The Social Security Number Fraud Prevention Act of 2017, Public Law 115-59, 42 U.S.C. 405 note, restricts the inclusion of SSNs on documents sent by mail unless the head of the agency determines that the inclusion of the SSNs on the documents is necessary. The Act also directs agencies to issue regulations that specify when inclusion of an SSN is necessary and include requirements for the safeguarding of SSNs by partially redacting SSNs where feasible and prohibiting the display of SSNs on the outside of any package or envelope sent by mail.

To implement the Act, OPM is adding new subpart F, titled “Protecting Social Security Numbers in Mailed Documents,” to its privacy procedures at 5 CFR part 297. The new requirements in subpart F prohibit the inclusion of SSNs on any document OPM program offices send through the mail unless the Director of OPM, on the advice of the Senior Agency Official for Privacy, deems it necessary and precautions are taken to protect the SSNs. In addition, subpart F includes requirements for OPM program offices to partially redact SSNs where feasible and specifically prohibits the display of complete or partial SSNs on the outside of any package or envelope sent by mail or through the window of an envelope or package. Subpart F applies to all OPM office activities and written or printed documents OPM sends by mail that include a complete or partial SSN.

OPM is also amending 5 CFR 297.102 to add the definitions of “document,” and “mail” to make explicit OPM's meaning of the terms in this new subpart F. For the purposes of this rule, a document is a record of some information that can be used as an authority or for reference, further analyses, or study. This includes all records OPM maintains and uses to identify, track, and correspond with agencies, Federal employees, contractors, and annuitants, among others. Mail is defined as artifacts used to assemble letters and packages that are sent or delivered by the United States Postal Service or other commercial letter or parcel delivery services.

This rule of agency organization, procedure, or practice is exempt from the prior public notice and comment requirements of the Administrative Procedure Act. See 5 U.S.C. 553(b)(3)(A). This rule will not have any effect on the rights, obligations, or interests of any affected parties, as it is merely procedural and reflects a statutory requirement that is already in effect. The rule restricts and safeguards the inclusion of SSNs in documents that are mailed to prevent unauthorized disclosure of SSNs and protect individual privacy. Accordingly, OPM for good cause finds that the notice and comment requirements are unnecessary. See 5 U.S.C. 553(b)(3)(B).

This rule is also suitable for direct final rulemaking because it is non-controversial and consistent with Federal law and policy regarding the appropriate handling and protection of SSNs. The provisions of the rule will be beneficial to members of the public and Federal employees because it protects their personally identifiable information. Because this non-substantive rule makes no changes to the legal obligations or rights of any affected parties ( i.e., reflects a statutory requirement that is already in effect) and because it is in the public interest to have this rule be effective as soon as possible, OPM does not expect to receive any significant adverse comments.

This rule will be effective June 26, 2024, without further action unless significant adverse comments are received. A significant adverse comment is one that explains: (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. If such comments are received, this direct final rule will be withdrawn and a proposed rule for comments will be published. If no such comments are received, this direct final rule will become effective 15 days after the comment period expires. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, OPM will consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in a standard notice and comment process. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

SSNs are used as unique identifiers by government agencies, businesses, and other entities. The theft and fraudulent use of SSNs can result in significant repercussions for the SSN holder, as well as the entities from which SSNs were stolen. This direct final rule formalizes in regulation OPM's current practice of safeguarding SSNs in mailed documents and will support efforts to protect individual privacy. In accordance with the E-Government Act (2002), OPM currently applies encryption technology and other security controls, such as password protection, to minimize the risk of unauthorized disclosure of SSNs. OPM program offices are also required to conduct proper assessments to minimize the use of SSNs and the impact to individual privacy as a result of their inclusion in any document. This rule supplements these procedures and is beneficial because it protects individual privacy and standardizes OPM's procedures for mailing documents with SSNs. There are no alternatives to this rule because it is required by statute.

Executive Orders 13563, 12866, and 14094 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). The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.

The Director of OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities because it is a procedural rule that only applies only to OPM.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, OPM has determined that this direct rule does not have federalism implications that require preparation of a federalism summary impact statement.

OPM has determined that this rule meets the relevant standards of Executive Order 12988.

This rule will not result in the expenditure by State, local, or tribal governments, or the private sector of more than $100 million annually. Thus, no written assessment of unfunded mandates is required.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 801, et seq. ) requires rules to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this rule before its effective date, as required by 5 U.S.C. 801. The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this rule is not a major rule as defined by the CRA (5 U.S.C. 804).

This regulatory action will not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act (44 U.S.C. Chapter 35).

For reasons stated in the preamble, OPM amends 5 CFR part 297 as follows:

Background Information

The authority for the Pathways Programs in their current form was set forth on December 27, 2010, with the issuance of E.O. 13562 (75 FR 82585) pursuant to 5 U.S.C. 3301 and 3302. The Pathways Programs became effective on July 10, 2012, following OPM's issuance of a final rule (77 FR 28194) implementing E.O. 13562. The Programs are designed to provide students and recent graduates with the opportunity for Federal internships and potential careers in the Federal Government through three components:

• The Internship Program exposes current high school students, undergraduate students, including those enrolled in community and technical colleges, and graduate students to the work of Government by providing paid opportunities to work in agencies and explore Federal careers while still in school.

• The Recent Graduates Program (Recent Graduates) provides opportunities for individuals who have received qualifying degrees or certificates within the previous two years (up to six years for qualifying veterans) to obtain entry-level developmental experience designed to lead to a career in the Federal Government after successfully completing the Program, which is generally one year in length and in certain cases may be two years in length.

• The Presidential Management Fellows (PMF) Program promotes careers in the Federal Government by offering leadership development opportunities to individuals who have received advanced degrees within the preceding two years.

On August 16, 2023, OPM published a proposed rule with request for comments in the Federal Register at 88 FR 55586 proposing to modify the existing regulations for the Pathways Programs for students and recent graduates. Based on agency feedback and OPM's own analysis, OPM proposed several changes aimed at enhancing the robust usage of the Pathways Programs as a key source of early career talent in the Federal Government to supplement, but not substitute for, the competitive hiring process. Overall, the purpose of the changes is to streamline the Pathways regulations, making it easier for agencies to recruit and hire participants in the Pathways Programs and to optimize the Pathways Programs as a tool to recruit and retain diverse and highly qualified early career talent. These changes include:

• Outlining the specific responsibilities of the PMF Coordinator;

• Expanding the time period for converting Pathways Interns from 120 to 180 days;

• Modifying the public notice requirement for job opportunity announcements for Pathways Interns and Recent Graduates;

• Clarifying and streamlining the training and development requirements;

• Allowing Recent Graduates and PMFs to be converted to term or permanent positions in any agency, when appropriate;

• Reducing the frequency of required reporting;

• Allowing the use of part-time work schedules for PMFs in certain situations;

• Clarifying information about the use of developmental assignments for PMFs; and

• Expanding eligibility for the Recent Graduates Program to include those who have completed certain career or technical education programs.

During the 45-day comment period between August 16, 2023, and October 2, 2023, OPM received 79 sets of comments from nine Federal agencies, 38 members of the public, and nine professional organizations. At the end of the public comment period, OPM reviewed and analyzed the comments. The comments are summarized in the next section, together with a discussion of the suggestions for revision that were considered and either adopted, or declined, and the rationale therefor. OPM did not address the following suggestions from commenters that are outside the scope of this rulemaking:

• Two comments suggested that OPM should address ways agencies can convert participants in third-party Internships that are not Pathways appointments to permanent positions.

• One comment suggested that OPM pursue legislative changes to the Competitive Service Act to allow for the use of shared certificates for Pathways appointments.

• Several comments addressed issues related to how a specific agency has chosen to use the Pathways Programs or implement various provisions of the programs.

• Comments related to the sharing of recruitment data among agencies that use the Pathways Programs.

• One comment suggested modification to the selection process for the PMF Program.

• Several comments suggested recommendations for workforce planning, recruitment, and marketing activities.

• One comment suggested that OPM remove its ability to place restrictions or caps on the number of Pathways appointments made.

• One comment suggested OPM change the 80 hour per year training requirement for PMFs.

• One comment suggested that Interns should be able to do remote work.

• One comment suggested that OPM allow agencies to share certificates for Pathways hiring actions.

• Several commenters shared information about their personal experiences in the program. The comments ranged from supportive to unsupportive.

In the first section below, OPM addresses general or overarching comments. The sections that follow address comments in response to OPM's requests for comments and data related to specific portions of the proposed rule.

OPM received several comments that expressed general support for the proposed regulatory changes. For example, one agency expressed that the proposed updates would help facilitate a better applicant experience, streamline agencies' ability to hire participants in the Pathways Programs, and improve developmental opportunities for Pathways Program Participants. A professional organization indicated that Pathways Programs are essential on-ramps to recruit and hire talented early-career and career-pivoting professionals of all ages into the Federal Government and applauded the proposed expansion of eligibility requirements and facilitation for participants to transition to permanent Federal employment.

One commenter questioned how the proposed changes might provide or support transparency as an objective of the regulations. Our intent with these regulations is to provide more transparency in those areas where agencies, applicants, and Pathways Participants have shared with us that the existing regulations do not provide adequate information to maximize the effectiveness of the programs. For example, applicants and agencies have asked for more options in sharing information about Pathways opportunities. OPM is modifying the regulations to provide more information to applicants about job opportunities, to Pathways Participants and agencies about conversion opportunities, and to collect information that will allow OPM to monitor the effectiveness of the programs.

One commenter indicated that they felt the proposed rule provided neither encouragement nor affirmative language related to leveraging the Pathways Programs for diverse individuals and those with disabilities as required by Executive Order 14035 of June 25, 2021, “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.” OPM disagrees with the assessment that affirmative language is required to help leverage Pathways Programs for diverse individuals. The changes in the proposed rule (and finalized here) that expand eligibility criteria to include career and technical education will allow agencies to recruit from a broader spectrum of applicants. This change should support agencies as they work to reach applicants with diverse backgrounds.

One commenter indicated that the application of veterans' preference may impact the diversity of Pathways appointments and lead to Pathways appointments that reflect the diversity of the veteran community and not that of the American public. This commenter suggested OPM should monitor the impact of veterans' preference on diversity. Although OPM may continue to monitor the impact of veterans' preference, E.O. 13562 requires agencies to apply veterans' preference when making appointments to fill Pathways positions.

One commenter expressed support for the use of paid internship opportunities. OPM agrees that the use of paid early career opportunities is mutually beneficial to students, recent graduates, and Federal agencies. These paid opportunities offer students and recent graduates a chance to demonstrate their talents and potential while offering agencies time to evaluate their skills, abilities, and contributions. All appointments under the Pathways Programs are paid opportunities. Pathways Participants are appointed to Federal positions and earn a salary commensurate with the grade level of the position. Additionally, Pathways Participants may also be eligible for benefits such as health insurance, life insurance, and retirement coverage depending on their work schedule and length of appointment.

One commenter indicated that OPM should require agencies to implement the use of exit interviews, surveys, and/or other similar processes to ensure that agencies capture information about participant program experiences and use it to improve Pathways Programs in the future. OPM recognizes that exit interviews and surveys are valuable tools to measure employee engagement and the effectiveness of programs such as the Pathways Programs. OPM has determined that information on the use of such tools is more appropriate in guidance to agencies than in this final rule. OPM will consider whether to provide guidance and tools to help agencies measure employee engagement and program effectiveness.

A commenter provided suggestions related to supporting agencies' ability to provide high quality experiences for participants. These suggestions included change management support such as communications, office hours, and training and establishing a Pathways Board to continuously assess and approve improvement recommendations, identify talent innovations, and encourage the hiring of early career talent. OPM intends to provide agencies with support as they implement the changes to the regulations through written guidance and a variety of outreach activities such as webinars, information sessions, office hours, and question and answer sessions. OPM receives feedback and provides support to agencies on the use of the Pathways Programs through the Chief Human Capital Officers Council and its working groups and communities of practice. For this reason, it would be duplicative to establish a Pathways Board.

One commenter suggested that OPM clarify that Interns may be converted to permanent excepted service positions. OPM is not adopting this suggestion. As provided in E.O. 13562, the Pathways Internship authority is used as an exception to fill positions that would normally be filled through a competitive process. Accordingly, non-competitive conversion means assignment to a position in the competitive service. The Pathways Programs E.O. and implementing regulations do not provide for conversion to an excepted service position for an Intern.

The existing regulations at 5 CFR 362.107 for conversion of Recent Graduates and PMFs to positions in the competitive service limits conversion to positions in the employing agency. OPM proposed to modify these provisions to allow conversion at other agencies.

We received many comments on the provisions to allow Recent Graduates and PMFs to convert to positions at other agencies. Most comments were supportive of this change. Some commenters also questioned how agencies would share opportunities and how Recent Graduates and PMFs who are unable to be converted at their employing agency would find information about potential opportunities. Two commenters also recommended that OPM facilitate this process. OPM is currently developing tools to assist participants and agencies in this process. We will provide additional guidance on this process as we develop and launch these tools.

The existing regulations for conversion of Recent Graduates and PMFs to positions in the competitive service limits conversion to positions in the employing agency. As discussed in the preceding section, OPM proposed to allow conversion at other agencies; however, OPM proposed that this new flexibility be limited to situations when the employing agency is unable to convert the Recent Graduate or PMF in 5 CFR 362.305 and 362.409. OPM received comments about how the conversion to another agency should occur. Comments were evenly split between those who supported conversion to a position at another agency under limited conditions and those who supported conversion at another agency for any reason. In this final rule, OPM maintains the conditions to allow conversion at another agency when the agency is unable to convert the Recent Graduate or PMF to a position in the competitive service in the employing agency due to unforeseen circumstances or other appropriate reasons.

Some Federal agencies and individuals indicated that conversion should be limited to certain situations because the agency has invested considerable resources into the recruitment, training/development, and mentorship of the employee. Other commenters suggested that limiting the conditions for when conversion at other agencies could occur was not recommended because it reduced flexibility and choice for Pathways Participants. One commenter also suggested that these limits on conversion would create a burden on agencies. One commenter suggested that limiting conversion at other agencies may lead to dissatisfaction and possibly contribute to PMFs or Recent Graduates leaving Federal service.

Many commenters suggested that Recent Graduates and PMFs should be able to choose where they are converted. Some of these commenters expressed that not allowing this type of choice for Recent Graduates and PMFs could lead to resignations for those who have a bad experience or are in roles that do not align with their career goals. OPM reminds readers that there are opportunities for Recent Graduates and PMFs to move into different positions within the Federal Government before and after their conversion deadline if they are not satisfied with their Pathways experience. For example, Recent Graduates and PMFs can request a transfer to a different agency partway through their program. Once an individual is converted to a permanent position in the competitive service, the individual can seek to transfer to another agency (the same as anyone else hired into a permanent competitive service job). In this way, Recent Graduates and PMFs are not disadvantaged compared to other applicants for Federal jobs.

A commenter recommended standardizing a conversion time period across agencies. They suggested that after a set period, the Recent Graduate should be able to reach out to other agencies to facilitate Federal employment and avoid attrition if the opportunity is not available at their agency. Another commenter suggested that an agency should be required to provide a Recent Graduate or PMF with a written notice of intent to convert or not convert 90 days before their program ends. Further the commenter indicated that only a Recent Graduate or PMF who receives a notice that the agency will not convert may then be converted to a different agency. OPM does not agree that an agency should be required to provide written notice 90 days before the program ends. But OPM does agree that the notice should be given at least 60 calendar days prior to the end of an appointment and that the notice may be either written or unwritten. While OPM encourages agencies to have conversations with Recent Graduates and PMFs about whether the agency intends to convert the employee as early as possible, OPM recognizes that unforeseen circumstances (such as a budgetary shortfall or uncertainty) may prevent an agency from doing so.

The intent of these Programs is to help agencies meet their early career hiring needs by allowing the hiring agency to convert an eligible Pathways Participant who successfully completes program requirements assuming the agency is able to do so. Therefore, at a minimum as a part of the agency's workforce planning, OPM encourages managers to make determinations about whether the resources are available to convert Recent Graduates and PMFs at regular intervals prior to the end of a Recent Graduate's or PMF's program period. OPM also encourages agencies to inform Recent Graduates and PMFs as soon as possible after the agency makes determinations about the agency's ability to convert the Recent Graduates or PMFs. Such a determination must be communicated to the Recent Graduate or PMF no later than 60 calendar days prior to the end of their appointment. OPM recognizes that to ensure that such conversations and determinations are made in a timely manner this issue should be addressed in an agency's Pathways Policy. For this reason, OPM is modifying § 362.104(a) in this final rule to require agencies to include provisions in their Pathways Policies that address procedures and criteria for determining if an agency will be able to convert Recent Graduates and PMFs and communicating those determinations to the employee. A conversion to a position in the competitive service must occur within the Recent Graduate's one- or two-year program period plus any approved extension or within the PMF's two-year program period plus any approved extension.

The purpose of the Pathways Programs is to allow agencies to recruit student and recent graduates to support agency workforces needs while also offering them a pathway to a Federal career. OPM expects that agencies will continue to hire Recent Graduates and PMFs with the intention of converting them in the agency to which they were appointed and that the need to convert at another agency will be rare. This means the ability to convert at other agencies must balance the agency's need to meet its workforce goals using available resources against the participants' desires to build a meaningful career. OPM believes that allowing conversion at another agency under certain situations related to unforeseen circumstances provides the needed balance and maintains the intent that the programs are to be used to support agency workforce planning goals. It also preserves the investment the Government has made in the individual Recent Graduate or PMF.

One commenter suggested that those eligible for conversion should be able to apply to merit promotion announcements. OPM is not adopting this suggestion. Agencies use merit promotion announcements to promote or reassign career or career-conditional employees as allowed by 5 CFR part 335 and agencies' policies for internal movements of employees. Recent Graduates and PMFs serve in excepted service positions and generally lack prior service in competitive service positions or career or career-conditional status to meet the eligibility criteria to apply to merit promotion announcements for competitive service positions. Recent Graduates and PMFs who have obtained career or career-conditional status from prior Federal appointments may apply to merit promotion announcements for competitive service positions. Similarly, once converted to competitive service positions, Recent Graduates and PMFs obtain career or career-conditional status through the Pathways Program and may apply to merit promotion announcements.

In the existing regulations in § 362.204, an agency may convert an Intern to a position in the competitive service when the Intern has met the OPM qualification standard for the position to which the Intern will be converted, completes a course of academic study from a qualifying educational institution, completes a minimum of 640 hours of work experience while in the Internship Program, and receives a favorable recommendation by an official of the agency. OPM requested comments on how OPM could modify the Pathways Intern conversion process to maximize the Federal enterprise's ability to recruit and retain qualified interns following the conclusion of their internship.

One commenter suggested that OPM look to industry best practices when considering feasible reasons for conversion, but the commenter did not provide any examples. Another commenter suggested that, instead of a work hours requirement, OPM should ensure agencies are providing clear performance objectives and feedback throughout an Intern's tenure in the position to allow agencies to make conversion decisions based on performance and skills, rather than an hour requirement. While OPM is not adopting this specific suggestion, we note that the intent of the Internship Program is for the Intern to develop necessary skills while allowing the employing agency to train and then assess the performance of the Intern to fill agency workforce needs. The Internship Program achieves this through eligibility conditions required for conversion. One of the existing requirements for conversion is that the Intern receive a favorable recommendation for appointment by an official of the agency or agencies in which the Intern served. Additionally, Interns are subject to the agency's policies for performance and conduct. The recommendation from the Intern's supervisor in conjunction with the agencies' use or application of effective performance management practices ensures that performance is considered when an agency determines that the Intern meets the requirements for conversion. The requirement for a minimum number of hours provides the Intern with sufficient time to learn about the agency and Federal employment and to develop the necessary skills while also allowing the agency time to evaluate the Intern's work performance before offering permanent employment. OPM encourages agencies to recruit Interns as early as possible in the Intern's academic career to maximize the full benefit of the program.

A professional organization recommended a number of best practices for retaining Interns and converting them to full time, including hosting networking events with fellow Interns and agency leaders to help Interns and leaders build networks and contacts, offering programs and experiences that allow Interns to learn about Federal employment and its benefits, and aligning internship opportunities to in-demand skills or emerging professions. Another professional organization suggested several areas of focus for all Federal internships such as improved onboarding efforts, standardization of program quality criteria, and increased strategic planning for recruitment and hiring of entry level talent. OPM agrees and encourages agencies to consider these types of strategies to improve the Intern experience. OPM plans to use some of these activities in its Intern Experience Program to assist agencies in their efforts to create meaningful experiences for all Interns.

The existing regulations at 5 CFR 362.204(d) include a waiver provision and a credit provision for up to half of the 640-hour service requirement prescribed in 5 CFR 362.204(b). The waiver provision allows an agency to waive up to half (320 hours) of the 640-hour service requirement for any Intern who performs work directly related to the Intern's academic field of study or career goals, and who demonstrates outstanding academic achievement and exceptional job performance. The existing credit provision allows an agency to credit up to half of the 640 work hours for time served in a comparable non-Federal internship at a Federal agency. OPM requested comments on ways to modify these provisions to provide additional and appropriate flexibility for agencies and Interns.

One commenter expressed support for allowing agencies to credit or waive up to half of the hours from a Registered Apprenticeship Program or time served in the U.S. Department of Labor's Job Corps that was completed prior to the Internship appointment.

The proposed rule included an example of an agency waiving half of the 640-hour requirement for an Intern who spent time at Job Corps two years before the Internship appointment. One commenter interpreted this example to mean the agency could only credit the time from Job Corps service if it occurred within the preceding two years. This is incorrect; an agency may waive time served with Job Corps that has occurred at any time prior to the Internship appointment. The agency is not limited to considering the two-year period prior to the Internship appointment.

OPM received several comments related to alternative criteria for waiver or crediting provisions. One commenter suggested that credit or a waiver could be given for internships that received class credit, as shown on transcripts, or work experiences that were required for the relevant industry-recognized certification/state license. Another commenter suggested crediting up to 320 hours for both Federal and non-Federal experience toward an intern's 640-hour service requirement to attract and convert qualified talent with in-demand skills. That same commenter suggested that OPM should consider accepting internship and apprenticeship experience from non-Federal organizations (such as private organizations or workforce centers) and career/technical education for programs that are focused on skills/careers in a current or emerging profession ( e.g., cyber, artificial intelligence (AI), technology) to help fulfill demand, depending on type, level, and time of experience. An agency suggested that agencies should be able to waive up to half of the hours when certain agency-determined experience options are met. The agency did not provide example of the options. That same agency also suggested that guidance would be needed on the types of documentation that could be used to verify the outside experience. OPM is not adopting these suggestions. While the proposed alternatives presented in the comments may be viable and may hold promise, OPM believes more research is needed before making such changes to ensure program administration viability and employment equity.

Some commenters also suggested the regulations allow agencies to credit time spent in non-Federal internships toward all or part of the work hour requirement. One commenter expressed that agencies should be able to credit all non-Federal internship or volunteer experience towards the 640 hours requirement, or alternatively, to use evidence of successful participation in such programs to justify immediate step increases upon conversion. OPM is not adopting this suggestion. The minimum number of hours required for conversion gives the employing agency sufficient time to evaluate the intern before converting the individual into the agency's permanent workforce. Crediting non-Federal experience or volunteer service for all or more than half of the work-hour requirement would neither provide the agency sufficient time to evaluate the intern for purposes of permanent employment nor would it give an Intern sufficient time to learn about the agency and Federal employment in general. OPM is concerned that non-Federal internships may lack the structure, consistency, and developmental opportunities offered by Federal internships. This proposal could also be abused, allowing agencies to hire Interns for brief periods of time before conversion to a permanent position. Experience gained through a non-Federal internship or volunteer activity, however, could be creditable for purposes of qualifying for an initial Pathways appointment.

One commenter also expressed that Interns should be able to use evidence of successful participation in non-Federal internship or volunteer experience programs to justify step increases upon conversion. OPM is not adopting this suggestion. A step increase or within grade increase is earned when the employee's performance is at an acceptable level of competence, the required waiting period for advancement to the next higher step has been completed, and the employee has not received an “equivalent increase” in pay during the waiting period. If the Intern has met the waiting period and other requirements for a step increase at the time of conversion, then an agency may process a step increase at the time of conversion. If the Intern has not met the requirements for a step increase, then the agency does not have the ability to give the Intern a step increase unless it is awarding a Quality Step Increase (QSI). A QSI is a faster than normal within-grade increase used to reward employees a who display high quality performance and may be awarded to an employee in accordance with an agency's awards policy. This comment may also be referring to the mistaken idea that, if an agency is considering a promotion at the time of conversion, then the agency is not able to consider non-Federal internship or volunteer experience programs when determining whether the Intern is qualified for a higher grade level. When determining whether an Intern (or any other employee) is qualified for a promotion, an agency should review all available information about the Intern's qualifications and competencies, including non-Federal and volunteer experience.

One commenter suggested that it may be in the Government's best interest to have the entire work-hour requirement met through the Pathways appointment. OPM disagrees. A longstanding feature of Federal student programs such as the prior Student Career Experience Program and the current Pathways Program has been to allow Interns to credit work that was done in, but not for, a Federal agency. OPM believes such provisions are appropriate because these opportunities allow Interns to explore the culture of the agency and the agency has had a chance to observe the Intern's work even though they were not a Federal employee.

One commenter suggested that any waiver provisions should be applied consistently across agencies, which would benefit situations when Interns convert at other agencies. OPM agrees that the use of the waiver provision should be applied consistently across agencies. However, OPM recognizes that waivers may not be needed by all participants and the number of waivers approved by agencies may vary. OPM encourages the approval of a waiver for situations where waiver may be needed and the criteria for a waiver and the additional criteria for conversion have been met. That same commenter also questioned how the waived or credited hours affect creditable service for leave accrual or retirement and time-in-grade. The waiver or crediting of hours is only creditable for the purpose of meeting the work-hour requirement. Hours waived or credited do not impact creditable service for purposes of leave accrual, service credit towards retirement, or time-in-grade requirements.

A commenter stated that the work hour requirement should not be waived; however, if it is waived, OPM needs to provide a standardized form for use of all employing agencies that would require specific documentation. Several commenters suggested that OPM specify what documentation is required for an agency to waive a portion of the required work hours. When approving a waiver, an agency needs documentation to support its determination. For example, to document academic achievement, the agency may accept a transcript or other written confirmation of class standing from the educational institution or written confirmation of induction into a nationally recognized scholastic honor society. For exceptional job performance an agency could use a copy of the Intern's performance appraisal or other documentation of the rating of record. OPM may provide additional information about examples of documentation for these provisions in guidance. Given that agencies have been using the waiver provisions for many years without incident, OPM does not believe implementing a standardized form is necessary.

One commenter suggested that, if an Intern met the work-hour requirement with or without a waiver, that the agency should be able to convert the intern to a term or permanent position before they completed their educational program. OPM disagrees and is not adopting this suggestion. Completion of the Intern's educational program is an integral part of the Pathways Programs, and its predecessor programs, and helps ensure the Intern meets his or her academic goals and aspirations. OPM noted in the original Pathways proposed rule (76 FR 47495, August 5, 2011) that “. . . it is difficult for many recent graduates or expected graduates to compete for government jobs through the competitive hiring system [because they] do not have the experience necessary to compete . . . .” The proposed rule further stated, “Internship programs are essential to addressing these issues.” The E.O. also states that many students are unable to successfully compete for a Federal job solely on the basis of possessing an academic degree because the Federal hiring process is structured to favor those with significant work experience. Completion of the educational program is a fundamental or foundational basis for this excepted service program and helps to ensure interns qualify for these positions and placement in the competitive service.

One commenter suggested that agencies should be able to determine if up to half of the required work hours may be waived and for what types of work; agency policies should establish the process and criteria for making these determinations. OPM agrees that agencies should have the discretion to determine if a waiver or crediting of other experience is allowable. Agencies may put in place procedures that outline how the discretion to approve waivers may be made consistent with the criteria OPM has established in regulation.

OPM's existing regulations apply a two-prong test to determine eligibility for a waiver. An intern must demonstrate “high potential” through both “outstanding academic achievement” and “exceptional job performance.” 5 CFR 362.204(d) (emphasis added). Further, outstanding academic achievement is defined in terms of grades, class standing, and honors societies. Id. With the proposed rule, OPM intended to expand the qualifying educational programs beyond traditional academic institutions to include career and technical education programs. As described in the proposed rule, OPM did not intend for Interns attending a qualifying technical education program to have their ability to participate curtailed in any way. However, our review of the comments related to the waivers and the existing waiver provision showed that the existing requirement for outstanding academic achievement (necessary for approval of a waiver) could not be applied to career and technical education programs where grades or other academic standards such as grade point average and class rankings may not be used. For example, participants in a Registered Apprenticeship Program may be required to take classroom or online training classes where completion is graded as pass/fail and letter or numerical grades (or grade points) are not assigned. In such instances an Intern in a Registered Apprenticeship Program that did not also have class ranking or an associated honor society induction would have no way to qualify for a waiver. For this reason, OPM has modified the waiver provision to introduce a new option of the submission of a recommendation letter from an instructor or program administrator as a way for the Intern to demonstrate high potential in their academic or career and technical education program. This new option ensures that interns in career and technical education programs where traditional indicia of high performance are not available will be eligible for waivers consistent with the intent of the proposed rule. Specifically, OPM reorganized the two-prongs to remove references to academic programs but retained the concept that an intern must demonstrate high potential in both the Federal internship and in the educational component of the qualifying program. The Intern participating in a career or technical education program must demonstrate exceptional job performance just as an Intern enrolled in a qualifying educational institution, so OPM determined that no change to that provision is needed apart from the reorganization of the paragraph.

Under the current regulation in § 362.204, one of the requirements that an Intern must meet for conversion is the completion of 640 hours of employment under a Pathways Internship appointment. OPM requested comments on whether OPM should consider making a change to the 640-hour service requirement that must be met for conversion of an Intern and indicated that it would consider adopting a different hourly requirement in the final rule. Additionally, OPM requested information regarding best practices and asked that any suggestions for an alternative work-hour requirement describe the advantages and disadvantages of the suggested length of the internship.

Some commenters suggested that the 640-hour requirement should be reduced. Two agency commenters suggested the requirement should be reduced to 480 hours to allow more flexibility in hiring and converting Interns who are hired closer to their graduation date. One commenter suggested that OPM's 640-hour requirement is rigid, unrealistic, arbitrary, and burdensome and is longer than what is used in many industries. This same commenter suggested that more emphasis should be put on meaningful experience focused on skills, performance objectives and accomplishments. The commenter explained that compliance with an hour-based requirement is not the best way to obtain early career talent with demonstrated skills. Another commenter suggested that the work hour requirement should be reduced to 420 hours to better align with a typical summer internship period for students. Some commenters argued that OPM should consider private sector practices and indicated that private sector internships were generally shorter than the existing prescribed minimum of 640 work hours. Other commenters expressed support for the 640-hour requirement and indicated that it should not be changed or waived.

OPM agrees that an intern's performance on-the-job is the most important factor as to whether an intern should be converted into a permanent position, but OPM believes that some minimum amount of time in an agency is necessary for the agency to evaluate that performance. As suggested by two agencies, OPM agrees that a 480-hour internship can provide agencies with the information they need to determine if a high-performing intern can be converted. OPM notes, however, that the shorter time frame-from 640 to 480-in no way suggests that an intern should have an expectation of conversion. By contrast, agencies should only convert interns when their performance indicates that they are well prepared to add value to the Federal Government as permanent employees. Accordingly, OPM is revising the minimum work hours to 480.

OPM further notes that another agency expressed the view that 640 hours was a reasonable timeframe to assess an intern's performance. Agencies can set the minimum for their programs higher than 480, including setting higher minimums for different types of positions. OPM also notes that § 362.105(i) requires an agency to place each Intern on a performance plan, establishing performance elements and standards that are directly related to acquiring and demonstrating the expected competencies, as well as the elements and standards established for the duties assigned. Interns are not eligible for conversion unless they have performed satisfactorily during their internships.

The existing regulations at 5 CFR 362.203(a) and 362.303(a) require that an agency must post opportunities for positions in the Internship and Recent Graduates Programs on USAJOBS.gov. OPM proposed to modify the provisions for meeting public notice options for filling positions under the Internship Program and Recent Graduates Program. In addition to allowing agencies to post searchable job opportunities at USAJOBS, OPM also proposed to allow agencies to post job information with a link to a USAJOBS custom posting on their agency websites, with OPM providing a centralized place where applicants can be directed to those postings on the agency websites. OPM requested comments on these changes and whether the changes will enable agencies to recruit and retain early career talent more effectively than the current process.

One commenter indicated that they did not think the updated public notification requirement would help agencies or potential candidates but was not opposed to offering multiple options for advertising the opportunities. Another commenter indicated the changes would not yield much additional benefit. Another commenter felt the additional options just added more steps and could possibly extend the length of the hiring process. Public notification for Pathways positions is required by E.O. 13562 to ensure that agencies uphold the merit system principle of fair and open competition for the Program's opportunities. OPM's intention is to provide agencies with multiple options to communicate about available opportunities, while still making sure that such options are available and open to all. The options provided will allow agencies to choose which options best match their recruitment and outreach approaches and meet the core Federal employment principle of fair and open competition.

One commenter questioned how allowing agencies to link to a USAJOBS custom posting on the agency's public career or job information web page would be advantageous when many agencies already have links to USAJOBS announcements on their websites. OPM recognizes that some agencies may already provide links to USAJOBS announcements on their websites, but many do not. Using a USAJOBS custom posting in concert with an announcement on the agency's website allows an agency to provide fair and open competition while focusing its recruitment efforts. Specifically, adding this alternative to the regulations ensures that agencies have the use of all available tools to spread information about Pathways opportunities.

A commenter suggested that agencies should be required to have internship announcements stay open for at least 3-4 weeks. OPM disagrees with this suggestion. Agencies need the flexibility to open and close announcements in a manner that allows for a sufficient pool of applicants to apply. In certain situations, such as when an agency is attending a job fair or conducting other strategic recruiting activities, the agency may identify a sufficient pool of applicants using a shorter application period. The public notification period used by an agency will depend on several factors which include: the type of job and grade level of the position being filled, the availability of candidates in the location where the job will be performed, and the breadth of outreach and recruitment conducted by the agency.

Two commenters expressed that custom postings would be helpful in recruiting early career and diverse talent. OPM agrees with this assessment. Another commenter, while supportive of the proposed changes, made several recommendations pertaining to outreach. The commenter stated:

OPM agrees and is working with our agency partners to develop tools and resources for applicants to learn about Pathways opportunities. For instance, in 2022, OPM introduced the Federal Internship Portal  2 as part of a strategy to improve marketing and outreach to potential applicants for early career positions.

A professional organization recommended that agencies create separate announcements for Pathways Programs between a public announcement and Federal/status announcement to ensure qualified veteran and non-veteran candidates are selected in a timely manner and reduce applicant dropout rates for non-veterans. OPM is not adopting this recommendation. Announcements for Pathways Programs are open to all who meet the eligibility criteria regardless of whether the applicant is a current Federal employee, or an individual entitled to veterans' preference. Veterans' preference also applies to positions filled in the excepted service. Having separate announcements for current Federal employees would not remove the requirement to apply veterans' preference and is not likely to impact whether students or recent graduates complete the hiring process.

This final rule adopts the proposed changes to public notification in §§ 362.203(a) and 362.303(a) without change.

Under the existing regulations, the Agency Presidential Management Fellows Coordinator (PMF) Coordinator is broadly defined as “an individual, at the appropriate agency component level, who coordinates the placement, development, and other Program-related activities of PMFs appointed in his or her agency.” 5 CFR 362.401. The existing regulations also indicate that the PMF Coordinator is responsible for administering the PMF Program and serving as a liaison with OPM. OPM proposed to clarify the role of the PMF Coordinator by outlining the specific responsibilities of the role. Additionally, OPM proposed to require that the employee filling the role of the coordinator must be in a position at the agency's headquarters level of a departmental component, or sub-agency level, in a position at or higher than grade 12 of the General Schedule (GS) (or the equivalent under the Federal Wage System (FWS) or another pay and classification system).

Many commenters were supportive of the proposal to define and clarify the role of the PMF Coordinator. One commenter indicated that outlining minimum grade level requirements as well as the necessarily collaborative nature of the assignment are appropriate steps. OPM appreciates these comments.

One commenter suggested that OPM specify that the changes to the PMF Coordinator role should include facilitating the assignment of a mentor for each agency PMF. While OPM agrees that a PMF Coordinator has a role in facilitating a PMF's search for a mentor, the role could also be filled by others in the agency such as the PMF's supervisor or an agency training manager. For this reason, OPM is not adopting this suggestion.

One commenter suggested that OPM should clarify how PMF Coordinator positions interact with agency roles for managing other early career talent programs. This commenter also stated it is unclear whether the PMF Coordinator role is intended to be separate from similar positions used to manage other early career talent programs. OPM recognizes that many factors such as the agency's size and their utilization of the PMF program and other early career talent programs may impact whether the PMF coordinator role is separate from other roles. OPM believes that agencies need the flexibility to determine whether the PMF coordinator role can be combined with agency roles that manage other early career talent programs. OPM believes the discussion of this issue is best addressed in guidance to agencies and declines to incorporate this suggestion into the regulatory text in this final rule.

One commenter suggested that OPM should require annual training and development for PMF Coordinators to ensure that PMFs are getting the same quality of program coordination regardless of which agency employs them. Another commenter suggested that OPM implement user-centered design to collect feedback from current PMF Coordinators and program applicants to better understand challenges and to develop the tools and resources needed to strengthen the PMF experience. A commenter also suggested that OPM standardize the required training for the role and establish quarterly meetings with all PMF Coordinators to provide support and ensure consistency of the program across agencies. OPM's PMF Program Office currently provides Agency PMF Coordinators with resources and technical assistance to encourage agency use of the PMF Program and to provide necessary technical guidance. Resources include an Agency Brochure, Participant Handbook, Onboarding Toolkit, Checklists, Timelines, FAQs, Sample Position Descriptions, PMF Forms, and Templates. 3 The PMF Program Office also conducts monthly meetings with all Coordinators, facilitates an Agency PMF Advisory Board, and sponsors a mentoring program for new PMF Coordinators. The PMF Program Office uses feedback from all stakeholders to create and update these offerings to assist Agency PMF Coordinators in implementing the PMF Program.

A commenter suggested that PMF Coordinators should play a more hands- on role in onboarding new PMFs to agencies and focus on the employee experience. OPM agrees that an agency may find it beneficial for PMF Coordinators to have an active role in a PMF's agency orientation. Agencies should have the discretion to determine how that is handled. OPM also provides PMF Coordinators with resources to help them create successful onboarding activities. OPM is not making changes to the regulatory text based on this suggestion. Instead, it will continue to provide guidance and resources to PMF Coordinators on effective onboarding.

One commenter indicated the provisions for the PMF Coordinator limit the placement of coordinators to the headquarters level of the employing agency. This commenter added that agencies should have the flexibility to place coordinators at other levels as appropriate. OPM believes it is important for at least one PMF Coordinator to be at the headquarters level of a department or agency to ensure there is agency-wide coordination for the implementation of the PMF program in the agency. This requirement to have a PMF Coordinator at the headquarters level does not prohibit an agency or department from having additional roles at other levels of the organization. OPM has clarified the language at § 362.104(a)(8) to state this more clearly.

The existing regulations at 5 CFR 362.202 and 362.302 limited eligibility for the Internship and Recent Graduate Programs to those in qualifying educational programs. OPM proposed to revise the eligibility criteria for the Internship and Recent Graduate Programs to include career and technical education programs, consistent with E.O. 13562. OPM also requested comments on whether to include non-Federal programs in the definition of career and technical education programs.

OPM also asked for information on types of criteria and documentation that could be used to justify why those who complete such programs should be eligible for the Recent Graduates Program. OPM did not receive any comments that provided substantive and measurable ways to evaluate non-Federal programs for inclusion in the eligibility criteria for the Recent Graduates Program. While OPM agrees that it could be valuable to include non-Federal programs, we also recognize that more research is needed to identify the best way to evaluate the programs to determine if the programs should be considered eligible. For this reason, OPM is not including non-federally administered programs in the definition of career and technical educational programs.

Many commenters supported the inclusion of Registered Apprenticeship Programs in the definition of career and technical educations programs and as meeting the eligibility criteria for the Recent Graduate Program. A professional organization commented that the provision should be expanded to include apprenticeship programs that are not Registered Apprenticeship Programs or non-government apprenticeships. Registered Apprenticeship Programs are industry-vetted, approved, and validated by the U.S. Department of Labor or a State Apprenticeship Agency and may be sponsored by a Federal agency, a State, local, or Tribal government organization, or private sector organization. These programs must meet specific standards that address the mentorship, pay, education, and on-the job training of apprentices. Non-registered apprenticeships may not meet these standards and agencies may not have a way to validate that a program meets industry-recognized standards. In addition, credentialing and certification may vary widely among non-registered apprenticeships, making it difficult for agencies to determine whether the standards these certifications represent are of a similar nature and rigor as those obtained via Registered Apprenticeship Programs. Some non-registered programs may not operate through a structured program designed to ensure participants receive an organized and systematic form of instruction designed to provide the participant with legitimate job skills. OPM believes Registered Apprenticeship Programs provide a measure of standardization that ensure the participant is receiving meaningful training, guidance, and work experiences needed to prepare the individual for employment in a specific job, trade, or career field. For these reasons, OPM is not including non-registered apprenticeship programs in the definition of career and technical education. To clarify, those who complete Registered Apprenticeship Programs with any organization (either a Federal agency, a State, local, or Tribal government organization, or private sector organization) will meet the eligibility criteria for the Recent Graduates Program.

OPM received three comments related to including industry-recognized credentials in the definition for certificate programs. One commenter indicated that including “industry-recognized credentials” or state licensing programs as options for being eligible for Pathways would greatly improve agencies' ability to recruit and retain candidates in the trade professions. Another commenter questioned whether reputable sources to verify technical programs exist to determine if technical programs are accredited or meet accreditation standards in a similar manner that is used for accreditation of degree programs. A different commenter urged OPM to allow individual Federal agencies to establish low-burden processes to vet and certify certificate programs as eligible entities for the purposes of their Pathways Programs, such as by providing documentation of industry recognition or a third-party evaluation of a certificate program's efficacy.

Another commenter suggested that, in addition to including programs such as Registered Apprenticeship Programs, Job Corps, Peace Corps, and AmeriCorps, OPM should develop criteria that include conditions similar to those outlined for a “qualified youth or conservation corps” under the Public Land Corps Act (16 U.S.C. 1723). Qualified youth or conservation corps programs must provide meaningful, full-time, productive work; a mix of work experience, basic and life skills, education, training, and support services; and an opportunity to develop citizenship values and skills through community service. 16 U.S.C. 1722(11). These programs generally should implement projects that provide long-term benefits to the public, instill a work ethic and sense of public service, be labor intensive, and provide academic, experiential, or environmental education opportunities. 16 U.S.C. 1723(e). OPM will provide additional guidance to agencies and applicants to help them determine which types of programs meet the definition of career and technical education. OPM has also added clarifying language to the definition of career and technical education programs in § 362.102. Specifically, OPM has added an explanation that federally administered  4 career or technical education programs that will qualify for the Internship and Recent Graduates Programs must operate under the oversight of a Federal agency (or component thereof). The purpose of this oversight is to ensure that the program is achieving educational outcomes and is being operated in accordance with criteria specified by the agency to ensure participants develop high-demand skills. These criteria must include the nature and scope of work to be performed by participants, the types and scope of training to be provided to participants, the types of skills participants will gain from the program, the mentoring that will be provided, and the specific metrics by which the program's fulfillment of the educational purpose will be evaluated. Programs operated under a cooperative agreements or other agreements that require programmatic oversight by the partnering or funding Federal agency may meet this criteria.

OPM notes that not all programs funded or “administered by a Federal agency” in a colloquial sense will meet these criteria; although OPM is expanding the range of eligible programs, OPM also intends to ensure that qualified programs provide commensurate education/training to those OPM reviewed as part of this rulemaking process. Accordingly, these criteria, along with Federal oversight, will ensure that participants in other federally administered programs will receive the quality of training and experience similar to that received by participants in Job Corps, Peace Corps, and AmeriCorps.

Accordingly, OPM is not adopting the suggestions to expand the definition of career and technical education programs to include non-federally administered programs even if accredited credentials are awarded. The Recent Graduates Program eligibility criteria will continue to require a certificate or industry-recognized credential to meet the eligibility criteria only when the certificate or credential has been awarded from a qualifying educational institution or qualifying career or technical education program as defined in the revised § 362.102. Industry-recognized credentials vary widely by occupation and each occupation may have one or more entities that accredit or certify the programs. OPM is aware that some industry-recognized credentials may be accredited through programs like those offered by the American National Standards Institute National Accreditation Board (ANAB), National Commission for Certifying Agencies (NCCA), or other industry-specific accreditation organizations. Additionally, the Department of Labor Career One Stop offers a certification finder to help identify a variety of industry-endorsed certifications. However, even with these disparate resources there is not a centralized way for vetting individual programs to verify that they provide participants with the skills and competencies to adequately prepare them for Federal employment. Agencies may find it challenging to determine if a credential has been accredited or is formally endorsed or accepted as being industry-recognized by a specific industry. We believe limiting the definition to federally administered programs reduces the potential for participants to be eligible through programs that do not provide an appropriate level of training or technical education, and also ensures that participants receive an organized and systematic form of instruction designed to provide the participant with legitimate job skills while performing a defined public service. For this reason, OPM has chosen not to expand the definition of qualifying career and technical education programs beyond those that are a part of federally administered, organized educational programs, a Registered Apprenticeship Programs, or federally administered local, State, national, or international volunteer service programs.

A professional organization, while supportive of the inclusion of career and technical education programs, expressed that limiting the definition to those programs administered through a Federal agency is unclear and likely unnecessarily restrictive. A different professional organization suggested that OPM broaden the definition of career and technical education programs to align with how and where these programs operate at the state level. OPM is not adopting these suggestions. OPM recognizes that there are many private sector and state-run career and technical education programs. However, as with industry recognized credentials, these programs lack a centralized way for vetting individual programs to verify that they provide participants with the skills and competencies to adequately prepare them for Federal employment. Also, students who complete private sector programs that are a part of an academic program at a qualifying education institution such as a vocational or trade school may meet the eligibility criteria. OPM has added clarifying language to the definition of career and technical education in § 362.102 to make it easier for agencies and applicants to understand which types of programs will meet the eligibility criteria.

Several commenters were supportive of the change to include participants in federally administered local, state, national, or international volunteer service programs such as AmeriCorps and Peace Corps in the definition of career and technical programs. They indicated that it would be a substantial benefit to participants in these programs. Additionally, a commenter indicated that inclusion of these programs under the Pathways umbrella provides agencies with other avenues for recruiting high quality candidates from a variety of backgrounds. One commenter suggested that, while the inclusion of these programs may be beneficial, these participants may need additional support in building foundational skills to be successful in the Federal Government. OPM appreciates these comments and agrees with the sentiment that all students and recent graduates may benefit from support to build foundational work and leadership skills.

Other commenters were skeptical of including these types of volunteer programs. One commenter suggested that it was unclear whether these programs have the same level of rigor as graduation from a formal academic or technical training program with clearly defined areas of study and a methodology for validating sufficient assessment standards ( e.g., accreditation). One commenter requested that OPM clarify why AmeriCorps and Peace Corps are included in the definition for career and technical education programs when alumni of these programs already benefit from noncompetitive eligibility for appointment under existing law. OPM has included these programs because the participants in these programs gain relevant technical skills and competencies that are similar to those developed in more formal programs such as apprenticeships. Use of the Pathways Programs for AmeriCorps and Peace Corps participants are not intended to replace the use of the non-competitive hiring authority that currently exists for those programs. It is important to note that the non-competitive hiring authority is limited in scope and not available to all participants. The use of the Pathways Recent Graduate authority provides an alternative for those participants who are not eligible for the non-competitive authority. Agencies are encouraged to continue to use the non-competitive hiring authority to appoint participants from the AmeriCorps and Peace Corps programs.

One commenter supported the inclusions of career and technical education programs but was concerned that this inclusion would be applied to applicants for the PMF Program. Completion of a career and technical education program will now fulfill one of the requirements for the Internship and Recent Graduates Programs; however, career and technical education program do not satisfy the requirements for the PMF program.

In addition to receiving comments that were responsive to OPM's specific requests for comments in the NPRM, as discussed above, OPM also received comments on a number of other issues. Below we discuss those comments with respect to specific sections of the Pathways regulations.

The existing regulations at 5 CFR 300.301 require that an agency must obtain approval from OPM to detail employees appointed under the Pathways Programs (Schedule D of the excepted service) to positions in the competitive service. OPM proposed to modify 5 CFR 300.301(b) to remove this requirement.

We received three comments related to the proposed change to allow agencies to detail employees appointed under the Pathways Programs (Schedule D of the excepted service) to positions in the competitive service without approval from OPM. A commenter asked what it means to detail an employee. A detail is a temporary assignment of an employee to a different position for a specified period, with the employee returning to their regular duties at the end of the specified period. One commenter indicated that it may help with retention of Pathways Interns by offering them the opportunity to get additional specialized experience.

An agency commented that it was concerned about allowing agencies to detail Interns and Recent Graduates to another position while serving a trial period. The same agency commented that details should only be allowed after Interns and Recent Graduates are converted to term or permanent positions. OPM disagrees, noting that Interns and Recent Graduates should be allowed to be detailed while serving a trial period in the same way as other Federal employees. Internship and Recent Graduate positions are developmental in nature, and details are an appropriate tool for facilitating employee development and training. The same agency also expressed that allowing such details may require negotiating the option with their union partners. This change provides an option to agencies to use in appropriate situations in accordance with agency policy, any applicable collective bargaining agreements, and applicable collective bargaining obligations.

OPM proposed to revise the definitions of advanced degree and certificate program in § 362.102 and also added definitions for terms related to career and technical education. These terms are: certificate of completion of a Registered Apprenticeship Program; industry-recognized credential; qualifying career or technical education program; recognized postsecondary credential; and Registered Apprenticeship Program. These definitions support the changes to the eligibility criteria for the Internship and Recent Graduate Programs.

One commenter recommended that OPM include a list of the types of documentation that an agency may accept as proof that an applicant has completed a program at a qualifying educational institution. OPM agrees that agencies and applicants may need additional detail or examples of the types of documentation appropriate for determining eligibility. For example, an agency may accept a transcript (official or unofficial), a copy of the diploma, or other written documentation from the educational institution for the purposes of determining eligibility. OPM may provide additional examples of documentation that may be used to determine eligibility in guidance.

An agency asked for clarification on the typical duration of a certificate program. Specifically, the agency wanted to know if a program of three months would meet the criteria. The comment did not specify if the question was directed to certificates from a qualifying educational institution or from a qualifying career and technical education program. A certificate from a qualifying educational institution must have length that is equivalent to one academic year of full-time study. Many educational institutions measure the length of an academic year based on the number credit hours completed, and this number varies by institution. To determine if the certificate program meets the criteria, the applicant will need to provide the agency with information about the number of credit hours that constitutes an academic year at the educational institution that awarded the certificate and the number of hours that were completed to attain the certificate. The proposed rule did not specify the length of the program for certificates from qualifying career or technical education programs. For clarity OPM has modified the regulatory text in this final rule to indicate that programs should be at least one year (12 months) in length similar to the requirement that qualifying volunteer service must be one year in length.

As previously discussed (Responses to Requests for Comments and Data—8. Inclusion of technical and career education programs), OPM has added clarifying language that explains the term federally administered in response to comments related to the definition of career and technical education.

In the proposed rule, OPM expanded the definition of a certificate program to include a qualifying career or technical education program of at least one year that awards a recognized postsecondary credential or industry recognized credential. An industry recognized credential is a type of post-secondary credential. For additional clarity, OPM is modifying that part of the definition of certificate program to remove the term industry recognized credential in the final rule.

In the proposed rule, the definition of recognized postsecondary credential included a reference to an industry recognized certificate or certification. The terms industry recognized certificate or certification and industry recognized credential can be used interchangeably. In the final rule, we replaced the term industry recognized certificate or certification with industry recognized credential.

The final rule replaces the requirement for an agency to execute a memorandum of understanding (MOU) with OPM before using the Pathways Programs with a requirement that an agency must have a Pathways Policy to make Pathways appointments.

OPM received two comments regarding the removal of the requirement for agencies to enter into a memorandum of understanding (MOU) to use the Pathways Programs. One comment was in support of replacing the use of an MOU with a requirement that an agency must have a Pathways Policy. The other comment suggested replacing the MOU requirement with a reporting requirement. This comment also mentioned that the use of the MOU created an unnecessary administrative burden. OPM agrees that the agency development of a policy will be a less burdensome method to ensure an agency has the necessary structures in place to use the Pathways Programs than the current requirement for an MOU. Therefore, OPM is adopting the proposed change to replace the MOU with a Pathways Policy. There is an existing reporting requirement in § 362.109 that provides OPM with information on agency use of the Pathways Programs.

As previously discussed (Responses to Requests for Comments and Data—2. Limitations on conversion of Recent Graduates and PMFs to positions at different agencies), OPM has modified this section to also require agencies to include provisions in their policies that address procedures and criteria for determining if an agency will be able to convert Recent Graduates and PMFs and communicate those determinations to the employee.

In reviewing the comments on this section, we recognized that in ending the MOU process we inadvertently also removed the way that agencies informed OPM about the staff who filled the roles of the Pathways Program Officer and PMF Coordinator. For this reason, OPM is adding a provision in § 362.104(a)(6)(v) to require agencies to provide OPM with the names of the agency's Pathways Programs Officer and Presidential Management Coordinator.

Agencies must establish their Pathways Policies in accordance with the criteria listed in § 362.104 by no later than December 9, 2024. Until that date, an agency with an existing Pathways MOU  5 may continue to use the Pathways Programs subject to the new regulations in lieu of an updated Pathways Policy while it develops and updates its policies in accordance with the new regulations. Agencies with MOUs that expire within 240 days of the publication date of this final rule may request an extension of the MOU. Agencies without an existing Pathways MOU must establish a Pathways Policy before they begin making Pathways appointments. All Pathways MOUs will expire on December 9, 2024, unless OPM has approved an extension. OPM will issue implementing guidance that provides additional details about creating Pathways Policies. OPM has modified § 362.104(b) to reflect these timelines.

OPM did not propose that agency Pathways Policies would require OPM approval. Because an agency does not require OPM review of its Pathways Policy, OPM is replacing the proposed requirement to submit Pathways Policies to OPM with a requirement to make these policies available for review upon request by OPM, applicants, Pathways Participants, and agency employees. OPM expects that this requirement will lower the potential administrative burden for agencies relative to the proposed rule.

In the proposed rule when revising the text in § 362.104 to replace the requirement to have an MOU with an agency policy, we inadvertently removed the provision that contained OPM's authority to revoke an agency's ability to use the Pathways Programs when the agency usage is inconsistent with the regulations. That was not our intent, and we did not request or receive any comments on such a change. For this reason, this final rule retains OPM's authority to revoke an agency's use of the Pathways programs when OPM has found that an agency's use of the Programs is inconsistent with the regulations or an agency's Pathways policy in § 362.104(c).

OPM is also adding a requirement for agency policies to identify the minimum service-hour requirement that must be completed by an Intern for conversion. This is a conforming change based on changes in § 362.204.

As previously discussed (Responses to Requests for Comments and Data—7. Clarifying the Role of the Presidential Management Fellows Coordinator), the existing regulations at 5 CFR 362.104(c)(8) require an agency to identify a Presidential Management Fellows (PMF) Coordinator. OPM proposed to clarify the role of a PMF Coordinator by outlining specific responsibilities, and the final rule includes those specific responsibilities of the PMF Coordinator.

One agency suggested that the provision for PMF Coordinators be modified to indicate that collaboration is required between the PMF Coordinators when an agency or sub agency designates multiple PMF Coordinators. OPM agrees this is a good idea and is adopting this suggestion.

The existing regulations at 5 CFR 362.107 allow a Recent Graduate or PMF who successfully completes program requirements to be converted to a position within the employing agency. OPM also proposed to allow conversion to a position in another agency within the Federal Government when the employing agency is unable to convert the Recent Graduate or PMF.

Two agencies suggested that conversion at other agencies should only occur when the employing agency was unable to convert due to budgetary constraints (including not having a permanent position available). One commenter suggested that the regulations should allow for programs with interagency missions and goals to forgo the process by which an agency must provide proof of refusal for financial or mission-related reasons in order to streamline career mobility. To ease administrative burden, OPM is removing the requirement to provide documentation of this situation. As previously described (Responses to Requests for Comment and Data—2. Limitations on conversion of Recent Graduates and PMFs to positions at different agencies), OPM has added a requirement for agencies to specify the procedures for how conversion at another agency may occur in their Pathways Policy.

Under the current regulation, agencies must enter into an MOU to participate in Pathways. As discussed above (Section 362.104 Agency requirements), OPM proposed to replace the MOU requirement with a requirement for agencies to create a Pathways Policy. As proposed, this final rule removes the reference to a Pathways MOU in § 362.108 and replaces it with a reference to the agency's Pathways Policy in accordance with the proposed change at § 362.104.

The existing regulations at 5 CFR 362.109 require agencies to provide information on workforce planning strategies and their use of the Pathways Programs on an annual basis to OPM. As proposed, this final rule modifies the requirement so that agencies will report to OPM on a fiscal year basis every three years.

A professional organization encouraged OPM to collect and share trend data on the utilization of the Pathways Programs. They also encouraged OPM to use this data to help prioritize future participant outreach and make program adjustments as needed. OPM appreciates this suggestion and will formulate a strategy for sharing Pathways data with agencies and the general public.

This final rule adds a new § 362.111 to address the issue of severability. OPM received no comments on this section.

This final rule adds a definition for the term “Intern not-to-exceed (Intern NTE),” which is not included in the existing regulations, and modifies the definition of a student to include individuals who are “enrolled or accepted for enrollment in a qualifying career or technical education program that awards a recognized postsecondary credential.”

OPM received no comments on this section.

The existing regulations at 5 CFR 362.203(a) require agencies to provide OPM with information about opportunities to participate in their Internship Programs. OPM proposed adding clarifying text regarding the public notice requirement for posting Intern positions and options for agencies to meet the public notice requirement. In addition to including information about the position title, series, grade, and geographic location where the position will be filled, which is required under current regulation, OPM proposed adding the following announcement requirements: appointment length, salary information, qualifications, promotion potential, and conversion information. As previously discussed (Responses to Requests for Comments and Data—6. Public Notification), this final rule adds an option for agencies to meet the public notice requirement.

One commenter suggested that OPM clarify that an agency can post an internship opportunity both on its own site and on USAJOBS—not just on one or the other. OPM agrees and encourages agencies to post opportunities in multiple locations. The regulatory text for this suggestion indicates that an agency may use either or both of the options. OPM believes that agencies should have the discretion to recruit for positions in a manner that best supports and implements their agency workforce plans.

One agency indicated that, while it did not object to the additional option of posting on its agency website, it was not likely to use that option. OPM encourages agencies to use both options whenever necessary to ensure that it can source a sufficient number of applicants to meet its needs and to use all available tools to attract broad applicant pools. This final rule adopts the proposed changes to public notification in § 362.203(a) without change.

The existing regulations at 5 CFR 362.203(e) generally state that an agency may promote any Intern who meets the qualification requirements for the position. As OPM proposed, this final rule revises § 362.203(e) to reflect that those Interns whose appointments are expected to last more than one year without a not-to-exceed date  6 may be promoted when they meet the qualification requirements for a higher-graded position. The change also provides that Interns NTE (on temporary appointments not-to-exceed one year) are not eligible for promotions.

One commenter suggested that OPM should provide information about the impact of time-in-grade (TIG) restrictions on promotions at the time of conversion as well as promotions based on superior academic achievement. Another commenter suggested that OPM should reconsider the TIG restrictions on Interns. The TIG restrictions in 5 CFR part 300, subpart F, do not apply to promotions of excepted service employees being promoted to an excepted service position. However, some agencies may have policies pertaining to excepted service promotions similar to their competitive service policies. Assuming an agency does not have policies similar to TIG for the excepted service or other policy restrictions, then upon completion of degree and prior to conversion, the Intern may be promoted to any grade level for which they qualify as allowed by agency policy. An agency wishing to promote an Intern should do so prior to conversion. This is because, once the employee is converted to the competitive service, the Intern is subject to all competitive service provisions, including TIG. The agency may also use the superior academic achievement provisions when determining the appropriate grade level for promotion.

The existing regulations at 5 CFR 362.104(c) include a general requirement for agencies participating in the Pathways Internship Program to provide Interns with meaningful developmental work and to set clear expectations regarding the work experience of the Intern. OPM proposed to add a specific requirement in § 362.104 that provides more detail about training and development opportunities that should be provided for Interns. The final rule includes this change and requires agencies to provide Interns with meaningful onboarding activities and training and development opportunities.

A professional organization suggested OPM should provide further guidance, tools, and resources for Intern training and professional development. Another professional organization suggested that OPM should standardize training requirements for program participants and coordinators at the agency level; advise agencies as to the number of employees and budget required to commit to a successful program; and require specific reporting practices to capture effectiveness of each agency's programs. OPM launched the Intern Experience Program this year to provide agencies with additional training and development resources for Interns. OPM provides a variety of resources such as webinars and quarterly Pathways Program Officer meetings to support agency Internship coordinators. Agencies hire Interns as a part of implementing their agency workforce plans which will inform the number and budget commitments for successful Internship Programs. OPM does not believe it is appropriate to prescribe staffing and budget requirements for internship programs. OPM will continue to support agencies and Interns by providing resources and guidance and will help them identify appropriate training and professional development resources.

As proposed, this final rule removes a reference in § 362.203 to a Pathways MOU and replaces it with a reference to the agency's Pathways Policy in accordance with the change at § 362.104 described above. This final rule corrects the regulatory text in the proposed rule, which inadvertently included a reference relevant to the Recent Graduates program and maintains the existing citation to § 213.3402(a).

In revising § 362.203, OPM determined that the definition for agency provided in paragraph (a)(1) is unnecessary as it is duplicative with the definition already provided in § 362.102, which applies for the purposes of part 362. However, OPM also identified a typographical error in § 362.102. Specifically, the definition for agency states that the term has the meaning of “agency” as defined in 5 U.S.C. 105, but 5 U.S.C. 105 defines the term “Executive agency.” Accordingly, this final rule corrects the defined term (referencing 5 U.S.C. 105) to be “Executive agency.”

The existing regulations at 5 CFR 362.204(b) require that an Intern may be converted to a permanent or term position in the competitive service within 120 days of completing a course of study. OPM proposed to lengthen this period. The final rule changes the time period allowed for conversion of an Intern from 120 days to 180 days after the completion of a degree.

Several commenters expressed support for increasing the time allowed to convert an Intern to a permanent or term position from 120 days to 180 days. Many of the comments that were in support of a longer period for conversion came from former Internship participants, who also referenced their agency-specific experiences and how they felt that the additional time would improve the opportunity and experiences of current and future Internship participants.

Some commenters offered alternative suggestions to the proposed change of the time period from 120 to 180 days or indicated support for a period of more than 180 days. An agency expressed support for a period of more than 180 days but did not indicate a specific length. One professional organization expressed opposition to the extended timeline and suggested that the extension to 180 days should only be allowed for specific agencies identified in the regulation and only for those times when background investigations and adjudications are likely to take longer than 120 days and alternative resolutions are unavailable or impractical. Another agency suggested that a timeline of greater than 180 days should be an option in rare circumstances and agencies should be authorized to determine when rare cases should allow conversion past the 180-day requirement. Agencies are well aware of the time it takes in the agency to complete these processes and can plan to begin the process at a time that would allow completion within 180 days of completing a degree. For this reason, OPM is not adopting these suggestions to allow a timeline of greater than 180 days.

Two commenters incorrectly equated the proposed 180-day time period for conversion with the service period required for conversion available under other hiring authorities, such as the Veterans Recruitment Authority (VRA) hiring authority, where an individual appointed under the authority must be converted to the competitive service after successfully completing two years of service on the VRA appointment. The conversion period, or window, in the Internship Program is strictly for administrative purposes— i.e., it is time for the employee and agency to collect and process all documentation relating to the conversion of the Pathways employee. The conversion period is not for deciding whether to convert a Pathways participant, for purposes of qualifying the employee, or to be used as a de facto probationary or trial period. For this reason, OPM is not adopting the suggestion to extend the conversion period to two years for Interns; OPM is adopting the proposed 180-day conversion period based on agency input requesting additional administrative time.

One commenter also suggested that the proposed 180-day period should be extended to allow Interns the opportunity to explore other endeavors before starting a full-time job with the Federal Government. OPM is not adopting this suggestion. The purpose of the Pathways Programs is to provide early career talent an avenue to Federal employment that would otherwise be unavailable to them if these individuals were required to compete with the general public for a Federal job, and to assist agencies in developing a pipeline for individuals with skills and knowledge needed to perform the work of an agency. Interns accept positions with the awareness that conversion upon completion of their educational program is a possibility.

As previously stated, the purpose of the 180-day period is to allow students time to provide documentation that they have successfully completed their degree or educational programs and to allow agencies time to complete additional background investigations and adjudications. OPM is not adopting the suggestions for extending the period allowed for conversion beyond 180 days.

As previously discussed in “Responses to Requests for Comments and Data—5. Changing the 640-hour requirement for conversion of an Intern,” OPM has revised the provision in § 362.204(b)(1) to reduce the minimum number of hours required for conversion from 640 hours to 480 hours. OPM reminds readers that an agency may require more than the minimum of 480 hours for conversion based on agency specific training and development or other Internship program requirements. An agency must identify the minimum number of hours required for conversion of an Intern in the agency's Pathways Policies.

The existing regulations at § 362.204(c) and (d) allow an agency to waive or provide credit for up to half of the work hours required for conversion in § 362.204(b). OPM is maintaining the ability of an agency to waive or provide credit for a portion of the hours-based requirement. OPM expects that agencies using the new 480 minimum for service hours will not need to apply the waiver provision; however, agencies adopting higher service-hour requirements may still find situations in which waiving some portion of time is necessary to hire a highly qualified student with superior performance in their academic or training program. Based on the comments received, OPM finds insufficient justification for lowering the minimum service-hours below 320 hours (half of the prior 640 service-hour requirement). Therefore, OPM has modified § 362.204(c) and (d) to allow agencies to waive or approve credit for up to half of the minimum required service hours subject to a limitation that an Intern must complete at least 320 hours under a Pathways Intern appointment to be eligible for a waiver. For example, if the agency requires a minimum of 480 work hours for conversion, then the agency may waive up to 160 hours (480 − 320 = 160). Consistent with the existing regulation at § 362.204(e), an agency may not credit and/or waive more than 320 hours. Therefore, for example, an agency that requires the completion of 800 hours may waive up to 320 hours.

OPM has also modified the criteria for approving a waiver in § 362.204(d) to introduce a new option of the submission of a recommendation letter from an instructor or program administrator as a way for the Intern to demonstrate high potential in their academic or career and technical education program. (This change was previously discussed in “Responses to Requests for Comments and Data—4. Strengthen the provisions that allows agencies to waive or credit up to half of the Interns' 640-hour service requirement.”)

OPM has also modified § 362.204(e) to reflect the changes in § 362.204(b) through (d).

The existing regulations at 5 CFR 362.205(b) require that an Intern appointment may be terminated 120 days after the completion of a degree unless the Intern is converted to a position in the competitive service. Consistent with the proposed rule, this final rule changes the time period for termination of an Intern appointment from 120 days to 180 days after the completion of a degree. This conforming change is based on the change in § 362.204(b)(2) pertaining to the conversion window described above. Changes in this section were also made to incorporate the new term Intern not-to-exceed (NTE) appointment.

One commenter requested clarification on what is meant by selected for conversion and if an offer letter is required. Selected for conversion means that the agency has determined that the Intern has successfully completed all program requirements including their educational program, and it will convert the employee. The agency should provide the Intern with all the necessary information about the position to which the Intern will be converted. The same commenter also asked if an Intern on a not-to-exceed (Intern NTE) appointment may have their appointment extended beyond the date they completed their degree. The appointment of an Intern NTE may be extended to accommodate the 180-day period. However, the agency must process the extension prior to the Intern completing their educational program.

The proposed rule removed references to Pathways MOU and replaces it with a reference to the agency's Pathways Policy in accordance with the change at § 362.104 described above. OPM is finalizing this section as proposed.

The existing regulations at 5 CFR 362.302 limited eligibility for the Recent Graduate Program to those in qualifying educational programs. OPM proposed to modify the eligibility criteria. This final rule adopts the proposal to expand the eligibility criteria for the Recent Graduate Program to include those who have completed qualifying career or technical education programs.

One commenter indicated that the criteria should be changed to allow individuals in trade or technical schools or with associate degrees and high school diplomas to meet the eligibility criteria for the Recent Graduate Program. Another commenter also advocated for the inclusion of those who completed a two-year undergraduate degree. Since the inception of the Recent Graduate Program, the eligibility criteria included those with degrees from qualifying post-secondary vocational and technical schools or associate degrees. This criterion has not changed.

We received many comments related to using skills-based hiring provisions instead of completion of educational programs for eligibility. One commenter indicated that OPM should include skills-based hiring provisions in this rule to be on par with State governments who are establishing such provisions. Another commenter recommended using a skills-based approach for eligibility criteria. A different commenter indicated that the inclusion of career and technical education programs as meeting the eligibility criteria for the Recent Graduates Program did not seem to be an appropriate use of OPM's authority to establish excepted service authorities. This commenter expressed that apprenticeship and other experiential learning programs are designed to teach specific skills and were not similar to academic degrees. Additionally, they felt that the proposed regulations suggested including skills-based programs because people with limited skills and experience cannot compete with those who have more skills and experience. A professional organization encouraged OPM to allow Pathways applicants to meet minimum qualifications solely by passing a skills-based assessment as a co-equal method to qualifying with education and/or experience.

OPM is actively working to incorporate skills-based hiring across Government as required by E.O. 13932, “Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates,” dated June 26, 2020. For the Pathways Programs, however, using skills-based hiring must be balanced with the requirements in E.O. 13562 that limits the use of the Pathways Programs to students and recent graduates. Given that E.O. 13562 does not contemplate skills-based hiring, it is not appropriate for OPM to include skills-based hiring provisions as a substitute or alternative eligibility criteria in place of formal educational programs. OPM is not adopting these suggestions.

Many commenters had favorable comments and supported the inclusion of programs such as Job Corps, AmeriCorps, and Peace Corps. Two commenters questioned why eligibility for AmeriCorps participants was limited to only those who had completed one year of service when some AmeriCorps programs have a required period of service of less than one year (10 to 11 months). One of these commenters specifically requested that we clarify that the one-year requirement for volunteer programs such as AmeriCorps is the completion of a service year with no regard to the number of calendar months taken to complete the term. OPM recognizes that these programs provide valuable career and technical education. Our review of these programs indicates that only those programs of at least one year in length provide career and technical education that is equivalent in scope and rigor to other programs that meet the Recent Graduate Program eligibility criteria. It is OPM's understanding that, in some of the programs offered by AmeriCorps and similar programs, participants are required to fulfill at least 1700 work hours within a 12-month period and those who meet this requirement within 10 or 11 months are considered to have successfully completed the program. For this reason, we have modified the criteria for volunteer service programs in the definition of qualifying career and technical education programs to indicate than a volunteer must have completed either at least one year of volunteer service or at least 1700 work hours when the length of volunteer service is less than 1 year. For programs of at least a year, an applicant could meet the eligibility criteria by serving in one volunteer program for 12 consecutive months, or by completing a total of 52 weeks of service during multiple periods of service. For programs of less than a year, a volunteer would need to complete at least 1700 work hours during one or multiple periods of service. When the volunteer has participated in multiple periods of service, the periods of service do not need to be consecutive. However, the most recent period of service must have been completed within 2 years of applying for a Pathways Recent Graduate appointment.

One commenter suggested OPM should provide clear guidance on the types of programs that will meet eligibility criteria. As discussed in detail in “Responses to Requests for Comments and Data—8. Inclusion of technical and career education programs,” OPM has added clarifying language to the definition of career and technical education. OPM plans to provide additional guidance to assist agencies and applicants in understanding the types of programs that will meet the eligibility criteria.

One commenter requested clarity on the eligibility period for individuals who served in the Peace Corps, AmeriCorps, or other volunteer programs that will now be included as qualifying career or technical education programs. The length of the eligibility period for the Recent Graduate Program for participants in Peace Corps, AmeriCorps or other volunteer programs is two years.

One commenter recommended increasing the eligibility period for non-veterans to three years to widen the talent pool. E.O. 13562 specifically limits the eligibility period for the Recent Graduates Program to two years for non-veterans. OPM does not have the discretion to make such a change.

As discussed, OPM proposed to expand the eligibility criteria to include career and technical education programs. To that end, the proposed rule included modifications to paragraph (a) of § 362.302 only. This was an oversight as § 362.302(b) also needs to be modified to reflect that career and technical education programs are now qualifying programs. For this reason, OPM has modified § 362.302(b) to include references to career and technical education programs.

The existing regulations at 5 CFR 362.303(a) require that an agency must post opportunities for positions in the Recent Graduates Programs on USAJOBS.gov . OPM proposed to modify the provisions for meeting public notice options for filling positions under the Recent Graduates Program. In addition to allowing agencies to post searchable job opportunities at USAJOBS, OPM also proposed to allow agencies to post job information with a link to a USAJOBS custom posting on their agency websites, with OPM providing a centralized place where applicants can be directed to those postings on the agency websites. As previously discussed (Responses to Requests for Comments and Data—6. Public Notification), this final rule incorporates the proposed changes to public notification without change in § 362.303(a).

The existing regulations at 5 CFR 362.305 allow a Recent Graduate who successfully completes program requirements to be converted to a position within the employing agency. OPM proposed to allow conversion to a term or permanent position in a different agency when the employing (or losing) agency is unable to convert the Recent Graduate to a term or permanent position in the competitive service in the current organizational unit of the employing agency or another component within the same Department or agency. OPM received a number of comments, which are discussed in sections 1 and 2 of “Responses to Requests for Comments and Data” and address two questions OPM asked regarding flexibility to convert Recent Graduates and PMFs Management Fellows to positions at different agencies. In this final rule, OPM has adopted the proposed conditions to allow conversion at another agency when the agency is unable to convert the Recent Graduate to a term or permanent position in the competitive service in the current organizational unit of the employing agency or another component within the same Department or agency due to unforeseen circumstances or other appropriate reasons.

OPM had also proposed to require agencies to document the reason for conversion in another agency. OPM has removed that requirement and, instead, is requiring agencies to outline the procedures for how conversion at another agency may occur in their Pathways Policy in § 362.104. OPM expects this to be a less burdensome approach to ensuring that conversion at other agencies is accomplished in accordance with this final rule.

An agency requested that the revised regulation clarify the grade level to which a Recent Graduate can convert when conversion occurs at a different agency. Specifically, the agency wanted to know if the Pathways Participant is limited by the grade level mentioned in the announcement the prior agency used to make the initial appointment and if that limitation is binding for conversion at the new agency. OPM confirms that, when the Pathways Participant is converted to a position in another agency, the new agency may only convert them to a position at a grade level that is within the career ladder or promotion potential that was specified in the announcement used to recruit the Pathways Participant. For example, Agency A advertises and appoints a Recent Graduate to a GS-7 Accountant position with a career ladder to the GS-12 level. If the Recent Graduate is going to be converted to a position in another agency, the position identified for conversion may not have a career ladder that exceeds the GS-12 level, and the Recent Graduate may be promoted prior to conversion assuming they meet the qualification requirements for the higher-graded position.

OPM proposed to update the definition of Agency PMF Coordinator from the existing general description to add specific responsibilities. This conforming change is necessary due to the change in § 362.104(a)(8).

OPM is finalizing this provision with slight modifications from the proposed rule. The modifications should provide better clarity but do not change the meaning from the proposed rule.

Consistent with the proposed rule, this final rule revises § 362.404(a)(1) and (b) to remove the existing regulatory references to an agency's MOU and replace each with a reference to the agency's Pathways Policy. This conforming change is necessary due to the change in § 362.104.

OPM also proposed a new paragraph (e) to allow an agency the discretion to approve a part-time work schedule for a limited period of up to 6 months during the program if the agency and PMF have determined that it would not negatively impact the PMF's ability to meet all program requirements by the expiration of the PMF's appointment. Several commenters supported the flexibility for an agency to approve a part-time work schedule. One commenter suggested that OPM should clarify that agencies can approve or disapprove requests for part-time work schedules, including the duration of the modified schedules. OPM agrees and has revised the language of this provision to indicate that the PMF may request a part-time schedule and that an agency may approve the request but that a PMF is not entitled to an approval of the request.

One commenter suggested incorrectly that time on a part-time schedule would delay “time-in-grade/promotion eligibility.” While on a PMF appointment, a PMF must meet the qualification requirement of one year of specialized experience at the next lower grade level to be eligible for promotion. Part-time work is prorated in crediting experience. For example, an employee working 20 hours per week for a 6-month period should be credited with 3 months of experience. Given that part-time work schedules for PMFs are voluntary and limited to periods of six months or less, there would be a minimal delay for a promotion. This is a factor that a PMF should consider before requesting a part-time work schedule. In contrast, the time in grade (TIG) restrictions in 5 CFR part 300, subpart F, do not apply to promotions of excepted service employees being promoted to an excepted service position. However, some agencies may have policies pertaining to excepted service promotions similar to their competitive service policies. Unless an agency limits promotions of excepted service employees based on TIG, time spent in a part-time work schedule would not affect a PMF's eligibility on the basis of TIG.

A commenter suggested that, while the part-time schedule flexibility was welcomed, OPM should also explore other flexibilities such as remote work for PMFs who may be experiencing a long-term illness or injury. OPM is not adopting this suggestion as a regulatory provision is not needed. As agency employees, PMFs already are eligible for reasonable accommodations and agency work-life programs and benefits such as telework and remote work, consistent with applicable law and the agency's policies.

The existing regulations at 5 CFR 362.405(a) require that an agency must approve an Individual Development Plan (IDP) for a PMF within 45 days of appointment. OPM proposed to lengthen the time allowed to create and have an IDP approved. OPM received several comments regarding the timeframe to develop an IDP.

One commenter suggested that the time period to create an IDP should be increased to 120 days instead of 90 days to give the PMF and mentor additional time in situations when it takes most of the 90-day period to identify a mentor. Another commenter also suggested additional time of either 105 or 120 days to create an IDP. OPM is not adopting these suggestions. OPM encourages agencies and PMFs to treat the IDP as a living document that should be discussed between the PMF and their supervisor throughout the year. Once an IDP is in place, it is typically reviewed during the initial, mid-year, and annual performance discussions between the PMF and their supervisor and may be updated or changed as necessary throughout the PMF's program. While the IDP is individually tailored to the PMF's position and learning objectives, agencies can proactively plan and provide information and guidance to PMFs to assist them in completing the initial IDP within 90 days of appointment. Given these flexibilities, OPM believes 90 days is sufficient to both find a mentor and prepare an initial IDP that may be changed or updated at any time. Accordingly, this final rule modifies the time frame to have an approved IDP from within 45 days of appointment to within 90 days of appointment, as proposed.

One commenter indicated that extending the deadline to have an IDP in place would be helpful as it gives PMFs more time to discuss their goals with their mentor and supervisor. This commenter also suggested that it may be helpful to provide more guidance to remind PMFs and their supervisors that the IDP may be changed as needed. OPM's PMF Participant Handbook  7 provides PMFs with guidance on creating an IDP and explains that it is a working document that should be updated as requirements are completed.

OPM also received comments on several other issues related to IDPs. One commenter suggested that there should be additional clarity around who is responsible for ensuring each PMF has a mentor and an IDP at the employing agency. The selection of a mentor and the development of the IDP is a collaborative process between the PMF, the PMF's supervisor, the Agency PMF Coordinator, and the mentor. The supervisor, the PMF Coordinator, and the mentor can provide valuable insight to help the PMF select appropriate training and development activities. Ultimately it is the PMF's responsibility to ensure that the PMF meets all program requirements. The other parties are there to provide advice and guidance. OPM has revised the existing regulation at 5 CFR 362.405(a) to remove the passive voice and make clear that the responsibility for developing the IDP rests with the PMF with the assistance of the PMF's supervisor, the Agency PMF Coordinator and/or the PMF's mentor. OPM will ensure that available guidance on the creation and use of the IDP clearly identifies the responsibilities of the PMF, supervisor, the PMF Coordinator, and mentor.

Another commenter suggested that it did not make sense to have the PMF Coordinator involved in the creation of the IDP. OPM disagrees because the PMF Coordinator will be well versed in the PMF Program requirements for training and development and may be able to provide resources and advice to assist the PMF in creating the IDP. For this reason, OPM is not changing the requirement that either the PMF Coordinator or the assigned mentor (or both) be consulted in creating the IDP.

A commenter indicated that many PMFs face challenges in developing an IDP when they have not been able to identify a mentor, or the supervisor is unfamiliar with the PMF Program requirements. OPM recognizes that developing an IDP may be challenging and offers resources to PMFs, supervisors of PMFs, and Agency PMF coordinators on the training and development requirements of the program and IDP creation on the PMF Program website. 8

The existing regulations at 5 CFR 362.405(b) require that OPM will provide an orientation program for each class or cohort of PMFs and will provide information on available training opportunities known to it. Recent feedback from PMFs indicated that agency-specific orientations were more valuable than general orientations, and PMFs found OPM's longer-term leadership development offerings beneficial. OPM proposed modifying this requirement so that “OPM will provide leadership development activities and general program resources for each class or cohort of PMFs” in addition to providing information on available training opportunities, and agencies “must provide appropriate agency specific onboarding and employee orientation activities.” This final rule adopts these proposed changes and modifies § 362.405(b)(1) to reflect that OPM will provide leadership development activities and general program resources instead of an orientation program.

One commenter disagreed with the changes regarding orientation programs for PMFs. This commenter indicated that the changes would lead to less support for PMFs in agencies that did not have robust PMF Program specific orientation programs. OPM's orientation program over the years has evolved from one-time annual orientation sessions with general information about the PMF program to providing PMFs with leadership development activities and general program resources that are available throughout the PMF Program. With this update to the regulatory text OPM will continue to provide those activities and resources to PMFs. OPM has not made changes to the regulatory text based on this comment.

The existing regulations at 5 CFR 362.405(b) require agencies to provide for a minimum of one developmental assignment of 4 to 6 months' duration. They also allow that, as an alternative to this developmental assignment, PMFs may choose to participate in an agency-wide, Presidential, or Administration initiative that will provide experience comparable to the developmental assignment. To improve clarity, OPM proposed replacing language on “an agency-wide initiative or other Presidential or Administration initiative” with this language: “Examples of appropriate developmental assignments may include projects implementing a new Executive order or major piece of legislation, agency reorganization, or cross-agency collaboration on a major administration initiative.” This final rule provides in § 362.405(b)(4) examples and clarifying information on the types of activities that can be used to provide developmental assignments and rotational assignments for PMFs.

One commenter suggested that OPM add language to the developmental assignment information to specify that the developmental assignment must be completed under a supervisor other than the PMF's usual supervisor ( i.e., the PMF's supervisor of record). OPM has adopted this suggestion and has revised the language in § 362.405(b)(4)(ii) to indicate that these assignments will generally be in a different work unit in the PMF's organization, in another component, or another Federal agency.

Other commenters expressed support for the clarifying language around developmental assignments. The commenters also indicated that the clarifying examples were useful. OPM appreciates these comments.

One commenter suggested that PMF Coordinators should be empowered to work across agencies to help PMFs identify developmental assignment. To aid PMFs and agencies identifying developmental assignments, OPM offers the functionality for agencies to post developmental assignment opportunities for current PMFs to search in the PMF Talent Acquisition System.

One agency suggested that § 362.405(b)(4)(ii) and (iii) may limit the opportunities available to PMFs. Specifically, the agency stated that the agency needed to offer opportunities that may be external to Federal Government at state agencies and private industries. An agency may detail an employee to certain non-Federal organizations under the provisions of the Intergovernmental Personnel Act (IPA) Mobility Program. The IPA program provides for the temporary assignment of personnel between the Federal Government and State and local governments, colleges and universities, Indian Tribal governments, federally funded research and development centers, and other eligible organizations. An agency may use the IPA Program to allow a PMF to complete a developmental or rotational assignment at a non-Federal organization.

An agency requested that OPM clarify that the information contained in these paragraphs constitute examples or suggestions and are not required. The PMF Program is the Federal Government's flagship leadership development program for advanced degree holders across all academic disciplines. One of the key features of the program is that all PMFs Government-wide have meaningful developmental opportunities that will help them grow as leaders. To ensure consistency in this effort, all PMFs need to complete developmental assignments with management and/or technical responsibilities consistent with the PMF's IDP. The examples are offered to ensure that all PMFs are given developmental assignments of similar type and scope. OPM also offers additional guidance on developmental assignments in the PMF Participant Handbook. 9 For the sake of clarity, OPM is modifying § 362.405(b)(4)(iii) to include a description of the scope of work that should be included in a developmental assignment in addition to the examples initially proposed.

The existing regulations at 5 CFR 362.409 allow a PMF who successfully completes program requirements to be converted to a position within the employing agency. OPM proposed to allow a PMF also to be converted to a position at another Federal agency. OPM received numerous comments on this proposal. Those comments are discussed in “Responses to Requests for Comment and Data—2. Limitations on conversion of Recent Graduates and PMFs to positions at different agencies.” After consideration of the comments, this final rule allows conversion to a term or permanent position in a different agency when the employing (or losing) agency is unable to convert the PMF to a term or permanent position in the competitive service in the current organizational unit of the employing agency or another component within the same Department or agency due to unforeseen circumstances or other appropriate reasons.

OPM had also proposed to require agencies to document the reason for conversion in another agency. OPM has removed that requirement and, instead, is requiring agencies to outline the procedures for how conversion at another agency may occur in their Pathways Policy in § 362.104. OPM expects the modified proposal to be a less burdensome approach to ensuring that conversion at other agencies is accomplished in accordance with this final rule.

The existing regulations at 5 CFR 410.306 contain an outdated reference to the former Student Career Experience Program (SCEP) program. OPM proposed to remove the outdated reference. OPM received no comments on this section. OPM is finalizing this section as proposed.

The purpose of this rule is to modify existing regulations for the Pathways Programs for hiring Interns, Recent Graduates, and Presidential Management Fellows. We anticipate that these changes will improve and enhance the effectiveness of the Pathways Programs consistent with E.O. 13562, which requires OPM to support agency use of programs to recruit students and recent graduates. OPM has received qualitative feedback directly from agencies since the Programs' implementation. Between fiscal year (FY) 2012 and FY 2016, OPM hosted monthly office hours meetings with agencies to discuss solutions and recommendations to challenges agencies encountered when using the Pathways Programs. Pathways Programs Officers and PMF Coordinators have continued to contact OPM directly for advice and guidance on using the Pathways Programs since their inception. The Chief Human Capital Officers Council convened a working group to discuss challenges, issues, and successes of using the Pathways Programs during FY 2019. The working group also provided OPM staff with a number of ideas and recommendations for ways that the Programs could be improved. These discussions have identified areas where regulatory updates would allow the Programs to recruit students and recent graduates more successfully.

Based on the feedback received from stakeholders over the years, this final rule updates the Pathways Programs to facilitate a better applicant experience, to improve developmental opportunities for Pathways Programs Participants, and to streamline agencies' ability to hire Pathways Program Participants and convert to permanent employment those who have successfully completed their Pathways requirements. Robust Pathways Programs, with appropriate safeguards to promote their use as a supplement to, and not a substitute for, the competitive hiring process are essential to boosting the Federal Government's ability to recruit and retain early career talent.

In fiscal year 2022, agencies made 8,567 new appointments using the Pathways Programs hiring authorities (5,087 Interns, 3,085 Recent Graduates, and 395 Presidential Management Fellows). It is important to note that, while these changes in the program regulations should enhance the way the agencies use the programs, they are only one of several factors impacting whether the number of appointments made will increase or decrease. Other factors not addressed or impacted by these regulations such as agency resources available for hiring and recruiting will also need to be considered when evaluating the effectiveness of the Programs in helping agencies reach their recruiting and hiring goals.

The changes to include career and technical education programs in the eligibility criteria for the Internship and Recent Graduate Programs are a benefit to agencies, students, and recent graduates. Agencies will be able to recruit from a broader spectrum of applicants. Students and recent graduates of career and technical education programs may have more opportunities to more to work in agencies.

OPM removed some administrative burdens of using the Programs for agencies. This final rule replaces the proposed requirement to submit Pathways Policies to OPM with a requirement to make these policies available for review upon the request of OPM, applicants, Pathways Participants, and agency employees. This final rule also replaces the requirement to submit documentation of why a Recent Graduate or PMF is being converted to a position at a different agency with a requirement for agencies to specify the procedures for how conversion at another agency may occur in their Pathways Policy. These changes in the final rule will make it easier for agencies to implement the final rule.

This final rule will affect the operations of over 80 Federal agencies—ranging from cabinet-level departments to small independent agencies. We estimate that this rule will require individuals employed by these agencies to modify policies and procedures to implement the rule and perform outreach and recruitment activities when using the authority. For the purpose of this cost analysis, the assumed average salary rate of Federal employees performing this work will be the rate in 2024 for GS-14, step 5, from the Washington, DC, locality pay table ($157,982 annual locality rate and $89.04 hourly locality rate). We assume that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $178.08 per hour.

To comply with the regulatory changes in this rule, affected agencies will need to review the final rule and update their policies and procedures. We estimate that, in the first year following publication of the final rule, this process would require an average of 250 hours of work by employees with an average hourly cost of $143.76. This time would result in estimated costs in that first year of implementation of about $35,940 per agency, and about $2,875,200 in total Government-wide. We do not believe this rule will substantially increase the ongoing administrative costs to agencies (including the costs of administering the programs and hiring and training new staff). This is because the rule is modifying existing programs and recruitment of students and recent graduates is an ongoing need.

OPM did not receive any comments on the estimated costs in the proposed rule.

The final rule will boost the Federal Government's ability to recruit and retain early career talent. For example, modifying the public notification requirement will provide agencies with additional flexibility when recruiting and may also lead to a better applicant experience. Further, the changes to allow the conversion of eligible Recent Graduates and Presidential Management PMFs to competitive service positions in the employing agency or another agency will provide flexibility when resource restrictions would otherwise prevent conversion. When an agency is unable to convert the eligible Recent Graduate or PMF, the agency and the Government lose the expertise and knowledge the participant has gained during the program. The opportunity for conversion at another agency may prevent that loss. The extension of the 120-day period for the conversion of Interns to 180 days provides agencies the benefit of being able to convert those Interns who otherwise would have been separated when the background investigation or vetting process exceeded the 120-day limit.

E.O. 14035 of June 25, 2021, titled “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce,” established a Federal diversity, equity, inclusion, and accessibility (DEIA) initiative. A Government-Wide Strategic Plan to Advance Diversity, Equity, and Accessibility in the Federal Workforce was released in November 2021. 10 This plan directs agencies to prioritize several efforts to support the sustainability and continued improvement on of DEIA matters. These efforts include seeking opportunities to promote paid internships, fellowships, and apprenticeships. The updates to the Pathways Programs regulations will help inform and support agency efforts to use and promote paid internships, in line with the aims of the Federal DEIA initiative.

E.O. 13562 authorized OPM to establish regulations to implement the Pathways Programs. Over the years, OPM has issued guidance in addition to these regulations to assist agencies in using the Programs. However, this rule addresses issues that require a modification of the existing regulations and that cannot be changed by guidance alone. For example, staff in agencies told OPM that agencies need additional flexibility to convert participants in the Recent Graduate and PMF Programs to positions in other agencies. The existing regulations limit the conversion of Recent Graduate or PMFs to positions in the employing agency. OPM has determined that a change to these regulatory provisions is required to provide the additional flexibility agencies requested.

OPM did not receive any comments on the costs, benefits or regulatory alternatives presented in the proposed rule and is finalizing this section of the rule with minimal technical changes.

If any of the provisions of this final rule is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, it shall be severable from its respective section(s) and shall not affect the remainder thereof or the application of the provision to other persons not similarly situated or to other dissimilar circumstances, unless such holding is that the provision is invalid and unenforceable in all circumstances, in which event the provision shall be severable from the remainder of this part and shall not affect the remainder thereof. The Pathways Programs encompass three discrete programs with different implementing provisions. Should provisions related to one of the programs be held to be invalid we believe that the other programs should be severable and would not be impacted. Similarly, many of the operational requirements have no bearing on other provisions and are severable. For example, a holding that a hiring provision is invalid should not impact provisions related to conversion. In enforcing the provisions of this rule, OPM will comply with all applicable legal requirements.

OPM did not receive any comments on severability in the proposed rule.

OPM has examined the impact of this rule as required by Executive Orders 12866, 13563, and 14094, which 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). This rule is considered a “significant regulatory action” under section 3(f) of Executive Order 12866.

The Director of the Office of Personnel Management certifies that this rule will not have a significant economic impact on a substantial number of small entities because it applies only to Federal agencies and employees.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

This rule meets the applicable standard set forth in section 3(a) and (b)(2) of Executive Order 12988.

This rule will not result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Thus, no written assessment of unfunded mandates is required.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act) (5 U.S.C. 801 et seq. ) requires certain rules (as defined in 5 U.S.C. 804) to be submitted to Congress before taking effect. The Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs has determined this is not a major rule as defined by the Congressional Review Act (5 U.S.C. 804(2)).

Notwithstanding any other provision of 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 Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule involves the following OMB-approved collections of information subject to the PRA:

OPM believes any additional burden associated with this final rule falls within the existing estimates currently associated with these control numbers. OPM does not anticipate that the implementation of this final rule will increase the cost burden to members of the public. Additional information regarding these collections of information—including all background materials—can be found at https://www.reginfo.gov/public/do/PRAMain by using the search function to enter either the title of the collection or the OMB Control Number.

For reasons stated in the preamble, the Office of Personnel Management amends 5 CFR parts 300, 362, and 410 as follows:

This action, pursuant to 5 U.S.C. 553, implements an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Order No. 927, as amended (7 CFR part 927), regulating the handling of pears grown in Oregon and Washington. Part 927 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 growers, handlers, and processors of pears operating within the area of production, and a public member.

The Agricultural Marketing Service (AMS) is issuing this 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 rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires Federal agencies to consider whether their rulemaking actions would have Tribal implications. The AMS has determined that this 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 rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, pear 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 “summer/fall” pears for canning for the 2023-2024 fiscal period, 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 8c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with the United States 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.

This rule increases the assessment rate for “summer/fall” varieties of pears for canning handled under the Order from $7.15 per ton, the rate that was established for the 2018-2019 fiscal period and subsequent fiscal periods, to $7.50 per ton for the 2023-2024 fiscal period and subsequent fiscal periods.

The Order authorizes 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 of the Committee are familiar with the Committee's needs and with the costs of goods and services in their local area and can formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting, and all directly affected persons have an opportunity to participate and provide input.

For the 2018-2019 fiscal period and subsequent fiscal periods, the Committee recommended, and AMS approved, an assessment rate of $7.15 per ton of “summer/fall” varieties of pears for canning handled (83 FR 62451). That rate continues in effect from fiscal period to fiscal period until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other information available to AMS.

The Committee met on June 8, 2023, and unanimously recommended 2023-2024 fiscal period expenditures of $607,532 and an assessment rate of $7.50 per ton of “summer/fall” varieties of pears for canning handled for the 2023-2024 fiscal period and subsequent fiscal periods. In comparison, last year's budgeted expenditures were $594,130. The increased assessment rate of $7.50 per ton is $0.35 higher than the rate currently in effect. The Committee recommended increasing the assessment rate to better fund operations using assessment revenue and to reduce the reliance on reserve funds. The Committee has drawn down its financial reserve in recent years to cover Committee expenses and to reduce the reserve so as to not exceed approximately one fiscal period's budgeted expenses, in conformance with the Order (7 CFR 927.42(a)). The Committee projects handler receipts of 78,000 tons of assessable “summer/fall” varieties of pears for canning for the 2023-2024 fiscal period, which is 7,288 more than was projected for the 2022-2023 fiscal period.

The major expenditures recommended by the Committee for the 2023-2024 fiscal period include $492,595 for marketing, promotions, and paid advertising; $73,337 for research; $25,000 for promotion management fees; and $16,600 for Committee administrative expenses. Budgeted expenditures for the 2022-2023 fiscal period were $483,300, $66,530, $25,000, and $21,396, respectively.

Processed pears for canning are marketed throughout the calendar year. The expected 78,000-ton 2023 crop will generate $585,000 in assessment revenue at the increased assessment rate (78,000 tons of assessable “summer/fall” varieties of pears for canning multiplied by $7.50 per ton assessment rate). The remaining $22,532 needed to cover budgeted expenditures will come from reserve funds carried over from previous fiscal periods and $100 in interest income. The 2023-2024 fiscal period assessment rate increase will be appropriate to ensure the Committee has sufficient revenue, along with its reserve, to fully fund its recommended 2023-2024 fiscal period budgeted expenditures and maintain a level of reserve funds that the Committee believes is appropriate.

The Committee derived the recommended assessment rate by considering anticipated fiscal period expenses, an estimated 2023 crop volume of 78,000 tons of assessable “summer/fall” varieties of pears for canning, and the amount of funds available in the authorized reserve. Income derived from handler assessments ($585,000) and funds from the Committee's authorized reserve ($22,432) along with interest income ($100) will be adequate to cover budgeted expenses ($607,532).

The 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 fiscal period 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 would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2023-2024 fiscal period budget, and those for subsequent fiscal periods, will 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), AMS has considered the economic impact of this rule on small entities. Accordingly, AMS 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 1,500 growers of pears for processing in the production area and approximately 34 handlers of processed pears subject to regulation under the Order. Small agricultural growers of processed pears are defined by the Small Business Administration (SBA) as those having annual receipts equal to or less than $3.5 million (NAICS code 111339, Other Noncitrus Fruit Farming), and small agricultural service firms are defined as those whose annual receipts are equal to or less than $34 million (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201).

According to the National Agricultural Statistics Service (NASS), the average annual grower price received for processed pears in Washington and Oregon was $361 per ton (2022). Total production of pears for canning for the 2022 season was reported by the Committee to be 74,131 tons. Using the average grower price from 2022, the most recent years for which there is NASS data, the total 2022 crop value of pears grown for processing in Oregon and Washington was $26,761,291 (74,131 tons multiplied by $361 per ton). Dividing the crop value by the estimated number of growers (1,500) yields an estimated average receipt per grower of $17,841, which is well below the SBA threshold for small growers.

Given the relatively small total farmgate value of pears for processing produced in the production area ($26,761,291), it is probable that most, if not all, of the pear processors regulated by the Order would be considered small entities. Dividing the $26,761,291 estimated crop value by the number of handlers of processed pears (34) equals $787,097. AMS has not identified a direct third-party reference for estimating processed pear manufacturing margins. Without direct third-party information regarding the industry, determination of the number of large and small processors using the SBA's definition would be difficult. However, given the low average crop value of pears for processing ($787,097) it may be assumed that most, if not all, of the handlers of processed pears would have annual receipts below the SBA threshold for small agricultural service firms ($34 million). Therefore, using the above information and assuming a normal distribution, most of the growers and handlers of pears for processing may be classified as small entities.

This rule increases the assessment rate collected from handlers for the 2023-2024 fiscal period and subsequent fiscal periods from $7.15 to $7.50 per ton of Oregon and Washington “summer/fall” pears for canning. The Committee unanimously recommended 2023-2024 fiscal period expenditures of $607,532 and an assessment rate of $7.50 per ton of “summer/fall” pears for canning. The assessment rate of $7.50 is $0.35 higher than the previous rate. The Committee expects the industry to handle 78,000 tons of “summer/fall” varieties of pears for canning during the 2023-2024 fiscal period. Thus, the $7.50 per ton rate will provide approximately $585,000 in assessment income (78,000 tons multiplied by $7.50). The Committee also expects to use $22,532 from its financial reserve and $100 in interest income to cover remaining expenses. Income derived from handler assessments, along with reserve funds, will be adequate to meet budgeted expenditures for the 2023-2024 fiscal period.

The major expenditures recommended by the Committee for the 2023-2024 fiscal period include $492,595 for marketing, promotions, and paid advertising; $73,337 for research; $25,000 for promotion management fees; and $16,600 for Committee administrative expenses. Budgeted expenditures for the 2022-2023 fiscal period were $483,300, $66,530, $25,000, and $21,396, respectively.

In recent years, the Committee has utilized reserve funds to partially fund its budgeted expenditures. The Committee recommended increasing the assessment rate to better fund 2023-2024 fiscal period budgeted expenditures and refrain from excessively drawing down the funds held in its reserve. This action will maintain the Committee's reserve balance at a level that the Committee believes is appropriate and is compliant with the provisions of the Order.

Prior to arriving at this budget and the increased assessment rate, the Committee discussed various alternatives, including maintaining the previous assessment rate of $7.15 per ton and increasing the assessment rate by different amounts. However, the Committee determined that the recommended assessment rate will be able to fund most of the budgeted expenses and avoid drawing down reserves at an unsustainable rate. The assessment rate of $7.50 per ton of Oregon and Washington “summer/fall” pears for canning was derived by considering anticipated expenses, the projected volume of assessable pears for canning, the projected monetary balance held in reserve, and additional pertinent factors.

A review of NASS information indicates that the average grower price for the 2022-2023 fiscal period was $361 per ton. Utilizing the assessment rate of $7.50 per ton, assessment revenue for the 2022-2023 fiscal period, as a percentage of total grower revenue, would have been approximately 2.08 percent ($7.50 per ton divided by $361 multiplied by 100).

This action increases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, these costs are expected to be offset by the benefits derived by the operation of the Order.

The Committee's meetings are widely publicized throughout the production area. The processed pear industry and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the June 8, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit comments on this rule, including the regulatory and information collection impacts of this action on small businesses. One comment was received during the comment period. The comment was seeking clarity on pear varieties and weight specifications, which was not relevant to the subject matter of the rule. Accordingly, AMS made no changes to the rule based on the comment received.

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. 0581-0189, Fruit Crops. No changes in those requirements will be necessary because of this rule. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large processed pear 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 December 1, 2023 (88 FR 83870). Copies of the proposed rule were provided to all processed pear 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 January 2, 2024, was provided for interested persons to respond to the proposal. One comment was received during the comment period. The comment was seeking clarity on pear varieties and weight specifications, which was not relevant to the subject matter of the proposed rule. Accordingly, AMS made no changes to the rule. 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, USDA 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 927 as follows:

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 Order No. 987, as amended (7 CFR part 987), regulating the handling of domestic dates produced or packed in Riverside County, California. Part 987 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 producer-handlers operating within the area of production.

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 Orders 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 will 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 date 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 dates beginning October 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 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.

This final rule decreases the assessment rate for dates handled under the Order from $0.20 per hundredweight, the rate that was established for the 2020-2021 and subsequent crop years, to $0.15 per hundredweight for the 2023-2024 and subsequent crop years.

The Order authorizes 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 of the Committee are familiar with the Committee's needs and with the costs of goods and services in their local area. Therefore, they can formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting, and all directly affected persons have an opportunity to participate and provide input.

For the 2020-2021 and subsequent crop years, the Committee recommended, and AMS approved, an assessment rate of $0.20 per hundredweight of dates. 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.

The Committee met on June 27, 2023, and recommended 2023-2024 crop year expenditures of $75,800 and an assessment rate of $0.15 per hundredweight of dates handled for the 2023-2024 and subsequent crop years. In comparison, last year's budgeted expenditures were $77,250. The $0.15 per hundredweight assessment rate is $0.05 lower than the rate in effect prior to this action. The Committee recommended decreasing the assessment rate to better align assessment revenue with budgeted expenses and to keep the Committee's financial reserve within the amount allowed under the Order. The Committee projects that handlers will handle 426,000 hundredweight of California dates for the 2023-2024 crop year, which is the same quantity that was projected for the 2022-2023 crop year. The lower rate will provide sufficient funds to cover most of the 2023-2024 crop year anticipated expenses, with the balance coming from other income and the Committee's financial reserve. Assessments on California dates handled are expected to generate approximately $63,900 in income at the $0.15 per hundredweight assessment rate.

The Committee's budgeted expenditures for the 2023-2024 crop year total $75,800. The Committee's expenses include $48,000 for management services, $16,800 for office administration, and $11,000 for the financial audit. In comparison, the previous crop year's total budget was $77,250, with $48,000 for management services, $19,750 for office administration, and $9,500 for the financial audit.

The assessment rate recommended by the Committee was derived by considering anticipated expenses, the expected volume of dates handled, and the amount of funds available in the operating reserve. Income derived from handler assessments of $63,900 (426,000 hundredweight assessed at the $0.15 per hundredweight assessment rate) should be adequate to cover most of the Committee's budgeted expenses of $75,800, with the balance covered from $5,100 in surplus allocation income and $6,800 from reserve funds. After expending $6,800 from the reserve on budgeted expenses, the ending 2023-2024 crop year balance in the financial reserve fund is expected to be $49,400, which would be less than the average of the annual expenses of the preceding five years, as mandated by the Order in § 987.72(d).

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 would be undertaken as necessary. The Committee's 2023-2024 crop year budget, and those for subsequent crop years, will 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), 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 70 producers of dates in the production area and 11 handlers subject to regulation under the Order. Small agricultural producers of dates are defined by the Small Business Administration (SBA) as those having annual receipts of less than $3,500,000 (NAICS code 111339, Other Noncitrus Fruit Farming), and small agricultural service firms are defined as those whose annual receipts are less than $34,000,000 (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201).

According to the National Agricultural Statistics Service (NASS), data for the most-recently completed crop year (2022) shows that California date farmers produced 49,200 tons of dates and that the producer price for fresh market California dates was $2,840 per ton. With the estimated 49,200-ton crop, the total farm gate value for California date producers was approximately $139,728,000 (49,200 multiplied by $2,840). Therefore, the average fresh market date revenue for the 70 producers within the production area would be about $1,996,114 ($139,728,000 divided by 70). Thus, it can be concluded that the many of the date producers within the production area could be considered small entities.

Furthermore, USDA Market News reported an average terminal market price of $53.90 per 11-pound carton for the 2021-2022 crop year. With approximately 98,400,000 pounds handled, the industry would have shipped an estimated 8,945,454 11-pound cartons (98,400,000 divided by 11) of packaged dates for a total value of $482,159,971 (8,945,454 multiplied by $53.90). With 11 date handlers within the production area, the average revenue per handler is estimated to be $43,832,724 for the 2021-2022 crop year ($482,159,971 divided by 11). Thus, most California date handlers could be considered large entities.

This final rule decreases the rate of assessment for the 2023-2024 and subsequent crop years from $0.20 to $0.15 per hundredweight of assessable dates. The Committee unanimously recommended 2023-2024 crop year expenditures of $75,800 and a $0.15 per hundredweight assessment rate. The Committee expects the industry to handle 426,000 hundredweight of assessable dates during the 2023-2024 crop year. Thus, at the $0.15 per hundredweight rate, the Committee anticipates $63,900 in assessment income (426,000 multiplied by $0.15). The Committee also expects to utilize surplus allocation ($5,100) and the Committee's monetary reserve ($6,800) to cover the remaining $11,900 of expenses. Income derived from all sources are expected to be adequate to meet budgeted expenditures for the 2023-2024 crop year. The Committee's reserve balance (approximately $49,400 at the end of the 2023-2024 crop year) will be maintained at a level that the Committee believes is appropriate and is compliant with the provisions of the Order.

The Committee's budgeted expenditures for the 2023-2024 crop year total $75,800. The Committee's expenses include $48,000 for management services, $16,800 for office administration, and $11,000 for the financial audit. In comparison, the previous crop year's total budget was $77,250, with $48,000 for management services, $19,750 for office administration, and $9,500 for the financial audit.

Prior to arriving at the budget and assessment rate, the Committee discussed various alternatives. However, the Committee determined that the assessment rate established herein will be able to reduce the financial burden on the industry without drawing down reserves to an unsustainable rate. The assessment rate of $0.15 per hundredweight of assessable dates was derived by considering anticipated expenses, the projected volume of dates handled, the projected monetary balance held in reserve, and additional pertinent factors.

A review of NASS information indicates that the average producer price for the 2022 crop year was $2,840 per ton ($142.00 per hundredweight). Utilizing the recommended assessment rate of $0.15 per hundredweight, the estimated assessment revenue as a percentage of total producer revenue will be approximately 0.106 percent ($0.15 divided by $142.00 and multiplied by 100).

This final rule decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, these costs are expected to be offset by the benefits derived by the operation of the Order.

The Committee's meetings are widely publicized throughout the production area. The California date industry and all other interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the June 27, 2023, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, 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 will be necessary as a result of this action. Should any changes become necessary, they will be submitted to OMB for approval.

This final rule will not impose any additional reporting or recordkeeping requirements on either small or large California date 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 December 27, 2023 (88 FR 89327). Copies of the proposed rule were provided to all California date 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 January 26, 2024, was provided for interested persons to respond to the proposal. No comments were received. Accordingly, no changes have been 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, USDA 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 987 as follows:

DOE maintains a previously approved incorporation by reference (ASHRAE 41.1-1986 (Reapproved (“RA”) 2006)) and incorporates by reference the following industry standards into 10 CFR part 430:

Copies of ASHRAE Standard 37-2009 (RA 2019), ASHRAE 37-2009 Errata Sheet, ASHRAE Standard 103-2017, and the 2021 ASHRAE Handbook can be obtained from the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”), 180 Technology Parkway NW, Peachtree Corners, GA 30092,(800) 527-4723 or (404) 636-8400, or online at www.ashrae.org.

For a further discussion of these standards, please see section IV.N of this document.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to establish and amend energy conservation standards and test procedures for consumer furnace fans. (42 U.S.C. 6295(f)(4)(D)) DOE's energy conservation standards and test procedure for consumer furnace fans are currently prescribed at title 10 of the Code of Federal Regulations (“CFR”), part 430, § 430.32(y), and 10 CFR part 430, subpart B, appendix AA (“appendix AA”), respectively. The following sections discuss DOE's authority to establish a test procedure for consumer furnace fans and relevant background information regarding DOE's consideration of a test procedure for this product.

EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B of EPCA  2 established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. These products include consumer furnace fans, the subject of this document. (42 U.S.C. 6295(f)(4)(D))

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

The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making other representations about the efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

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

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle (as determined by the Secretary) or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including consumer furnace fans, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A))

If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such a procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. (42 U.S.C. 6293(b)(2)) If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures.

In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, unless the current test procedure already incorporates the standby mode and off mode energy consumption, or if such integration is technically infeasible. (42 U.S.C. 6295(gg)(2)(A)) If an integrated test procedure is technically infeasible, DOE must prescribe separate standby mode and off mode energy use test procedures for the covered product, if a separate test is technically feasible. (42 U.S.C. 6295(gg)(2)(A)(iii)) Any such amendment must consider the most current versions of the International Electrotechnical Commission (“IEC”) Standard 62301  3 and IEC Standard 62087  4 as applicable. (42 U.S.C. 6295(gg)(2)(A))

DOE is publishing this final rule pursuant to the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A))

As discussed, DOE's existing test procedure for consumer furnace fans appears at appendix AA. Appendix AA provides procedures and calculations to determine the fan energy rating (“FER”), expressed as watts per 1,000 cubic feet per minute of airflow (“W/1000 cfm”).

DOE established the test procedure for consumer furnace fans at appendix AA in a final rule published on January 3, 2014 (“January 2014 Final Rule”). 79 FR 499. The test procedure is applicable to furnace fans used by weatherized and non-weatherized gas furnaces, oil furnaces, electric furnaces, and modular blowers. 5 See section 1, appendix AA. For each of these categories, the test procedure covers both mobile home and non-mobile home models. The test procedure is not applicable to non-ducted products, such as whole-house ventilation systems without ductwork, central air-conditioning (“CAC”) condensing unit fans, room fans, and furnace draft inducer fans because a “furnace fan” is defined as “an electrically-powered device used in a consumer product for the purpose of circulating air through ductwork.” 10 CFR 430.2.

As established in the January 2014 Final Rule, appendix AA incorporates by reference the definitions, test setup and equipment, and procedures for measuring steady-state combustion efficiency from the 2007 version of American National Standards Institute (“ANSI”)/American Society of Heating, Refrigeration, and Air-Conditioning Engineers (“ASHRAE”) Standard 103, “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers” (“ASHRAE 103-2007”). In addition to these provisions, appendix AA includes provisions for apparatuses and procedures for measuring temperature rise, external static pressure (“ESP”), and furnace fan electrical input power. Appendix AA also incorporates by reference provisions for measuring temperature and ESP from ANSI/ASHRAE 37-2009, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment” (“ASHRAE 37-2009”), including its reference in section 5.1 to ASHRAE 41.1-1986 (RA 2006), “Standard Method for Temperature Measurement.” Lastly, appendix AA includes a reference to the psychrometric chapter ( i.e., chapter 1) in the 2001 ASHRAE Handbook—Fundamentals (“2001 ASHRAE Handbook”) for use in calculating the specific volume of dry air at specified operating conditions.

In the January 2014 Final Rule, DOE determined that there is no need to address standby and off mode energy use in the test procedure for consumer furnace fans, as the standby mode and off mode energy use associated with furnace fans is measured by test procedures for the products in which furnace fans are used ( i.e., consumer furnaces and consumer CACs and heat pumps). 79 FR 499, 504-505.

On July 7, 2021, DOE published in the Federal Register a request for information (“July 2021 RFI”) seeking comments on the existing DOE test procedure for consumer furnace fans to determine whether amendments are warranted for the test procedure for consumer furnace fans. 86 FR 35660. More specifically, DOE requested comments, information, and data about a number of issues, mainly concerning: test settings (including selection of airflow control settings and ESP requirements for airflow settings other than the maximum setting); incorporation by reference of the most recent industry test method; clarifications for testing of certain products, including furnace fans with modulating controls, furnace fans and modular blowers tested with electric heat kits, certain two-stage furnaces that operate at reduced input only for a preset period of time, dual-fuel furnaces, and certain oil-fired furnaces; and issues related to test procedure repeatability and reproducibility. Id.

On May 13, 2022, DOE published in the Federal Register a notice of proposed rulemaking (“NOPR”) proposing to update appendix AA (“May 2022 NOPR”). 87 FR 29576. Specifically, DOE proposed to: (1) specify testing instructions for furnace fans incapable of operating at the required ESP; (2) incorporate by reference the most recent versions of industry standards, ASHRAE 103-2017 and ASHRAE 37-2009 (RA 2019), in 10 CFR 430.3; (3) define dual-fuel furnace fans and exclude them from the scope of appendix AA; (4) change the term “default airflow-control settings” to “specified airflow-control settings”; (5) add provisions to directly measure airflow; (6) revise the ambient temperature conditions allowed during testing to between 65 degrees Fahrenheit (“°F”) and 85 °F for all units (both condensing and non-condensing); and (7) assign an allowable range of relative humidity during testing to be between 20 percent and 80 percent. 87 FR 29576, 29579. DOE held a webinar related to the May 2022 NOPR on May 19, 2022 (hereafter, the “NOPR webinar”).

DOE received comments in response to the May 2022 NOPR from the interested parties listed in Table II.1.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 6 To the extent that interested parties have provided written comments that are substantively consistent with any oral comments provided during the NOPR webinar, DOE cites the written comments throughout this final rule. Any oral comments provided during the webinar that are not substantively addressed by written comments are summarized and cited separately throughout this final rule.

In this final rule, DOE amends appendix AA to subpart B of 10 CFR part 430, “Uniform test method for measuring the energy consumption of furnace fans,” as follows:

• Specify testing instructions for furnace fans incapable of operating at the required ESP;

• Incorporate by reference the most recent versions of industry standards, ASHRAE 103-2017 and ASHRAE 37-2009 (RA 2019), in 10 CFR 430.3;

• Incorporate by reference chapter 1 of the 2021 ASHRAE Handbook;

• Define dual-fuel furnace fans and exclude them from the scope of appendix AA;

• Change the term “default airflow-control settings” to “specified airflow-control settings;”

• Make clarifications to nomenclature, correct the value of the conversion factor from Watts to BTU/h, and correct the units of specific volume of dry air;

• Revise the ambient temperature conditions allowed during testing to between 65 °F and 85 °F for all units (both condensing and non-condensing);

• Assign an allowable range of relative humidity during testing to be between 20 percent and 80 percent; and

• Require that the power measurements be determined as an average over the last 30 seconds of each steady state period at intervals of no less than 1 per second, rather than taken as a single point measurement.

The adopted amendments are summarized in Table II.1 compared to the test procedure provision prior to the amendment, as well as the reason for the adopted change.

DOE has determined that the amendments described in section III of this document and adopted in this document will not alter the measured efficiency of consumer furnace fans or require retesting or recertification solely as a result of DOE's adoption of the amendments to the test procedure. Additionally, DOE has determined that the amendments will not increase the cost of testing. Discussion of DOE's actions are addressed in detail in section III of this document

The effective date for the amended test procedure adopted in this final rule is 75 days after publication of this document in the Federal Register . Representations of energy use or energy efficiency must be based on testing in accordance with the amended test procedure beginning 180 days after the publication of this final rule.

As discussed, a “furnace fan” is an electrically-powered device used in a consumer product for the purpose of circulating air through ductwork. 10 CFR 430.2. And, as stated, DOE's test procedure is applicable to furnace fans used in weatherized and non-weatherized gas furnaces, oil furnaces, electric furnaces, and modular blowers. See section 1, appendix AA. The test procedure is not applicable to non-ducted products, such as whole-house ventilation systems without ductwork, CAC or central air-conditioning heat pump (“HP”) condensing unit fans, small-duct high-velocity (“SDHV”) air conditioner unit fans, room fans, and furnace draft inducer fans.

DOE received a comment in response to the July 2021 RFI that suggested modifying the consumer furnace fans test procedure to account for lower fan power during low-stage cooling operation. In the May 2022 NOPR, DOE requested information and data regarding the electrical energy consumption of multi-stage furnace fans during low-stage cooling operation, specifically in relation to single-stage furnace fans in cooling mode. 87 FR 29576, 29580.

In response, JCI commented that a two-stage cooling blower offers significant energy savings resultant, in part, from the circulating air blower operating at a lower speed during low-stage cooling. JCI stated that the electronically commutated motors (“ECMs”) used in units with two-stage blowers are more efficient at lower speeds. JCI also commented that the increased motor efficiency at low stage is not reflected in the current furnace fan test procedure. JCI commented that, unlike furnaces designed for strictly single-stage cooling, furnaces designed for two-stage cooling applications typically include thermostat connections for control and have the ability to switch automatically to a lower blower speed when low-stage cooling is in operation. JCI commented that the consumer furnace fan test procedure should be modified to properly capture the actual field behavior of two-stage cooling units. (JCI, No. 10 at p. 1)

Lennox stated that fan energy consumption is significantly reduced when operating multi-stage furnace fans during low-stage cooling operation relative to single-stage furnace fans operating in cooling mode. Lennox suggested that fan energy for low-stage operations is reduced by over 25 percent for two-stage products. Lennox commented that field data indicate multi-stage products spend the majority of operating hours in low-stage operation and that DOE should fully consider low-stage and multi-stage operation because they are representative of actual field operation. Lennox expressed support for transitioning the currently applicable consumer furnace fan test procedure to include low-stage operation. (Lennox, No. 11 at p. 3)

Carrier commented that it does not have data regarding low-stage cooling operation in relation to single-stage furnace fans in cooling mode. However, Carrier stated that engineering principles suggest that accounting for the low-stage fan electrical energy consumption would make the FER rating more representative than the current method of using the high-stage fan electrical energy consumption as if it were a single-stage blower unit. Carrier suggested that DOE consider creating a cooling capacity ratio multiplier to account for the reduced fan electrical energy in low stage. (Carrier, No. 12 at pp. 1-2)

AHRI commented that there may be significant energy savings associated with running multi-stage furnace fans during low-stage cooling operation. AHRI stated that it is in favor of using low-stage cooling operation for package units that employ two-stage or multi-stage cooling modes. (AHRI, No. 15 at p. 2)

In response to these comments, DOE continues to evaluate the potential benefits of accounting for lower fan power during low-stage cooling operation, as well any additional testing burden that such test provisions would entail. DOE has considered the feedback provided by commenters and has concluded that at this time, DOE does not have sufficient data and information to specify amended procedures for testing furnace fans at low-stage cooling operation. In particular, commenters did not provide sufficient data at this time to determine representative additional test points and reapportion the operating hours outlined in table IV.2 of appendix AA to reflect low-stage cooling. Further, adding test points to DOE's test procedure for consumer furnace fans would likely require manufacturers to recertify units and could add burden to the test procedure. DOE is therefore not modifying the consumer furnace fans test procedure to account for lower fan power during low-stage cooling operation in this final rule, but DOE may consider such provisions in a future test procedure rulemaking for furnace fans.

In the May 2022 NOPR, DOE stated that it was not proposing to include fans used in other types of heating, ventilating, and air-conditioning (“HVAC”) products—such as CACs, HPs, and SDHV modular blowers—within the scope of appendix AA. DOE tentatively concluded that the electrical energy consumption of furnace fans used in the aforementioned types of HVAC products will be accounted for by the seasonal energy efficiency ratio 2 (“SEER2”) and heating seasonal performance factor 2 (“HSPF2”) metrics measured by the test procedure for CACs and HPs at appendix M1 to subpart B of part 430 (“appendix M1”). 87 FR 29576, 29580.

In response to the May 2022 NOPR, the CA IOUs stated that the calculations for the SEER2 and HSPF2 metrics do not account for the fractional bin hours between 55 °F and 64 °F. The CA IOUs commented that fan energy during any air circulation through the ductwork at those temperatures is unaddressed in SEER2 and HSPF2; therefore, the CA IOUs recommended that DOE further investigate the fans installed in these residential HVAC products to determine if such fans would meet the current furnace fan energy conservation standards and consider including them in this rulemaking. (CA IOUs, No. 13 at p. 4)

The Joint Commenters stated that they agreed with DOE regarding potential backsliding concerns about furnace fan energy use if single-package air conditioner units with gas heat were excluded from the scope of the furnace fan test procedure and stated that they support continued inclusion of these products within the scope of the furnace fan test procedure. (Joint Commenters, No. 14 at p. 1)

With regards to the comments from the CA IOUs and the Joint Commenters. DOE notes that the test method of determining SEER2, Energy Efficiency Ratio 2 (“EER2”), HSPF2, and P W,OFF for CACs and HPs is provided at appendix M1. Table 19 of appendix M1 specifies the distribution of fractional hours within cooling season temperature bins for the calculation of SEER2. These bins range from 65 °F to 104 °F, and, accordingly, do not cover the 55 °F to 64 °F range, as mentioned by the CA IOUs. Table 20 specifies the distribution of fractional hours within heating season temperature bins for the calculation of HSPF2, which range from -23 °F to 62 °F. Collectively, these two tables cover the entire temperature range from -23 °F to 104 °F except for the relatively narrow range between 62 °F and 65 °F.

As discussed in section I.A of this document, DOE is required by EPCA to develop test procedures that are reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle (as determined by the Secretary) or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Accordingly, the SEER2 and HSPF2 metrics must reflect representative average annual use of products subject to those metrics, including CACs, HPs, and SDHV modular blowers, but do not necessarily need to account for performance at every possible temperature condition. DOE has previously determined that SEER2 and HSPF2 capture a representative measure of CAC and HP performance, including fan energy consumption, during heating and cooling operations. (See, for example, discussion of appendix M1 amendments at 82 FR 1426, 1446-1460 (Jan. 5, 2017)) Therefore, DOE has determined that the consumer furnace fan test procedure does not need to be amended to specifically address fan energy use in CACs and HPs.

Some consumer heating products include an electric heat pump as well as a gas burner and are often referred to as “dual-fuel” or “hybrid heating” units. These products are designed to provide space heating with the heat pump and/or gas burner, depending on the operating conditions ( e.g., outdoor air temperature and heating demand). The annual operating characteristics of a dual-fuel product may differ significantly from a typical furnace because the inclusion of a heat pump may change the operating time necessary to meet the heating load demand when compared with a gas burner alone, resulting in changes to the operating hours of the furnace fan. Additionally, as stated in the May 2022 NOPR, the current DOE consumer furnace fan test procedure does not specify provisions to set up or operate furnace fans for dual-fuel heating units, and the estimated annual national operating values in appendix AA may not be representative of average use cycle for furnace fans installed in dual-fuel applications. 87 FR 29576, 29580.

However, as was also discussed in the May 2022 NOPR, dual-fuel units are subject to the separate applicable standards for both HPs ( i.e., in terms of SEER2 and HSPF2) and furnaces ( i.e., in terms of annual fuel utilization efficiency (“AFUE”)). Therefore, DOE tentatively concluded that the fan energy use of these products is already accounted for by the metrics measured by the applicable test procedure. The SEER2 and HSPF2 metrics measure the fan energy in its cooling and heating modes, respectively, covering the two major functions of furnace fans. Furthermore, furnace fans in dual-fuel models have not been subject to appendix AA and, therefore, were not part of the previous standards analysis. Id. at 87 FR 29581.

In the May 2022 NOPR, DOE proposed to define dual-fuel units as a consumer product that includes both a heat pump and a burner in a single cabinet. Further, DOE proposed to explicitly exclude furnace fans used in them from the scope of appendix AA. Id.

In response to the May 2022 NOPR, the CA IOUs commented that dual-fuel products—such as package units with electric heat pumps and a gas burner that are intended to provide the same utility as a typical weatherized, non-condensing furnace fan and a weatherized gas furnace—will likely grow in popularity for consumers. The CA IOUs agreed with DOE's assertion that the annual operating characteristics of a dual-fuel product may differ significantly from a typical furnace but noted this is not sufficient justification for exclusion from this rulemaking. Moreover, the CA IOUs stated that manufacturers currently need to test these furnace fans in otherwise identical package units with a cooling-only coil and a furnace; therefore, including such furnace fans in the scope would not increase manufacturer burden. The CA IOUs suggested that because heat pump capacity is expected to correlate to cooling capacity, units with lower heating capacity than cooling capacity installed in high-heat-demand climate zones would result in more gas-specific heating operation for a dual-fuel system during heating degree days. The CA IOUs stated that, as a result, the estimated national average operating hour values for calculating FER are also relevant for dual-fuel systems. The CA IOUs therefore recommended that DOE not exclude the furnace fans in dual-fuel heating products from the scope of the test procedure. (CA IOUs, No. 13 at p. 4)

The Joint Commenters stated that the gas furnaces that are part of dual-fuel units are essentially identical to those that are part of currently covered single-package air conditioning units with a gas furnace. The Joint Commenters added that they were unclear as to how DOE made the determination that dual-fuel fans are presently excluded from the currently applicable test procedure. The Joint Commenters encouraged DOE to clarify its determination that dual-fuel fans are excluded from the scope of the currently applicable consumer furnace fan test procedure and to consider adding provisions for testing these furnace fans. (Joint Commenters, No. 14 at pp. 1-2)

Conversely, Carrier, Lennox, and AHRI commented in support of the proposed definition for dual-fuel units and the proposal to exclude the furnace fans in them from the scope of appendix AA. (Carrier, No. 12 at p. 2; Lennox, No. 11 at p. 3; AHRI, No. 15 at p. 2)

In response to these comments, DOE notes that although furnace fans used in dual-fuel units were not explicitly excluded in the currently applicable consumer furnace fan test procedure, the test procedure does not specify provisions for the testing of these products. Additionally, in response to the CA IOUs' suggestion that heating contribution from the heat pump may be small in comparison to the furnace component, DOE notes that these assumptions would not be applicable to all product designs, nor is it necessarily representative of typical installations and usage patterns throughout the U.S. Therefore, DOE continues to conclude that the operating hours used in appendix AA would not be representative of the fans in dual-fuel units. It follows that these products necessarily were not intended to be subject to the currently applicable consumer furnace fan test procedure. DOE further notes that there is a distinction between packaged dual-fuel units, which include both a furnace for heating operation and a heat pump for heating and cooling operation, and package air conditioner units, which include only a furnace for heating operation (along with an air conditioner that provides cooling only). The single-package air conditioner system can be tested according to the currently applicable test procedure for furnace fans, the operating hours are representative for these products, and furnace fans used in package air conditioners are currently subject to the standards established for this product type. Further, as noted previously in this section, the energy consumption of the fans in dual-fuel heating products is already captured in the SEER2 and HSPF2 metrics specified in appendix M1. Therefore, to clarify the distinction between dual-fuel products and products within the scope of this consumer furnace fan test procedure, DOE is finalizing its proposed definition for dual-fuel units within appendix AA in this final rule. Accordingly, DOE is finalizing its proposal to specify more explicitly that furnace fans in dual-fuel products are excluded from the scope of appendix AA.

The currently applicable DOE test procedure for consumer furnace fans incorporates by reference ASHRAE 103-2007, ASHRAE 37-2009, and ASHRAE 41.1-1986 (RA 2006). Since publication of the January 2014 Final Rule, ASHRAE published an update to ASHRAE 103, i.e., ASHRAE 103-2017, and two addenda to ASHRAE 37-2009 (ASHRAE 37-2009 (RA 2019)). In the May 2022 NOPR, DOE proposed to incorporate by reference ASHRAE 103-2017 and ASHRAE 37-2009 (RA 2019) in its test procedure for consumer furnace fans to stay consistent with the latest industry testing practices. 87 FR 29576, 29581. Further, DOE proposed to update all references of ASHRAE 37-2009 to ASHRAE 37-2009 (RA 2019). Id. Finally, DOE proposed to maintain reference to ASHRAE 41.1-1986 (RA 2006). Id.

In response to the May 2022 NOPR, Carrier commented that it agrees with the incorporation by reference of ASHRAE 103, ASHRAE 37, and ASHRAE 41.1. Carrier stated these references are important for the direct measurement method. (Carrier, No. 12 at p. 2) Additionally, Carrier and AHRI recommended that the DOE adopt the most recent versions of all ASHRAE standards relevant to this rule ( i.e., ASHRAE 103-2022 and ASHRAE 41.1-2020). (Carrier, No. 12 at p. 2; AHRI, No. 15 at p. 2) Rheem and AHRI commented that DOE should consider the new version of ASHRAE 37 that will be coming out soon. (Rheem, NOPR Webinar Transcript, No. 9 at pp. 19-20; AHRI, No.15 at p. 4)

For the reasons discussed in the preceding section and in the May 2022 NOPR, DOE is finalizing its proposal to incorporate by reference in appendix AA the most recent version of ASHRAE 37 (ASHRAE 37-2009 (RA 2019)). With regards to the comments from Rheem and AHRI, DOE notes that a new version of ASHRAE 37 has not been published yet so DOE is incorporating by reference the most recent version of ASHRAE 37. Relatedly, DOE notes that ASHRAE 37-2009 (RA 2019) references ASHRAE 41.1-1986 (RA 2006) as opposed to the more recent ASHRAE 41.1-2020. Consequently, to maintain consistency with ASHRAE 37-2009 (RA 2019), DOE is finalizing its proposal to maintain the incorporation by reference of ASHRAE 41.1-1986 (RA 2006) in appendix AA. In response to the comments from Carrier and AHRI, DOE notes that ASHRAE 103-2022 updated the references to relevant standard test methods and standard specifications from ASHRAE 103-2017. Notably, the amended ASHRAE 103 standard adds references to ASTM D396-2019, “Standard Specification for Fuel Oils” and ANSI/ASHRAE Standard 41.6-2014, “Standard Methods for Humidity Measurement,” while removing the reference to Heat Transmission by W.H. McAdams. As discussed, in the May 2022 NOPR, DOE proposed to incorporate by reference ASHRAE 103-2017. 87 FR 29576, 29581. Although DOE continues to evaluate the differences between ASHRAE 103-2017 and ASHRAE 103-2022 (and the standards referenced therein), DOE has not yet determined whether the changes between the versions of the standards would impact appendix AA and, in turn, FER ratings. Therefore, DOE maintains its proposal in the May 2022 NOPR and incorporates by reference ASHRAE 103-2017 into appendix AA in this final rule. DOE will continue to evaluate ASHRAE 103-2022 for future incorporation by reference.

Appendix AA as established in the January 2014 Final Rule included a reference to the psychrometric chapter ( i.e., chapter 1) in the 2001 ASHRAE Handbook for use in calculating the specific volume of dry air at specified operating conditions. Although the 2001 ASHRAE Handbook was not incorporated by reference in appendix AA at the time in the January 2014 Final Rule, DOE notes that its inclusion in the test procedure should necessitate its incorporation by reference. As the 2001 version of the ASHRAE Handbook is no longer widely available, DOE is updating appendix AA to reference to the 2021 version of the ASHRAE Handbook. Because appendix AA already references the 2001 version of the ASHRAE Handbook, which uses the same method to determine the specific volume of dry air as the 2021 version of the ASHRAE Handbook, incorporating by reference chapter 1 of the 2021 ASHRAE Handbook will not change the results of FER. DOE is therefore incorporating by reference chapter 1, “Psychrometrics” of the 2021 ASHRAE Handbook into appendix AA in this final rule.

On February 20, 2019, DOE received a petition for waiver and an application for interim waiver from ECR International, Inc. (“ECR”) for certain basic models of furnace fans that ECR described as belt-driven, single-speed furnace fans designed for heating-only applications in oil-fired warm air furnaces. 7 ECR asserted that the furnace fan basic models specified in the petition have design characteristics that prevent testing of the basic model according to the test procedure prescribed in the currently applicable appendix AA. Specifically, ECR claimed that the specified products are not designed to operate within the range of ESP required in the currently applicable appendix AA and that testing such furnace fans at the required ESP reduces airflow and increases temperature rise to the point where the units shut off during testing due to high temperature limits, making it impossible to achieve the steady-state operation required for testing. 8

On March 9, 2021, DOE published a Decision and Order (“2021 Decision and Order”) granting ECR a test procedure waiver specifying an alternate test procedure that must be used to test and rate the specified basic models. 9 86 FR 13530, 13534-13535.

Specifically, the 2021 Decision and Order specified adjustments to the ESP test conditions specified in section 8.6.1.2 of the currently applicable appendix AA. Basic models subject to the 2021 Decision and Order must be tested at the specified ESP. Id. The alternate test procedure in the 2021 Decision and Order further specifies that if the unit under test shuts down prior to completion of the test, the ESP range is incrementally reduced by 0.05 inches of water column (“w.c.”), and the test is to be re-run. Id. This process is repeated until a range is reached at which the test can be conducted to its conclusion, with a minimum allowable ESP range of 0.30-0.35” w.c., which corresponds to the lowest ESP at which shut-off occurred in the ECR data. Id.

The test procedure waiver provision at 10 CFR 430.27(l) provides that, as soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a NOPR to amend its regulations so as to eliminate any need for the continuation of such waiver. As soon thereafter as practicable, DOE will publish in the Federal Register a final rule. 10 CFR 430.27(l). Therefore, to amend the test procedure so as to eliminate any need for the continuation of this waiver, in the May 2022 NOPR, DOE proposed to add provisions requiring that furnace fans be initially tested at the applicable ESP range specified in table 1 of appendix AA. If the unit under test is unable to complete the testing ( i.e., the unit shuts down), the ESP range would be incrementally reduced by 0.05” w.c. ( e.g., for units designed to be paired with an evaporator coil but without one installed, first from 0.65”-0.70” to 0.60”-0.65” w.c.). This process would be repeated until an ESP range at which the test can be conducted to its conclusion is reached. 87 FR 29576, 29582-29583.

In response to the May 2022 NOPR, Lennox, Carrier, and AHRI commented that they support the proposed test procedure instructions for products that cannot be tested at the ESPs in the currently applicable test procedure. (Lennox, No. 11 at p. 3; Carrier, No. 12 at p. 2; AHRI, No. 15 at p. 2) Lennox stated that it supports these test procedure changes, which would eliminate the current test procedure waiver and not create separate product classes for low-ESP products. (Lennox, No. 11 at p. 3) JCI commented that the FER test procedure should not specify a static pressure setting that is above the maximum static pressure specified by the furnace manufacturer. (JCI, No. 10 at pp. 4-5)

The Joint Commenters commented that this proposal could allow the products subject to the 2021 Decision and Order ( i.e., “heating only” products that cannot be tested at the ESPs in the currently applicable test procedure) to meet the standard more easily. The Joint Commenters stated that despite DOE's discussion in the May 2022 NOPR that these “heating only” furnace fans are not manufactured for the same applications as other covered furnace fans ( e.g., in a system with cooling), the manufacturer literature for these “heating-only” models repeatedly discusses usage in cooling applications. The Joint Commenters encouraged DOE to further consider appropriate testing provisions for “heating-only” furnace fans that cannot reach the ESPs defined in appendix AA. (Joint Commenters, No. 14 at p. 2)

The CA IOUs commented that DOE should not require furnace fans that cannot meet the required ESP to be tested using an alternative test procedure because it would result in an unrepresentative metric. Instead, the CA IOUs recommended that DOE either add a correction factor or create a new product class for these products. (CA IOUs, No. 13 at p. 1) The CA IOUs stated that the method of reducing ESP until a test could be complete would result in testing at a much lower airflow and higher temperature rise than the maximum shown on the furnace nameplate. The CA IOUs stated that operating at this condition contradicts the manufacturer's installation and operating instructions and is not representative of field use. The CA IOUs expressed concern that this approach sets a precedent for manufacturers of other products to deviate from Federal test procedures without changing their product rating. ( Id. at pp. 1-2) The CA IOUs stated that the product for which the waiver was granted has a motor capable of operating at the required ESP. Further, the CA IOUs stated that the motor is supplied with a fixed belt drive that does not allow the fan to run at the speed necessary to achieve the higher ESP. Finally, the CA IOUs stated that the manufacturer's literature provides instructions for changing the pulleys in the field to work at the required speed. ( Id. at p. 2)

In response to these comments, DOE notes that, as is discussed in the grant of an interim waiver to ECR, test data submitted by ECR showed that the specified furnace fan basic models stop operating at an ESP between 0.30” and 0.60” w.c., depending on the particular basic model, with units shutting down at an average ESP of 0.47” w.c. 85 FR 50808, 50811. These ESPs are below the values listed in table 1 of appendix AA, indicating that these units could not complete a test according to the current consumer furnace fan test procedure without the proposed changes to ESP requirements. DOE further notes that a unit using a different motor or replacing the pulley, belt, or other components would constitute a different basic model.

The CA IOUs reiterated their comments previously submitted in response to the July 2021 RFI in which they demonstrated that for a given speed, forward curve fan efficacy is higher at low airflow and high ESP than at a low ESP with high airflow. The CA IOUs commented that the requirement in the proposed test procedure would test the fixed-speed fan at a much lower airflow and higher ESP than the fan would operate at under normal conditions, resulting in a measured efficacy that is significantly better than would result if the fan were tested at a representative airflow. ( Id. at p. 2) The CA IOUs stated that the problem is exacerbated by the lack of correction to account for the difference between the tested ESP and the ESP listed in table 1 of appendix AA in the reported FER. The CA IOUs noted that while they are unaware of a validated equation specifically for FER, DOE employs a similar correction for water-source heat pumps by incorporating ANSI/AHRI/ASHRAE ISO Standard 1346-1:1998 (RA 2012). The CA IOUs noted that water-source heat pumps require this correction to determine the power consumption and capacity at the rating condition of 0.0″ wc because the actual tests use a positive ESP. The CA IOUs commented that they believe this DOE-approved equation applies equally well to furnace fans. ( Id. at pp. 2-3)

The CA IOUs also recommended that DOE require testing at an airflow no less than that required to meet the maximum temperature rise on the furnace nameplate. Alternatively, the CA IOUs suggested that DOE create a new product class for heating-only units and require a specific ESP in table 1 of appendix AA that is lower. The CA IOUs stated that this would reduce test burden because the products would complete testing on the first attempt rather than incrementally reducing ESP in further attempts. The CA IOUs noted that there is a similar breakdown of products based on application and static pressure for ducted blower coil systems for central air conditioners and heat pumps. Further, the CA IOUs stated that appendix M1 has different ESP test conditions for conventional, low static, and mid static blower coil systems based on the external static pressure produced during operation. ( Id. at p.3)

In response to the comment from the CA IOUs, DOE notes that no data indicate that the correction equation used for water-source heat pumps is appropriate for use in the furnace fans test procedure. Because these two products are tested according to different procedures, DOE cannot conclude that this equation would be appropriate to use to predict the change in FER. Further, as previously stated in the 2021 Decision and Order, validating an equation for extrapolating to FER at an ESP that is higher than that at which the unit can operate may be difficult or even not possible (as the unit cannot operate at that point). See 86 FR 13530, 13533.

In addition, products that operate at low ESPs are typically used in heating-only applications, and the products subject to the waiver are not to make any representations in any public-facing materials that these basic models are designed to be installed in systems that provide both heating and cooling. Id. Therefore, DOE concludes that these heating-only products do not compete with products intended for both heating and cooling, and DOE is not implementing an adjustment factor to the test procedure for furnace fans that are unable to complete testing at the ESPs specified in table 1 of the revised appendix AA. Additionally, DOE concludes that the proposed modified test provisions reflect the actual use of these products that cannot operate at higher ESPs and result in a metric that is representative.

Therefore, for the reasons discussed here and in the May 2022 NOPR, in this final rule, DOE is finalizing its proposal to adopt the modified test provisions for units that cannot meet the ESPs outlined in table 1 of appendix AA.

Comment responses to the July 2021 RFI indicated that stakeholders encountered difficulty obtaining repeatable and reproducible FER results using the current appendix AA. Based on feedback collected during manufacturer interviews prior to the May 2022 NOPR, DOE understands that there are several key areas of possible revision to the currently applicable consumer furnace fan test procedure that could improve repeatability and reproducibility. 87 FR 29576, 29583.

In response to the May 2022 NOPR, Lennox commented that it evaluated over 60 furnace fans tested through the AHRI audit program and found the correlation between manufacturer test values and audit test values to be within an acceptable variation, such that test procedure repeatability is not a concern. (Lennox, No. 11 at p. 1)

JCI referenced AHRI work project 8020 which, JCI stated, studied the FER metric, attempted to develop a predictive metric, and reviewed possible alternatives to the current standard. JCI quoted the results of the AHRI project as follows: “Appendix AA results in a wide metric tolerance. AHRI's members report, and the research shows, that the results are affected by the natural gas input rate and relative humidity, which is problematic as testing is not conducted in a controlled environment. Further, the current test method lends itself to test inaccuracies resulting in the inability to achieve repeatability.” JCI also listed AHRI's recommendations for member companies as follows: (1) evaluate their lab measurement systems, procedures, and the uncertainty of each input variable; (2) test in a controlled environment to reduce variability; and (3) complete a statistical number of tests to improve rating confidence. JCI commented that the first and third recommendations are feasible and less expensive to the test labs, but JCI suggested that reduced variability could be achieved through actions other than testing in a controlled environment. (JCI, No. 10 at p. 2)

DOE notes that feedback from comment responses to the July 2021 RFI and manufacturer interviews have indicated challenges with test procedure repeatability and reproducibility in contrast to the comment from Lennox. Additionally, DOE has received feedback that units are often rated conservatively due to these repeatability challenges. Further, in the May 2022 NOPR, DOE proposed and requested feedback on specific solutions to minimize variability and uncertainty in results. 87 FR 29576, 29583-29586. The following sections address specific topics on which DOE has received feedback in this regard.

DOE received feedback in response to the July 2021 RFI that the natural gas input rate could impact FER, so DOE considered whether tightening the tolerance on firing rate (from ±2 percent) would improve the repeatability of the test procedure without imposing substantial burden. In a NOPR published on March 11, 2015, DOE determined that it could not change the tolerance on firing rate without increasing manufacturer burden because of variations in gas valve performance. 80 FR 12875, 12886-12887. Because DOE is not aware of any data suggesting it would now be possible to tighten this tolerance without imposing substantial test burden, DOE did not propose to change the tolerance on fuel input rating in the May 2022 NOPR. 87 FR 29576, 29583-29584.

In response to the May 2022 NOPR, AHRI, Carrier, and Lennox commented that they support the decision not to tighten the tolerance on fuel input ratings beyond what is required in ASHRAE 103-2017. (AHRI, No. 15 at p. 2; Carrier, No. 12 at p. 2; Lennox, No. 11 at p. 3) Lennox stated also that tightening the tolerance beyond ± 2 percent would increase manufacturer burden. (Lennox, No. 11 at p. 3)

For the reasons discussed in the May 2022 NOPR, and as supported by these comments, DOE is not making any changes to the fuel input rating in this final rule.

In the May 2022 NOPR, DOE tentatively concluded that FER results are affected by ambient air temperature and humidity. To help improve the repeatability and reproducibility of test results, DOE proposed to tighten the range of allowable ambient conditions during testing. Specifically, DOE proposed to specify that ambient air temperature must be maintained between 65 °F and 85 °F and relative humidity must be maintained between 20 percent and 80 percent. 87 FR 29576, 29584. DOE tentatively concluded that these limits would not impose additional burden on manufacturers while maintaining the representativeness of the test procedure. Id.

DOE requested comment on these proposed constraints, and on its tentative determination that this proposal would decrease variability between tests. Id. at 87 FR 29584-29585.

In response to the May 2022 NOPR, Lennox, Carrier, and the Joint Commenters commented that they support the proposed modifications to the allowable ambient temperature range in appendix AA to be between 65 °F and 85 °F for non-condensing and condensing furnaces. (Lennox, No. 11 at p. 4; Carrier, No. 12 at p. 3; Joint Commenters, No. 14 at p. 2) AHRI similarly commented that it supports the change in the ambient air temperature requirement in appendix AA and suggested that the change would not introduce additional burden. (AHRI, No. 15 at p. 2) Lennox and Carrier both commented that their laboratories have the capability to condition the ambient air within the newly specified range; therefore, the requirement will not add significant burden. (Lennox, No. 11 at p. 4; Carrier, No. 12 at p. 3) Lennox stated that this change will reduce FER variability for non-condensing furnaces as well as standardize existing requirements for condensing furnaces. (Lennox, No. 11 at p. 4)

Lennox, Carrier, JCI, and AHRI further commented that they support the proposal to require maintaining the room relative humidity between 20 percent and 80 percent because it will decrease test variability without adding significant burden. (Lennox, No. 11 at p. 4; Carrier, No. 12 at p. 3; JCI, No. 10 at p. 2; AHRI, No. 15 at p. 3) However, they each commented that a tighter range, for example 30 percent to 50 percent, for relative humidity would require FER testing to be conducted in a special conditioned test room rather than in the main laboratory test area, which would add significant manufacturer testing burden. ( Id. ) Additionally, AHRI stated that the narrower band of 30 to 50 percent would require using tighter humidity controls in the test room than the current requirement. (AHRI, No. 15 at p. 3) JCI similarly stated that a tighter humidity range of 30 to 50 percent is beyond the capability of existing lab facilities where FER testing is currently performed. JCI stated that it does not support a relative humidity range tighter than 20 to 80 percent. Furthermore, JCI commented that the test repeatability of FER is less significantly sensitive to the tolerance in relative humidity (“RH”) compared to other test parameters. (JCI, No. 10 at p. 2)

For the reasons discussed in the May 2022 NOPR, and in consideration of these stakeholder comment responses, DOE is finalizing its proposal to specify in section 7.1 of appendix AA that the room temperature shall not fall below 65 °F (18.3 °C) or exceed 85 °F (29.4 °C) and the relative humidity shall not fall below 20 percent or exceed 80 percent in this final rule.

Section 10.1 of the current appendix AA compares the input heat energy to the heat picked up by the air when the furnace is in heating mode based on the temperature rise of air passing through the furnace and the specific conditions of the inlet air to calculate airflow in the specified heating setting (“Q heat ”). If this heating mode airflow setting is the maximum airflow-control setting, then Q heat is equal to the expected airflow at the maximum airflow-control setting (“Q max ”). If this heating mode airflow setting is not the maximum airflow-control setting, a second calculation is performed to calculate Q max based on Q heat . Section 10.1, appendix AA. In the May 2022 NOPR, DOE evaluated whether the current method of calculating airflow indirectly based on measurements of other parameters leads to repeatability challenges within the test procedure. 87 FR 29576, 29585.

Each parameter involved in the calculation of Q max and FER has its own inherent variability. Measuring airflow directly reduces the number of parameters required to be measured and therefore could reduce the overall variation inherent in the final FER value.

In the May 2022 NOPR, DOE acknowledged that requiring the use of an airflow-measuring device for furnace fans could introduce a one-time cost for manufacturers that either do not utilize such devices for their current testing programs (presumably of other products) or do not have enough of such devices available to test furnace fans in addition to other HVAC products that use airflow-measuring devices. The estimated cost of an airflow-measuring device is up to $50,000. Id.

In the May 2022 NOPR, DOE tentatively concluded that the benefits of measuring airflow would directly outweigh the associated burdens and that the requirement to directly measure airflow would not be unduly burdensome. Id. DOE therefore proposed to require that airflow be measured directly during each test. Id. Specifically, DOE proposed that this measurement be done using the procedures and methods for measuring airflow specified in ASHRAE 37-2009 (RA 2019), similar to how it is done for central air conditioners and heat pumps. Id. As part of this proposal, DOE proposed to incorporate by reference Figure 12 of ANSI/Air Movement and Control Association International, Inc. (“AMCA”) 210-07, ANSI/ASHRAE 51-07 (“AMCA 210-2007”), titled “Laboratory Methods of Testing Fans for Certified Aerodynamic Performance Rating;” and Figure 14 of ANSI/ASHRAE Standard 41.2-1987 (RA 92), (“ASHRAE 41.2-1987 (RA 1992)”), titled “Standard Methods for Laboratory Airflow Measurement.” Id. DOE requested comment on this proposal. Id.

In the May 2022 NOPR, DOE also requested comment on whether it is necessary to reference AMCA 210-2007 and ASHRAE 41.2-1987 (RA 1992) in the test procedure instructions for constructing an airflow measuring apparatus. Id. DOE also requested comment on alternative methods of directly measuring airflow, such as methods outlined in AMCA 210 ( e.g., the pitot traverse method), 10 as well as duct-mounted airflow measurement devices and anemometers, and whether these methods could prove more accurate and repeatable. Id. Specifically, DOE requested comment on alternative methods of direct airflow measurement, including on the level of measurement accuracy associated with each approach and any associated test burden. Id. at 87 FR 29585-29586.

In response to the May 2022 NOPR, the Joint Commenters expressed support for the proposed requirement for direct measurement of airflow, suggesting that it should improve repeatability and reproducibility. (Joint Commenters, No. 14 at p. 2) Carrier commented that it would support the test procedure change to direct airflow measurement provided that gas heat operation is not required during the direct airflow measurement test. (Carrier, No. 12 at pp. 3-4) Carrier added that it performed comparison tests without gas heating operation on four models, which represented a cross-section of non-weatherized gas furnaces, to compare the methods of the currently applicable test procedure to the proposed direct airflow measurement method. Carrier reported that the results of the test showed slight favoring of the current method over the direct measurement method; however, Carrier stated that the FER results differed by less than 1 percent and maximum airflow averaged 2 percent lower when using the direct measurement method. ( Id. at p. 4) AHRI stated that it has a limited data set and is unable to provide a meaningful comparison between FER generated by the direct and indirect airflow measurement methods. (AHRI, No. 15 at p. 3)

Lennox stated that the variation in airflow between DOE sample units and AHRI audit units calculated under the currently applicable test procedure would be similar to the typical variation when using direct airflow measurement systems, as motor performance variation is the primary driver for the airflow variation. (Lennox, No. 11 at p. 5) Lennox commented that it did not support the proposal to change the test procedure from the current method to a direct airflow measurement method as it would cause a significant increase in manufacturer burden. ( Id. at p. 4) However, Lennox commented that, if DOE were to adopt the proposal to measure airflow directly, DOE should carefully ensure that results are cross-walked should ratings change as a result of direct airflow measurement. ( Id. at p. 5)

JCI commented that it does not support changing to direct measurement of airflow because JCI is unsure if the proposed change to directly measure airflow would resolve the repeatability issues associated with the furnace fan test procedure. (JCI, No. 10 at pp. 2-3, 4) JCI agreed that measuring airflow directly should reduce the uncertainty in calculating maximum airflow compared to the current method, but the proposed change does not guarantee that it would constrain the uncertainty in the FER. JCI commented that the proposal does not address furnace fan electrical consumption, which also has an associated uncertainty. (JCI, No. 10 at pp. 2-3)

Carrier commented that the direct measurement method would improve the accuracy of the test procedure while reducing the difficulty to run it. Carrier suggested that, if DOE were to adopt the direct airflow measurement method, DOE should consider applying the new test procedure only to new models and allowing models tested under the existing test procedure to remain compliant until that model is discontinued. (Carrier, No. 12 at p. 4) Carrier stated that the proposed method of direct airflow measurement would be a slight improvement in the burden imposed on manufacturers from the furnace fans test procedure. ( Id. at p. 7)

AHRI noted that transitioning to the direct method would create a significant burden for manufacturer test labs and third-party testing facilities as the direct method would require a different set of measurements and therefore additional equipment along with a reconfiguration of the test setup that would require additional floor space. AHRI added that the direct method would further increase testing burden through doubling the number of samples run on code testers. (AHRI, No. 15 at p. 3) AHRI commented that third-party and manufacturer testing facilities would be required to construct code testers and reconfigure heating labs to fit the sizeable instrumentation in order to have the necessary set-up and capacity to conduct direct airflow measurements. AHRI stated that if this is not an option due to space constraints, third-party test facilities would need to move the set-up equipment to small unitary test facilities that already have the built-in flow meters. AHRI concluded that both of these options would significantly increase test time and expenses, including operating costs, and there would be a significant increase in burden for labs not already set up to conduct this type of testing. ( Id. at p. 7) AHRI commented that manufacturers are equipped to conduct the current furnace fan test procedure and stated that the additional burden posed by transitioning to the direct method will outweigh the value of any potential increased accuracy offered. ( Id. at p. 3)

Additionally, AHRI commented that should DOE proceed with the direct measurement method, the equipment should remain unfired throughout the testing process. AHRI added that the use of flow measurement devices with high temperature applications will create significant issues and may decrease the life of said measurement devices. AHRI stated that there is limited data available to make accurate comparisons between methods. AHRI requested that data supporting the reasoning for a transition to the direct measurement method be made available prior to requiring the change. AHRI requested that DOE conduct an adequate evaluation of the impact that the direct measurement method will have on FER values and that a crosswalk be created if necessary. Finally, AHRI suggested that DOE consider alternative approaches to reduce testing burden while achieving the same objectives. ( Id. at p. 4)

Lennox commented that it does not support the proposed change of the furnace fan test procedure from the current method to the direct airflow measurement method due to the increased burden it would impose. (Lennox, No. 11 at p. 1) Lennox commented that the current furnace fan test setup allows the AFUE and FER test to be conducted in a single setup, but a direct airflow measurement approach would require a second setup which would significantly increase burden. ( Id. at p. 5) Lennox stated that measuring airflow directly would cause significant upfront manufacturer costs to purchase code testers and would additionally create ongoing operating costs. Lennox added that additional investments in adequate lab and personnel capacity for direct airflow measurement would be required. Lennox stated that it has multiple product development facilities where furnace fan testing is conducted, so investments would need to be made in each facility. Lennox estimated the ongoing increase in burden to conduct FER direct airflow testing to be up to a 100-percent increase over the currently applicable test method. Lennox stated that DOE should consider the total cumulative regulatory burden associated with any changes to the FER test procedure to require direct airflow measurement. (Lennox, No. 11 at p. 7) Lennox added that, because the FER metric is a part of the AHRI audit program, the additional setup would increase burden when conducting audits. Lennox commented that, while manufacturers do directly measure airflow in the process of developing airflow application tables, it is often done on one sample and is not inclusive of all the iterations required in furnace development, so burden would be added. ( Id. at p. 5)

JCI commented that the instrumentation for airflow measurement is often found in a different location than the gas lab, where heating equipment is tested, and code tester labs are frequently unequipped to supply fuel gas to a furnace or to dispose of flue gas. Furthermore, JCI stated that the airflow code testers used by JCI and other manufacturers are not intended to have heated air passing through them. JCI noted that the proposed procedure presents issues because it directs that the furnace burners be fired at the same time as the unit is set up on the code tester for direct measurement of airflow. (JCI, No. 10 at p. 3) JCI commented also that the only reason that burners are fired in the current furnace fan test procedure is because they must be fired in order to obtain the temperature rise value used in the calculation of Q max . JCI stated that if the airflow is to be measured directly, there is no need to fire the burners during testing. JCI also commented that changing to a direct airflow measurement would add significant burden because it would require a separate setup from the furnace test procedure, whereas the current furnace fan test procedure setup is the same as the setup used for the furnace AFUE test procedure. ( Id. at p. 4)

JCI stated that independent testing should be conducted to verify that the two test methods yield the same FER ratings. JCI noted that DOE regulations require that if there is a change of test method, then a unit that complies when tested by the old method must still be compliant when tested by the new method. JCI stated that it would take many months to verify that the hundreds of products they produce which comply with the standards when tested to the currently applicable test procedure still comply when tested according to the proposed method. JCI commented that if test data reveal that the FER results are different when tested according to the proposed method, DOE should be prepared to adjust the maximum allowable FER rating to accommodate the difference. ( Id. at p. 3) Finally, JCI commented that the proposed method would impose substantial additional test burden and/or equipment costs and that there has been no demonstrated benefit to making the change to direct airflow measurement. ( Id. at p. 5)

Morrison commented that there are a variety of factors in the airflow measurement procedure as outlined by ASHRAE 37 that could lead to uncertainty associated with this procedure. Morrison noted that DOE should investigate the error specific to this procedure as it relates to furnace fan testing. (Morrison, NOPR Webinar Transcript, No. 9 at pp. 20-23)

In response to the May 2022 NOPR, Lennox commented that AMCA 210-2007 and ASHRAE 41.2-1987 (RA 1992) are associated with the direct airflow measurement method, which Lennox does not support; therefore, Lennox stated, the current furnace fan test procedure airflow calculation is adequate. (Lennox, No. 11 at p. 5) Carrier recommended that DOE reference ASHRAE 41.2-2018 as it is a newer and more current standard. Carrier further commented that it does not recommend other methods beyond ASHRAE 37-2009. (Carrier, No. 12 at p. 4) AHRI recommended that DOE reference ASHRAE 41.2-2018, as opposed to ASHRAE 41.2-1987 (RA 1992), because it is more current. AHRI suggested that establishing standardization across original equipment manufacturers (“OEMs”) would be the best practice. AHRI stated that an updated version of ASHRAE 37 is coming out soon and that ASHAE 37-2009 is the industry standard for equipment and is preferred over AMCA 210-2007, which is a fan-only standard. (AHRI, No. 15 at p. 4)

JCI stated that there are other less expensive measures that, if progressively implemented, would result in repeatability improvements in the furnace fan test procedure and, specifically, reduction in maximum airflow variability. These measures include higher accuracy requirements for instrumentation; providing additional clarity regarding the thermocouple grid, statistical, and sampling techniques; and limiting uncertainty in fuel input rate. JCI stated that these measures would not impose additional burden and disruption to lab facilities, would only require programmatic updates, would not incur the expenses associated with purchasing a code tester, would not put smaller OEMs at a competitive disadvantage, and would expedite improving test procedure repeatability. (JCI, No. 10 at p. 3) Lennox stated that while other airflow measurement methods exist, they are generally less accurate than the methods specified in ASHRAE 37-2009 (RA 2019) and would consequently negate the purpose of transitioning to a direct-airflow measurement method. (Lennox, No. 10 at p. 6)

AHRI noted that there are alternative instruments for direct airflow measurement, but they are less accurate than the methods specified in ASHRAE 37-2009 and would consequently negate the purpose of transitioning to a direct airflow measurement method. (AHRI, No. 15 at p. 4)

The CA IOUs commented that ASHRAE 37 is sufficient, and that referencing AMCA 210 is not necessary. The CA IOUs further commented that they expect that a commercial industrial fans NOPR would lead to an update AMCA 210-2016, and that this test procedure should reference the 2016 version of AMCA 210 if any version is referenced. (CA IOUs, NOPR Webinar Transcript, No. 9 at pp. 25-26)

In response to these comments regarding the proposals to measure airflow directly in the furnace fan test procedure and to reference AMCA 210-2007 and ASHRAE 41.2-1987 (RA 1992) in the furnace fan test procedure, DOE maintains that measuring airflow directly using a code tester could reduce the error associated with airflow measurement in comparison to calculating the airflow and, in turn, reduce concerns about the repeatability and reproducibility of the furnace fan test procedure. However, since the May 2022 NOPR, DOE has conducted preliminary testing to compare the values of Q max and FER determined according to the current test procedure for consumer furnace fans and a modified test method similar to that proposed in the May 2022 NOPR that included direct airflow measurements. The preliminary results indicated that values determined from tests directly measuring airflow could differ from values determined using the current test method. This preliminary testing did not indicate whether such differences would be more or less representative than the results obtained under the current test procedure requirements. Further, during the preliminary testing, DOE attempted to test some units in the heating mode without the burner firing, as suggested by commenters in response to the May 2022 NOPR, but found that some units were not able to be operated in this way, indicating that a test procedure that requires the test to be conducted unfired may not be possible for all furnace fans. Due to these concerns combined with concerns raised by commenters about potential changes to ratings and the burden associated with implementing this change, DOE has determined to not finalize the proposal from the May 2022 NOPR to measure airflow directly in this final rule. Relatedly, DOE is not incorporating by reference AMCA 210-2007 and ASHRAE 41.2-1987 (RA 1992). Additionally, DOE is adopting other provisions in this final rule that are intended to improve repeatability of the current test procedure without affecting existing ratings or significantly increasing test burden, as discussed elsewhere in section III.D of this document. However, DOE is still investigating the impact of direct airflow measurement on furnace fan ratings, including the impact of running tests with and without the burners firing during heating-mode tests, and may further assess directly measuring airflow in a future test procedure rulemaking for consumer furnace fans.

Appendix AA currently requires that external static pressure be measured 18 inches from the outlet. This differs from the requirements outlined in section 6.4 of ASHRAE 37-2009, in which the measurement location varies depending on the dimensions of the duct outlet. In the May 2022 NOPR, DOE reevaluated this provision and how it might impact the repeatability of the test procedure. 87 FR 29576, 29586. DOE expressed concern that measuring at a fixed location of 18 in from the outlet could lead to a less accurate and less repeatable measurement than the approach provided in ASHRAE 37-2009 because the airflow profile may not be fully developed. Id.

However, DOE did not have sufficient information to propose a change in the May 2022 NOPR, and therefore requested comment on whether requiring that the external static pressure be measured at the location specified in section 6.4 of ASHRAE 37-2009, as opposed to specifying that external static pressure taps always be placed 18 in from the outlet ( i.e., the instructions currently in appendix AA), could improve test repeatability. Id. DOE also requested comment on whether manufacturer facilities and other test laboratories would be able to accommodate the added duct length during testing. Id. Further, if test facilities would not be able to accommodate the added duct length during testing, DOE requested comment on whether a different length requirement could improve test repeatability while not preventing any existing test facilities from completing a valid test for furnace fans. Id.

In response to the May 2022 NOPR, Carrier and AHRI commented that they are opposed to the change in location of measurement if the change results in a higher FER value. If the change does not result in a higher FER value, Carrier and AHRI stated that they would not be opposed to the change. (Carrier, No. 12 at p. 5; AHRI, No. 15 at p. 5) AHRI recommended that the furnace fan test procedure be aligned with furnace test procedures because existing ductwork can be utilized and AFUE will meet existing space constraints. (AHRI, No. 15 at p. 5)

AHRI and JCI stated that they do not support any change to the location of pressure taps for furnace fan testing, and that if the furnace is to be tested on the code tester, the ASHRAE standard for that airflow measurement process includes a description of the duct design and the location of pressure taps. (AHRI, No. 15 at p. 5; JCI, No. 10 at p. 4) AHRI and JCI noted that for furnaces tested in the gas heating lab, the ASHRAE 103 standard includes a description of the ducts and pressure tap locations. ( Id. ) AHRI added that these standards have been in use for many years and yield reliable and repeatable results. AHRI stated that the FER test procedure does not need to specify test duct details; it only needs to reference the appropriate existing standard. (AHRI, No. 15 at p. 5) JCI commented that these standards ( e.g., ASHRAE 103) have been in use for many years and provide reliable and repeatable results. JCI stated that the research they conducted concluded that repeatability will not be improved by changing the location of the pressure taps. Moreover, JCI stated that placing the pressure taps at 18 in from the outlet (instead of at a location based on the outlet dimensions) will result in measuring pressure at inconsistent duct lengths within the turbulent flow development region into the supply duct. JCI commented that DOE should engage with OEMs in a research effort to test the assumption in this proposal before finalizing the change. (JCI, No. 10 at p. 4)

Lennox commented that for the current method of calculating airflow based on temperature rise, DOE should maintain the location of 18 in from the outlet to standardize to the same test ducts used for all safety and performance tests performed under Z21.47 and ASHRAE 103-2017. Lennox added that DOE should gather test data that show that a longer duct required by ASHRAE 37-2009, which would require an elbow with 9 thermocouples added to measure outlet temperature, would justify the added manufacturer burden of building additional ducts and switching back and forth between these and those required by all other tests. (Lennox, No. 11 at p. 6)

DOE notes that, in response to the discussion presented in the May 2022 NOPR regarding whether the current method for measuring ESP at a fixed location of 18 in from the outlet could lead to a less accurate and less repeatable measurement than the approach provided in ASHRAE 37-2009, commenters have not provided any data that demonstrate the impact on accuracy or repeatability of changing the location of external static pressure measurements, nor does DOE have any additional information beyond the discussion provided in the May 2022 NOPR. And in response to the comment from JCI, DOE notes that the currently applicable test procedure at appendix AA requires that external static pressure be measured 18 inches from the outlet, as opposed to a measurement location that varies depending on the dimensions of the duct outlet. Additionally, commenters generally did not support the change to the location of pressure taps for consumer furnace fan testing. For these reasons, DOE is not changing the ESP measurement location in this final rule.

In the May 2022 NOPR, DOE responded to several comments in response to the July 2021 RFI regarding revisions to the language in appendix AA that could reduce confusion about the test procedure and, in turn, improve test procedure repeatability. 87 FR 29576, 29586-29589.

For furnace fans used in furnaces or modular blowers with single-stage heating, the three airflow-control settings required to be tested are: the maximum setting, the default constant-circulation setting, and the default setting when operated using the maximum heat input rate. 11 For furnace fans used in furnaces or modular blowers with multi-stage heating or modulating heating, the airflow-control settings to be tested are: the maximum setting, the default constant-circulation setting, and the default setting when operated using the reduced heat input rate. See sections 8.6.1, 8.6.2, 8.6.3, appendix AA. For both single-stage and two-stage or modulating units, if a default constant-circulation setting is not specified, the lowest airflow-control setting is used to represent constant circulation for testing. See section 8.6.2, appendix AA.

In addition, if the manufacturer specifies multiple heating airflow-control settings, the highest heating airflow-control setting specified for the given function ( i.e., at the maximum or reduced input, as applicable) is used. See section 8.6.3, appendix AA.

Inquiries sent to DOE since the publication of the January 2014 Final Rule indicate that there are differing interpretations regarding the appropriate airflow-control settings for testing, with some manufacturers interpreting the DOE consumer furnace fan test procedure as requiring testing only the “as-shipped” airflow-control settings. However, the definition for “default airflow-control setting” specifically states that “[i]n instances where a manufacturer specifies multiple airflow-control settings for a given function to account for varying installation scenarios, the highest airflow-control setting specified for the given function shall be used for the procedures specified in this appendix.” Section 2.6, appendix AA. Further, the default airflow-control settings are defined as airflow-control settings specified for installed use by the manufacturer. That section in turn clarifies that the “manufacturer specifications for installed use” are those specifications provided for typical consumer installations in the product literature shipped with the product in which the furnace fan is installed.

Additionally, inquiries sent to DOE indicate that some manufacturers may be interpreting the test procedure to require testing according to installation instructions printed on the control board. However, DOE notes that the same control board may be used across multiple products to reduce manufacturing complexity and costs, and, as a result, instructions provided on a control board may not be applicable to every unit in which a control board is used and could contradict the specifications in product literature. For this reason, DOE specifies in the definition of “default airflow-control setting” that the manufacturer specifications for installed use are those specifications provided for typical consumer installations in the product literature shipped with the product in which the furnace fan is installed. Section 2.6, appendix AA.

Based on feedback received in response to the July 2021 RFI, DOE proposed in the May 2022 NOPR to change the defined term at section 2.6 in appendix AA from “default airflow-control settings” to “specified airflow-control settings.” This revised definition would avoid potential misinterpretation of the term “default,” which is not intended to limit testing to the as-shipped airflow-control settings. 87 FR 29576, 29587.

DOE also notes that there is currently conflicting direction from sections 8.6.2 and 2.6 of appendix AA, with section 2.6 specifying that the testing laboratory use the highest available airflow-control setting and section 8.6.2 specifying that the testing laboratory use the lowest available airflow-control setting. To address this discrepancy, DOE also proposed in the May 2022 NOPR to add the phrase “unless otherwise specified within the test procedure” to the end the definition of “specified airflow-control settings” to clarify that the hierarchy within appendix AA is for the airflow-control settings to be selected according to section 2.6, unless section 8.6.2 applies, in which case section 8.6.2 should be used to select airflow-control settings. Id.

In response to the May 2022 NOPR, Lennox and Carrier commented that they support the proposal to change the term “default airflow-control settings” to “specified airflow-control settings.” (Lennox, No. 11 at p. 6; Carrier, No. 12 at p. 5) JCI commented that while it agrees with the need to clarify what speed tap is to be used for testing a furnace in heating mode, the rule should explicitly state that the heating speed to be used during heat-mode testing is the speed tap specified by the furnace manufacturer in the product literature shipped with the furnace. (JCI, No. 10 at p. 4) AHRI requested that DOE provide clarification regarding what “default airflow-control settings” refers to and provide the reasoning for this change. AHRI also suggested that DOE specify what is meant by “unless otherwise specified within the test procedure.” (AHRI, No. 15 at p. 5)

Lennox added that it also supports the addition of the phrase “unless otherwise specified within the test procedure.” Lennox stated that these changes would improve clarity. (Lennox, No. 11 at p. 6) JCI commented that the phrase “unless otherwise specified within the test procedure” is confusing, as the furnace should always be tested at the manufacturer-specified heating speed and the test procedure should not specify otherwise. (JCI, No. 10 at p. 4)

In response to the comment from JCI, DOE notes that the definition it proposed in the May 2022 NOPR and is adopting in this final rule for specified airflow-control settings explicitly states that these settings are those in the product literature shipped with the product in which the furnace fan is installed. In response to the comment from AHRI, DOE notes that this change was proposed in response to inquiries received since the publication of the January 2014 Final Rule. Some inquiries expressed confusion regarding the distinction between the “default airflow-control settings” and the “as-shipped airflow-control settings.” Others indicated that some manufacturers may be interpreting the test procedure to require testing according to installation instructions printed on the control board. By proposing to change “default airflow-control settings” to “specified airflow-control settings,” DOE intended to clarify that this refers to the manufacturer-specified settings for each testing mode.

To provide clarity and resolve the conflicting instruction, in this final rule, DOE is finalizing its proposal to change the term “default airflow-control settings” to “specified airflow-control settings” and to add the phrase “unless otherwise specified within the test procedure” to the end the definition of “specified airflow-control settings” in section 2.9 of appendix AA.

In the May 2022 NOPR, DOE stated that it expects that if a fan setting is identified for heating mode operation that the fan would be capable operating in that mode at the ESP specified in appendix AA (which is representative of a typical ESP that would be encountered in the field) and at the specified temperature rise range. DOE requested comment on whether it is necessary to specify that the maximum heating airflow-control setting used during testing be one that also allows for operation within the manufacturer-specified temperature rise range during testing. DOE also requested information regarding how often furnace fans operate outside of the manufacturer-specified temperature rise range during FER testing under the current requirements. 87 FR 29576, 29587.

In response to the May 2022 NOPR, Lennox, Carrier, AHRI, and JCI suggested that the maximum heating airflow-control setting should allow for operation within the manufacturer's specified rise range during testing. (Lennox, No. 11 at p. 6; Carrier, No. 12 at p. 5; AHRI, No. 15 at p. 6; JCI, No. 10 at p. 4) Carrier stated that it creates unnecessary confusion to require compliance otherwise. (Carrier, No. 12 at p. 5) JCI commented that realistic FER ratings depend on operating the furnace in a realistic manner. JCI added that testing at heating speeds resulting in a temperature rise outside of the manufacturer-specified range is not a realistic operating condition. (JCI, No. 10 at p. 4)

DOE agrees with the commenters that the temperature rise during testing should be within the manufacturer-specified range. If the temperature rise were outside of the manufacturer-specified range, it would not be representative of typical performance. Therefore, in this final rule, DOE is adding clarification in section 8.6.3 of appendix AA that the maximum heating airflow-control setting used during testing be one that also allows for operation within the manufacturer-specified temperature rise range during testing.

Sections 8.6.1.1, 8.6.1.2, 8.6.2, and 8.6.3 of appendix AA require the following parameters to be measured after steady-state operation is achieved: the furnace fan electrical input power, fuel or electric resistance heat kit input energy, external static pressure, steady-state efficiency, outlet air temperature, and/or temperature rise. DOE is aware that some test facilities take a single reading for each of these parameters after achieving the steady-state criteria. As noted in the May 2022 NOPR, in DOE testing, during which these parameters were measured in 1-second intervals throughout the steady-state period, data showed that the values fluctuate sometimes significantly between readings, even while steady-state conditions are maintained. 87 FR 29576, 29588. Due to the potential for significant differences from one reading to the next, these fluctuations could contribute to repeatability issues in FER testing if a value from a single point in time is used for each test. In particular, DOE testing has shown that the standard deviation of furnace fan power measurements for most units over a 30-minute period (at steady state operation) can be up to 16 percent of the average, although for most units the standard deviation is less than 1 percent of the average power consumption. DOE stated in the May 2022 NOPR that it was considering whether further clarifications are necessary for appendix AA to clarify how manufacturers should take power measurements. Specifically, DOE explained that that increasing the number of discrete measurements taken ( i.e., increasing the sample size) and averaging them to determine each furnace fan power consumption measurement may yield a result that is more representative and repeatable than using single point measurements of the furnace fan power. Id. For example, DOE could require that power measurements be based on the average value over a 1-minute interval beginning immediately after steady-state operation has been achieved, during which the power is measured at least once per second. Alternatively, DOE could require furnace fan power measurements to be based on the average of measurements taken over the entire steady-state period at certain specified intervals ( e.g., every minute or every 5 minutes). Id.

In the May 2022 NOPR, DOE requested data and information on the methods and granularity with which test facilities currently measure the aforementioned variables, particularly furnace fan power (E Max , E Circ , and E Heat ). DOE also requested comment on the intervals at which test facilities are currently capable of recording these measurements with their current instrumentation. Finally, DOE requested information on whether there are variables aside from the fan power consumption variables for which there are significant fluctuations in measurements that DOE should also consider requiring be determined as an average of multiple measurements. Id. at 87 FR 29588-29589.

DOE also requested comment on the number of samples that should be taken, and the length of time over which data should be collected in order for a representative average to be achieved. DOE requested comment on the associated costs, if any, to upgrade measurement instruments or software to be able to collect furnace fan power consumption measurements at frequencies of once per second, once per minute, once per 5 minutes, and/or other recommended sampling frequencies. Id. at 87 FR 29589.

In response to the May 2022 NOPR, AHRI commented that the number of samples per period of time is dependent on the specific testing conditions; however, AHRI suggested that, generally, manufacturers take power samples every second for 30 seconds, and in alternative testing scenarios once every 2 seconds for 60 seconds to achieve representative averages. (AHRI, No. 15 at p. 6)

Carrier, JCI, and AHRI recommended that short periods of average power measurements should be allowed for instrumentation accuracy and consistency. (Carrier, No. 12 at p. 5; Joint Commenters, No. 14 at pp. 2-3; AHRI, No. 15 at p. 6) Carrier stated that airflow pressure measurements can fluctuate such that using a sample rate of one reading per second for 30 seconds or some other variation to obtain a several-reading average would be preferred. (Carrier, No. 12 at pp. 5-6) AHRI commented that airflow pressure measurements especially have fluctuations that are improved using averaging techniques over multiple measurements and stated that the currently applicable test method on existing equipment does not have the capacity to automatically collect the requested data and information. AHRI noted that the test stand does not have significant fluctuations in data values. (AHRI, No. 15 at p. 6) The Joint Commenters commented that DOE should consider requiring time-averaged values for other test variable measurements as well. (Joint Commenters, No. 14 at p. 3)

Carrier stated that it has not evaluated the associated costs to upgrade lab infrastructure for more frequent readings. (Carrier, No. 12 at p. 6)

These stakeholder comments suggest that current laboratory setups are capable of reporting power data in 1-second intervals and averaging this reported data over the last thirty seconds of the furnace fan test without incurring additional cost or burden. Therefore, in this final rule, DOE is clarifying in section 8.6 of appendix AA that furnace fan electrical input power (E Max, E Circ, and E Heat ) shall be determined using an average of the measurements taken over the final 30 seconds of the test at an interval no less frequent than every 1 second.

The title of section 8.3 of appendix AA is “Steady-State Conditions for Gas and Oil Furnaces,” the title of section 8.4 is “Steady-State Conditions for Electric Furnaces and Modular Blowers,” and the title of section 8.5 of appendix AA is “Steady-State Conditions for Cold Flow Tests.” Sections 8.3 and 8.4 describe the steady-state conditions for “hot flow” tests during which the burner or heating element is on, while section 8.5 describes the steady-state conditions for “cold flow” tests during which the burner or heating element is off.

In the May 2022 NOPR, DOE proposed to amend the section titles to include the terminology “for Hot Flow Tests” in the titles to provide better consistency between the section titles and to provide clarity for the intended use of sections 8.3 and 8.4 of appendix AA. 87 FR 29576, 29589. DOE did not receive any comments in response to this proposal. For the reasons discussed here and in the May 2022 NOPR, DOE is finalizing this change as proposed.

DOE also proposed in the May 2022 NOPR to redesignate the description of operating-mode hours from “cooling hours” with variable “CH” to “maximum airflow hours” with variable “MH.” DOE tentatively concluded that these descriptions would be more accurate, as the maximum airflow-control setting is not necessarily a cooling airflow-control setting, and that this proposed change would provide consistency with the description of the operational mode and E Max measurement and avoid the implication that the maximum airflow-control setting will always be a cooling mode. Id.

Finally, in the May 2022 NOPR, DOE proposed to add an asterisk prior to the statement “once the specified ESP has been achieved, the same outlet duct restrictions shall be used for the remainder of the furnace fan test” in section 8.6.1.2 of appendix AA to link this statement to the ESP column of table 1. Id. at 87 FR 29588. This change would clarify the appropriate duct restrictions for testing and not make any substantive changes. Id.

DOE did not receive any comments in response to these proposals. Therefore, for the reasons discussed in this final rule and in the May 2022 NOPR, DOE is finalizing these changes as proposed.

In response to comments submitted following the July 2021 RFI, DOE considered several changes to the nomenclature and equations in appendix AA. First, in the May 2022 NOPR, DOE noted the term Q i in appendix AA, which refers to the airflow control setting in airflow-control setting i, could lead to confusion as the subscript “i” has two different meanings: the airflow-control setting and the heat input setting. Id. at 87 FR 29589.

DOE also evaluated revising the nomenclature for variables and conversion factors, including steady-state efficiency (“Effy SS ”), the specific volume of dry air (“v air ”), jacket loss (“L J ”), airflow (“Q i ”), the conversion factor from hours to minutes (60), the approximate specific heat of dry air (0.24), and the approximate specific heat capacity of saturated water vapor (0.44). Id. at 87 FR 29589-29590.

In the May 2022 NOPR, DOE noted that, should DOE adopt its proposal to measure airflow directly, the equations to calculate airflow would no longer be needed. Id. at 87 FR 29590. (However, as discussed in section III.D.3 of this document, DOE is not adopting its proposal to measure airflow directly and is instead maintaining the equations for calculating airflow.) Further, because the variable Q IN,i would be relevant regardless of whether DOE ultimately adopts its proposal to directly measure airflow, DOE proposed to revise the variable Q IN,i within the test procedure for furnace fans at appendix AA. Id. DOE also stated that should DOE not adopt the proposal to measure airflow directly, DOE would propose to include the following definitions in section 9 of appendix AA:

Further, DOE proposed to correct the conversion factor from watts to Btu/h to match the units designated for the fuel energy input rate (Q IN,k ), changing it from 3,413 to 3.413. Id. Finally, DOE noted that there should be different variables assigned to represent relative humidity and the humidity ratio. To provide clarity regarding these variables, DOE proposed to redesignate the variable for relative humidity from “W” to “ q .” Id. at 87 FR 29590-29591.

In response, AHRI and Carrier commented that “W” is defined as humidity ratio; therefore, it would not be necessary to change “W” to “ q .” (AHRI, No. 15 at p. 6; Carrier, No. 12 at p. 6) Lennox commented it agreed with adding definitions to certain variables and constants as proposed and to change the conversion factor to (Btu/h)/W. (Lennox, No. 11 at p. 7)

With regards to the comments from AHRI and Carrier, while “W” is defined as the humidity ratio in section 9 of appendix AA, DOE notes that “W” is also defined as relative humidity in section 8.6.1 of appendix AA. To provide clarity and distinguish between the two terms, DOE is finalizing its proposal to designate “ q ” as the relative humidity in section 8.6.1 of appendix AA. For the reasons discussed in this final rule and in the May 2022 NOPR, DOE is finalizing the additional proposals regarding nomenclature and equation adjustments in appendix 9 of appendix AA, consistent with the proposals in the May 2022 NOPR.

Section 5.1 of appendix AA, which references section 5.1 of ASHRAE 37-2009, requires that temperature-measuring instruments must be accurate to within 0.75 °F. Section 6 of appendix AA references section 7 of ASHRAE 103-2007 for the test apparatus setup. Section 7.6 of ASHRAE 103-2007 includes instructions to take temperature measurements with thermocouple grids constructed of either 5, 9, or 17 thermocouples, depending on the stack diameter. The measurement accuracy of a thermocouple grid depends on the type and number of thermocouples used, as well as the magnitude of the air temperature being measured.

In the May 2022 NOPR, DOE evaluated commenter feedback to the July 2021 RFI and tentatively concluded that, assuming that the stack temperatures of gas furnaces would not likely exceed 450 °F, current instrumentation is adequate to measure the stack temperature of furnaces on the market. Thus, DOE did not propose any changes to the accuracy of temperature-measuring instruments in appendix AA. 87 FR 29576, 29591. DOE did not receive any comments in response to the May 2022 NOPR. As a result, this final rule makes no changes to the specified accuracy of temperature measuring instruments in appendix AA.

In response to the May 2022 NOPR, AHRI stated that the FER metric may not be the most appropriate method for testing furnace fans. AHRI stated that furnace fans are not sold directly to consumers and consumers are generally unconcerned with FER values when selecting the best product for their application. AHRI stated that it would appreciate DOE working through concerns about this test procedure with manufacturers to achieve a workable solution. (AHRI, No. 15 at p. 4)

Lennox stated that furnace fan standards do not impact consumer buying decisions for the furnaces in which residential furnace fans are used. Lennox added that when considering energy efficiency, consumers evaluate AFUE because it represents the majority of the energy use of a furnace, and furnace fans consume less than 2 percent of the overall energy use of a residential furnace. Lennox recommended that DOE explore less burdensome approaches regarding ensuring minimum furnace fan efficiency. Lennox added that there are limited opportunities for manufacturers to improve furnace fan energy efficiency and that it is not likely to be economically justified for non-weatherized and weatherized gas furnaces. (Lennox, No. 11 at p. 2)

In response to the comments from AHRI and Lennox, DOE notes that AHRI and Lennox did not provide any specific suggestions as to an alternate test procedure that would better satisfy EPCA's requirement that the test procedure produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a furnace fan during a representative average use cycle or period of use without being unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Throughout this final rule, DOE has considered and responded to each comment received regarding specific aspects of the furnace fan test procedure. DOE has determined that the amended test procedure adopted in this final rule produces a representative measure of furnace fan energy efficiency and is not unduly burdensome to conduct. Regarding improved furnace fan efficiencies, DOE evaluates opportunities for increased efficiency as part of the separate energy conservation standards rulemaking for consumer furnace fans. 13

EPCA requires that test procedures proposed by DOE not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In this final rule, DOE is finalizing its proposals to amend the existing test procedure for consumer furnace fans by specifying a test method for furnace fans that operate at low ESPs, updating the incorporation by reference of certain industry test procedures to the most recent versions, clarifying the scope of the definition of “furnace fans,” tightening ambient conditions, clarifying language for airflow-control settings, clarifying nomenclature, and correcting typographical errors. As discussed in section III.D.3 of this document, DOE is not finalizing its proposal to require direct measurement of airflow in this final rule. DOE has determined that the amendments adopted in this final rule will not impact test costs, as discussed in the remainder of this section.

In response to a petition for waiver and an application for interim waiver for heating-only furnace fans, DOE granted a waiver requiring use of an alternate test procedure that specifies alternate ESP test conditions for furnace fans that operate at low ESPs. Any such furnace fan models currently on the market have already been granted a test procedure waiver from DOE, which specifies use of the alternate test procedure. As such, incorporating a similar methodology as the waiver methodology into the test procedure for furnace fans that operate at low ESPs will not result in any additional costs for manufacturers.

DOE is updating the material it incorporates by reference to include more recent versions of ASHRAE 103 and ASHRAE 37. DOE is also incorporating by reference chapter 1 of 2021 ASHRAE Handbook. As discussed previously, DOE's review of these standards indicates that reference to the revised versions of them will not impact FER ratings and will not require that manufacturers recertify their units. Therefore, manufacturers will not incur any additional costs.

Defining and explicitly excluding dual-fuel furnace fans from the scope of appendix AA will make clear that such products are not subject to testing under appendix AA and will not impose any additional burden.

In this final rule, DOE is also tightening ambient conditions to limit the permissible ambient temperature range to between 65 °F and 85 °F and the ambient humidity range to between 20 percent and 80 percent for both condensing and non-condensing furnaces. As discussed, appendix AA currently already limits ambient temperatures to between 65 °F and 85 °F, as well as humidity to below 80 percent for condensing furnaces, and DOE understands that testing laboratories are generally able to meet these criteria in their testing laboratories without the use of a specialized test chamber. Additionally, based on feedback received from Lennox, Carrier, JCI, and AHRI as outlined in section III.D.2 of this document and in confidential manufacturer interviews, DOE has concluded that it is unlikely that test laboratories would be unable to meet a minimum relative humidity requirement of 20 percent because that limit would exclude only the driest conditions. Therefore, DOE expects that test laboratories will not incur additional cost in applying these same temperature tolerances to testing of non-condensing furnaces as well. These changes to the ambient condition requirements are intended to increase the accuracy of FER ratings and the consistency of test results but are not expected to change the actual performance of any units. Additionally, DOE will not require units that are currently certified to retest according to the updated test procedure.

DOE's remaining changes (clarifying nomenclature and fixing typographic errors) will similarly not result in any changes to the test conduct and therefore will not affect the cost of testing. For these reasons, manufacturers will be able to rely on data generated under the test procedure in effect prior to the adoption of this amendment. However, if a manufacturer chooses to retest as a result of these test procedure amendments, DOE estimates a testing cost of $3,500 per unit and a minimum total cost of $7,000 per basic model.

The effective date for the adopted test procedure amendment will be 75 days after publication of this final rule in the Federal Register . EPCA prescribes that all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with an amended test procedure, beginning 180 days after publication of the final rule in the Federal Register . (42 U.S.C. 6293(c)(2)) EPCA provides an allowance for individual manufacturers to petition DOE for an extension of the 180-day period if the manufacturer may experience undue hardship in meeting the deadline. (42 U.S.C. 6293(c)(3)) To receive such an extension, petitions must be filed with DOE no later than 60 days before the end of the 180-day period and must detail how the manufacturer will experience undue hardship. ( Id. )

Upon the compliance date of test procedure provisions in this final rule, any waivers that had been previously issued and are in effect that pertain to issues addressed by such provisions are terminated. 10 CFR 430.27(h)(3). Recipients of any such waivers are required to test the products subject to the waiver according to the amended test procedure as of the compliance date of the amended test procedure. The amendments adopted in this document pertain to issues addressed by waivers granted to ECR International, Inc. (Case number 2019-001). See 86 FR 13530.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), and amended by 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.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of a final regulatory flexibility analysis (“FRFA”) for any final rule where the agency was first required by law to publish a proposed rule for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. 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: www.energy.gov/gc/office-general-counsel. DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE has concluded that the rule would not have a significant impact on a substantial number of small entities. The factual basis for this certification is as follows.

DOE used the Small Business Administration's (“SBA”) small business size standards to determine whether any small entities would be subject to the requirements of the rule. The size standards are listed by North American Industry Classification System (“NAICS”) code as well as by industry description and are available at www.sba.gov/document/support--table-size-standards. Manufacturing of consumer furnace fans is classified under NAICS 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” The SBA sets a threshold of 1,250 employees or fewer for an entity to be considered as a small business for this category. 14

DOE used available public information to identify potential small manufacturers. DOE reviewed the Compliance Certification Database  15 (“CCD”), the Modernized Appliance Efficiency Database System  16 (“MAEDbS”), individual company websites, and prior consumer furnace fan energy conservation standards rulemakings to create a list of companies that import or otherwise manufacture the products covered by this final rule. DOE then consulted other publicly available data, such as manufacturer specifications and product literature, U.S. import and export data ( e.g., Panjiva  17 ) and basic model numbers, to identify OEMs of the products covered by this rulemaking. DOE further relied on public sources and subscription-based market research tools ( e.g., Dun & Bradstreet reports  18 ) to determine company location, headcount, and annual revenue. DOE screened out companies that do not offer products covered by this rulemaking, do not meet the SBA's definition of a “small business,” or are foreign-owned and operated.

DOE identified 25 OEMs offering consumer furnace fans for the U.S. market. Of the 25 OEMs identified, DOE estimates that 8 companies qualify as small businesses and are not foreign-owned and operated.

DOE did not receive written comments that specifically addressed impacts on small businesses or that were provided in response to the initial regulatory flexibility analysis.

In this final rule, DOE is finalizing its proposals to amend the existing test procedure for consumer furnace fans by specifying a test method for furnace fans that operate at low ESPs, incorporating by reference the most recent industry test procedures, clarifying the scope of the definition of “furnace fans,” tightening ambient conditions, clarifying language for airflow-control settings, and clarifying nomenclature and correcting typographical errors. DOE is not finalizing its proposal to require direct measurement of airflow in this final rule. DOE has determined that the amendments adopted in this final rule will not impact test costs.

In response to a petition for waiver and an application for interim waiver for heating-only furnace fans, DOE granted a waiver requiring use of an alternate test procedure that specifies alternate ESP test conditions for furnace fans that operate at low ESPs. Any such furnace fan models currently on the market have already been granted a test procedure waiver from DOE, which specifies use of the alternate test procedure. As such, incorporating a similar methodology as the waiver methodology into the test procedure for furnace fans that operate at low ESPs will not result in any additional costs for manufacturers. DOE is updating the material it incorporates by reference to include more recent versions of ASHRAE 103 and ASHRAE 37. DOE is also incorporating by reference chapter 1 of 2021 ASHRAE Handbook. As discussed previously, DOE's review of these standards indicates that reference to the newer versions of them will not impact FER and will not require that manufacturers recertify their units. Therefore, manufacturers will not incur any additional costs. Defining and explicitly excluding dual-fuel furnace fans from the scope of appendix AA will make clear that such products are not subject to testing under appendix AA and will not impose any additional burden.

DOE is also tightening ambient conditions to limit the permissible ambient temperature range to between 65 °F and 85 °F and the ambient humidity range to between 20 percent and 80 percent for both condensing and non-condensing furnaces. As discussed, appendix AA currently already limits ambient temperatures to between 65 °F and 85 °F, as well as humidity to below 80 percent for condensing furnaces, and DOE understands that testing laboratories are generally able to meet these criteria in their testing laboratories without the use of a specialized test chamber. Additionally, DOE concluded that it is unlikely that test laboratories would be unable to meet a minimum requirement of 20 percent, because that limit would exclude only the driest conditions. Therefore, DOE expects that test laboratories will not incur additional cost in applying these same temperature tolerances to testing of non-condensing furnaces as well. These changes to the ambient condition requirements are intended to increase the accuracy of FER ratings and the consistency of test results but are not expected to change the actual performance of any units. DOE will not require units that are currently certified to retest according to the updated test procedure.

DOE's remaining changes, which clarify nomenclature and fix typographic errors, will not result in any changes to the test conduct and therefore will not affect the cost of testing. For these reasons, manufacturers will be able to rely on data generated under the test procedure in effect prior to the adoption of this amendment.

DOE has determined that the amendments described in section III of the final rule will not alter the measured efficiency of consumer furnace fans, or require retesting or recertification solely as a result of DOE's adoption of the amendments to the test procedures. Additionally, DOE has determined that the amendments will not increase the cost of testing. Therefore, DOE concludes that the cost effects accruing from the final rule would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

Manufacturers of consumer furnace fans must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including consumer furnace fans. ( See generally 10 CFR part 429.) The collection-of-information requirement for the 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 35 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.

DOE is not amending the certification or reporting requirements for consumer furnace fans in this final rule.

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

In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for consumer furnace fans. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and DOE's implementing regulations at 10 CFR part 1021. Specifically, DOE has determined that adopting test procedures for measuring energy efficiency of consumer products and industrial equipment is consistent with activities identified in 10 CFR part 1021, appendix A to subpart D, A5 and A6. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to 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 determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at www.energy.gov/gc/office-general-counsel. DOE examined this final rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

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

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at www.energy.gov/sites/prod/ files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with 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 OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This regulatory action is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.

The modifications to the test procedure for consumer furnace fans adopted in this final rule incorporate testing methods contained in certain sections of the following commercial standards: ASHRAE 103-2017, ASHRAE 37-2009 (RA 2019), and ASHRAE 41.1-1986 (RA 2006), as well as chapter 1 of the 2021 ASHRAE Handbook. DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA ( i.e., whether they were developed in a manner that fully provides for public participation, comment, and review.) DOE has consulted with both the Attorney General and the Chairman of the FTC about the impact on competition of using the methods contained in these standards and has received no comments objecting to their use.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final 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).

ASHRAE Standard 37-2009 (RA 2019) is an industry-accepted test procedure that provides a method of test for many categories of air conditioning and heating equipment. ANSI/ASHRAE Standard 37-2009 (RA 2019) is available on ANSI's website at webstore.ansi.org/RecordDetail.aspx?sku=ANSI%2FASHRAE+Standard+37-2009.

ASHRAE 37-2009 Errata Sheet is a technical corrections sheet for ASHRAE 37-2009. The errata sheet for ASHRAE 37-2009 is reasonably available on ASHRAE's website at:  www.ashrae.org/.

ASHRAE 103-2017 is an industry-accepted test procedure for measuring the performance of consumer furnaces and boilers. Copies of ASHRAE 103-2017 may be purchased from ANSI at 1899 L Street, NW, 11th Floor, Washington DC 20036, or by going to webstore.ansi.org/standards/ashrae/ansiashrae1032017.

The 2021 ASHRAE Handbook is an industry-accepted handbook that covers basic principles and data used in the heating, ventilation, air-conditioning, and refrigeration industries. The 2021 ASHRAE Handbook is available on ASHRAE's website at www.ashrae.org/technical-resources/ashrae-handbook.

The following standard was previously approved for incorporation by reference in the sections where it appears in this final rule and no change is made: ASHRAE 41.1-1986 (RA 2006).

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

This document of the Department of Energy was signed on March 25, 2024, by Jeff 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 chapter II of title 10, Code of Federal Regulations as set forth below:

On March 6, 2024, the Commission adopted Final Rules that will require registrants to provide certain climate-related information in their registration statements and annual reports. 1 The Final Rules were subsequently published in the Federal Register on March 28, 2024. 2

Between March 6 and March 14, 2024, petitions seeking review of the Final Rules were filed in multiple courts of appeals. 3 On March 8, 2024, petitioners Liberty Energy Inc. and Nomad Proppant Services LLC filed a motion in the Fifth Circuit seeking an administrative stay and a stay pending judicial review of the Final Rules. On March 15, 2024, the Fifth Circuit issued an administrative stay.

On March 19, 2024, the Commission filed a Notice of Multicircuit Petitions for Review with the Judicial Panel on Multidistrict Litigation pursuant to 28 U.S.C. 2112(a)(3). On March 21, 2024, the Judicial Panel on Multidistrict Litigation issued an order consolidating the petitions for review in the U.S. Court of Appeals for the Eighth Circuit. 4 On March 22, 2024, the Fifth Circuit dissolved its administrative stay. 5

On March 26, 2024, Liberty Energy Inc. and Nomad Proppant Services LLC filed a letter in the Eighth Circuit noting the pendency of their motion for an administrative stay and a stay pending judicial review. Also on March 26, 2024, the Chamber of Commerce of the United States of America, the Texas Association of Business, and the Longview Chamber of Commerce filed a motion in the Eighth Circuit seeking a stay pending judicial review. On March 29, 2024, recognizing the efficiencies for the parties and the Court, the Commission filed a motion to establish a consolidated briefing schedule encompassing all motions seeking a stay of the Final Rules pending judicial review. 6 On April 1, thirty-one petitioners opposed the Commission's motion to establish a consolidated briefing schedule and urged the Court to instead expedite briefing on the “already-filed and imminently forthcoming emergency stay motions.”  7

Pursuant to Exchange Act Section 25(c)(2) and Section 705 of the Administrative Procedure Act, the Commission has discretion to stay its rules pending judicial review if it finds that “justice so requires.”  8 The Commission has determined to exercise its discretion to stay the Final Rules pending the completion of judicial review of the consolidated Eighth Circuit petitions.

In issuing a stay, the Commission is not departing from its view that the Final Rules are consistent with applicable law and within the Commission's long-standing authority to require the disclosure of information important to investors in making investment and voting decisions. Thus, the Commission will continue vigorously defending the Final Rules' validity in court and looks forward to expeditious resolution of the litigation. But the Commission finds that, under the particular circumstances presented, a stay of the Final Rules meets the statutory standard. Among other things, given the procedural complexities accompanying the consolidation and litigation of the large number of petitions for review of the Final Rules, a Commission stay will facilitate the orderly judicial resolution of those challenges and allow the court of appeals to focus on deciding the merits. Further, a stay avoids potential regulatory uncertainty if registrants were to become subject to the Final Rules' requirements during the pendency of the challenges to their validity. The Commission has previously stayed its rules pending judicial review in similar circumstances. See Rule 610T of Regulation NMS, Rel. No. 34-85447 (Mar. 28, 2019); and Facilitating Shareholder Director Nominations, Rel. Nos. 33-9149, 34-63031, IC-29456 (Oct. 4, 2010).

Accordingly, the Commission has ordered, pursuant to Exchange Act Section 25(c)(2) and Administrative Procedure Act Section 705, that the Final Rules are stayed pending the completion of judicial review of the consolidated Eighth Circuit petitions. 9

This is the first set of corrections to the National Labor Relations Board's final rule on representation case procedures, published in the Federal Register on August 25, 2023 at 88 FR 58076. It corrects the cross references in § 102.66(d) from § 102.63(b)(1)(iii) and (b)(3)(iii) to § 102.63(b)(1)(i)(C) and (b)(3)(i)(D).

Accordingly, the National Labor Relations Board amends 29 CFR part 102 by making the following correcting amendments:

The Coast Guard will enforce the special local regulations in 33 CFR 100.701, from 7 p.m. until 8 p.m. on April 26, 2024 for the annual Great Sea Battle of the Conch Republic in Key West, Florida. This action is being taken to provide for the safety of life on the navigable waters of the Key West Harbor during the simulated battle event. Our regulation for Recurring Marine Events in Captain of the Port Key West Zone, § 100.701, Table 1, item (b)(2), specifies the location of the regulated area for the reenactment of the battle within the Key West Harbor.

During the enforcement period, no person or vessel may enter, transit through, anchor within, or remain within the established regulated areas without approval from the Captain of the Port Key West or designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide notice of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

The Coast Guard will enforce the special local regulations in 33 CFR 100.1103, table 1, Item number 1, for the Blessing of the Fleet regulated area from 10 a.m. to noon on April 28, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within Northern California, § 100.1103, specifies the location of the regulated area for the Blessing of the Fleet Boat Parade which encompasses portions of the San Francisco Bay. During the enforcement period, the regulated area will be in effect in the navigable waters, from surface to bottom, defined by a line drawn from Bluff Point on the southeastern side of the Tiburon Peninsula to Point Campbell on the northern edge of Angel Island, and a line drawn from Peninsula Point to the southern edge of the Tiburon Peninsula to Point Stuart on the western edge of Angel Island.

During the enforcement period, under the provisions of 33 CFR 100.1103(b), if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander (PATCOM) or any other Official Patrol, defined as a Federal, State, or local law enforcement agency on scene to assist the Coast Guard in enforcing the regulated area. During the enforcement period, if you are the operator of a vessel that participates in the marine event within the regulated area, you must follow the parade route established by the marine event sponsor and comply with directions from the PATCOM or other Official Patrol. The PATCOM or Official Patrol may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners or other marine broadcast may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce the special local regulations in 33 CFR 100.1103, table, Item number 2, for the Opening Day on San Francisco Bay regulated area from noon to 3 p.m. on April 28, 2024. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within Northern California, § 100.1103, specifies the location of the regulated area for the Opening Day on San Francisco Bay Boat Parade which encompasses portions of the San Francisco Bay. During the enforcement period, the regulated area will be in effect in the navigable waters, from surface to bottom, defined by a line drawn from Fort Point; thence easterly approximately 5,000 yards; thence easterly to the Blossom Rock Bell Buoy; thence westerly to the Northeast corner of Pier 39; thence returning along the shoreline to the point of origin.

During the enforcement period, under the provisions of 33 CFR 100.1103(b), if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander (PATCOM) or any other Official Patrol, defined as a Federal, State, or local law enforcement agency on scene to assist the Coast Guard in enforcing the regulated area. During the enforcement period, if you are the operator of a vessel that participates in the marine event within the regulated area, you must follow the parade route established by the marine event sponsor, be capable of maintaining an approximate speed of 6 knots, and comply with directions from the PATCOM or other Official Patrol. The PATCOM or Official Patrol may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners or other marine broadcast may be used to grant general permission to enter the regulated area.

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 it is impracticable. The ship loader unload will partially block the federally maintained channel, compromising public safety, and preventing commercial and recreational vessels from transiting. The Coast Guard must establish this temporary safety zone by April 8, 2024, and lacks sufficient time to publish an NPRM, provide a reasonable comment period, and then consider those comments before establishing the necessary safety zone.

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 . Delaying the effective date of this rule would be impracticable because the Coast Guard must establish this safety zone by April 8, 2024, to respond to the potential safety hazards associated with partially blocking a federally maintained channel to unload a ship loader at a waterfront facility.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Marine Safety Unit Port Arthur (COTP) has determined that potential hazards associated with the ship loader unload at this location would be a safety concern for commercial and recreational vessels in the vicinity. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the ship loader unload.

The effective period of the rule will be from April 8, 2024, to April 26, 2024, to accommodate any weather delays. This rule will be enforced from 6 a.m. until 6 p.m. on the day of the unload. The COTP or a designated representative will inform the public of the unload date, as well as any changes in the dates and times of the enforcement period, through Broadcast Notices to Mariners and Marine Safety Information Bulletins as appropriate.

The safety zone will cover all navigable waters between Mile Markers 30 and 31 on the Calcasieu River Ship Channel. The ship loader unload will occur at 30°11′30.90″ N, 093°17′45.7″ W. The duration of the safety zone is intended to protect persons and vessels, in the nearby navigable waters during the ship loader unload.

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 size, location, and duration of the safety zone. Smaller vessel traffic will be able to safely transit around this safety zone which would impact a small, designated area of the Calcasieu River Ship Channel for 12 hours. Moreover, the Coast Guard would issue a Marine Safety Information Bulletin and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter 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-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will be enforced for 12 hours that will prohibit entry between Mile Markers 30 and 31 on the Calcasieu River Ship Channel for the unload of a ship loader at a waterfront facility. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the 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 will enforce the safety zone in 33 CFR 165.1191, table 1, Item number 1 for the San Francisco Giants Fireworks from 11:30 a.m. until 10:40 p.m. on April 26, 2024. The safety zone will extend to all navigable waters of the San Francisco Bay, from surface to bottom, within a circle formed by connecting all points 100 feet outwards of the fireworks barge during the loading, transit, and arrival from the loading location to the display location and until the start of the fireworks display. From 11:30 a.m. until 9 p.m. on April 26, 2024, the fireworks barge will be loading pyrotechnics from Pier 68 in San Francisco, CA. The fireworks barge will remain at the loading location until its transit to the display location. From 9 p.m. to 9:30 p.m. on April 26, 2024, the loaded fireworks barge will transit from Pier 68 to the launch site near Pier 48 in approximate position 37°46′36″ N, 122°22′56″ W (NAD 83) where it will remain until the conclusion of the fireworks display. Upon commencement of the 10-minute fireworks display, scheduled to begin at the conclusion of the baseball game, between 9:40 p.m. and 10 p.m. on April 26, 2024, the safety zone will increase in size and encompass all navigable waters of the San Francisco Bay, from surface to bottom, within a circle formed by connecting all points 700 feet out from the fireworks barge near Pier 48 in approximate position 37°46′36″ N, 122°22′56″ W (NAD 83). This safety zone will be enforced from 11:30 a.m. until 10:40 p.m. on April 26, 2024, or as announced via Marine Information Broadcast.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM or other Official Patrol, defined as a Federal, State, or local law enforcement agency on scene to assist the Coast Guard in enforcing the safety zone. During the enforcement period, if you are the operator of a vessel in one of the safety zones you must comply with the direction from the PATCOM or other Official Patrol. The PATCOM or Official Patrol may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Marine Information Broadcast may be used to grant general permission to enter the regulated area.

On February 6, 2024 (89 FR 8131), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the NPRM, EPA proposed approval of Virginia's plan for maintaining the 1997 ozone NAAQS in the Fredericksburg Area through January 23, 2026, in accordance with CAA section 175A. The formal SIP revision was submitted by Virginia on May 25, 2023.

On December 23, 2005 (70 FR 76165), 1 EPA approved a redesignation request (and maintenance plan) from VADEQ for the Fredericksburg Area for the 1997 ozone NAAQS. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years. In South Coast Air Quality Management District v. EPA, 2 the District of Columbia (D.C). Circuit held that this requirement cannot be waived for areas, like the Fredericksburg Area, that had been redesignated to attainment for the 1997 8-hour ozone NAAQS prior to revocation and that were designated attainment for the 2008 ozone NAAQS. CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) an attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. 3 VADEQ's May 25, 2023 submittal fulfills Virginia's obligation to submit a second maintenance plan and addresses each of the five necessary elements, as explained in the NPRM.

As discussed in the February 6, 2024, NPRM, EPA allows the submittal of a limited maintenance plan (LMP) to meet the statutory requirement that the area will maintain for the statutory period. Qualifying areas may meet the maintenance demonstration by showing that the area's design value  4 is well below the NAAQS and that the historical stability of the area's air quality levels indicate that the area is unlikely to violate the NAAQS in the future. EPA evaluated VADEQ's May 25, 2023 submittal for consistency with all applicable EPA guidance and CAA requirements. EPA found that the submittal met CAA section 175A and all CAA requirements, and proposed approval of the LMP for the Fredericksburg Area as a revision to the Virginia SIP.

Other specific requirements of Virginia's May 25, 2023 submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.

EPA is approving VADEQ's second maintenance plan for the 1997 ozone NAAQS in the Fredericksburg Area as a revision to the Virginia SIP.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.11198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.11198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.11199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, section 113, 167, 205, 211, or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

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.

This action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the Commonwealth, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 VADEQ 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. 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 11, 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, approving VADEQ's second maintenance plan for the Fredericksburg Area for the 1997 ozone NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On April 26, 1996, Congress passed the appropriations act for Fiscal Year 1996. Public Law 104-134, 110 Stat. 1321. Through this statute, Congress enacted a series of restrictions applicable to LSC grant recipients' activities. One of the restrictions was section 504(a)(18), which states that grant recipients “will not accept employment resulting from in-person unsolicited advice to a nonattorney that such nonattorney should obtain counsel or take legal action, and will not refer such nonattorney to another person or entity or an employee of the person or entity, that is receiving financial assistance provided by the Corporation[.]” Pubic Law 104-134, 110 Stat. 1321, 1321-56.

On May 19, 1996, the Operations and Regulations Committee (Committee) of the LSC Board of Directors requested that LSC staff prepare an interim rule to implement section 504(a)(18), and in April 1997, LSC promulgated part 1638. Consistent with section 504(a)(18), LSC's rule prohibits a grant recipient from representing an individual who had not sought legal advice from the grant recipient but who the grant recipient had provided in person unsolicited advice to seek legal representation or take legal action. 45 CFR 1638.3(a). Part 1638 also prohibits a grant recipient who has given in-person unsolicited advice to an individual from referring that individual to another LSC grant recipient. 45 CFR 1638.3(b). Finally, LSC included language in part 1638 stating that providing legal information, including information about the availability of counsel and a grant recipient's intake procedures, are permissible activities. 45 CFR 1638.4(a).

The regulation's language caused grantees to question whether they can provide information about individuals' legal rights and the availability of legal assistance through texts, phone calls, and in-person contacts at court clinics. Over the years, OLA has received multiple inquiries from grant recipients and other stakeholders about the types of proposed outreach activities permissible under part 1638. Examples of inquiries include:

• Is it permissible to send text messages to unrepresented individuals explaining defendants' rights in eviction cases?

• Is it permissible to inform individuals of the availability of legal assistance via mailings and text messages?

• What activities are allowed when interacting with individuals approaching grant recipient attorneys at court-based self-help clinics?

In July 2003, OLA published an advisory opinion (AO) answering a question from the Northwest Justice Project (“NJP”). NJP asked whether they could hand out informational brochures to individuals in the courthouse as part of their administration of the Housing Justice Program (“HJP”). The HJP provided same-day advice and representation from volunteer attorneys to LSC-eligible clients in eviction proceedings in court. The previous coordinator of the HJP, a non-LSC-funded organization, contacted prospective clients at the courthouse, advised them of the availability of services, asked if they would like to discuss their case with a lawyer, and represented some the same day. Upon assuming operation of the program, NJP stopped engaging in direct contact and submitted its inquiry to LSC. NJP contacted LSC because it was concerned that the lack of direct client engagement had led to a decline in the usage of HJP services. LSC confirmed that under part 1638, it would be impermissible for NJP to provide unsolicited advice to prospective clients at the courthouse to advise them of the availability of legal services and ask individuals if they wanted to discuss their case with a lawyer and then accept those individuals as clients. EX-2003-1011, June 9, 2003. This advisory opinion remained LSC's position until 2016.

In 2016, OLA received a question from a law professor who was researching methods to increase the likelihood that individuals living in poverty would engage with the legal system, including by seeking free legal services. The study proposed to test the effectiveness of different types of mailings sent to defendants in debt collection cases. The professor asked OLA whether part 1638 prohibits a grant recipient from representing individuals to whom the grant recipient has mailed information regarding their rights and identifying the types of legal services provided by the grant recipient. AO 2016-001. OLA opined that a mailing from an LSC grant recipient would violate part 1638 if it provided (1) “unsolicited advice” and (2) constituted a “personal letter.” Id. OLA also stated that a mailing that contains only “information regarding legal rights and responsibilities or . . . information regarding the recipient's services and intake procedures” does not constitute “unsolicited advice.” Further, a mailing does not constitute a “personal letter” if the letter provides only generic information that is not tailored to the individual receiving the mailing and it does not include specific facts related to the individual's legal issues. Id. OLA concluded that a mailing that contains unsolicited advice that is not tailored to the individual receiving the mailing is not considered a “personal letter” under § 1638.2(a). Id.

In 2020, OLA issued an advisory opinion addressing a question involving the permissibility of a grant recipient representing individuals that it had either (1) contacted over the telephone or via text message; or (2) initiated contact with through the grant recipient's ongoing presence in the courthouse. Regarding in-person contact in courthouses, OLA confirmed that part 1638 does not prohibit a grant recipient from initiating contact with individuals if the grant recipient is providing “information regarding legal rights and responsibilities” or providing information about the grant recipient's intake process while “. . . maintain[ing] an ongoing presence in a courthouse to provide advice at the invitation of the court[.]” AO 2020-004. Additionally, part 1638 does not prohibit a grant recipient from representing an individual that the grant recipient initiated contact with over the telephone or via text message as long as the communication contains only generic information that is not tailored to the individual or the specific facts of the individual's legal issues. Id.

LSC issued its most recent guidance on part 1638 in 2022. In Program Letter 22-1, LSC advised that grant recipients could send text messages to defendants (tenants) in landlord/tenant cases to notify them that an eviction case has been filed against them; to let them know of any upcoming court appearances; and to inform them of the availability of counsel. Program Letter 22-1. The program letter cited previous guidance from OLA regarding unsolicited advice via text message and mail.

LSC believes regulatory action is justified at this time for two reasons. First, OLA has been applying a nearly thirty-year-old rule concerning communications to new technologies and outreach strategies developed since part 1638 was published. Second, regulatory action is justified because LSC has continued to receive questions from grantees and other stakeholders about whether certain proposed outreach activities are permissible under part 1638. These questions became more compelling as governments began lifting moratoria on filing evictions and pursuing debt collection cases that had been put into place near the beginning of the COVID-19 pandemic. Rulemaking to make part 1638 more consistent with the language of section 504(a)(18) has become more critical to helping grantees inform people living in poverty who are facing eviction or potentially significant financial consequences about their rights and the availability of attorneys to assist them.

On July 25, 2023, the Committee voted to recommend that the LSC Board authorize rulemaking on part 1638. On July 27, 2023, the Board authorized LSC to begin rulemaking. On October 16, 2023, the Committee voted to recommend that the Board authorize publication of a notice of proposed rulemaking (NPRM) in the Federal Register for notice and comment. On October 17, 2023, the Board accepted the Committee's recommendation and voted to approve publication of the NPRM. LSC published the notice of proposed rulemaking in the Federal Register on October 25, 2023. 88 FR 73303, Oct. 25, 2023. The comment period remained open for sixty days and closed on December 26, 2023.

After consideration of the comments received during the comment period, on April 2, 2024, the Committee voted to recommend that the LSC Board adopt this final rule and approve its publication in the Federal Register . On April 8, 2024, the Board voted to adopt and publish this final rule.

Materials regarding this rulemaking are available in the open rulemaking section of LSC's website at https://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking. After the effective date of the rule, those materials will appear in the closed rulemaking section at https://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking/closed-rulemaking.

LSC received seven comments during the public comment period. Comments were received from the following: (1) the National Legal Aid and Defender Association (NLADA) by its Civil Council, the elected representative body that establishes policy for the NLADA Civil Division, and its Regulations Committee; (2) the American Bar Association (ABA) through its Standing Committee on Legal Aid and Indigent Defense (SCLAID); (3) Lakeshore Legal Aid, an LSC-funded recipient; (4) four law students and one private individual. LSC received one telephone call from a LSC grantee former Executive Director after the comment period. All commenters were generally supportive of LSC's proposed changes to part 1638.

LSC proposed to make no changes to this section. LSC received no comments on this section.

LSC proposed to add a definition for the terms communicate and communication that pertains to mailed, emailed, and texted messages, as opposed to merely in-person engagements. With advances in technology since the inception of this prohibition, this change will provide greater flexibility and clarity around the methods of communication that are permitted. This change is not intended to require recipients to use particular methods to reach client-eligible individuals. Rather, it clarifies which methods are permissible.

LSC also proposed to amend the definition of the term in-person to include virtual engagements such as clinics conducted via Zoom or other videoconferencing software. LSC proposed to make this change to reflect the transition, hastened by the COVID-19 pandemic, to the provision of legal services through virtual means in addition to traditional in-person engagements.

Finally, to account for adding a new definition, LSC proposed to redesignate existing paragraph (b), defining the term unsolicited advice, as paragraph (c).

Comments: Commenters generally supported LSC's proposed changes to provide clarity and greater flexibility for recipients to reach client-eligible members. For example, in the ABA's view, “the proposed revisions to section 1638 that clearly delineate permissible communication and impermissible in-person solicitation are consistent with what is allowed under Model Rule 7.3. The revisions setting forth permissible communication such as `sending information via mailings, text message, email, or other methods of voice or electronic Communication' meet the `easily disregarded' standard under Rule 7.3, as they do not implicate a potential for undue influence to be exerted by the lawyer in the interaction.” Additionally, at the Committee meeting on January 21, 2024, this comment was discussed, and Board members commented that phone use is still very prevalent in some areas, and it is important for recipients to be able to provide legal information to eligible clients by calling the clients because that is the only viable means of communication.

Some commenters recommended additional refinement of the terms communicate and communication. One person commented that “further explanation is required for the record as per why LSC is declining to include live phone calls within its definition of in-person activity” because LSC's decision to not extend “in-person activity” to phone calls by narrowing the proposed definition to “face-to-face encounters”, is “directly contrary to Model Rule 7.3's explicit inclusion of prohibiting solicitation via live telephone.” Another suggested clarifying “what types of communication are not considered solicitation under the rule” because the proposed rule definitions “could potentially include any form of interaction between a recipient and a client-eligible individual.” Additionally, the commenter continued, the rule should specify how recipients may communicate with client-eligible individuals without violating part 1638. Lastly, LSC “may want to consider adopting or adapting the ABA's guidance on electronic and written communication to clarify its own rule on solicitation. This may help recipients avoid confusion and potential violations of the rule.”

Response: LSC believes the language in the proposed rule provides sufficient clarity and, therefore, will adopt this section with no changes. It is impossible to list out every potential scenario that may arise and language such as “not limited to” and “including” is intended to signal that the examples are not an exhaustive list. LSC agrees with the ABA's comments that the proposed revisions to this section clearly delineate permissible communication and impermissible in-person solicitation and the changes are consistent with what is allowed under Model Rule 7.3.

Regarding the use of telephone, the definition of “communication” includes methods of voice or electronic communication. The telephone is an example of voice communication but is not the only means of voice communication. In 2020, OLA opined that part 1638 does not prohibit a grant recipient from representing an individual that the grant recipient initiated contact with over the telephone as long as the communication contains only generic information that is not tailored to the individual or the specific facts of the individual's legal issues. AO-2020-004 (June 24, 2020).

LSC proposed to edit the text to be active as opposed to passive. For example, “shall not represent” replaced “are prohibited from representing.”

Comments: LSC received one comment in support of the change.

Response: LSC adopts the proposed version in this final rule without change.

LSC proposed to edit the text of this rule to be active as opposed to passive. Additionally, LSC proposed to revise § 1638.4(a) to permit communication and in-person engagement about individuals' legal rights and responsibilities and grantees' intake procedures. LSC believes that the proposed language clarifies that grantees are permitted to send individuals information about rights and responsibilities that could lend itself to individuals filing complaints, either pro se or with the assistance of counsel. This instance may arise in the context of housing cases; for example, in housing habitability and tenant building purchase cases. A grantee may discover that there is a building with numerous safety issues and communicate with the tenants about the warranty of habitability, their options for getting the landlord to make repairs, including affirmative litigation, and the grantee's intake process. After receiving such legal information, some tenants could conceivably apply for legal assistance to help them pursue legal action to force repairs. This approach is consistent with the text of section 504(a)(18) of LSC's 1996 appropriation statute, which speaks in general terms about prohibited solicitation. It is critical to closing the justice gap that grantees are aware that they can advise their client-eligible communities about issues for which affirmative litigation may be an appropriate solution.

Further, LSC proposed to add paragraphs (c) and (e) to incorporate OLA's interpretations of existing part 1638 and the guidance LSC provided in Program Letter 22-1. Finally, LSC proposed to redesignate existing paragraph (c) as paragraph (d) and to revise new paragraph (d) to replace the phrase “physically or mentally disabled” with the person-first term “living with a physical or mental disability.”

Comments: Commenters generally supported LSC's proposed changes. The ABA noted that “the range of permissible activities set forth under section 1638.4 reflects the same types of activities in which lawyers in general may engage under Rule 7.3.” Additionally, Lakeshore Legal Aid commented that “the proposed changes to section 1638, particularly section 1638.4(b), clarify that this critical notice to tenants is allowable in the regulation itself. This change will encourage legal aid programs to provide the exact notice that tenants need to avail themselves of legal representation, protect their rights, and remain in their homes.”

There were two main suggested edits. The first was to make this section “more explicit that this list of permissible activities is an illustrative one, not an exhaustive one . . . The intention of this revision would be undermined if an LSC recipient could look at this regulation a few years from now and come away thinking that a permissible outreach effort should be avoided because it was not one of the specific activities listed in § 1638.4.”

The second is regarding the phrase in § 1638.4(a) “at the invitation of the court.” NLADA observed that the meaning of the phrase is unclear because “[a]n invitation could be a formal letter, a request by a judge on the record, or a simple ask by a clerk or other court staff.” They continued: “[m]any LSC recipients work closely with courts to maintain a presence in the courthouse. This increases the ability to provide legal information and reach eligible clients who may in fact be seeking legal advice.” NLADA suggested changing the language to “in cooperation with the court . . . This will also help clarify that LSC recipients do not need to wait for a formal invitation by the court to reach out to court officials and work alongside courts to establish a courthouse presence and reach clients in need of services.” This comment was also discussed at the January 21, 2024, Committee meeting, during which Board members remarked that if the statute does not require recipients to be present in the courthouse “at the invitation of the court,” the phrase should not be included in this rule. Further, recipients should cooperate with courts, but since courthouses are public buildings, recipients should not be precluded from performing important functions for eligible clients if the court has not invited the recipient or is not particularly cooperative.

Lastly, one commenter suggested updating the new paragraph (d), which is a redesignation of existing paragraph (c). The commenter recommended that LSC revise the list of individuals who may not be able to seek legal assistance on their own to include persons who are incarcerated, unhoused, living in institutions or correctional facilities, or living with a physical or mental disability.

Response: LSC agrees it is important for this rule to be flexible enough for recipients to apply the rule to new technologies and circumstances not contemplated at the time of these changes. Therefore, the section will be revised to indicate the listed methods are examples of permissible activities.

Further, LSC agrees that a recipient may have a difficult time proving they were in a courthouse “at the invitation of the court” particularly because the rule does not indicate what constitutes an “invitation.” Although not contemplated in the NPRM, LSC believes that removal of “at the invitation of the court” is a logical outgrowth of the proposed rule changes. The purpose of this rulemaking was to clarify and simplify part 1638. Removal of this language is not a substantive change, rather it is a technical change to remove ambiguity. As mentioned during the January 21, 2024, Committee meeting, section 504(a)(18) does not require this language. In fact, the statute does not discuss a recipient's activities in courthouses at all. Further, as the written comments note, a recipient's ongoing presence in a courthouse is sufficient to establish the court's approval of the recipient being in the courthouse. Therefore, the term will be removed for the sake of clarity.

Lastly, to achieve active voice, LSC will amend the last clause of § 1638.4(d) to read as “including institutionalized individuals or individuals living with a physical or mental disability.”

LSC proposed no changes to this section. LSC received no comments on this section.

For the reasons set forth in the preamble, the Legal Services Corporation amends 45 CFR part 1638 as follows:

The Northeast Multispecies Fishery Management Plan (FMP) regulations allow the Regional Administrator to implement possession limits for the common pool fishery, the U.S./Canada Management Area, and Special Management Programs. This action implements a number of these management measures for the 2024 fishing year, effective May 1, 2024.

Regulations at 50 CFR 648.86(o) provide that the Regional Administrator may implement or adjust a per-Day-at-Sea (DAS) possession limit and/or a maximum trip limit in order to prevent exceeding the common pool sub-annual catch limit (sub-ACL) in that fishing year. The possession and trip limits for the start of the 2024 fishing year are included in tables 1 and 2 below. These possession and trip limits were developed based on the common pool sub-ACLs that will be in effect on May 1, 2024, including those set by Framework Adjustment 65 to the FMP and those that are in place as default specifications consistent with the current regulations at § 648.90(a)(3). NMFS considered preliminary 2024 sector rosters, expected common pool participation, and common pool fishing activity in previous fishing years. NMFS will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, vessel monitoring system catch reports, and other available information and, if necessary, will make further adjustments to common pool management measures based on common pool catch.

During its December 2023 meeting, the New England Fishery Management Council adopted Framework Adjustment 66 to the Northeast Multispecies FMP, which, if approved, would modify the common pool sub-ACLs for several stocks. On March 22, 2024, NMFS published a proposed rule for Framework 66, with a comment period ending on April 8, 2024 (89 FR 20412). It is possible that the final rule for that action is not in effect until after the beginning of the fishing year. In that case, default specifications for white hake and redfish would be in place until that rule is final. When developing the trip limits in this action, NMFS considered the Council-recommended sub-ACLs that may be implemented in Framework 66. Framework 66's proposed sub-ACLs are not sufficiently different from the Framework 65's sub-ACLs to alter NMFS' projections and recommendations. Thus, in addition to appropriately addressing specifications that would be in place on May 1, 2024, the trip limits in this action are expected to avoid exceeding, but not to overly constrain catch in a manner that would prevent achieving, any sub-ACLs or trimester total allowable catch (TAC) that may be implemented by Framework 66. Based on this information, NMFS projects that these adjustments will facilitate optimized harvest of the common pool quotas, while preventing early trimester closures, and preventing catch from exceeding the 2024 fishing year sub-ACLs.

For Handgear A and Handgear B vessels, possession and trip limits for Georges Bank (GB) and Gulf of Maine (GOM) cod are dependent on the possession and trip limits for groundfish DAS vessels. The default cod trip limit is 300 pounds (lb) (136 kilograms (kg)) for Handgear A vessels and 75 lb (34 kg) for Handgear B vessels. If the GOM or GB cod limit for vessels fishing on a groundfish DAS drops below 300 lb (136 kg), then the respective Handgear A cod trip limit must be reduced to the same limit. Similarly, the Handgear B trip limit must be adjusted proportionally to the DAS limit (rounded up to the nearest 25 lb (11 kg)). In accordance with this process, the Handgear A and Handgear B possession and trip limits for GB and GOM cod are as listed below in table 2.

Vessels with a Small Vessel category permit can possess up to 300 lb (136 kg) of cod, haddock, and yellowtail flounder, combined, per trip. Additionally, for these vessels, the trip limit for all stocks is equal to the landing limits per DAS applicable to multispecies DAS vessels. This is necessary to ensure that the trip limit applicable to the Small Vessel category permit is consistent with the trip limits for other common pool vessels, as described above.

Weekly quota monitoring reports for the common pool fishery can be found on NMFS' website at: https://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/h/nemultispecies.html. NMFS will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, vessel monitoring system catch reports, and other available information and, if necessary, will make additional adjustments to common pool management measures.

The Mid-Atlantic Fishery Management Council (Council) manages the Atlantic mackerel fishery under the Mackerel, Squid, and Butterfish Fishery Management Plan (FMP). The regulations implementing the FMP require the Council's Mackerel, Squid, and Butterfish Monitoring Committee to develop specification recommendations based upon the acceptable biological catch (ABC) advice of the Council's Scientific and Statistical Committee (SSC). Specifications are the combined suite of commercial and recreational catch levels and management measures necessary to prevent such catch levels from being exceeded. As part of this process, the Council sets specifications for up to 3 years. These specifications are reviewed annually and may be revised by the Council based on updated information.

The Council's final action on these specifications was delayed to its December 2023 meeting because the 2023 Atlantic mackerel stock assessment required additional peer review in late fall 2023 after the assessment indicated a change in the stock status. The stock status changed from experiencing overfishing to not experiencing overfishing. Although this change in stock status may appear to reflect an improvement in stock condition, the change is the result of significant catch reductions that were implemented in 2021, 2022, and 2023.

The preliminary stock assessment, which was still subject to peer review, showed an unexpected failure of the Atlantic mackerel stock to rebuild, and updated projections suggested that Atlantic mackerel overfishing could occur in 2023 if the full Atlantic mackerel commercial quota ( i.e., 3,639 metric tons (mt)) was harvested. However, because the peer review of the assessment was not complete, the SSC was unable to provide its ABC recommendation and the Council was unable to make its recommendations on the 2024 specifications. Based on the preliminary assessment information, however, the Council requested at its August 2023 meeting that NMFS take emergency action to limit the directed Atlantic mackerel fishery for the remainder of 2023 and until these specifications are implemented. On October 13, 2023, NMFS published an interim rule that reduced the Atlantic mackerel catch by instituting trip limits of 20,000 pounds (lb) (9.08 mt) for limited access permits and 5,000 lb (2.27 mt) for open access permits (see 88 FR 70909). These interim measures expire upon publication of this rule or on April 10, 2024, whichever is sooner.

The Council's SSC met in October 2023 to review the peer-reviewed management track assessment, which showed an unexpected failure of the Atlantic mackerel stock to rebuild. Based on this information, the SSC recommended an averaged 2024-2025 ABC of 3,200 mt. These specifications also include deductions for the expected Canadian catch of 74 mt, estimated recreational catch of 2,143 mt, and estimated commercial discards of 115 mt to set a commercial quota of 868 mt. This commercial quota is a 76-percent decrease from the original 2023 commercial quota.

Because of the low-resulting commercial quota, these specifications also implement reduced Atlantic mackerel catch by instituting trip limits of 20,000 lb (9.08 mt) for all limited access permits and 5,000 lb (2.27 mt) for open access permits. These trip limits are unchanged from those in the interim rule. When 80 percent of the commercial quota is harvested, the trip limits will be further reduced to 10,000 lb (4.54 mt) for all limited access permits and 2,500 lb (1.13 mt) for open access permits. The recreational possession limit will remain status quo at 20 fish per person.

On February 1, 2023, NMFS approved Amendment 23 to the Mackerel, Squid, and Butterfish FMP and implemented a revised rebuilding plan for the Atlantic mackerel stock (see 88 FR 6665). The reductions in ABC and trip limits included in this rule were determined to be necessary to maintain the timeline by which the Atlantic mackerel stock is rebuilt by 2032 as outlined in Amendment 23.

There are no changes from the proposed rule.

We received six public comments on the proposed rule. Three comments were in support of the proposed specifications to reduce Atlantic mackerel catch to allow the stock to rebuild. One comment asked how we would enforce these trip limits. We will continue to enforce trip limits as we are currently, with enforcement tools on the water and at the docks, and by reviewing landings reports submitted by dealers and permit owners. Three comments were not relevant to this action.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this final rule is consistent with the Mackerel, Squid, and Butterfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

This final rule does not contain policies with federalism or “takings” implication, as those terms are defined in E.O. 13132 and E.O. 12630, respectively. This action does not contain any collection-of-information requirements subject to the Paperwork Reduction Act.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date. The Council adopted these specifications on December 13, 2023, and submitted a preliminary draft of the supplemental information report on January 3, 2024. Substantial edits to the economic analysis were required for regional economist clearance for the Regulatory Flexibility Act, E.O. 12866, and E.O. 14094. The NMFS regional economist provided clearance on February 9, 2024. After incorporating that economic analysis into the proposed rule document and having the rule reviewed by regional staff, the rule was submitted to NMFS headquarters on February 16, 2024 and the proposed rule was published on February 28, 2024. The comment period for the proposed rule closed on March 14, 2024. Regional staff submitted the final rule to NMFS headquarters on March 28, 2024. NMFS then submitted the rule to Commerce's Office of the General Counsel for review on April 2, 2024. Thus, NMFS has taken all diligent steps to promulgate this rule as quickly as possible but could not have published the rule sooner because the data necessary for the Council to develop these specifications was not yet finalized.

The start of the fishing year began on January 1, 2024, and the interim measures currently in place to reduce Atlantic mackerel catch—including reduced trip limits—will expire on April 10, 2024. A delay in implementing final measures may result in substantial Atlantic mackerel catch because trip limits would revert to the default of unlimited catch for Tier 1 limited access permits, 135,000 lb (61.23 mt) for Tier 2 limited access permits, 100,000 lb (45.36 mt) for Tier 3 limited access permits, and 20,000 lb (9.08 mt) for open access permits. Allowing catch at these levels in the high-volume mackerel fishery, even for a short time period, could result in exceeding the commercial quota and overfishing limit, and have devastating impacts on the rebuilding of the Atlantic mackerel stock. Moreover, unlike actions that require an adjustment period to comply with new gear requirements, this action does not require permit holders to purchase new equipment or otherwise expend time or money to comply with this action's management measures. Rather, compliance with this final rule simply means adhering to trip limits applicable to permit tiers. It is in the public interest to implement this final action as soon as possible, and the Assistant Administrator finds good cause to waive the 30-day delay in the date of effectiveness and to implement this rule upon the date of publication in the Federal Register .

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: