DOE is not amending its existing information collections through this rule. Under existing provisions, manufacturers of covered products/equipment must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for such products/equipment, including any amendments adopted for those test procedures, on the date that compliance is required. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment. 76 FR 12422 (March 7, 2011); 80 FR 5099 (Jan. 30, 2015). The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

Specifically, this rule, in addressing clarifications to DOE's guidance regarding its process for amending and establishing energy conservation standards and related test procedures set out in 10 CFR part 430, subpart C, appendix A, does not contain any collection of information requirement that would trigger the PRA.

DOE has analyzed this regulation in accordance with the National Environmental Policy Act (NEPA) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. 10 CFR part 1021, subpart D, appendix A, categorical exclusion A5. DOE's regulations include a categorical exclusion for rulemakings that are strictly procedural. 10 CFR part 1021, subpart D, appendix A, categorical exclusion A6. DOE has completed the necessary review under NEPA and has determined that this rulemaking qualifies for categorical exclusion A5 and A6 because it is amending a rule and because it is a procedural rulemaking, it does not change the environmental effect of the rule and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this rule and has 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. It will primarily affect the procedure by which DOE develops proposed rules to revise energy conservation standards and test procedures. EPCA governs and prescribes Federal preemption of State regulations that are the subject of DOE's regulations adopted pursuant to the statute. In such cases, 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)) Therefore, Executive Order 13132 requires no further action.

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. Regarding the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that each Executive agency make every reasonable effort to ensure that when it issues a regulation, 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) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties may file suit in court and, if so, describes those proceedings and requires the exhaustion of administrative remedies; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and has determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)) For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. (62 FR 12820) (This policy is also available at www.energy.gov/gc/office-general-counsel under “Guidance & Opinions” (Rulemaking)) DOE examined the rule according to UMRA and its statement of policy and has determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

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 proposed rule or policy that may affect family well-being. When developing a Family Policymaking Assessment, agencies must assess whether: (1) the action strengthens or erodes the stability or safety of the family and, particularly, the marital commitment; (2) the action strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children; (3) the action helps the family perform its functions, or substitutes governmental activity for the function; (4) the action increases or decreases disposable income or poverty of families and children; (5) the proposed benefits of the action justify the financial impact on the family; (6) the action may be carried out by State or local government or by the family; and whether (7) the action establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility of youth, and the norms of society. In evaluating the above factors, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment as none of the above factors are implicated. Further, this rule would not have any impact on the autonomy or integrity of the family as an institution.

Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), DOE has determined that this rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with the applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

DOE has concluded that the regulatory action in this document, which makes clarifications to the Process Rule that guides the Department in proposing energy conservation standards is not a significant energy action because 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 for this final rule.

On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions.” Id. at 70 FR 2667.

In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report,” dated February 2007, has been disseminated and is available at the following website: www.energy.gov/eere/buildings/peer-review. Because available data, models, and technological understanding have changed since 2007, DOE has engaged with the National Academy of Sciences to review DOE's analytical methodologies to ascertain whether modifications are needed to improve the Department's analyses. As discussed, DOE is in the process of evaluating the resulting report.

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).

The Secretary of Energy has approved publication of this final rule.

This document of the Department of Energy was signed on March 29, 2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE amends part 430 of title 10 of the Code of Federal Regulations as set forth below:

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0774; Project Identifier AD-2024-00197-E,R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Barbara Caufield, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2024-05-51, Amendment 39-22702 (89 FR 18771, March 15, 2024) (AD 2024-05-51), for certain GE Model CT7-2E1, CT7-2F1, CT7-8A, CT7-8E, and CT7-8F5 engines, and various restricted category helicopters with GE Model T700-GE-700, -701A, -701C, -701D/CC, -701D, -401, -401C, CT7-2D, or CT7-2D1 engines installed. That AD was issued as Emergency AD 2024-05-51 on February 28, 2024, and distributed to all known U.S. owners and operators of these engines and helicopters. AD 2024-05-51 required a phase array ultrasonic inspection of the torque reference tube magnetic insert braze joint of the PT drive shaft assembly for inadequate braze coverage, and repair or replacement of the PT drive shaft assembly if necessary. AD 2024-05-51 was prompted by at least four reports of failures of the torque reference tube magnetic insert braze joint of the PT drive shaft assembly within the last several months. This condition, if not addressed, could result in improper torque and engine speed indications, which, in combination with specific phases of flight, could create an unacceptably high flight crew workload in maintaining control of the aircraft, and result in consequent loss of control of the aircraft.

Since the issuance of AD 2024-05-51, the FAA determined that PT drive shaft assembly part number (P/N) 5125T92G01 was inadvertently omitted from the applicability. Therefore, the FAA is superseding AD 2024-05-51 to revise the applicability to include engines with PT drive shaft assembly P/N 5125T92G01 installed. The FAA also revised the applicability of this AD to consolidate paragraphs (c)(2)(iii) through (viii) into paragraph (c)(2)(iii) of this AD and revised the required actions of this AD to reference service information that was published since Emergency AD 2024-05-51 was issued.

This AD was sent previously to all known U.S. owners and operators of these engines and helicopters as Emergency AD 2024-06-51, dated March 22, 2024, which superseded AD 2024-05-51.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

The FAA reviewed Sikorsky Aircraft Corporation S-70/H-60 Helicopter Alert Service Bulletin (ASB) 70-04-17, dated February 28, 2024, which specifies procedures for a phase array ultrasonic inspection of the torque reference tube magnetic insert braze joint of the PT drive shaft assembly for inadequate braze coverage.

This AD also requires the following service information, which the Director of the Federal Register approved for incorporation by reference as of April 1, 2024 (89 FR 18771, March 15, 2024).

• GE ASB CT7-2E1 S/B 72-A0034, dated February 26, 2024.

• GE ASB CT7-8 S/B 72-A0118, Revision 01, dated February 26, 2024.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This AD requires a phase array ultrasonic inspection of the torque reference tube magnetic insert braze joint of the PT drive shaft assembly for inadequate braze coverage, and repair or replacement of the PT drive shaft assembly if necessary.

The FAA considers this AD to be an interim action. The manufacturer is currently investigating the root cause of the unsafe condition identified in this AD. If final action is later identified, the FAA might consider further rulemaking.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that required the immediate adoption of Emergency AD 2024-06-51, issued on March 22, 2024, to all known U.S. owners and operators of these engines. The FAA found that the risk to the flying public justified forgoing notice and comment prior to adoption of this rule because failure of the torque reference tube magnetic insert braze joint of the PT drive shaft assembly could result in improper torque and engine speed indications, which, in combination with specific phases of flight, could create an unacceptably high flight crew workload in maintaining control of the aircraft, and result in consequent loss of control of the aircraft. Since this condition happens rapidly and without warning, the inspection and any necessary repair or replacement must be accomplished before further flight. Thus, the FAA has determined that the affected torque reference tube magnetic insert braze joint of the PT drive shaft assembly must be inspected, and repaired or replaced if necessary, before further flight. This condition still exists; therefore, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 100 engines installed on aircraft of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary repairs or replacements that would be required based on the results of the inspection. The agency has no way of determining the number of engines that might need these repairs or replacements:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866, and

(2) Will not affect intrastate aviation in Alaska.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends Class D and Class E airspace for Wallops Island, VA. An airspace evaluation determined that this update is necessary to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-2204 in the Federal Register (88 FR 87382; December 18, 2023), proposing to amend Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface for Wallops Flight Facility, Wallops Island, VA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in Paragraphs 5000, 6002, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending Class D airspace and Class E surface airspace by removing Snow Hill VORTAC from the descriptions as it is unnecessary in describing the airspace, as well as updating the airport's geographic coordinates to coincide with the FAA's database. In addition, this action updates the airport name to Wallops Flight Facility (formerly NASA Wallops Flight Facility). This action also replaces the terms Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement in the airspace descriptions. In addition, the Class E airspace extending upward from 700 feet above the surface is updated by replacing the city name under the header with Wallops Island (formerly Chincoteague) and removing the city name from the next line of the description, identifying the airport. Also, the geographic coordinates of this airspace are updated to coincide with the FAA's database. Finally, this action clarifies the Class D description by adding the words `and including' referring to the airspace ceiling. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.

This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends Class D and Class E airspace in Lewisburg, WV. An airspace evaluation determined that this update is necessary to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-2275 in the Federal Register (88 FR 85860; December 11, 2023), proposing to amend Class D airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace extending upward from 700 feet above the surface area for Greenbrier Valley Airport, Lewisburg, WV. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in Paragraphs 5000, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending Class D airspace and Class E airspace designated as an extension to a Class D surface area by:

• Removing the city name from the airport header.

• Replacing the terms Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement.

• Removing the BUSHI NDB from the description, as it is unnecessary in describing the airspace.

• Adding a northeast extension and amending the southwest extension.

This action amends 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface area by removing the BUSHI NDB from the description, as it is unnecessary to describe the airspace.

Subsequent to publication, the FAA found an error in the NPRM. The geographic coordinates of the airport were listed as (Lat 37°51′33″ N, long 80°23′58″ W). The correct coordinates are (Lat 37°51′30″ N, long 80°23′58″ W). This action corrects this error.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Air Missions (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Air Missions (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

The Commission is adopting technical amendments to the following rules and forms:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administration and enforcement authorities to TTB through Treasury Order 120-01.

Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and, once approved, a name and a delineated boundary codified in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and allows any interested party to petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions to establish or modify AVAs. Petitions to establish an AVA must include the following:

• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed AVA;

• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA;

• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition;

• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

If a smaller proposed AVA is to be established within an existing AVA, the petitioner may request, and TTB may determine, that the proposed AVA should not be part of the larger AVA because the proposed AVA has features that clearly distinguish it from the surrounding AVA. In such instances, wine produced from grapes grown within the proposed AVA would not be entitled to use the name of the larger AVA as an appellation of origin or in a brand name if the proposed AVA is established.

TTB received a petition on behalf of local vineyard owners proposing the establishment of the “Comptche” AVA. The proposed Comptche AVA is in Mendocino County, California, and covers 1,421.8 acres. There are currently three commercial vineyards covering a total of over 30 acres within the proposed AVA. Although there are no wineries within the proposed AVA, grapes are sold to nearby wineries.

According to the petition, the distinguishing features of the proposed Comptche AVA are its topography, soils, and climate. The proposed Comptche AVA is within a low-elevation valley, a natural opening that is surrounded by heavily forested lands and short, steep ridges. Elevations within the proposed AVA range from 187 to 400 feet, and all vineyards are planted at elevations between 220 and 250 feet. According to the USGS map included with the petition, elevations are higher in each direction outside of the proposed AVA. Further, the petition notes temperature and viticulture in the proposed AVA is affected by the relationship between the low elevations within the proposed AVA and the higher elevations of the areas surrounding the AVA. The petition notes that at night, cool air sinks from the higher surrounding elevations into the proposed AVA and increases the risk of frosts that can damage vines or delay ripening of the grapes.

According to the petition, the two main soil types within the proposed Comptche AVA are Bearwallow-Wolfey and Perrygulch Loam. Bearwallow-Wolfey soils are described in the petition as well-drained, shallow, and relatively infertile soils over fractured sandstone. These soils are prone to erosion due to their thinness and the fact that they frequently occur on slopes. Therefore, mowing is the preferred method of controlling weeds in the vineyards instead of tilling, which disturbs the soil. Perrygulch Loam is a deep, rich, bottomland soil series that contains a large amount of clay and is not as well drained as Bearwallow-Wolfey soils. According to the petition, vineyard owners who plant on Perrygulch Loam soils prefer to use herbicides to control weeds because the high clay content within the soil is easily compacted by heavy machinery. By contrast, the most common soils surrounding the proposed Comptche AVA are Ornbaun and Zeni soils, which are found in each direction outside the proposed AVA. These soils are described as moderately deep to deep soils that formed from sandstone and typically have a surface that is covered with a mat of leaves and twigs that is one-half inch deep.

The proposed Comptche AVA is generally cooler than other established AVAs within Mendocino County. The average annual temperature and average growing season temperature within the proposed AVA are 67.9 and 74.2 degrees Fahrenheit (F), respectively. By contrast, the temperatures in the established Mendocino AVA (27 CFR 9.93), located to the east and south of the proposed AVA, and the established Mendocino Ridge (27 CFR 9.158) and Anderson Valley (27 CFR 9.86) AVAs, both located south of the proposed AVA, are warmer. The petition did not include climate data from the regions to the north and west of the proposed AVA.

To further demonstrate the cooler climate of the proposed Comptche AVA, the petition provided information on the average annual growing degree days (GDD) accumulations, 1 Huglin Index numbers, 2 and Biologically Effective Degree Days (BEDD)  3 for the proposed AVA and the established Mendocino, Mendocino Ridge, and Anderson Valley AVAs. The proposed AVA had the lowest numbers of each of the regions, with 2,258.85 GDDs, a Huglin Index number of 1,835.81, and 1,395.05 BEDDs. The petition states that due to its significantly cooler climate, the proposed Comptche AVA is a “borderline” region for growing wine grapes, and that only the most cold-hardy varietals will ripen successfully. Currently, Pinot Noir is the only grape varietal grown for commercial purposes in the proposed AVA.

The proposed AVA is further distinguishable because it is one of the few places in the coastal section of Mendocino County where non-timber related agricultural activity, including viticulture, is permitted. The proposed AVA is surrounded by land designated as a Timberland Production Zone. Such land is zoned only for the growing and harvesting of timber for a period of at least ten years from the time it was so designated. 4

Although the proposed Comptche AVA is physically located within the established North Coast AVA (27 CFR 9.30), the petitioner asked that the proposed AVA be excluded from the established AVA because the climate and soils of the two regions are so different. The petition includes data showing that the proposed AVA has average annual BEDD and GDD accumulations, Huglin Index numbers, and average growing season and annual temperatures that are lower than those of the North Coast AVA as a whole. Although the established North Coast AVA is a large, multi-county AVA and variations in climate exist within it due to its large size, the proposed Comptche AVA is, as discussed earlier, also cooler than the three closest neighboring AVAs within the North Coast AVA: Mendocino, Mendocino Ridge, and Anderson Valley.

Furthermore, the petition notes that the two main soil series of the proposed Comptche AVA—Bearwallow-Wolfey and Perrygulch Loam—are unique and relatively scarce within the North Coast AVA and within the State of California as a whole. The Bearwallow-Wolfey series is comprised of two soil types: Bearwallow and Wolfey. Bearwallow soils cover a total of 30,050 acres within the State, while Wolfey and Perrygulch Loam cover 4,709 and 580 acres of the State, respectively. By contrast, the two most common soils directly outside the proposed AVA, Zeni and Ornbaun series, cover 96,612 and 115,774 acres of the State, respectively, indicating that they are more commonly found.

TTB published Notice No. 222 in the Federal Register on March 29, 2023 (88 FR 18481), proposing to establish the Comptche AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed viticultural area. The notice also compared the distinguishing features of the proposed viticultural area to the surrounding areas. For a description of the evidence relating to the name, boundary, and distinguishing features of the proposed viticultural area, and for a comparison of the distinguishing features of the proposed viticultural area to the surrounding areas, see Notice No. 222.

In Notice No. 222, TTB solicited comments on the accuracy of the name, boundary, topography, and other required information submitted in support of the petition. In addition, TTB asked for comments on whether the features of the proposed viticultural area are so distinguishable from the surrounding North Coast AVA that proposed Comptche AVA should not be part of this surrounding, existing viticultural area. The comment period on Notice No. 222 closed on May 30, 2023. TTB received no comments on the proposed AVA.

After careful review of the petition, TTB finds that the evidence provided by the petitioner supports the establishment of the 1,421.8-acre Comptche AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Comptche” AVA in Mendocino County, California.

Furthermore, TTB finds that the evidence provided by the petitioner, as described in Notice No. 222, shows that the features of the North Coast AVA are so distinctive from those of the North Coast AVA that the Comptche AVA should be separate from, and not considered a part of, the North Coast AVA. As a result, TTB establishes the Comptche AVA as separate from, and not within, the North Coast AVA, and wines made primarily from grapes grown within the Comptche AVA will not be eligible to be labeled with “North Coast” as an appellation of origin.

See the narrative boundary description of the Comptche AVA in the regulatory text published at the end of this final rule.

The petitioner provided the required maps, and they are listed below in the regulatory text. The Comptche AVA boundary may also be viewed on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/wine/ava-map-explorer.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

With the establishment of the Comptche AVA, its name, “Comptche,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Comptche” in a brand name, including a trademark, or in another label reference to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.

The establishment of the Comptche AVA will allow vintners to use “Comptche” as an appellation of origin for wines made primarily from grapes grown within the Comptche AVA if the wines meet the eligibility requirements for the appellation. The exclusion of the Comptche AVA from the North Coast AVA will also mean that vintners will not be able to use “North Coast” as an appellation of origin for wines made primarily from grapes grown anywhere in the Comptche AVA.

Bottlers who wish to label their wines with “Comptche” as an appellation of origin must obtain a new Certificate of Label Approval (COLA) for the label to do so. (Note that TTB cannot approve a COLA using “Comptche” as an appellation of origin before the effective date shown in the DATES section of this document, and TTB must reject such COLA applications if submitted prior to that date.) Additionally, after April 8, 2026, bottlers who use “North Coast” as an appellation of origin on wines made primarily from grapes grown in the Comptche AVA will no longer be able to use “North Coast” and would only be eligible to use “Comptche,” “Mendocino County,” or “California,” or a combination of these appellations, as appellations of origin on those wines.

TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

On May 4, 2023, the Coast Guard published a notice of proposed rulemaking entitled “Drawbridge Operation Regulation; Black River, Lorain, OH,” in the Federal Register (88 FR 28442). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this regulatory change. During the comment period that ended on July 3, 2023, we received 4 comments, and those comments are addressed in section IV of this final rule.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499.

Three bridges cross the river at Lorain. 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 drawtender logs provided quarterly summaries of bridge lifts and provided a rough picture of the type of vessels passing through the bridge. Currently, the bridge opens frequently for commercial vessels and very infrequently for recreational vessels. The logs also indicated seasonal surges of recreational vessels transiting from the marina in the outer harbor to the boat yard upriver of the bridge. These surges occurred during the winter haul out, which occurs each fall, and again each spring as vessels return from the boat yard to the outer marina.

The City of Lorain commented they were concerned with bridge openings between 3 p.m. and 5 p.m. and did not provide any data to support that request. We did ask for traffic data from ODOT to clarify the city's concerns, and we only received very general data that showed there was a small 300 vehicle increase in traffic during those hours, but, without detailed drawtender logs showing the actual problem is with recreational vessels it is difficult to adjust the schedule to address the concerns. The Charles Berry Bridge, mile 0.6, has a vertical clearance of 33 feet in the closed positions that allows most recreational vessels to pass under the bridge safely without an opening. Even under the prior regulations, commercial traffic was provided an opening on signal without restrictions. As such, there was no guarantee that the bridge would be open between 3 p.m. and 5 p.m., and despite the recent dredging activity and break wall repair activity along the Black River over the past three years, the Coast Guard has not received any complaints arising from increased unrestricted vessel traffic requiring on demand bridge openings.

Terminal Ready Mix provided comments concerned with delays to vessels delivering materials to the docks in the winter and that their trucks crossing the Charles Berry Bridge, mile 0.6, would have to stop frequently for recreational vessels. However, the winter regulations have been in effect since 1986, and the Coast Guard has not received any complaints from commercial docks or the freighters that visit Lorain regarding the winter hours. Additionally, almost all the bridge openings were for the passage of freighters or tugs performing harbor maintenance. The Coast Guard has no record of delay from commercial vessels related to bridge openings, and there have been very limited recreational vessel requests for bridge openings. Concerns that road surface maintenance may delay cement trucks crossing the Lofton Henderson Memorial Bridge, mile 2, a fixed bridge, should be addressed to the Federal Highway Administration for consideration.

The ODOT submitted two comments and did not object to removal of opening restrictions for recreational vessels at various hours of the day, but expressed a desire to maintain the hourly and half hour openings for recreational vessels, even though the quarterly drawtender logs show very limited openings for any recreational vessels, except for the spring and fall migration of recreational vessels heading to and from the local boat storage yard. Additional drawtender logs submitted by ODOT listed several openings for commercial vessels, and only sporadic openings for recreational vessels.

Bridges across the navigable waters of the United State are considered obstructions to vessel navigation and are permitted only when they serve the needs of land transportation. While the public right of navigation is paramount to land transportation, it is not absolute. This right may be diminished to benefit land transportation, provided that the reasonable needs of navigation are not impaired. The documentation available indicates there is very little recreational traffic that requires the Charles Berry Bridge, mile 0.6, to open, and most of the openings that occur are for commercial vessels that are not subject to opening restrictions, therefore there is little disparity between the modes of transportation.

Special events, like July 4th Fireworks and local homecoming parades, could temporarily increase vehicle traffic. In those circumstances the city may request the Coast Guard District Commander to grant a special deviation to the regulations to allow the bridge to remain closed while traffic clears from such events.

During our review, we discovered a clause allowing for the bridge to operate with a 1-hour advance notice. Because the clause has not been utilized since 1995, all commenters that addressed the provision agreed it was unnecessary to remain. As such, we have deleted it from the final rule.

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.

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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice.

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 did not receive any comments from the Small Business Administration on this rule. 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 bridge 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 calls 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 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.

We did not receive any comments from 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 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 rule promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

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

On April 27, 2023, the Coast Guard published a NPRM, with a request for comments, entitled “Drawbridge Operation Regulation; Maumee River, Toledo, OH,” in the Federal Register (88 FR 25572), to seek public comments on whether the Coast Guard should consider modifying the current operating schedules of the bridges.

The Maumee River from the head of navigation to the mouth of the river is crossed by ten bridges, four of which are movable. The vertical clearance of all bridges on the Maumee River are based on LWD.

The CSX Railroad Bridge, mile 1.07, is a swing bridge with a horizontal clearance of 143-feet in both left and right draws and a vertical clearance of 22-feet in the closed position and an unlimited clearance in the open position.

The Wheeling and Lake Erie Railroad Bridge, mile 1.80, is a swing bridge with a horizontal clearance of 134-feet in both left and right draws and a vertical clearance of 20-feet in the closed position and an unlimited clearance in the open position.

The Craig Memorial Bridge, mile 3.30, is a double leaf bascule bridge, that provides a horizontal clearance of 200-feet with a minimum vertical clearance of 34-feet with a vertical clearance of 44-feet available in the center 31-feet while in the closed position and an unlimited clearance in the open position.

The Martin Luther King Jr. Memorial Bridge (prior to 1989, the Cherry Street Bridge), mile 4.30, is a double leaf bascule bridge, that provides a horizontal clearance of 200-feet with a minimum vertical clearance of 34-feet with a vertical clearance of 44-feet available in the center 31-feet while in the closed position and an unlimited clearance in the open position.

The Norfolk Southern Railroad Bridge, mile 5.76, is a swing bridge with a horizontal clearance of 115-feet in both left and right draws and a vertical clearance of 17-feet in the closed position and an unlimited clearance in the open position.

The CSX Railroad Bridge, mile 11.38, was a swing bridge with a horizontal clearance of 110-feet in both left and right draws and a vertical clearance of 53-feet in the closed position and an unlimited clearance in the open position. The bridge was allowed to remain closed by regulation when the upriver ship building facility closed. The bridge was removed in its entirety and at the District Commander's satisfaction in 2019.

On November 3, 1986, we published in the Federal Register (51 FR 39858) regulations for the Maumee River's movable bridges under 33 CFR 117.855 (Maumee River) that included several schedules for the bridges. The schedules were intended to ease the travel of motorists across the bridges while still allowing recreational and commercial commerce to travel the river.

During the comment period that ended June 26, 2023, we received two comments, and those comments are addressed in section IV.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499. We will require a 12-hour advance notice from December 15 through March 31. Each bridge owner will be responsible to provide to the District Commander an appropriate phone number to be advertised to the mariners in the Local Notice to Mariners and would be required to be included in the requirements of 33 CFR 117.55.

In 2004, a new multilane fixed bridge was built at mile 3.25 that alleviated vehicle traffic congesting at the two double leaf highway bridges, significantly reducing the annual average vehicle counts at each bridge. The hourly restrictions imposed on recreational vessels will be eliminated due to the reduction in vehicle crossing numbers reported by the ODOT's Transportation Information Management System. Additionally, the reduction in recreational vessels with air drafts requiring bridge openings at either bridge crossing similarly renders the existing rush hour regulatory unnecessary.

In the past three years, we have received sixty-six complaints of delays at three of the drawbridges over the Maumee River. These complaints include: three written complaints against the Craig memorial Bridge, mile 3.30; thirty-one written complaints against the CSX Railroad Bridge, mile 1.07; and thirty-two written complaints against the Norfolk Southern Railroad Bridge, mile 5.76. Most of the complaints against the two railroad bridges have been about a lack of communications between the vessels and the drawtender. Often the miscommunications have been between the drawtender and the railroad dispatchers. To improve communications, we will require all drawbridges over the Maumee River to maintain and operate a VHF-FM Marine Radio and in addition to the Marine Radio the Railroad Bridges at mile 1.07 and mile 5.76 will maintain and operate a telephone with a correct number to be placed on signage at the bridge.

We received two comments on this regulation that supported the proposed changes as improving communications and the flow of vessels transiting the river. We did not make any changes in response to these supportive comments.

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.

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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice.

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 did not receive any comments from the Small Business Administration on this rule. 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 bridge 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 calls 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 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 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 rule promulgates the operating regulations or procedures for drawbridges and is 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.

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

At approximately 2 a.m. local time on March 26, 2024, the Captain of the Port, Maryland-National Capital Region was notified that a container ship, the Singapore-flagged M/V DALI, had allided with the Francis Scott Key Bridge in the Chesapeake Bay, in position latitude 39°13′0.12″ N longitude 076°31′47.27″ W, causing partial collapse of the bridge. Due to the need for vessel control during a damage assessment and salvage operation, maritime traffic will be temporarily restricted to provide for the safety of transiting vessels and persons conducting salvage work on the bridge and on the ship.

The Coast Guard is issuing this temporary rule under authority in 5 U.S.C. 553(b)(B). This statutory 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.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. Immediate action is needed to respond to the potential safety hazards associated with the presence of collapsed bridge parts and the M/V DALI, and with the conduct of damage assessment and salvage operations on the M/V DALI and the Francis Scott Key bridge that must occur within the Federal navigation channel. Due to the nature of the event, it is impracticable to provide notice to ensure the safety of life and property.

Also, under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with damage assessment and salvage operations of the M/V DALI to be conducted within the federal channel.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP has determined that potential hazards associated with damage assessment and salvage operations starting March 26, 2024, will be a safety concern for anyone within a 2000-yard radius of the center navigation span of the Francis Scott Key bridge, in Baltimore, MD. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the bridge is being repaired.

This rule establishes a safety zone from April 3, 2024, through June 4, 2024. The safety zone will cover all navigable waters within 2000 yards of the center navigation span of the Francis Scott Key Bridge in Baltimore MD. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the damage assessment and salvage operations are being conducted. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a 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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will not be able to transit in vicinity of the safety zone, which will impact vessel traffic required to transit certain navigation channels of the Chesapeake Bay. The duration of the period during which the safety zone will be subject to enforcement will be kept to a minimum. If circumstances which may create a hazard to navigation or to salvage workers abate before June 4 (as determined by the COTP), the Coast Guard will provide notice that the safety zone will no longer be subject to enforcement. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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-FIR (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 temporary safety zone lasting 14 total days that will prohibit entry within 2000 yards of the center navigation span of the Francis Scott Key Bridge. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is issuing this temporary rule under authority in 5 U.S.C. 553(b)(B). This statutory 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.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would not allow sufficient time to issue the rule before the safety zone needs to take effect. The event sponsor notified the Coast Guard on February 27, 2024, that they will be conducting the fireworks show April 13, 2024.

The area that will be restricted comprises the waters directly in front of and adjacent to the USS North Carolina, in downtown Wilmington, NC. The Captain of the Port Sector North Carolina (COTP) has determined that potential hazards associated with the fireworks display show necessitate these navigational restrictions on marine traffic.

Also, 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 Federal Register because there are fewer days than 30 days remaining before the dates the safety zone will be needed.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The safety zone is intended to ensure the safety of vessels, spectators and these navigable waters before, during and after the scheduled fireworks display show.

This rule establishes a safety zone which will be in effect from 7 p.m. on April 13, 2024, through 8 p.m. on April 13, 2024. The safety zone will cover all navigable waters within 200 yards, due to the fireworks fallout zone, of the USS North Carolina, in downtown Wilmington, NC. The safety zone is intended to ensure the safety of vessels, spectators, and these navigable waters before, during and after the schedule fireworks display show. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a 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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the short duration of the fireworks display show, the seasonal traffic patterns, and timely broadcasting of restrictions for local mariners.

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 FOR FURTHER INFORMATION CONTACT section.

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 lasting only 1 hour that will prohibit entry within 200 yards of the USS North Carolina, downtown Wilmington, NC. It is categorically excluded from further review under paragraph L 60(a) off Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On January 10, 2024 (89 FR 1479), EPA published a notice of proposed rulemaking (NPRM) for the District of Columbia (the District). In the NPRM, EPA proposed approval of the District's request to revise its requirements for Stage II vapor recovery for new and existing GDFs located within the District. The formal SIP revision was submitted by the Department of Energy and Environment (DOEE) of the District of Columbia on May 18, 2022.

The details of the District's May 18, 2022, SIP submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated in this final rule. For this detailed information, the reader is referred to the EPA's January 10, 2024, proposed rulemaking (89 FR 1479). The NPRM also contained a detailed analysis showing that the District's removal of the Stage II requirements would not interfere with any of the District's ability to attain or maintain any national ambient air quality standard (NAAQS), or any other applicable requirement of the CAA. The public comment period for the NPRM closed on February 9, 2024.

EPA received two comments from private citizen commentors which can be found in the docket. Both comments, which were adverse, are discussed below.

Comments: Both private citizen commenters disagree with the proposed approval to allow the District to remove from the currently approved SIP the prior-approved Stage II requirements applicable to new and existing GDFs. The commentors' similarly stated reason for disagreeing with the proposed approval is that the removal of Stage II VRS may be cost effective but would lead to poorer air quality and adversely impact public health. One commenter asserted that the “proposal states that this removal of requirements is necessary due to conflicts with other systems, but did not explicitly explain how these other systems will be regulated to make up for it.”  1

Response: Both commenters misunderstand the latest science that EPA has relied on in its decision. Based on DOEE's analysis, on-board refueling vapor recovery (ORVR) alone is more effective at reducing volatile organic compound (VOC) emissions in the District, than the use of ORVR in conjunction with vacuum-assist Stage II VRS. In other words, since the use of ORVR alone (which is in widespread use) in the District achieves more VOC emissions control and reduction than does using ORVR plus vacuum-assist Stage II VRS, in removing the Stage II VRS requirement there is no loss of emissions control to be made up for. Furthermore, EPA's approval does not consider the relative cost effectiveness of ORVR versus Stage II VRS, but was rather based in large part on the DOEE study that showed that continued use of the two incompatible systems would lead to less reduction in VOC than the use of ORVR alone.

Specifically, EPA acknowledges that one of the commenters referenced an article, 2 indicating that Stage II VRS was an effective tool in reducing VOCs of the time that article was published. However, the article's estimate of “81% and 93% relative to a conventional station” for the efficiency of Stage II VRS is no longer accurate due to the widespread adoption of ORVR technology, which captures gasoline vapor when gasoline-powered vehicles are refueled. EPA adopted the ORVR regulations for passenger vehicles in 1994, and new passenger cars built in model year 1998 and later were required to be equipped with ORVR systems, followed by model year 2001 and later light-duty trucks. ORVR equipment has been installed on nearly all new gasoline-powered light-duty cars, light-duty trucks, and heavy-duty vehicles manufactured since 2006. ORVR systems have been considered to be in widespread use since 2012 (see the proposed approval for a full discussion of the 2012 widespread use finding). Per the 2012 EPA guidance on removing Stage II VRS, the in-use control efficiency for ORVR systems is estimated to be 98%. 3

The DOEE analysis discussed in the proposed approval demonstrates that within the District the continued operation of the vacuum-assist Stage II VRS when coupled with the prevalence of ORVR-equipped vehicles results in increased, not decreased, VOC emissions, due to the incompatibility between the vacuum-assist type Stage II VRS equipment and ORVR. The DOEE analysis further demonstrates that allowing the decommissioning of Stage II VRS equipment on or after January 1, 2022, will result in additional emissions decreases, especially when combined with the increasing prevalence of ORVR-equipped vehicles. The associated costs or cost effectiveness of either retaining or decommissioning existing Stage II VRS was not a factor in EPA's proposed approval.

As indicated in the NPRM, EPA ensured that: (1) in accordance with CAA section 110(l)'s non-interference requirement, this SIP revision demonstrated that the proposed action would not interfere with attainment of the NAAQS or reasonable further progress towards attainment of any NAAQS; (2) in accordance with CAA section 184(b)(2)'s “comparable measures” requirement, that this SIP revision would achieve comparable or greater emission reductions than the gasoline vapor recovery requirements contained in CAA section 182(b)(3); and (3) that this SIP revision satisfies the anti-backsliding requirements of CAA section 193. EPA also found that in its submittal, DOEE demonstrated that there is widespread use of ORVR systems throughout the motor vehicle fleet in the District, and that implementation of the rule in the proposed SIP revision would comply with CAA sections 110(l), 184(b)(2), and 193. The submittal sufficiently demonstrates that the District followed current EPA guidance and demonstrated that the removal of Stage II VRS will not interfere with any requirements concerning attainment or reasonable progress of any NAAQS, or any other applicable requirement of the CAA.

EPA is approving the District's May 18, 2022, SIP revision that incorporates revisions to Title 20 of the District of Columbia Municipal Regulations (DCMR) Chapter 7 Section 705 Stage II Vapor Recovery, with an effective date of April 8, 2022. The approved changes to Section 705 Stage II Vapor Recovery consist of revisions to subsections 705.1 through 705.14 as well as the addition of subsections 705.15 through 705.17. EPA is approving this SIP revision because it meets all applicable requirements of the Clean Air Act and EPA guidance, and it will not interfere with attainment or maintenance of the ozone NAAQS or any other CAA applicable requirement.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of District of Columbia's revised Title 20 DCMR Chapter 7 Section 705 Stage II Vapor Recovery regulation described in 40 CFR part 52 as described in Sections I, II and IV. of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 4

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act;

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The DOEE did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 7, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to remove Stage II requirements for the District of Columbia may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows: