I. Background A. Cybersecurity Threat

The cyber threat to the country's critical infrastructure has only increased in the time since TSA issued its initial cybersecurity-related security directives to pipeline entities in 2021 in response to the Colonial Pipeline incident. Cyber threats to surface transportation systems, including hazardous liquid and natural gas pipelines and facilities, continue to proliferate, as both nation-states and criminal cyber groups target critical infrastructure in order to cause operational disruption and economic harm. 1 In addition to the Colonial Pipeline incident, cyber attackers have maliciously targeted surface transportation modes in the United States, including freight railroads, passenger railroads, and rail transit systems, with multiple cyberattack and cyber espionage campaigns. 2 Cyber incidents, particularly ransomware attacks, are likely to increase in the near and long term, due in part to vulnerabilities identified by threat actors in U.S. networks. 3 Especially in light of the ongoing Russia-Ukraine conflict, 4 these threats remain elevated and pose a risk to the national and economic security of the United States.

In its 2023 annual assessment, the Intelligence Community noted that “China almost certainly is capable of launching cyber attacks that could disrupt critical infrastructure services within the United States, including against oil and gas pipelines, and rail systems.”  5 And the 2024 annual assessment notes that, “[i]f Beijing believed that a major conflict with the United States were imminent, it would consider aggressive cyber operations against U.S. critical infrastructure and military assets. Such a strike would be designed to deter U.S. military action by impeding U.S. decision-making, inducing societal panic, and interfering with the deployment of U.S. forces.” 6 In addition, “Russia maintains its ability to target critical infrastructure . . . in the United States as well as in allied and partner countries” and “Tehran's opportunistic approach to cyber-attacks puts U.S. infrastructure at risk for being targeted.”  7 Furthermore, “malicious cyber actors have begun testing the capabilities of AI-developed malware and AI-assisted software development—technologies that have the potential to enable larger scale, faster, efficient, and more evasive cyber-attacks—against targets, including pipelines, railways, and other U.S. critical infrastructure.”  8

Following the Colonial Pipeline incident in May 2021, TSA issued two security directives requiring owners and operators of critical hazardous liquid and natural gas pipelines or liquefied natural gas facilities (owner/operators) to implement cybersecurity measures necessary to prevent disruption and degradation to their critical infrastructure. On May 27, 2021, TSA issued the first directive (Security Directive Pipeline-2021-01), which required covered owner/operators to: (1) report cybersecurity incidents to CISA; (2) designate a cybersecurity coordinator to be available 24/7 to coordinate with TSA and CISA; and (3) conduct a vulnerability assessment of cybersecurity practices, identify any gaps, and develop a plan and timeline for remediation. TSA issued the second directive (Security Directive Pipeline-2021-02) on July 19, 2021, which required owner/operators to implement additional specific cybersecurity measures to prevent disruption and degradation to their infrastructure.

Due to the continuing cyber threat to pipeline infrastructure, the requirements of both Security Directive Pipeline-2021-01 and Security Directive Pipeline-2021-02 have been renewed and extended beyond their original expiration dates by subsequent directives, creating two security directive “series” (the Security Directive Pipeline-2021-01 series and the Security Directive Pipeline-2021-02 series). In several instances, as TSA renewed each of these security directive series, TSA also amended their requirements to strengthen their effectiveness and address emerging cyber threats. Most significantly, TSA transitioned the requirements of the Security Directive Pipeline-2021-02 series to be more performance-based and less prescriptive. The performance-based approach enhances security by mandating that critical security outcomes are achieved while allowing owner/operators to choose the most appropriate security measures for their specific systems and operations. Under the performance-based framework of the Security Directive Pipeline-2021-02 series, TSA identified critical security outcomes that covered parties must achieve. To ensure that these outcomes are met, the directives in this series now require owner/operators to:

• Establish and implement a TSA-approved Cybersecurity Implementation Plan (CIP) that describes the specific cybersecurity measures employed and the schedule for achieving the security outcomes identified;

• Develop and maintain an up-to-date Cybersecurity Incident Response Plan (CIRP) to reduce the risk of operational disruption, or the risk of other significant impacts on business critical functions, as defined in the directive, should the Information and/or Operational Technology systems of a gas or liquid pipeline be affected by a cybersecurity incident; and

• Establish a Cybersecurity Assessment Program (CAP) and submit an annual plan that describes how the owner/operator will proactively and regularly assess the effectiveness of cybersecurity measures and identify and resolve device, network, and/or system vulnerabilities.

The table below provides a list of each the security directives issued within the Security Directive Pipeline-2021-01 and Security Directive Pipeline-2021-02 series. All of the security directives in both series are available online in TSA's Surface Transportation Cybersecurity Toolkit. 9

In light of the continuing threat, TSA determined that the cybersecurity measures required by the Security Directive Pipeline-2021-01 series, as amended and extended, remain necessary to protect the Nation's critical pipeline infrastructure beyond Security Directive Pipeline-2021-01C's expiration date of May 29, 2024. On May 29, 2024, TSA issued Security Directive Pipeline-2021-01D to extend the requirements of Security Directive Pipeline-2021-01 series for an additional year. Security Directive Pipeline-2021-01D became effective May 29, 2024, and expires on May 29, 2025. Security Directive Pipeline-2021-01D contains minor revisions refining existing requirements to clarify applicability, compliance timelines, and reporting requirements, as well as updated definitions to ensure standardization across TSA's cybersecurity requirements applicable to different transportation modes.

Considering the continuing threat, TSA also determined that the measures required by the Security Directive Pipeline-2021-02 series, as amended and extended, remain necessary to protect the Nation's critical pipeline infrastructure beyond Security Directive Pipeline-2021-02D's expiration date of July 27, 2024. On July 26, 2024, TSA issued Security Directive Pipeline-2021-02E to extend the requirements of Security Directive Pipeline-2021-02 series for an additional year. Security Directive Pipeline-2021-02E became effective July 27, 2024, and expires on July 27, 2025.

In addition to extending the existing requirements, Security Directive Pipeline-2022-02E contains several amendments to strengthen the effectiveness of certain requirements and provide further clarity. The revisions include new and modified definitions clarifying certain terms and harmonizing terminology across TSA's cybersecurity requirements applicable to different transportation modes; clarifying when responsibility for compliance with the directive's requirements is shared between an owner/operator and a third party; and clarifying requirements regarding submission of CAP and related annual reports.

TSA has broad statutory responsibility and authority to safeguard the nation's transportation system. 11 The TSOB—a body consisting of the Secretary of Homeland Security, the Secretary of Transportation, the Attorney General, the Secretary of Defense, the Secretary of the Treasury, the Director of National Intelligence, or their designees, and a representative of the National Security Council—reviews certain TSA regulations and security directives as consistent with law. 12 TSA issued Security Directive Pipeline-2021-01D and Security Directive Pipeline-2021-02E under 49 U.S.C. 114( l )(2)(A), which authorizes TSA to issue emergency regulations or security directives without providing notice or the opportunity for public comment where “the Administrator determines that a regulation or security directive must be issued immediately in order to protect transportation security . . . .” Security directives issued pursuant to the procedures in 49 U.S.C. 114( l )(2) “shall remain effective for a period not to exceed 90 days unless ratified or disapproved by the Board or rescinded by the Administrator.”  13

Following the issuance of Security Directive Pipeline-2021-01D on May 29, 2024, and Security Directive Pipeline-2021-02E on July 26, 2024, the chair of the TSOB convened the board to review the directives. 14 In reviewing each Security Directive, the TSOB reviewed the required measures extended and amended by the directives and the continuing need for TSA to maintain these requirements pursuant to its emergency authority under 49 U.S.C. 114( 1 )(2) to prevent the disruption and degradation of the country's critical transportation infrastructure. The TSOB also considered whether to authorize TSA to extend each security directive beyond their current expiration dates subject to certain conditions, should the TSA Administrator believe such an extension is necessary to address the evolving threat that may continue beyond the original expiration date.

Following its review, the TSOB ratified Security Directive Pipeline-2021-01D on June 28, 2024, and Security Directive Pipeline-2021-02E on August 23, 2024. The TSOB also authorized TSA to extend each of the security directives beyond their current expiration dates, should the TSA Administrator determine such an extension is necessary to address the evolving threat that may continue beyond the original expiration date. Such an extension is subject to the following conditions: (1) there are no changes to the security directive other than an extended expiration date; (2) the TSA Administrator makes an affirmative determination that conditions warrant the extension of the directive's requirements; and (3) the TSA Administrator documents such a determination and notifies the TSOB.

ELAP, LFP, and LIP use CCC funds to provide emergency relief to eligible producers (7 U.S.C. 9081). FSA administers ELAP, LFP and LIP on behalf of CCC. ELAP provides assistance to producers of livestock, honeybees, and farm-raised fish to aid in the reduction of losses due to disease, adverse weather, or other conditions, such as blizzards and wildfires, as determined by the Secretary, that are not covered by LIP or LFP. 1 LFP provides assistance to livestock producers who suffer eligible grazing losses on land physically located in a county experiencing a qualifying drought during the normal grazing period for the county or are prohibited by a Federal agency from grazing the normal permitted livestock on managed rangeland due to a qualifying fire. 2 LIP provides assistance for livestock deaths in excess of normal mortality caused by adverse weather or by attacks by animals reintroduced into the wild by the Federal Government. 3

This rule makes discretionary changes to simplify and streamline the deadlines for ELAP, LFP, and LIP. It also makes discretionary changes to the ELAP regulations for assistance for transportation of livestock feed.

This rule amends the regulations for ELAP, LFP, and LIP to have a single deadline across all three programs for filing a notice of loss (required for ELAP  4 and LIP  5 ), an application for payment, and other required documentation. Previously, each of the three programs had multiple deadlines and time frames for submitting required forms and documentation, and those deadlines also varied among the three programs. These changes are intended to improve efficiencies for producers and FSA staff, provide clarity regarding program timelines, and give FSA staff sufficient time to deliver support to producers who have suffered eligible losses due to disaster events.

This rule changes the deadlines in §§ 1416.107, 1416.202, and 1416.305 to specify that the deadline to file a notice of loss, an application for payment, and required documentation for each program is March 1 following the end of the applicable program year, which is based on the calendar year for the three programs. The deadline changes are effective beginning with the 2024 program year, which began on January 1, 2024. Producers who suffered eligible losses for the 2024 program year prior to the publication of this rule may submit documents or make changes to previously filed documents for these programs by the new deadline of March 1, 2025, even if the previous deadline had passed.

Under ELAP, in addition to the purposes described in 7 U.S.C. 9081(d)(1), the CCC funds are authorized to be used to reduce losses caused by feed or water shortages, disease, or other factors as determined by the Secretary, including inspections of cattle tick fever (7 U.S.C. 9081(d)(2)). Feed transportation was added as an eligible loss for ELAP in a final rule published on April 6, 2022 (87 FR 19783-19786), to provide assistance to livestock producers in areas suffering from eligible adverse weather, an eligible loss condition, or eligible drought, who incur additional hauling costs because they are forced to transport feed from unaffected areas. To be eligible for ELAP assistance for feed transportation, producers must have a loss resulting from the additional cost to transport livestock feed to eligible livestock for additional mileage above normal, due to eligible adverse weather, an eligible loss condition, or eligible drought. 6 Payments are calculated by multiplying a national payment rate by the national average price per mile to transport a truckload of livestock feed, multiplied by the actual number of additional miles the feed was transported by the producer in excess of 25 miles per truckload of livestock feed and for no more than 1,000 miles per truckload of feed during the program year. 7 This rule makes several changes to the ELAP regulations to clarify the feed transportation eligibility and documentation requirements and ensure that ELAP assistance for feed transportation is provided only for eligible losses as authorized and described in the April 2022 final rule.

The first of those changes adds provisions to the ELAP regulations in § 1416.103(d)(6) to specify that an eligible loss from the additional cost to transport livestock feed is limited to the cost to transport feed to meet the feed needs for eligible livestock during the program year in which the eligible adverse weather, eligible loss condition, or eligible drought occurred. The provisions also clarify that the cost to transport livestock feed is not an eligible loss if the feed is purchased or obtained:

• in excess of the amount needed for the program year in which the eligible adverse weather, eligible loss condition, or eligible drought occurred, which will be determined as described below in the changes to § 1416.110(q);

• to sell to another producer;

• for another producer's livestock; or

• for ineligible livestock.

This rule also amends provisions in § 1416.106(c)(5) regarding documentation to specify that a participant must provide verifiable or reliable records, as defined in § 1416.102, that show the additional livestock feed was only purchased or obtained to sustain eligible livestock during an eligible adverse weather or loss condition. The provisions also specify that handwritten receipts are not considered eligible documentation for feed transportation without accompanying truck logs or other documentation to verify the cost of transportation, and payments in cash must have a verifiable record to verify that the transaction was made between two parties. These changes allow FSA to confirm that losses claimed for feed transportation are eligible losses as described above.

To prevent payments for ineligible feed transportation costs, this rule also adds provisions in § 1416.110(q) that limit the amount of an ELAP payment for feed transportation based on the expected feed need of a producer's eligible animals.

First, FSA will convert the number of eligible livestock identified on the application to an animal unit basis, using the same methodology used for ELAP assistance for water transportation and grazing losses. 8 As provided in 7 CFR 1416.110(i)(1), FSA determined that the corn need for an adult cow, which is equal to 1 animal unit, is 15.7 pounds per day. Forage or hay requirements for an adult beef cow are approximately 24 pounds of dry hay matter per day, or approximately 26 pounds of hay with 8 percent moisture. 9 To allow for a reasonable variation in the amount of feed consumed by eligible livestock, FSA will multiply the number of animal units by 24 pounds of corn or corn equivalent (equal to 15.7 pounds multiplied by 150 percent, rounded up to the nearest pound) or 39 pounds of hay or forage (equal to 26 pounds of hay multiplied by 150 percent). FSA will multiply the result of that calculation by the number of calendar days in the time period from the beginning date of the eligible drought or other eligible loss condition until the end of the program year to determine the maximum amount of feed for which transportation assistance will be provided. Any loads hauled in excess of that amount during the program year are not eligible for assistance.

The Administrative Procedure Act (5 U.S.C. 553) provides that the notice and comment and 30-day delay in the effective date provisions do not apply when the rule involves a matter relating to agency management or personnel, or to public property, loans, grants, benefits, or contracts. This rule involves programs for payments to certain agricultural commodity producers and thus falls within the exemption for rules related to benefits. Further, as specified in 7 U.S.C. 9091(c)(2), the regulations to implement ELAP, LFP, and LIP are:

• Exempt from the notice and comment provisions of 5 U.S.C. 553; and

• Exempt from the Paperwork Reduction Act (44 U.S.C. chapter 35).

In addition, 7 U.S.C. 9091(c)(3) directs the Secretary to use the authority provided in 5 U.S.C. 808 (part of the Congressional Review Act), which provides that when an agency finds there is good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the rule may take effect at such time as the agency determines. The beneficiaries of this rule have been impacted by eligible disaster events, which have resulted in economic losses, and the changes made by this rule simplify and streamline the delivery of assistance and ensure assistance is directed to eligible losses. FSA finds that a delay in the effective date of the rule is contrary to the public interest and therefore this rule is effective upon publication in the Federal Register .

This rule is exempt from the regulatory analysis requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act) requires a delay in the effective date for 60 days from the date of publication to allow for Congressional review of rules that meet the criteria specified in 5 U.S.C. 804(2). The Office of Information and Regulatory Affairs has determined that this rule meets the criteria in 5 U.S.C. 804(2). As discussed above, FSA finds that a delay in the effective date of the rule is contrary to the public interest and therefore this rule is effective upon publication in the Federal Register .

Executive Order 12866, “Regulatory Planning and Review,” was amended by Executive Order 13563, “Improving Regulation and Regulatory Review,” and Executive Order 14094, “Modernizing Regulatory Review.” 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. The assessment should include potential economic, environmental, public health and safety effects, distributive impacts, and equity. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The requirements in Executive Orders 12866 and 13563 for the analysis of costs and benefits apply to rules that are determined to be significant.

Executive Order 14094 requires Federal agencies to increase and improve public participation in the regulatory process. The Executive order's objective is to improve public trust in the regulatory process by reducing the risk or appearance of unequal or unfair influence in regulatory development.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, and therefore, OMB has not reviewed this rule and an analysis of costs and benefits is not required under either Executive Order 12866 or 13563.

The environmental impacts of this final rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500 through 1508), the USDA regulation for compliance with NEPA (7 CFR part 1b), and because FSA will be making the payments to producers, the FSA regulation for compliance with NEPA (7 CFR part 799).

This rule makes discretionary, administrative changes to ELAP, LFP, and LIP. The discretionary aspects are to improve administration of these programs and clarify existing program requirements. FSA is providing the disaster assistance under ELAP, LFP, and LIP to eligible producers. The discretionary, administrative provisions would not alter any environmental impacts resulting from implementing the mandatory changes to ELAP, LFP, and LIP. Accordingly, these discretionary, administrative aspects are covered by the following Categorical Exclusion in 7 CFR 799.31(b)(6)(vi) safety net programs administrated by FSA.

Through this review, FSA determined that the proposed discretionary changes in this rule fit within the categorical exclusions listed above. Categorical exclusions apply when no extraordinary circumstances (§ 799.33) exist. This rule presents only discretionary amendments that will not have an impact on the human environment, individually or cumulatively. Therefore, FSA will not prepare an environmental assessment or environmental impact statement for this rule. This rule serves as documentation of the environmental compliance decision for this Federal action.

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The changes made by this rule will be effective retroactively for the 2024 program year, as discussed above. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments, or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

FSA has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to our knowledge, have significant Tribal implications that require ongoing adherence to Executive Order 13175 at this time. If a Tribe requests consultation, the USDA Office of Tribal Relations will ensure meaningful consultation is provided where changes, additions, and modifications are not expressly mandated by law.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments, or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The title and number of the Federal assistance programs, as found in the Assistance Listing  10 to which this rule applies are:

10.088—Livestock Indemnity Program;

10.089—Livestock Forage Disaster Program; and

10.091—Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish Program.

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family or parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Individuals who require alternative means of communication for program information (for example, braille, large print, audiotape, American Sign Language) should contact the responsible Agency or USDA TARGET Center at (202) 720-2600 (voice and text telephone (TTY)) or dial 711 for Telecommunications Relay Service (both voice and text telephone users can initiate this call from any telephone). Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) mail to: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

For the reasons discussed above, Commodity Credit Corporation amends 7 CFR part 1416 as follows:

This rule establishes new technical guidelines for crop commodities that are used as biofuel feedstocks. USDA is issuing this rule to establish guidelines for the quantification, reporting, and verification of GHG reduction benefits resulting from implementation of CSA practices in the production of commodities that are used as biofuel feedstocks in the context of environmental services markets. CSA practices are agricultural management practices, systems, and technologies that have been demonstrated to generally reduce GHG emissions or increase soil carbon sequestration. Greater adoption of CSA practices could lower overall GHG emissions associated with biofuel production and provide other environmental benefits, such as improved water quality and soil health.

These technical guidelines are intended for the purpose of biofuels production. USDA's authority allows for the establishment of guidelines related to emerging environmental services markets. At this time, the biofuel market represents a clear market opportunity for climate-smart feedstocks. Producing a carbon offset is a different policy context that would require a different set of standards. These guidelines do not constitute a carbon offset protocol.

The net GHG emissions associated with a defined set of CSA practices will be quantified as explained below in the Methodology for Calculating Carbon Intensities used in USDA Feedstock Carbon Intensity Calculator (USDA FD-CIC) section, once USDA FD-CIC is finalized. USDA will shortly publish USDA FD-CIC on its website at https://www.usda.gov/usda-fdcic for peer-review purposes, beta testing, and to obtain public feedback.

Crop production generates GHG emissions, including from soil carbon released during tillage and nitrous oxide emissions resulting from fertilizer use, among other sources. When such crops are used as feedstocks to produce biofuels, the GHG emissions associated with their production contribute a significant percentage of the overall GHG emissions associated with crop-based biofuel production. For instance, feedstock emissions account for approximately 56 percent and 55 percent of the direct emissions from producing corn ethanol and soybean biodiesel, respectively. The GHG emissions associated with feedstock crop production can be reduced through CSA practices, in turn reducing the lifecycle GHG emissions of a biofuel. To date, most existing programs have relied on assumptions about average or typical farming practices to estimate emissions associated with biofuel feedstock production. To improve the empirical basis and verifiability of the effects of CSA practices on net GHG emissions, and to quantify net GHG emissions reductions specifically attributed to those feedstocks grown with climate-smart practices, USDA developed this rule to establish technical guidelines for CSA crops used as biofuel feedstocks. This interim rule allows for the differentiation and quantification of carbon intensities associated with the production of CSA crops used as biofuel feedstocks, through USDA FD-CIC, upon its finalization.

This interim rule is authorized by the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill (Pub. L. 110-246)), § 2709, (16 U.S.C. 3845), which authorizes the Secretary of Agriculture to establish technical guidelines that outline science-based methods to measure the environmental services benefits from conservation and land management activities in order to facilitate the participation of farm producers, ranchers, and forest landowners in emerging environmental services markets and to give priority to the establishment of guidelines related to farmer, rancher, and forest landowner participation in carbon markets. It further directs the Secretary to establish verification guidelines, including the role of third parties in conducting independent verification of benefits produced for environmental services markets and other functions.

Regulations to implement the programs of Chapter 58 of Title 16 of the U.S. Code, as specified in 16 U.S.C. 3846, and the administration of those programs are to be made as an interim rule effective on publication, with an opportunity for notice and comment. Here, the guidelines relate to the administration of a program for participation in environmental markets. Accordingly, USDA is issuing this interim rule effective on publication with request for comment. This interim rule will facilitate farm producers' ability to participate in environmental service markets associated with biofuel production by establishing guidelines for quantification, reporting, and verification of GHG emissions resulting from the production of agricultural crops grown using CSA practices. It also establishes verification guidelines to increase certainty that the practices claimed are implemented according to the standards established by this rule. While USDA is not creating an environmental service market through this rule, USDA is making these guidelines available for consideration in international, national, or state clean transportation fuel policies in accordance with 16 U.S.C. 3845, as described above.

Currently, very few U.S.-based clean transportation fuel programs or policies (including private and government programs) have standards or guidelines for climate-smart agricultural practices, such as those described in this rule, to account for the emissions reductions they generate.

Those policies or programs that contain some or all of the elements of the standards in this rule (including CSA practice standards, recordkeeping, quantification, reporting and verification of emissions reductions of such practices) are smaller in scale or were only recently developed and at the pilot stage. For example, the U.S. Department of the Treasury (Treasury) 40B Sustainable Aviation Fuel (SAF) tax credit provides one example of a biofuel policy that incorporated emissions reductions for crops produced using CSA practices. This tax credit provided per gallon credits for the sale or use of SAF defined as achieving a life cycle GHG emissions reduction of at least 50 percent as compared to petroleum-based jet fuel. Treasury and Internal Revenue Service (IRS) guidance for the tax credit included a safe harbor for the USDA CSA Pilot Program, making SAF produced using soybeans or corn employing a bundle of CSA practices eligible for a higher tax credit than SAF produced using crops produced without the bundle of CSA practices. For the purpose of the SAF tax credit, the CSA practice standards, quantification, reporting and verification requirements only pertained to the one bundle of CSA practices eligible under the guidance so are not broadly applicable. As the guidance stated, Treasury and IRS established the CSA safe harbor on a pilot basis to advance the development of CSA verification mechanisms, recognizing the potential emissions reduction benefits of CSA and also the limitations of currently available verification mechanisms, empirical data, and modeling.

California's Low Carbon Fuel Standard (LCFS) and the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) incentivize transportation fuels that have lower GHG emissions, but they do not have standards for the production of biofuel feedstocks or standards that would credit farm producers for the use of CSA practices. The American Ethanol Council through a USDA Regional Conservation Partnership Program grant is working with state partners in several Midwestern states to increase adoption of CSA practices and quantify emissions reductions associated with the use of these practices by paying farmers a premium for adoption of conservation practices that have demonstrated emission benefits including no-till/strip till, cover crops, and nutrient management practices. However, while the program has practice adoption standards it does not provide a whole system for the quantification, recordkeeping, and verification of emissions benefits through the biofuel supply chain.

Given that no comprehensive standards for CSA practice adoption, quantification of emissions benefits, recordkeeping, verification and reporting of emissions benefits currently exist in the U.S. for biofuels markets, USDA is issuing this rule to establish guidelines for the quantification, reporting, and verification of GHG reduction benefits resulting from implementation of CSA practices in the production of commodities that are used as biofuel feedstocks.

This rule specifies technical guidelines to establish a method of calculating the climate benefits of certain agricultural practices. However, other programs, including federal programs such as tax credits, may require additional or different verification or other procedures in order to effectively administer the requirements of their statutes. Accordingly, while these guidelines may inform the subsequent development of requirements for other programs, such requirements will be established through rulemaking or guidance by the relevant agencies or organizations, taking into account specific statutory requirements, program features, and/or administrative feasibility and constraints.

Should any provision of this rule be deemed invalid, USDA intends that the remaining provisions continue with full effect in order to effectuate the purposes of the statute.

This section explains the methodology that was used to calculate values included in USDA FD-CIC. Over the past year, USDA has worked with academic institutions and experts to develop USDA FD-CIC, which, once finalized, would provide users with a crop-specific, per-bushel carbon intensity associated with biofuel feedstock crops using one or more CSA practices. Net emissions are expressed as a carbon intensity (CI), which is a measure of the total carbon dioxide equivalent (CO2-eq) emissions per unit of crop produced (that is, per bushel).

In general, USDA FD-CIC quantifies the CI (in GHG emissions per bushel) of three domestic feedstock crops (field corn, soybeans, and sorghum) produced using one or more specified CSA practices. The USDA FD-CIC model is separate and distinct from models specific to other programs or incentives, for example, 40BSAF-GREET, and the values calculated by USDA FD-CIC may not be representative of values generated by or applicable to other program or incentive-specific models. The USDA FD-CIC feedstock CI estimates reflect the use of specified CSA practices. CSA practices may lead to changes in:

• soil organic carbon (SOC) storage,

• direct and indirect nitrous oxide emissions (N 2 O),

• upstream emissions from fertilizer production, and

• carbon dioxide (CO 2 ) emissions from on-farm energy consumption.

The effectiveness of CSA practices in reducing the CI of feedstocks varies by region. The USDA FD-CIC model contains feedstock CI estimates for each CSA practice and combination of practices for each county.

The underlying models used to generate values in USDA FD-CIC have undergone extensive peer-review. Further, under USDA's authorities in section 2709 of the 2008 Farm Bill, in April 2024, USDA published Quantifying Greenhouse Gas Fluxes in Agriculture and Forestry: Methods for Entity Scale Inventory. 1 The publication of these methods adhered to the U.S. Office of Management and Budget (OMB) guidelines “Final Information Quality bulletin for Peer Review,” which was published on January 14, 2005 (70 FR 2664-2677), and this document has been designated by OMB as a highly influential scientific assessment. The method recommended for quantifying changes in soil carbon stocks and nitrous oxide emissions from agricultural soils refers to the DAYCENT ecosystem model, which is used as described in the USDA FD-CIC documentation.

USDA will shortly publish USDA FD-CIC on its website at https://www.usda.gov/usda-fdcic for peer-review purposes, beta testing, and to obtain public feedback. As part of this process of testing and feedback prior to finalization, the public will have the opportunity to examine and download USDA FD-CIC to experience how it would operate. Additional details documenting USDA FD-CIC will be available at https://www.usda.gov/usda-fdcic. USDA will evaluate and respond to the public feedback and peer-review provided on USDA FD-CIC, after which USDA will take final action to establish an operative version. Before such final action is taken, users should consider values from USDA FD-CIC as preliminary and should not rely upon them.

This rule establishes definitions in 7 CFR 2100.002 for terms that are relevant to biofuel feedstock production; agricultural practices; the biofuels supply chain; processing crops in the biofuel supply chain; and recordkeeping and verification.

The rule defines the following terms relevant to biofuel feedstock production: “farm producer,” “biofuel,” “biomass,” “feedstock,” “biofuel feedstock crop,” “carbon intensity,” “conventional crop,” “climate-smart agriculture (CSA) crop,” and “reduced-carbon intensity (reduced-CI) crop.” In the context of this rule, “carbon intensity (CI),” “climate-smart agriculture (CSA) crop,” and “reduced carbon intensity (reduced-CI) crop” are relevant to biofuel feedstock production in that the rule contains guidance for on-farm CSA practices that can lead to reduced-CI biofuel feedstocks. The definitions of “agricultural expert,” “farm,” “farm producer,” “biofuel,” “biomass,” “feedstock,” and “biofuel feedstock crop” align with existing USDA definitions. The definition for “carbon intensity” also aligns with language used by California's LCFS.

The rule defines the following terms relevant to agricultural practices: “climate-smart agriculture (CSA) practices,” “cover crop,” “intensive tillage,” “leguminous cover crop,” “no-till,” “crop interval,” “nutrient management,” “planting green,” “reduced till,” and “soil tillage intensity rating (STIR).” This rule defines these terms based on existing USDA definitions, relying heavily on USDA's Natural Resource Conservation Service (NRCS) practice definitions used in existing conservation programs. These definitions provide the necessary context for subpart F of 7 CFR part 2100, which lays out the parameters for CSA practices that farm producers can implement to produce CSA crops.

The rule defines the following terms relevant to the biofuels supply chain: “farm,” “first point of aggregation,” “intermediary entity,” and “biofuel refiner.” These terms distinguish the various entities in the biofuels supply chain referred to in this rule. As outlined in subparts D and E of 7 CFR part 2100, recordkeeping and verification standards differ among farms, first points of aggregation, intermediary entities, and refiners. This approach was informed by the International Sustainability and Carbon Certification (ISCC) standards for verifying entities within the SAF production supply chain for the Carbon Offsetting Reduction Scheme for International Aviation (CORSIA).

The rule defines the following terms relevant to processing crops in the biofuel supply chain: “process,” “crushing yield,” “input product,” “processed product,” and “reduced-CI processed product.” These terms are defined for the purpose of this rule to clarify how reduced-CI biofuel feedstocks pass through the supply chain and are processed into new material forms, including “reduced-CI processed products.” The “crushing yield” is referenced in subpart D of 7 CFR part 2100 as both a recordkeeping requirement and a component of the mass balance equation. Similarly, the terms “process,” “input product,” and “processed product” are used to describe the activities of various entities in the supply chain and the recordkeeping standards for the inputs and outputs they handle. As noted in subpart D in § 2100.033, there are additional recordkeeping standards for entities that process, sell, or purchase reduced-CI processed products.

This rule defines the following terms relevant to recordkeeping and verification: “accreditation,” “audit,” “biofuel feedstock report,” “farm producer attestation,” “mass balance system,” “operational control,” “third party verifier,” “field,” and “management unit.” These terms are used primarily in subpart D of 7 CFR part 2100, which describes the chain of custody standards for 7 CFR part 2100, and Subpart E, which describes the auditing and verification process. The “mass balance system” definition aligns with ISO 22095:2020, which establishes international standards for chain of custody systems used in certification and compliance schemes. The terms “field,” “management unit,” “operational control,” “biofuel feedstock report,” and “farm producer attestation” are used in describing the practice and recordkeeping standards for farm producers for 7 CFR part 2100. These terms reflect definitions used in the implementation of USDA farm-level programs. Broadly, definitions in this section reflect industry standards around auditing and verification within chain of custody systems.

Under authorities in section 2709 of the 2008 Farm Bill, this rule establishes 7 CFR 2100.001 through 2100.053 to define and explain technical guidelines for quantifying, reporting, and verifying the GHG emissions associated with production of biofuel feedstock commodity crops using CSA practices and grown in the United States. The primary purpose of this rule is to establish a system for tracking information relevant to environmental service markets, namely the CI of crops grown with CSA practices that are ultimately used as biofuel feedstock.

This rule specifies domestic biofuel feedstock crops, which include field corn, soybeans, and sorghum, as defined in subpart B in § 2100.011 for which a reduced-CI could be quantified using USDA FD-CIC, upon finalization. These domestic crops were included because they account for the majority of biomass feedstock crops used to produce transportation biofuels in the United States. Furthermore, there is modeling and data available to support the quantification of carbon intensity for these feedstock crops. Grain from field corn or sorghum is used to produce ethanol, while vegetable oils, predominately from soybeans, are used for the production of biodiesel, renewable diesel, and SAF. Intermediate oilseeds (for example, camelina, carinata and pennycress) and canola were excluded from this rule given their current limited use in domestic biofuel production and because there is insufficient data on how CSA practices affect the GHG emissions associated with their production.

Crops produced using certain CSA practices are referred to as CSA crops and are defined in § 2100.011. Crops produced without the use of CSA practices are referred to as conventional crops. CSA crops generally have a reduced CI compared to a conventional crop of the same type and produced in the same location. Depending on the specific crop being produced, CSA crops defined in this rule are grown using one or more of the following practices: no-till, reduced till, cover crops, nitrification inhibitors, split in-season nitrogen application, and no fall nitrogen application. These practices were chosen because they can be used in the production of field corn, soybeans, or sorghum and because scientific evidence demonstrates their effectiveness at reducing GHG emissions or sequestering additional carbon. This rule only includes practices which are used on-field and excludes those practices that occur on field edges or farm borders, in order to associate emissions reductions with the production of commodities on a per acre or per output (for example, bushels) basis.

CSA crops and conventional crops may be physically commingled beginning at the farm if both are being produced. This rule allows for mixing of CSA and conventional crops because segregating crops after harvest and throughout the supply chain is infeasible at farms and entities receiving the crops, especially where farms or other entities lack facilities to physically separate and store crops. Commingling of crops produced using different management techniques is standard practice. Crops that are sold with an associated reduced-CI are referred to as reduced-CI crops and may be composed of solely CSA crops or a combination of CSA crops and conventional crops. If CSA crops and conventional crops are produced at the same farm, the commingled reduced-CI crops must have an associated CI calculated using a weighted average approach, as specified in § 2100.020, Quantification of CI.

This rule can be applied to entities involved in the supply chain for biofuel feedstocks, which spans from the farm to the biofuel refiner. This includes entities that may be producing, storing, processing, or more generally, taking ownership of reduced-CI crops or reduced-CI processed products (that is, a product derived from reduced-CI crops, such as soybean oil) in the supply chain. These entities may include grain elevators or other intermediary storage facilities, processing facilities, and biofuel refiners. Entities that produce or take ownership of reduced-CI crops or reduced-CI processed products are subject to recordkeeping and verification standards.

The scope of this rule extends to the purchase of reduced-CI crops or reduced-CI processed products up to the point of a biofuel refiner. The production and carbon intensity of biofuels, such as ethanol or biodiesel made with reduced-CI crops or processed products, is not covered under this rule.

Under USDA's authorities in the 2008 Farm Bill in section 2709, this rule establishes technical guidelines for use in developing a procedure to measure environmental services benefits. Environmental service benefits are estimated as a reduction in net GHG emissions resulting from crop production with CSA practices compared to a national average baseline. Net emissions are expressed as CI, which is a measure of the total CO 2 -eq emissions per unit of crop produced (that is, per bushel). Generally, the use of CSA practices lowers the CI per bushel and results in environmental service benefits relative to a national average baseline CI.

In Subpart C, this rule establishes voluntary technical guidelines for the quantification of CI. CIs are quantified for a specific crop at the farm-level (that is, they account for a farm's total volume of production of a specific crop) on an annual basis, derived from field or management unit-level CIs that depend on the CSA practices used on those fields. For example, a farm that produces field corn in 2025 and both field corn and soybeans in 2026 would have a 2025 field corn CI, a 2026 corn CI, and a 2026 soybean CI.

Consider a farm that uses different production practices for soybeans on different fields or management units: a portion of the fields or management units use conventional production methods (typically highest CI), a portion use cover crops (typically lower CI), and a portion use both cover crops and no-till (typically lowest CI). The farm-level CI for soybeans is a weighted average of the three CI values. The weighted average CI accounts for the relative production of soybeans under conventional, cover crop, and cover crop plus no-till management.

This rule outlines the steps to quantify a farm-level crop-specific CI. CI would be quantified using the USDA FD-CIC, upon its finalization. To quantify CI under this rule, a farm producer would input field-level management information into USDA FD-CIC. Input information would include farm location (county and state), crop type produced, total field or management unit acres, and use of CSA practices, such as no-till or reduced till; use of a cover crop; timing of nitrogen fertilizer application; and nitrification inhibitor usage. USDA FD-CIC output would include a field-level CI for the crop produced using the specified practices at the farm location. This step would be repeated for all fields or management units within a farm on which the crop is grown. In addition to CI for each field or management unit, USDA FD-CIC could also calculate a weighted farm-level average across fields growing the same crop. Farm producers would also need to input information on the fields and management units growing crops without CSA practices. USDA FD-CIC would assign crops on these fields the default national average CI. These calculations would generate a farm-level, crop-specific CI. Further information on USDA FD-CIC, information requirements and how it is used can be found here: https://www.usda.gov/usda-fdcic.

As described in subpart D, every entity in the supply chain producing or taking ownership of reduced-CI crops or reduced-CI processed products covered by this rule must have a system for maintaining records. All first points of aggregation, intermediary entities, and biofuel refiners must also be audited annually by an accredited third-party verifier. Crucially, accredited third-party verifiers ensure the veracity of the underlying crop production practices and estimated emissions reduction benefits associated with the production of CSA crops by auditing a sample of the farms supplying reduced-CI crops to first points of aggregation, as described in subpart E of this rule. This review is necessary for establishing effective environmental service markets, as described in section 2709 of the 2008 Farm Bill. In the case of markets for transportation biofuel feedstocks, this traceability and verification system could allow for entities such as farm producers, elevators, other intermediary storage facilities, and biorefineries to sell products with environmental attributes such as reduced emissions. In some cases, selling a product with an environmental attribute could enable these entities to earn a premium price for growing, handling, and otherwise helping to move reduced-CI biofuel feedstock through the supply chain.

As described above, the supply chain for agricultural feedstocks used in biofuel production begins at a farm and ends at a biofuel refiner. The first entity to take ownership of reduced-CI feedstock after the farm is referred to as the first point of aggregation and may include, but is not limited to, elevators; processors (for example, crushers); and biofuel refiners. Intermediary entities take ownership of reduced-CI feedstock or reduced-CI processed product between the first point of aggregation and biofuel refiner. The biofuel refiner is the last entity in the supply chain covered by this rule. If a biofuel refiner sources any reduced-CI crop directly from farms, it is the first point of aggregation for the quantity of crop coming directly from farms and is subject to recordkeeping and audit standards applicable to the first point of aggregation. This rule reflects that biofuel feedstock supply chains can include different numbers and types of entities. A biofuel refiner sourcing feedstocks directly from farms represents a simple supply chain. A more complex supply chain may involve crop that is purchased by an elevator, subsequently purchased by crusher for processing, and finally purchased as processed product by a biofuel refiner.

USDA's authorities in section 2709 of the 2008 Farm Bill direct the Secretary to establish technical guidelines for use in developing a protocol to report environmental services benefits and a registry to collect, record and maintain the benefits measured. The recordkeeping standards in this rule establish voluntary guidelines for documenting CI information associated with reduced-CI crops and reduced-CI processed products at individual entities. Additionally, this rule establishes voluntary guidelines for reporting CI information between entities in the supply chain. The recordkeeping standards further require entities to use a mass balance accounting system, which constitutes an internal registry system for each entity to record and maintain the CI associated with reduced-CI crops and the volumes of those crops used in reduced-CI processed products.

This rule specifies general recordkeeping standards applicable to all entities as well as specific standards for farms, first points of aggregation, intermediary entities, and biofuel refiners. All records must be maintained for 5 years. Recordkeeping standards enable third-party verification to ensure that entities follow the applicable standards in this rule.

The primary purpose of recordkeeping standards at the farm is to provide evidence of CSA practices and sale of reduced-CI crops. Farm producers are required to keep records demonstrating the following:

• implementation of CSA practices in accordance with the standards in this rule (described further in the CSA Practice Standards: Recordkeeping section below);

• evidence of sales of reduced-CI feedstocks; and

• documentation of CI calculations completed in USDA FD-CIC, once finalized.

For reporting purposes, farm producers are required to prepare a Biofuel Feedstock Report for each crop sold as a reduced-CI crop. The Biofuel Feedstock Report includes a Farm Producer Attestation and documentation showing quantification of the farm-level crop-specific CI. The Farm Producer Attestation is a document attesting that the crop was produced in accordance with practice standards specified in this rule and that the farm producer had operational control of fields or management units where CSA practices were used. The Farm Producer Attestation also states the total number of bushels of crop produced and the associated farm-level CI. The Biofuel Feedstock Report also includes the USDA FD-CIC inputs (that is, CSA practices used) and output (that is, CI) for each field or management unit on which the crop was produced, as well as the calculation of the field-level and farm-level crop-specific CI. When reduced-CI crop is sold, the farm producer must provide a copy of the Biofuel Feedstock Report to the first point of aggregation.

First points of aggregation and intermediary entities purchase and sell reduced-CI crops. They may also process reduced-CI crops, and purchase or sell reduced-CI processed products. The primary purpose of recordkeeping standards at these entities is to track the amount of reduced-CI crops and reduced-CI processed products that are purchased or sold. Additionally, the rule specifies that first points of aggregation and intermediary entities must report the volume sold, associated CI, and provide evidence of third-party verification to the purchasing entity.

To track the amount of incoming and outgoing reduced-CI crops or reduced-CI processed products, first points of aggregation and intermediary entities must operate a mass balance system. Mass balance is a method of accounting used to track the weight or volume of products moving through an entity without product segregation. The weight or volume of reduced-CI crops that is sold should not exceed the amount purchased. Similarly, the weight or volume of reduced-CI processed product sold should not exceed the weight or volume purchased or processed on site from reduced-CI crops. This system allows for reduced-CI crops to be physically mixed with conventional crops, and for reduced-CI processed products to be physically mixed with processed products derived from conventional crops.

This rule requires entities to maintain records that demonstrate the amounts of reduced-CI crops and reduced-CI processed products, and associated CIs, moving into and out of the entity. These records constitute mass balance accounting, in that they can be used to demonstrate that the amount of reduced-CI crops or processed products sold from an entity does not exceed the amount that was produced or purchased. These records also enable a third-party verifier to audit an entity's mass balance system.

The mass balance can be represented by an equation, which requires that incoming and outgoing feedstocks must be equivalent over a pre-defined mass balance time period, for which the outgoing reduced-CI crops or processed products, with specific CIs, must be balanced with the incoming crop or processed product with respective CIs. Mass balance time periods are continuous so that no gaps between mass balance periods occur, and each time period may not exceed three months. Each entity should document the mass balance time period, complete mass balance calculations for each mass balance time period, and document results. If reduced-CI crops or processed product is remaining at the end of a mass balance time period, it is accounted for as “ending stored feedstock.” This product is included as “beginning stored feedstock” in the calculation for the next mass balance time period. Documentation of the mass balance calculation for each time period must be provided to the entity's third-party verifier during the audit. The third-party verifier may request additional records to verify mass balance calculations during the audit. The following equation illustrates the mass balance calculation:

Feedstocks (incoming, stored, and outgoing) for entity i are identified by their carbon intensity, c, and the pre-defined mass balance time period, m. Incoming feedstocks include those purchased by entity i in time period m. Outgoing feedstocks must include both sold and discarded or wasted feedstocks in time period m. Stores of feedstocks are those maintained by the entity during time period m and must be accounted for in the mass balance. Entities should record and account for the quantity of stored feedstock at the start and end of time period m.

First points of aggregation and intermediary entities that process, sell, or purchase reduced-CI processed product are subject to additional recordkeeping standards. In some instances, reduced-CI crop may be processed before being sold to a biofuel refiner (for example, soybeans processed into soybean oil). Entities that process reduced-CI crop are required to track the amount of reduced-CI crop used in processing, the corresponding amount of reduced-CI processed product, and the crushing yield. These values must align such that reduced-CI processed product amount equals the crushing yield multiplied by the reduced-CI crop amount. These recordkeeping standards provide a mechanism to continue tracking the original reduced-CI crop amount and associated CI throughout the supply chain.

Incoming, stored, or outgoing feedstock can include reduced-CI crops or reduced-CI processed products. To ensure that the mass balance accounting for entity i appropriately accounts for different forms of reduced-CI processed products (that is, oils), the entity's crushing yield must be used to convert reduced-CI processed products back to their crop volume or weight equivalents using the following equation:

Biofuel refiners are the last entity in the supply chain covered by the recordkeeping standards of this rule. The primary purpose of recordkeeping standards at biofuel refiners is to track the incoming amount of reduced-CI crops or reduced-CI processed products. Biofuel refiners must establish a system to track incoming reduced-CI crops or reduced-CI processed products and associated CIs. If a biofuel refiner purchases any reduced-CI crop directly from farm producers, it is also subject to the recordkeeping standards for a first point of aggregation.

Third-party verification by accredited verifiers provides assurances that entities follow the standards specified in this rule. All entities from the first point of aggregation to the biofuel refiner must hire a third-party verifier to conduct an audit annually. Evidence of verification is passed throughout the supply chain. Beginning with the first point of aggregation, each entity must provide proof of third-party verification to all subsequent entities to whom they sell reduced-CI feedstock or reduced-CI processed products.

Farms receive audits as suppliers of the first point of aggregation, and a sample of farms supplying reduced-CI crops must be audited by a third-party verifier each year. Per the recordkeeping and reporting standards in this rule, farm producers must provide the first point of aggregation with a copy of the Biofuel Feedstock Report which provides attestation of CSA practices and documents the quantification of farm-level crop-specific CI. This document can be used by the first point of aggregation's third-party verifier to collect farm information and aide in selecting the farm audit sample.

Audits at the first point of aggregation include two parts: an audit of the first point of aggregation's processes, and audits at a sample of farms supplying the first point of aggregation with reduced-CI crop.

In auditing the first point of aggregation's processes, a third-party verifier must verify that the first point of aggregation is operating a mass balance system in accordance with the standards in this rule and has correctly recorded the CI associated with reduced-CI crops delivered from each farm.

The first point of aggregation must provide its third-party verifier with information enabling the third-party verifier to select a random sample of farms to audit. The sample of farms must be selected by the third-party verifier and the sample size must be at least the square root of the total number of farms supplying the first point of aggregation with reduced-CI crop. For example, if a first point of aggregation purchases reduced-CI crop from 51 farms, the farm audit sample must include at least 8 farms (the square root of 51 is 7.14 which is rounded up to 8). Taking a square root of suppliers to determine the minimum sample size aligns with industry accepted standards in current use, such as the ISCC CORSIA certification program for SAF. The sample must be selected in a way that is representative of the supplying farms' characteristics, including types of supplied feedstock, size of farm, geographic location, and risk of non-conformity or fraud. Additionally, third-party verifiers should vary the farms included in a first point of aggregation's audit sample from year to year.

For farms that are selected for an audit by the first point of aggregation, the third-party verifier must verify that the CSA practices and recordkeeping are conducted as specified in this rule. Additionally, the third-party verifier must verify that the weighted average calculation of the farm-level crop-specific CI is done correctly.

If a farm is selected as part of the audit sample for the first point of aggregation, the farm may be considered exempt from an additional audit if a third-party verifier previously audited the farm according to the standards established in this rule for the applicable year. Farm producers can elect to proactively retain a third-party verifier, accredited to ISO 14065, to complete an audit at their farm. This approach allows flexibility for farm producers who may wish to hire their own third-party verifier, while also maintaining integrity and upholding standards for third-party verifiers established by this rule. Farm producers may choose this option to coordinate with already scheduled audits, or for other reasons. To be considered exempt from an additional audit, the farm producer must provide results of the completed audit to the first point of aggregation's third-party verifier. It is up to the discretion of the third-party verifier to determine whether the farm is exempt from an additional audit, or whether a full or partial audit is necessary.

As defined by this rule, an intermediary entity does not source reduced-CI crops directly from farm producers. The audit standards for intermediary entities include third-party verification of the mass balance system and recordkeeping related to reduced-CI crops or reduced-CI processed product purchased or sold.

The audit standards for biofuel refiners include verification that the biofuel refiner operated a system to correctly record the CI associated with reduced-CI feedstock or reduced-CI processed product. Additionally, biofuel refiners that are acting as a first point of aggregation must also follow the audit standards for first points of aggregation.

Any entity that processes reduced-CI feedstock must comply with additional audit standards to ensure that the amount of reduced-CI processed product is calculated correctly, using the facility-level crushing yield, and that records support mass balance of the product.

All third-party verifiers hired to conduct audits as specified in this rule must be accredited to ISO 14065: General principles and standards for bodies validating and verifying environmental information by a member of the International Accreditation Forum.

This rule establishes implementation standards for specific CSA practices: reduced till, no-till, cover crops, and specified nutrient management practices, such as nitrification inhibitors, no fall application of nitrogen, and split in-season application of nitrogen. These practices are identified by NRCS as CSA and Forestry (CSAF) Mitigation Activities and represent a subset of existing NRCS-approved conservation practices for working lands. 2 Practices included in this rule do not include all NRCS CSAF practices. This rule only includes practices that are relevant to the production of field corn, soybeans, or sorghum and have appropriate data and quantification methodologies needed to estimate the associated net emissions. Additionally, some NRCS CSAF practices were excluded because they only generate net emissions benefits on land that is not growing crops, such as field edges or borders. Emissions benefits from such off-field practices cannot directly be tied to the production of a biofuel feedstock, making it difficult to assign emissions benefits to the biofuel feedstock crop and subsequently produced biofuels.

The practices included in this rule have demonstrated emissions benefits that are directly associated with in-field crop production, as indicated in the NRCS CSAF Mitigation Activity List documentation and based on the latest data and quantification methodologies available to USDA.

The practice of reduced till manages the amount, orientation, and distribution of crop and other plant residue on the soil surface year-round while reducing the frequency and intensity of soil disturbing activities used to grow and harvest crops in systems where the field surface is tilled prior to planting. The practice of reduced till increases soil organic carbon (SOC) as a result of decreased soil disturbance and decreases N 2 O emissions due to changes in the soil environment, when compared to intensive till. 3

To qualify as reduced tillage under this rule, field(s) or management unit(s) are permitted to use tillage methods where the entire soil surface is disturbed by tillage operations such as chisel plowing, field cultivating, tandem disking, vertical tillage, or ridge tillage, provided that the STIR value is no greater than 80. STIR  4 is a numerical value that measures the severity and type of soil disturbance caused by tillage operations. STIR values range from 0 to 200, with higher values indicating more soil disturbance. The STIR rating applies to the entire tillage system used in producing a crop. The components of the rating include tillage type, recommended equipment operating speed, recommended tillage depth, and surface area disturbed. The STIR value must include all field operations that are performed during the crop interval (that is, from the time immediately following harvest or termination of one cash crop through harvest or termination of the next cash crop in the rotation, including fallow periods). Permitted methods are also commonly referred to as mulch tillage, conservation tillage, or ridge till. Primary inversion tillage implements (for example, moldboard plow) must not be used, and residues may not be burned. However, removing residue from the crop planting row area prior to or as part of the planting operation is allowed.

The residue and tillage management practice of no-till limits soil disturbance to manage the amount, orientation and distribution of crop and plant residue on the soil surface year-round. The practice of no-till increases SOC as a result of decreased soil disturbance and decreases N 2 O emissions due to changes in the soil environment when compared to both reduced till and conventional till. 5

To be considered as no-till under this rule, full-width soil disturbance must not be performed, from the time immediately following harvest or termination of one cash crop through harvest or termination of the next cash crop in the rotation, regardless of the depth of the tillage operation. Strip tillage and fertilizer injection are permitted, provided that the STIR value is no greater than 20. Residues may not be burned. However, removing residue from directly within the seeding, planting, or transplanting area prior to or as part of the planting operation is allowed.

A cover crop may include one or more species of grasses, legumes, or forbs planted for seasonal protection and soil improvement. Increased above and below-ground biomass from cover crops can increase SOC, while N 2 O may, in certain contexts, increase slightly from plant decomposition. 6 Under this rule, if legumes are used alone or within a cover crop mix, the producer should account for nitrogen supplied by the cover crop when determining nitrogen application rates for the following crop in order to minimize the risk of increasing direct and indirect N 2 O emissions that may result from excess nitrogen. Cover crops that can be considered under this rule must be seeded in the fall, and interseeding into a commodity crop is allowed. Cover crops should be seeded as early as possible and terminated as late as practical (late vegetative growth stage or later) with termination timing established to minimize the risk of yield loss and soil moisture depletion. 7 To qualify under this rule, cover crops cannot be fertilized.

Cover crop biomass must not be mechanically harvested or grazed. Residues must remain on the surface following termination and may not be burned. Cover crops may be terminated via winter kill, using herbicide, or by non-soil disturbing mechanical methods (for example, roller crimper, mowing) in the spring. Planting green, where the commodity crop is seeded directly into the standing cover crop in the spring, is allowed.

Nutrient management practices included in this rule are:

These practices help to reduce direct and indirect N 2 O emissions from biofuel feedstock production, thereby reducing GHG emissions. To implement any of these nutrient management practices, the farm producer must develop and document a planned nutrient budget, yield goal, and applications of, at a minimum, nitrogen, phosphorus, and potassium (N-P-K) in pounds per acre prior to implementation. The nutrient budget must account for all known measurable sources and removals of N-P-K. The farm producer must base the nutrient budget on current soil test results or the professional opinion of an agricultural expert who is employed by the Cooperative Extension System or the agricultural departments of universities, or other persons approved by the Federal Crop Insurance Corporation (FCIC), whose research or occupation is related to the specific crop or practice for which such expertise is sought.

A nitrification inhibitor is a chemical compound that slows down the conversion of ammonia to nitrate in soil, a process called nitrification. Nitrification inhibitors are added to fertilizers and can help reduce N 2 O emissions. 8 To qualify for the nitrification inhibitor practice under this rule, the producer must apply a nitrification inhibitor with all synthetic nitrogen (synthetic N) applications, including any pre-emergent applications, to the field(s) or management unit(s). Nitrification inhibitors must be defined by the Association of American Plant Food Control Officers (AAPFCO) and be accepted for use by the State fertilizer control official, or similar authority, with responsibility for verification of product guarantees, ingredients (by AAPFCO definition) and label claims.

Applying fertilizer in the spring at the time of planting results in improved nutrient availability and can reduce overall fertilizer needs compared to fall application, also reducing N 2 O losses. 9 To qualify for the no fall application practice under this rule, field(s) or management unit(s) must be managed according to a nutrient budget, the first nitrogen application must occur within 30 days prior to or at the time of planting and no nitrogen fertilizer may be applied in the fall of the previous year.

Split in-season fertilizer application refers to fertilizer that is applied with a minimum of two applications—an initial application at the time of planting with the remainder applied in one or more applications during the growing season. Split in-season application increases nitrogen use efficiency by applying fertilizer according to plant needs, and can also reduce overall fertilizer needs, which also reduces N 2 O losses. 10 To qualify for the split in-season application practice under this rule, field(s) or management unit(s) must be managed according to a nutrient budget. At least 75 percent of total crop nitrogen needs, as defined by the state LGU, must be applied after crop emergence. Post emergent nitrogen may be reduced based on crop scouting, in-season soil sampling or analysis, or plant tissue sampling or analysis. Nutrient availability should be timed to crop uptake.

In addition to specifying the implementation standards for each CSA practice, as described above, this rule also establishes recordkeeping standards for each CSA practice. Required records are necessary to provide evidence that farm producers implemented CSA practices according to the rule. Records must be retained for 5 years and made available to third-party verifiers to conduct audits. The rule does not specify the type or origin of required records; instead, the rule lists examples of record types such as physical documentation (for example, paper forms, invoices, receipts, seed tags), digital files (including from farm management software), data generated by farm equipment (for example, precision agriculture equipment), remote sensing data, georeferenced and timestamped photographs, and data and records used for participation in USDA government programs. The range of allowable record options is designed to increase flexibility and minimize burden for farm producers, who may already maintain various types of records depending on their preferences, participation in government or private programs, or previous CSA practice implementation. However, the records must be sufficient for the third-party verifier to verify compliance with the relevant practice standard for the specified time period.

Across all CSA practices, farm producers must maintain records demonstrating the location and acreage of any field or management unit where the CSA practice was implemented, as well as the total bushels of crop harvested from those fields or management units. These are basic parameters required for calculating the carbon intensity of the resulting crop. Farm producers with multiple fields or management units must keep their records separately for each of these fields or management units to ensure accurate accounting.

For farm producers implementing no-till or reduced till, the following practice-specific records must be maintained:

• a list of all field operations that may cause surface disturbance, including tillage, fertilizing, planting, controlling pests, seeding, and harvesting;

• data on these operations, including the depth and width of disturbance and average speed of operation;

• equipment used; and

• dates that each operation occurred.

These records are necessary for calculating and verifying the STIR value, a quantitative measure of soil disturbance. Calculation of the STIR value on each field or unit provides a consistent way for farm producers and third-party verifiers to evaluate whether a soil management system qualifies as no-till or reduced till.

For farm producers implementing cover crops, the following practice-specific records must be maintained:

• documentation that cover crop seeds were purchased and received in sufficient quantities for the designated field(s) or unit(s);

• the date, method, and rate of seeding;

• the total acreage seeded across each field or unit; and

• time-stamped and georeferenced photographic evidence of establishment.

Records of cover crop purchase and seeding alone is not sufficient to verify that a GHG benefit occurred, because the GHG benefits of cover crops result from biomass accumulation due to plant growth. Time-stamped and georeferenced photographic evidence of establishment is also necessary to ensure that the CSA practice, and associated GHG benefits, can be verified.

For farm producers implementing nutrient management practices, the following practice-specific records must be maintained:

• details on the source and type of nutrients applied;

• date, method, and location of nutrient applications;

• planting-seeding date for the field or unit where the practice was implemented; and

• the total acreage within each field or unit where the nutrient management practice was applied.

Additionally, the producer must provide a nutrient budget that demonstrates all crop nutrient needs for N-P-K, as well as a soil test dated within 2 years of the development of the nutrient budget. Because nutrient needs vary greatly across crops, fields, and management units, a tailored nutrient budget is necessary to assess the nutrient needs of each crop. Evaluation of the nutrient budget can inform the crop-specific and geography-specific rates and types of nutrient management that may result in a GHG benefit.

On June 27, 2024, USDA published a Request for Information (RFI) requesting public input on Procedures for Quantification, Reporting, and Verification of Greenhouse Gas Emissions Associated with the Production of Domestic Agricultural Commodities Used as Biofuel Feedstocks (89 FR 53585-53587). The RFI indicated that USDA was considering a rule to establish voluntary standards for quantifying, reporting, and verifying GHG outcomes for domestic agricultural commodities used as biofuel feedstocks and grown with practices that mitigate GHG emissions or sequester soil carbon. USDA requested public input on several topics that are addressed in this rule. Specifically, the RFI asked for input on qualifying practices, quantification approaches for CSA practices, soil carbon, verification and recordkeeping, and verifier qualifications and accreditation requirements. A total of 256 unique comments were posted to regulations.gov in response to the RFI. The top sources of comments were from individuals (45 comments), industry trade groups (33), biofuel groups (29), agriculture industry and technology groups (28), and crop commodity groups (26). Other groups submitting comments included environmental advocacy groups, organizations involved in carbon markets, farm groups, state and local government agencies, and farm bureaus.

Approximately 52 comments were supportive of USDA's efforts to facilitate quantifying, reporting, and verifying emissions benefits associated with CSA practices for biofuel feedstocks. Broadly, these commenters recognized the potential benefits and opportunities associated with using CSA practices in biofuel feedstock production, including market opportunities and the enhanced sustainability of agricultural systems. These commenters agreed with the need for more accurate accounting of emissions benefits associated with using CSA practices and supported the establishment of guidance in this area. In addition, supportive comments from farm producers, agricultural groups, and industry representatives emphasized the opportunity to establish a simple and inclusive program which facilitates the participation of many different types of farm producers in CSA markets.

Approximately 11 comments were generally opposed to the production of biofuels as a means to reduce GHG emissions and were therefore opposed to any potential USDA rule efforts on this topic. Some opposing comments argued that expanding crop-based biofuel production will lead to greater GHG emissions and additional environmental harms such as air and water pollution. Commenters argued that alternatives such as electrification would be more effective for reducing GHG emissions from the transportation sector. Some opposing comments also expressed concerns with the validity of GHG reductions from CSA practices, pointing out that there is a risk of double-counting benefits from these practices and that incentives for CSA practices may fail to meet “additionality” requirements.

Approximately 193 comments maintained neutral or mixed positions on a rule. Comments spanned many perspectives on the purpose, scope, and ideal execution of a rule. Flexibility and inclusivity were widely shared themes, with commenters asking for inclusion of a wide range of crops, a wide range of CSA practices, and the inclusion of early CSA practice adopters. However, commenters differed on a number of issues, including verification requirements, chain of custody models, and specific crops and practices that should be considered. Commenter perspectives on these topics are described in the sections below.

In addition to publishing the June 2024 RFI, in October 2024, USDA hosted three stakeholder consultation sessions over Zoom in accordance with requirements in 16 U.S.C. 3845, which directs the Secretary of Agriculture to consult with the public when establishing technical guidelines for measuring environmental services benefits from conservation and land management activities. Specifically, section 3845 requires consultation with the following groups:

USDA invited groups from each of these specified categories and posted public information and registration links for the consultation sessions to the Office of Energy and Environmental Policy website. A total of 203 individuals registered for the Zoom calls, with 201 individuals joining at least one of the three consultation sessions. Attendees included private citizens such as farmers, industry representatives, and representatives from farm and environmental groups. A total of 74 individuals elected to speak during the calls to offer their perspectives.

Insights shared in the public consultation sessions echoed comments received in response to the RFI. Some speakers directly echoed portions of their RFI comments, while others shared personal experiences with CSA and biofuels production. Multiple speakers asked for the inclusion of intermediate cover crops and oilseed crops. Parallel to a request for more flexibility was an opposition to “bundling,” rules that would require farm producers to simultaneously implement a specified group of CSA practices. Many speakers emphasized that a bundling approach limits farmer participation; instead, they favored the use of a more flexible approach to CSA practices, as well as a quantification system that reflects the impact of individual CSA practices.

Speakers also frequently highlighted their perspectives on traceability systems throughout the consultation calls. Many speakers expressed support for either book and claim or mass balance systems. Supporters of book and claim underscored the benefits of decoupling carbon intensities from bushels of feedstock, giving farmers greater market flexibility and increasing farmer participation and eligibility across a broader geography. Others were in favor of a mass balance system which would align with ISCC traceability programs, simplify the chain of custody, and maintain the participation of grain elevators.

USDA completed an analysis of comments submitted through the RFI and documented viewpoints shared during the public consultation sessions. Both the RFI and the consultation sessions provided valuable insights into the preferences, perspectives, and concerns of groups potentially impacted by the USDA rule. Insights gained from these public engagements were informative to the drafting of the rule.

In response to which crops should be considered for inclusion in a USDA policy on biofuel feedstock crop production, RFI commenters primarily and widely supported the inclusion of traditional row crops. Field corn was the most frequently mentioned, as it currently represents 98 percent of U.S. ethanol industry feedstock production. Soybeans, sorghum, and spring canola were also frequently endorsed as major biofuel feedstocks, reflecting their established role in current U.S. biofuel production. These mainstream feedstocks were often recommended due to their existing infrastructure, and well-understood production practices. Many commenters emphasized the importance of maintaining these established feedstocks while gradually expanding options to ensure market stability and reliable supply chains.

Many commenters also recommended including winter oilseed crops, with particular emphasis on brassica carinata, camelina, pennycress, and winter canola. These crops were highlighted for their potential to provide soil health benefits, offer crop diversification advantages, and generate additional farm income through double-cropping systems. Notably, commenters pointed out that winter canola has 20 to 30 percent greater yield potential than spring canola, and several organizations detailed their ongoing research and development efforts with these winter oilseed varieties, particularly in regions like the Northern Great Plains.

Commenters also recommended a diverse array of alternative feedstocks for consideration, ranging from perennial grasses like switchgrass and miscanthus to woody crops such as hybrid poplar and shrub willow. Agricultural residues and byproducts, including corn stover, wheat straw, and sugar beet processing remnants, were frequently mentioned as potential feedstock sources. Several commenters advocated for the inclusion of emerging options like Kernza (an intermediate wheatgrass), various biowaste streams, and crop residues, emphasizing the importance of maintaining flexibility to incorporate new feedstock sources as technology and research advance. Many stressed the value of a diverse feedstock portfolio to mitigate risks associated with market fluctuations, crop failures, and regional variations.

RFI commenters overwhelmingly emphasized the importance of soil management practices, particularly conservation tillage and no-till operations, as foundational CSA practices. These practices received strong support due to their well-documented benefits in reducing soil disturbance and enhancing carbon sequestration, though several commenters noted the need for regional flexibility in implementation. To support the argument for including these practices, some commenters referenced extensive research demonstrating their effectiveness, though some stakeholders raised important considerations about the permanence of carbon sequestration benefits and suggested the need for monitoring practice duration and potential reversals. Many recommended using existing NRCS standards to define specific parameters for these practices, ensuring consistent implementation and reliable GHG emissions quantification.

Many commenters advocated for the inclusion of nitrogen management practices and presented evidence for including a range of approaches from enhanced efficiency fertilizers to precise application timing and placement. Arguments for these practices emphasized their direct impact on reducing N 2 O emissions, a potent GHG. Many commenters emphasized the importance of the “4R” approach (right source, right rate, right time, and right place) and provided specific examples of how technologies like variable rate application and nitrogen stabilizers can significantly reduce emissions while maintaining crop yields. The recommended inclusion of these practices was further supported by their potential to reduce both direct field emissions and indirect emissions associated with fertilizer production and transport.

Integrated systems practices, including cover cropping, buffer strips, and crop rotations, were strongly recommended based on their multiple environmental benefits and GHG reduction potential. Stakeholders presented evidence that these practices could sequester carbon and also improve soil health, reduce erosion, enhance biodiversity, and create more resilient agricultural systems. However, commenters emphasized the need for flexible implementation frameworks that allow farmers to adapt practices to their specific contexts while maintaining measurable GHG benefits. Many suggested using established NRCS conservation practice standards as a foundation while incorporating new technologies and emerging practices as they are validated.

Some commenters also recommended the inclusion of water conservation practices, based on evidence of both direct and indirect GHG reduction benefits. Stakeholders detailed how improved irrigation efficiency, precision irrigation systems, and soil moisture monitoring can significantly reduce energy usage associated with water transportation and irrigation operations. Several commenters provided specific examples of technologies, such as subsurface drip irrigation-effluent systems, that demonstrate measurable GHG reductions while delivering co-benefits like improved nutrient management and water quality. Proponents of including water conservation practices also pointed to regional variations in water availability and the increasing importance of water efficiency in agricultural sustainability.

RFI commenters strongly emphasized the critical importance of utilizing robust scientific data and empirical evidence to accurately quantify GHG emissions and carbon sequestration from agricultural practices. Many commenters advocated for a multi-model ensemble approach that would combine outputs from different models and compare them with empirical data, suggesting the use of the lower bound of the 95 percent confidence interval for crediting purposes. A fundamental tension emerged between the scientific rigor of complex biogeochemical modeling and the practical needs of implementation, with some stakeholders favoring a more straightforward practice-based approach using lookup tables and simple regressions. Many commenters supported regional and county-level modeling as a means to account for variations in soil types, weather conditions, and management practices. Several commenters highlighted specific models and tools for consideration, including DAYCENT, COMET, and Field to Market's Sustainability Metrics, while emphasizing the importance of regular updates to incorporate new data and technologies.

RFI commenters identified an extensive array of existing data sources and tools that could be leveraged for quantifying GHG emissions from agricultural practices. Frameworks including the R&D GREET model, CORSIA protocol, and Intergovernmental Panel on Climate Change guidelines were frequently cited as established frameworks that could inform a policy approach. Federal programs and databases, including the Agricultural Resource Management Survey, the USDA the Agricultural Resource Management Survey, and the USDA Greenhouse gas Reduction through Agricultural Carbon Enhancement network, were highlighted as valuable resources that already contain relevant data for emissions quantification. Private sector contributions, including data from carbon markets and third-party verification entities, were identified as important complementary sources to public datasets. The integration of academic research, particularly from LGUs and research institutions, was consistently emphasized as crucial for building a comprehensive understanding of agricultural GHG emissions and mitigation potential.

RFI commenters proposed a range of quantification approaches, reflecting the complexity of measuring agricultural GHG emissions. Process-based models like the Soil and Water Assessment Tool+ model, DAYCENT, and DeNitrification-DeComposition model were suggested alongside empirical approaches using emission factors and direct measurements. A key debate emerged between supporters of regional-scale quantification using standardized factors and advocates for more granular field-level measurements. Stakeholders emphasized the importance of standardized protocols and verification processes to ensure consistency and comparability across different approaches. The need to consider full life cycle impacts, including upstream emissions and indirect land-use changes, was highlighted as crucial for comprehensive emissions accounting. Many commenters recommended aligning with established international standards while maintaining flexibility to accommodate regional variations in agricultural practices.

Data gaps in current empirical research emerged as a significant concern among some commenters, particularly regarding the quantification of GHG emissions from various agricultural practices. Commenters expressed concerns about limitations in data availability for specific practices such as cover crops, nutrient management, and residue management, with commenters noting that most agricultural research has only recently begun focusing on climate mitigation potential. Geographic and regional data limitations were highlighted, with stakeholders cautioning against over-reliance on broad-scale data that might miss important local variations. The lack of consistent historical baseline data was identified as a key challenge, especially for early adopters of climate-smart practices.

RFI commenters emphasized that geographic variability significantly influences the effectiveness and outcomes of CSA practices, necessitating careful consideration in any quantification framework. Many commenters advocated for a regional approach that could effectively balance accuracy with scalability, with several specifically recommending USDA's Farm Resource Regions as an appropriate foundation for regional quantification. The complexity of geographic considerations was highlighted by concerns about potentially creating “winners and losers” based on regional differences, which could inadvertently shift production patterns and impact farm incomes in certain areas. Some stakeholders suggested that while geographic variability must be acknowledged, the quantification system should strive to maintain relative parity in potential benefits across regions to ensure equitable program implementation.

The debate over appropriate geographic scale for GHG emissions quantification revealed a tension between precision and practicality. While many commenters supported farm or field-level quantification for its accuracy and ability to capture site-specific variations, others advocated for district, county, or state-level approaches that could better balance precision with administrative feasibility. Several commenters argued that county-level quantification aligns well with existing USDA survey capabilities and the R&D GREET Feedstock Calculator methodology. A notable suggestion emerged for a hybrid approach that would use field-level data where available while maintaining broader-scale defaults as a “safety valve” to ensure program inclusivity and account for unique circumstances.

The importance of addressing local and regional conditions in GHG emissions quantification was consistently emphasized across stakeholder comments. Variations in soil types, climate, topography, precipitation, and growing season length were identified as critical factors affecting practice effectiveness and GHG benefits. Several commenters recommended leveraging existing resources such as LGUs and extension services to better understand and account for local variations. Some stakeholders specifically suggested using established regional classifications like NRCS MLRAs or crop reporting districts to group areas with similar conditions, while others advocated for investment in enhanced monitoring technologies like Eddy flux towers to better quantify regional differences in GHG emissions and sequestration potential.

RFI commenters emphasized the importance of balancing robust verification standards with the need to minimize administrative burdens on farm producers. Many suggested that existing USDA conservation program data and third-party tools could effectively streamline documentation processes. Some commenters were concerned about the potential for CSA opportunities to become a vehicle for collecting excessive farm data, with several commenters noting that only 3 percent of eligible producers currently participate in carbon markets due to high transaction costs and administrative burdens. While accurate documentation was broadly acknowledged as crucial for transparency and long-term impact assessment, stakeholders emphasized that standards should remain practical and cost-effective.

RFI commenters provided extensive recommendations for specific recordkeeping approaches, emphasizing the need for practical documentation that builds upon existing farm management practices. Key recommended records included field boundary maps, crop types, planting and harvest dates, fertilizer and chemical application records, waste-management practices, tillage documentation, cover crop information, yield data, and equipment usage metrics, with many commenters noting these records are typically already maintained for USDA programs. Integration with established frameworks like USDA organic certification processes, the USDA CSA pilot program referenced in Treasury and IRS's guidance on the Section 40B SAF credit, and USDA's Conservation Evaluation and Monitoring Activity was recommended to avoid creating entirely new documentation systems. The importance of allowing flexibility in record formats was emphasized to accommodate diverse farming operations and technological capabilities, with particular consideration for smaller farms and operations with limited resources. Commenters also stressed the value of accepting attestations from farmers and third-party service providers like agricultural retailers, cooperatives, and independent crop consultants, particularly during the initial implementation phase.

Remote sensing and emerging technologies received significant attention from commenters as potential tools for streamlining verification processes while maintaining program integrity. Many commenters highlighted how satellite imagery, drone technology, and precision agriculture data could effectively verify practices like cover crops, tillage patterns, and buffer strip implementation, with some noting that technologies like Sentinel-2 imagery can identify buffer strips with over 80 percent accuracy. However, several stakeholders cautioned that remote sensing technologies have limitations, particularly in measuring three-dimensional stored carbon or verifying practices not visible from above, suggesting these tools should complement rather than replace traditional verification methods. The integration of these technologies with farm management software, Internet of Things devices, and blockchain was recommended to enhance data collection and verification efficiency, though commenters emphasized the need for standardized processes and algorithms to ensure consistency and reliability across different regions and farming operations.

Most RFI commenters advocated for limited on-site audits to maintain cost-effectiveness and practicality. They recommended following established verification frameworks like those used by the California LCFS and the ISCC Program, which typically require annual verification through a combination of on-site visits and remote monitoring. Commenters suggested giving farmers a presumption of compliance, with auditing practices kept to a reasonable minimum while still deterring non-compliance. Recommendations for audit frequency ranged from annual reviews for high-risk operations to every 2 to 3 years for compliant operations.

RFI commenters recommended sampling methodologies as a means to balance verification rigor with practical implementation. Commenters recommended approaches like stratified random sampling based on geography, crop type, and farm size, following protocols like the square root method used by ISCC CORSIA. Risk-based sampling was a preferred approach, prioritizing farms with higher non-compliance risk based on factors like operation size, practice complexity, and past audit performance. Commenters consistently highlighted the need for sampling approaches tailored to regional and operational differences while maintaining statistical validity and cost-effectiveness.

Commenters expressed diverse views on the use of mass balance and book-and-claim systems for tracing CSA feedstocks through supply chains. Many commenters supported the use of a book-and-claim system, arguing that it provides flexibility, reduces compliance costs, and aligns better with the intended outcomes compared to mass balance or identity preservation systems. These commenters emphasized the need for minimal and flexible data collection requirements for farmers, suggesting the use of digital solutions, farm equipment data, satellite imagery, and remote sensing to reduce administrative burdens and align with existing programs like NRCS and ISCC.

On the other hand, some commenters supported the current traceability definition used in the USDA CSA Pilot Program in the Treasury and IRS guidance on the section 40B SAF tax credit which relies on a mass balance approach. They argued that mass balance is an indispensable tool for incentivizing the development of renewable natural gas (RNG) production and that programs should be modified to allow RNG to be used as a feedstock for SAF and renewable diesel without limitations like region or first use criteria. One commenter noted that a mass balance approach would make it more difficult to track actual bushels leaving the field where the CI-lowering practices were completed; however, another stated that mass balance could reduce the risk of fraudulent claims regarding production practices and chain of custody claims.

A few commenters proposed the use of blockchain technology, token-based systems, or digital ledger platforms for tracing and verifying CSA attributes and feedstock movements, providing transparency, auditability, and reduced risk of double-counting or over-allocating attributes. One commenter described a pilot program using blockchain for tracking sustainable soybean oil attributes.

In summary, commenters were split between supporting mass balance and book-and-claim systems for tracing CSA feedstocks. While book and claim was recommended for its flexibility and reduced compliance costs, mass balance was seen as the best approach for aligning with existing traceability systems.

USDA considered public comments when preparing this interim rule. USDA considered multiple crops for inclusion in this rule, including canola and intermediate oilseeds. The crops included in this rule were selected based on their prevalence of use as a biofuel feedstock, as well as the availability of data to quantify the impact of CSA practices on their production. When assessing different chain of custody approaches, USDA considered both mass balance and book and claim. While USDA recognizes the potential merits of a book and claim system, as outlined by commenters, the infrastructure needed to support a book and claim system does not exist at scale at this time. As detailed by other commenters, mass balance systems are already in use for tracking commodity crops and associated environmental attributes throughout supply chains.

USDA is requesting public comment on this interim rule and welcomes feedback on any aspect of this rule. In particular, USDA is considering the inclusion of additional crops and CSA practices in the final rule and is seeking input on the following questions.

1. USDA is considering the inclusion of spring canola in the final rule. What data and research exist on the current adoption rates and GHG impacts of CSA practices, defined in this rule, on spring canola production?

2. USDA is considering the inclusion of winter canola in the final rule. What CSA practice(s) are applicable to winter canola? What data and research exist on the GHG impacts of the practices used in winter canola production?

3. What records or information could be used to verify that a crop is winter canola or spring canola?

4. USDA is considering the inclusion of intermediate oilseed crops in the final rule. What CSA practices are applicable to intermediate oilseeds? What data and research exist on the GHG impacts of these CSA practices used in intermediate oilseed production?

5. USDA is considering including “conservation crop rotation” as a CSA practice in the final rule. Conservation crop rotation is the practice of growing a planned sequence of crops on the same ground over a period of time. Conservation crop rotation is similar to the cover crop practice in that living crops provide cover year-round; however, unlike cover crops, all crops in a conservation crop rotation may be harvested.

a. What data and research exist on the GHG impacts of conservation crop rotation?

b. If conservation crop rotation is included as a CSA practice, how should USDA proportion the GHG impacts when multiple biofuel feedstock crops are grown in the rotation? For example, if an intermediate oilseed crop and corn are grown in the rotation, which crop should receive a GHG reduction for the conservation crop rotation practice?

6. USDA is considering the inclusion of additional Enhanced Efficiency Fertilizer (EEF) products, such as controlled release fertilizers, in the final rule. What data and research exist on the GHG impacts of EEF products when used on the crops defined in this rule?

7. USDA is considering the inclusion of plant biostimulant products in the final rule. There is no universally accepted definition of plant biostimulants in the United States. However, the 2018 Farm Bill directed USDA to submit a report on plant biostimulants to the President and Congress. 11 For the purposes of the report, the 2018 Farm Bill considered a plant biostimulant to be “a substance or micro-organism that, when applied to seeds, plants, or the rhizosphere, stimulates natural processes to enhance or benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress, or crop quality and yield” and allowed USDA to modify the definition, as appropriate.

a. What definition(s) of plant biostimulant products should USDA consider for the purpose of this rule?

b. Which biostimulant product categories should be considered for inclusion in the final rule?

c. What data and research exist on the GHG impacts of biostimulant products?

d. What implementation standards would be necessary to ensure a net GHG reduction from plant biostimulant products?

e. How can the appropriate use of plant biostimulant products be verified?

8. USDA is considering including “reduced nitrogen application rate” as a CSA practice in the final rule.

a. What implementation standards would be necessary to ensure a net GHG reduction from a “reduced nitrogen application rate” practice?

b. What records and information would be necessary to verify a “reduced nitrogen application rate” practice?

9. USDA recognizes that the practice implementation standards in this interim rule are different than requirements for some USDA programs (for example, the cover crop termination methods and timing in this rule are more specific than practices allowed under crop insurance). How might the guidelines included in this interim rule impact farmers' ability to participate in USDA policies and programs (for example, crop insurance)?

10. What refinements to the USDA FD-CIC tool should USDA consider?

11. Should USDA consider transitioning to a book-and-claim traceability approach? If so, how could USDA facilitate that transition?

12. USDA is requesting comment on potential improvements to the verification, recordkeeping, and reporting standards and whether the standards appropriately balance verification rigor with burden of implementation.

13. The Regulatory Impact Analysis (RIA) for this rule estimates the expected costs associated with this rule which are primarily attributable to costs to conform with recordkeeping and verification standards necessary to trace reduced-CI biofuel feedstock through the biofuel supply chain. These costs are estimated on a per entity basis (farm producer, first point aggregator, other intermediary entities, and biofuel refiner). The rule's primary benefits, which are described qualitatively in the RIA, are due to the efficiencies achieved through more standardized guidelines for quantification, recordkeeping, and verification of reduced-CI biofuel feedstocks through the supply chain this rule provides. USDA requests public comment, including any data or information, that will lead to a better understanding of this rule's costs and benefits.

The promulgation of regulations to implement the programs of Chapter 58 of Title 16 of the U.S. Code, as specified in 16 U.S.C. 3846, and the administration of those programs, are:

• To be made as an interim rule effective on publication, with an opportunity for notice and comment,

• Exempt from the Paperwork Reduction Act (44 U.S.C. chapter 35), and

• To use the authority in 5 U.S.C. 808 related to Congressional review and any potential delay in the effective date.

Per Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the Congressional Review Act (5 U.S.C. 801—808), the Office of Information and Regulatory Affairs has determined that this rule does not meet the criteria specified in 5 U.S.C. 804(2), so the Congressional Review Act's 60-day effective date delay requirement for rules does not apply. Even if this rule did meet the criteria specified in 5 U.S.C. 804(2), the 2018 Farm Bill directs the Secretary to use the authority in 5 U.S.C. 808 to specify this rule's effective date. Therefore, this rule is effective on the date of publication in the Federal Register .

In addition, this rule is exempt from the regulatory analysis requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996. The Regulatory Flexibility Act generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by the Administrative Procedure Act or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because OCE is not required by the Administrative Procedure Act or any law to publish a proposed rule for this rule.

Executive Order 12866 (as amended by Executive Order 14904), “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” 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 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) designated this rule as significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has reviewed this rule. The analysis of costs and benefits of this rule is summarized below.

Section 2709 of the 2008 Farm Bill (16 U.S.C. 3845) directs the Secretary to establish technical guidelines that outline science-based methods to measure the environmental services benefits from conservation and land management activities to facilitate the participation of farmers, ranchers, and forest landowners in emerging environmental services markets. It also directs the Secretary to give priority to the establishment of guidelines related to farmer, rancher, and forest landowner participation in carbon markets. It further directs the Secretary to establish verification guidelines, including the role of third parties in conducting independent verification of benefits produced for environmental services markets and other functions.

Under these authorities, this rule facilitates recognition of crops grown with CSA practices in biofuel markets and provides farm producers with opportunities to market biofuel crops based on their lower net GHG emissions. It also provides standardized guidelines for entities in the biofuel supply chain (including first point aggregators, intermediary entities, and biofuel refiners) to quantify, verify, and trace reduced-CI feedstocks (that is, those crops grown with CSA practices) through the biofuel supply chain, from farm to biofuel refiner. The rule achieves these outcomes by providing quantification, recordkeeping, chain of custody, and verification standards that:

(1) decrease information asymmetries between biofuel supply chain entities with respect to the carbon intensity of biofuel feedstocks, and

(2) reduce transaction costs and increase efficiencies in existing systems that quantify, trace, and verify emissions benefits associated with biofuel feedstocks produced with CSA practices.

The Regulatory Impact Analysis estimates the expected costs of this rule quantitatively and discusses the expected benefits qualitatively.

To estimate the expected costs of the rule, USDA created a model that quantifies the total per entity annual costs (in hours and dollars) of quantification, recordkeeping, and verification processes conforming to the rule standards for each entity type in the biofuel supply chain including farm producers, first point aggregators, intermediary entities, and biofuel refiners. Model inputs were derived from multiple sources, including:

• USDA program office data on the hours required of producers to record and verify information about the adoption of conservation practices (including CSA practices in this rule) for existing USDA programs, such as the Environmental Quality Incentives Program;

• internal USDA data on the time costs (hours) associated with third party verification of reduced-CI feedstocks;

• Bureau of Labor Statistics wage rates applicable to labor used by each entity type to conduct quantification, recordkeeping or verification;

• latest USDA data on estimated acres and bushels of biofuel feedstock production with CSA practices; and

• annual volume throughput of biofuel feedstocks for each entity type in the biofuel supply chain calculated using internal USDA data and data from the U.S. Energy Information Agency.

Aggregate costs of the rule for all entities in the biofuel supply chain are not estimated in the RIA because they depend on the level of participation among biofuel supply entities in policies or programs that adopt the rule's standards. Additional details about the RIA assumptions, model inputs, methodology, and limitations are described in the RIA.

The costs of this rule include costs associated with collection of information, the maintenance of such information in records, and the exchange of these records between entities in the biofuel supply chain. Under this rule's standards, information collection and the maintenance and exchange of records occurs between private entities. The federal government does not collect, maintain, or exchange any information or records as part of the rule standards. The regulatory impact analysis calculates the costs of this rule in burden hours and dollars on a per entity basis (for each entity type including farm producers, first point aggregators, intermediary entities, and biofuel refiners) and on a per bushel basis for each entity type.

USDA estimates of the per entity level of effort (LOE) per entity type (farm producers, first point aggregators, intermediary entities, and biofuel refiners) are summarized in Tables 1 and 2 below.

LOEs for farm producers are estimated to be between 5 to 7 hours per year and were scaled based on the number of CSA practices adopted which assumes that additional practices require additional recordkeeping time. The LOE estimates for producers are inclusive of quantification of carbon intensity of the crop and recordkeeping time costs. LOE for farm producer audits is estimated separately because not all farm producers in a given year will be selected for auditing by a third-party verifier.

LOE for first point aggregators are estimated to be between 48 and 286 hours per entity per year, depending on the size (measured in throughout of biofuel feedstock) of the entity. The LOE estimates for First Point Aggregator verification does not include verification fees; these fees however are included in the per entity costs estimated, as summarized in Table 2.

LOE for intermediary entities is estimated to be 143 hours per entity per year. These LOE estimates also do not include any verification fees (see Table 2).

LOE for biofuel refiners is estimated to be 673 hours per entity per year. These LOE estimates also do not include any verification fees (those are included in Table 2).

Table 2 summarizes the annual per entity costs (in 2023 dollars) per entity type. For farm producers, depending on the number of CSA practices adopted, the annual costs range from $380 to $490, which include costs associated with quantification of the carbon intensity of the crop and recordkeeping time costs and a lawyer fee for completing the farm attestation, with an addition $470 annually per entity in the event that a farm producer is audited. The verification and recordkeeping costs for First Point Aggregators is estimated to be between $3,400 to $19,400 per year per entity, depending on the size of the aggregator. These costs include any verification fees incurred for their audits and the audits of the farm producers. The verification and recordkeeping cost for intermediary entities are estimated to be $9,400 per entity per year. Finally, recordkeeping and verification costs for biofuel refiners are estimated to be $72,500 per entity per year.

Additional details about these estimates are described in the RIA.

While this RIA quantifies the paperwork burden associated with the rule, this rule's information collection requirements and associated burden hours (that is, level of effort estimates) are exempt from Paperwork Reduction Act of 1995 review and approval by the Office of Information Affairs within the Office of Management and Budget, as indicated by 16 U.S.C. 3846, as noted above.

The benefits of this rule include the reduction in transaction costs and efficiency gains associated with the rule's framework for the quantification, reporting, and verification of reduced-CI biofuel feedstocks grown with CSA practices. USDA believes the framework specified in this rule provides a more standardized set of guidelines for the quantification, reporting, and verification of reduced-CI biofuel feedstocks grown with CSA practices. With this more standardized framework, USDA expects that the transaction costs incurred by entities for the quantification, reporting, and verification of reduced-CI feedstocks will be reduced. This standardization is expected to improve the efficiency of quantifying, reporting, tracing, and verifying reduced-CI feedstocks. USDA expects these improvements could facilitate participation in clean fuels policies and programs, should these policies and programs incorporate a reduced-CI for crops produced using CSA practices. Increased adoption of CSA practices in the production of biofuel feedstock crops will also generate environmental co-benefits such as improved water and air quality. Because insufficient data is available to quantify these benefits, the cost benefit analysis only qualitatively discusses them.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. Executive Order 14094 requires Federal agencies to increase and improve public participation in the regulatory process. The Executive Order's objective is to improve public trust in the regulatory process by reducing the risk or appearance of unequal or unfair influence in regulatory development. Under Executive Order 14904, agencies must, to the extent they can under law, seek out, assist with, and include public input in the regulatory process. We welcome comments from public (State, local, Tribal, and territorial) and private sector regulated entities; members of underserved communities; consumers; workers and labor organizations; businesses; and program beneficiaries, among others. In addition to substantive comments on this rule, we invite comments on how to make the rule easier to understand. For example:

• Are the standards in the rule clearly stated? Are the scope and intent of the rule clear?

• Does the rule contain technical language or jargon that is not clear?

• Is the material logically organized?

• Would changing the grouping or order of sections or adding headings make the rule easier to understand?

• Could we improve clarity by adding tables, lists, or diagrams?

• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?

• What else could we do to make the rule easier to understand?

This rule qualifies as an activity under USDA categorical exclusion 7 CFR 1b.3(a)(6): “Activities which are advisory and consultative to other agencies and public and private entities, such as legal counselling and representation.” As such, it is excluded from the requirements of an environmental assessment or environmental impact statement under the National Environmental Policy Act (42 U.S.C. 4321-4347) and its implementing procedures. The rule contains voluntary technical guidance in the form of quantification, reporting, and verification standards that may or may not be adopted in future policies at various levels of government to incentivize the adoption of CSA practices for biofuel feedstock production, or may or may not be adopted by proponents of potential future actions that require measurement of GHG emissions. Making voluntary technical guidance available to a variety of users is advisory and consultative in nature. The rule also qualifies as “Educational and informational programs and activities” under 7 CFR 1b.3(a)(4) because technical guidance is educational and informative in nature. The rule does not authorize or fund any policy or action. If the standard is used in any future federal actions, a project specific analysis may be warranted at that time.

The Office of Energy and Environmental Policy has found that there are no extraordinary circumstances indicating that further NEPA analysis would be necessary or informative in promulgating this technical assistance; nor has it found any extraordinary circumstances indicating that providing this voluntary technical guidance may have significant effects on the quality of the human environment, individually or cumulatively. The Office of Energy and Environmental Policy has determined, therefore, that the rule does not constitute a major Federal action that would significantly affect the quality of the human environment. This notice serves as the documentation of this determination.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. This rule does not provide Federal financial assistance to State and local governments. Therefore, consultation is not required.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule the administrative appeal provisions of 7 CFR part 11 and 2100 are to be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The agency has determined that the rule may have Tribal implications. Tribal consultation will occur simultaneously with the public comment period. Notice for Tribal consultation will be sent on January 17, 2025. Consultation will be held virtually and written comments will be received until 60 days from the publication of this interim rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA for State, local, or Tribal governments, or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

In accordance with Federal civil rights law and USDA civil rights regulations and policies, USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family or parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Individuals who require alternative means of communication for program information (for example, braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or the USDA TARGET Center at (202) 720-2600 (voice and text telephone (TTY)) or dial 711 for Telecommunications Relay Service (both voice and text telephone users can initiate this call from any telephone). Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) mail to: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

On January 31, 2024, the Department of Homeland Security (DHS) published a final rule in the Federal Register at 89 FR 6194 changing immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services (USCIS), fee exemptions and fee waiver requirements, premium processing time limits, and intercountry adoption processing. DHS published a correction to the final rule at 89 FR 20101 on March 24, 2024. DHS has identified an error in the regulatory text.

As codified by DHS in the final rule, 8 CFR 106.3(a)(3)(ii)(A) erroneously associates the E-2C classification with Form I-129CW. Petitioners for E-2C classification do not submit Form I-129CW. Form I-129CW petitioners may request a fee waiver when petitioning for a CW-1, CNMI-only transitional worker (see 8 CFR 214.2(w)), but the fee waiver provision as codified does not include a CW-1, CNMI-only transitional worker. Therefore, this notice corrects that error by removing “E-2 CNMI investor” and replacing it with “CW-1, CNMI-only transitional worker” in the first sentence of 8 CFR 106.3(a)(3)(ii)(A) to include the correct nonimmigrant classification. DHS is correcting the second sentence of 8 CFR 106.3(a)(3)(ii)(A) by removing “a E-2 CNMI investor” and replacing it with “an employer petitioning for a CW-1, CNMI-only transitional worker,” to clarify that the employer petitioning for a CW-1, CNMI-only transitional worker must pay any fees in 8 CFR 106.2(c) that may apply, not an E-2 CNMI investor.

Accordingly, for the reasons set out in the preamble, chapter I of title 8 of the Code of Federal Regulations is corrected by making the following correcting amendment:

Table of Contents I. Authority and Background A. Authority B. Background C. Deviation From Process Rule II. Synopsis of the Final Rule III. Discussion A. Scope of Applicability B. Relevant Historical Background C. Test Cloth Specifications and Requirements 1. Cut Orientation 2. Fabric Weight and Thread Count 3. Granite Weave 4. Alternate Test Cloth 5. Uniformity Criteria 6. Variance P-Value Threshold and Root-Mean-Square Error D. Other Clarifying and Restructuring Edits 1. Introductory Paragraph 2. Pre-Conditioning Instructions 3. Harmonizing Clothes Washer and Clothes Dryer Test Procedures 4. Restructuring Appendix J3 E. Test Procedure Costs F. Effective and Compliance Dates IV. Procedural Issues and Regulatory Review A. Review Under Executive Orders 12866, 13563, and 14094 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 M. Description of Materials Incorporated by Reference N. Congressional Notification V. Approval of the Office of the Secretary I. Authority and Background

Consumer (residential) clothes washers (“RCWs”), commercial clothes washers (“CCWs”), and consumer clothes dryers are included in the list of “covered products/equipment” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(7)-(8); 42 U.S.C. 6311(1)(H)) DOE's test procedures for RCWs are currently prescribed in the Code of Federal Regulations (“CFR”) at 10 CFR 430.23(j) and at 10 CFR part 430, subpart B, appendices J (“appendix J”) and J2 (“appendix J2”). The test procedures for CCWs must be the same as those established for RCWs. (42 U.S.C. 6314(a)(8)) DOE's test procedures for consumer clothes dryers are currently prescribed at 10 CFR 430.23(d) and at 10 CFR part 430, subpart B, appendices D1 (“appendix D1”) and D2 (“appendix D2”). DOE also prescribes specifications for the test cloth to be used for testing clothes washers at appendix J3 to subpart B (“appendix J3”). The following sections discuss DOE's authority to establish and amend test procedures for RCWs, CCWs, and consumer clothes dryers and relevant background information regarding DOE's consideration of test procedures for these products.

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317, as codified) 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 RCWs and consumer clothes dryers. (42 U.S.C. 6292(a)(7)-(8)) Title III, Part C of EPCA, 3 added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes CCWs. (42 U.S.C. 6311(1)(H)) RCWs, CCWs, and consumer clothes dryers are the subject of this document.

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; 42 U.S.C. 6311), test procedures (42 U.S.C. 6293; 42 U.S.C. 6314), labeling provisions (42 U.S.C. 6294; 42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6295; 42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6296; 42 U.S.C. 6316).

The Federal testing requirements consist of test procedures that manufacturers of covered products/equipment 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); 42 U.S.C. 6316(a)), and (2) making other representations about the efficiency of those products/equipment (42 U.S.C. 6293(c); 42 U.S.C. 6314(d)). 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); 42 U.S.C. 6316(a)).

Federal energy efficiency requirements for covered products and equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297; 42 U.S.C. 6316(a) and (b)) 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); 42 U.S.C. 6316(a)).

Under 42 U.S.C. 6293 and 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products/equipment. 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); 42 U.S.C. 6314(a)(2)).

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product and equipment, including RCWs, CCWs and consumer clothes dryers, 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); 6314(a)(1)).

If the Secretary determines, on his or 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 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)). 4 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)(i)-(ii))  5 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)(ii)) Any such amendment must consider the most current versions of the International Electrotechnical Commission (IEC) Standard 62301  6 and IEC Standard 62087  7 as applicable. (42 U.S.C. 6295(gg)(2)(A)).

EPCA requires the test procedures for CCWs to be the same as the test procedures established for RCWs. (42 U.S.C. 6314(a)(8)) As with the test procedures for RCWs, EPCA requires that DOE evaluate, at least once every 7 years, the test procedures for CCWs to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1)).

DOE is publishing this final rule to address specific issues and to make minor corrections to the current test procedures that are required for certification of compliance with applicable energy conservation standards. As DOE has not conducted a comprehensive review of the current test procedures, this rulemaking does not satisfy the EPCA requirement that, at least once every 7 years, DOE review the test procedures for RCWs, CCWs, and consumer clothes dryers. (42 U.S.C. 6293(b)(1)(A); 6314(a)(1)(A)).

As discussed, DOE's existing test procedures for clothes washers are prescribed at appendix J and appendix J2, 8 and DOE's existing test procedures for consumer clothes dryers are prescribed at appendix D1 and appendix D2. 9

Additionally, DOE's existing test procedure at appendix J3 provides specifications for the test cloth to be used for testing clothes washers; procedures for pre-conditioning new test cloth; procedures for verifying that new lots  10 of test cloth meet the defined material specifications; and procedures for developing a set of correction coefficients that correlate the measured remaining moisture content (“RMC”) values of each new test cloth lot with a set of standard RMC values established as a historical reference point. These correction coefficients are applied to the RMC measurements performed during testing according to appendix J or appendix J2, ensuring consistency in the final corrected RMC measurement across different test cloth lots used for testing.

Although the test cloth specifications and qualification procedures in appendix J3 are nominally applicable to clothes washer testing, DOE understands that manufacturers and test laboratories use the same test cloth for testing clothes dryers as well. As discussed further in section III.B of this document, the test cloth specifications for clothes washer testing and clothes dryer testing have historically been aligned. Furthermore, as discussed further in section III.D.3 of this document, test cloth that satisfies the requirements of appendix J3 for clothes washer testing also satisfies the requirements codified in appendices D1 and D2 for clothes dryer testing.

The Association of Home Appliance Manufacturers (“AHAM”) has established a Test Cloth Task Force (“AHAM task force”) that, among other responsibilities, reviews and recommends new lots of test cloth for industry use; identifies and secures suppliers for manufacturing test cloth; conducts research and investigations to recommend continuous improvements to the test cloth specifications and qualification procedures; and addresses any industry-wide concerns that may arise regarding the test cloth. DOE representatives participate in the AHAM task force.

On May 31, 2024, DOE received a letter from AHAM (“May 2024 AHAM Letter”) urging DOE to allow the use of alternate test cloth material for clothes washer and clothes dryer testing. 11 The May 2024 AHAM Letter also made further requests for DOE to amend certain test cloth specifications based on the results of recent investigations by the AHAM task force. ( Id. )

DOE published a notice of proposed rulemaking (“NOPR”) on November 5, 2024 (“November 2024 NOPR”), presenting DOE's proposals to amend the test procedures for residential and commercial clothes washers and consumer clothes dryers to update the test cloth specifications. 89 FR 87803.

DOE received comments in response to the November 2024 NOPR from the interested parties listed in Table I.1. 12

Ravnitzky, NEEA, and AHAM submitted comments generally supportive of DOE's proposals in the November 2024 NOPR. (Ravnitzky, No. 5 at p. 1; NEEA, No. 8 at pp. 1-2; AHAM, No. 10 at p. 1) An anonymous commenter expressed support for test cloth specifications in order to achieve results that identify the most efficient clothes washers. (Anonymous, No 6 at p. 1) Comments from these stakeholders regarding specific topics addressed in the November 2024 NOPR are discussed in the relevant sections of this document.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 13

In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“Process Rule”), DOE noted in the November 2024 NOPR that it was deviating from section 8(b)(2) of the Process Rule, which states that there will be not less than 60 days for public comment on the NOPR, with at least one public hearing or workshop. As stated in the November 2024 NOPR, DOE found it appropriate to forgo a public hearing given the limited scope of issues addressed in the proposal, but also stated that DOE would hold a public meeting on the November 2024 NOPR if one was requested. DOE did not receive any comments requesting a public meeting. DOE also determined in the November 2024 NOPR that 30 days was an appropriate period for providing comments, given the limited scope of issues addressed in the proposal. 89 FR 87803, 87806.

In this final rule, DOE amends its test cloth specifications as follows:

(1) Specify that fabric weight and thread count must be measured on finished goods prior to pre-conditioning,

(2) Clarify that the test cloth be made with a “granite,” “momie,” or “crepe” weave,

(3) Allow the use of an alternate test cloth,

(4) Amend the statistical criteria for a new test cloth lot to be considered acceptable for use,

(5) Restructure and renumber certain sections of appendix J3 for clarity, and

(6) Harmonize the test cloth specifications for clothes washers and clothes dryers.

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

DOE incorporates by reference the following industry standards into title 10 of the Code of Federal Regulation (“CFR”) part 431:

IEC 60584-1:2013, Thermocouples—Part 1: EMF specifications and tolerances, edition 3.0, August 2013 (“IEC 60584-1:2013”).

IEC 60584-3:2021, Thermocouples— Part 3: Extension and compensating cables—Tolerances and identification system, edition 3.0, February 2021 (“IEC 60584-3:2021”).

Copies of IEC 60584-1:2013 and IEC 60584-3:2021 may be purchased from International Electrotechnical Commission (“IEC”) Central Office, 3, rue de Varembé, Case Postale 131, CH-1211, Geneva, Switzerland +41 22 919 02 11, or by going to webstore.iec.ch.

ISO 1217:2009(E), Displacement compressors—Acceptance tests, fourth edition, July 1, 2009 (“ISO 1217:2009(E)”).

ISO 1217:2009/Amd.1:2016(E), Displacement compressors—Acceptance tests (fourth edition, July 1, 2009), AMENDMENT 1: Calculation of isentropic efficiency and relationship with specific energy, April 15, 2016 (“ISO 1217:2009/Amd.1:2016(E)”).

ISO 5167-1:2022(E), Measurement of fluid flow by means of pressure differential devices inserted in circular cross-section conduits running full—Part 1: General principles and requirements, third edition, June 2022 (“ISO 5167-1:2022(E)”).

ISO 9300:2022(E), Measurement of gas flow by means of critical flow nozzles, third edition, June 2022 (“ISO 9300:2022(E)”).

Copies of ISO 1217:2009(E), ISO 1217:2009/Amendment 1:2016(E), ISO 5167-1:2022(E), and ISO 9300:2022(E) may be purchased from International Organization for Standardization (“ISO”) at Chemin de Blandonnet 8, CP 401, 1214 Vernier, Geneva, Switzerland +41 22 749 01 11, or by going to www.iso.org.

See section IV.N of this document for further discussion of these standards.

Compressors are included in the list of “covered equipment” (via the clause classifying certain types of “industrial equipment” as “covered equipment”) for which the U.S. Department of Energy (“DOE”) is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6311(1)(L), 6311(2)(B)(i), and 6312(b)). DOE's test procedures for compressors are currently prescribed at subpart T of part 431 of title 10 of the Code of Federal Regulations (10 CFR part 431). The following sections discuss DOE's authority to establish and amend test procedures for compressors and relevant background information regarding DOE's consideration of test procedures for this equipment.

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317, as codified) Title III, Part C of EPCA, 2 added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes compressors, the subject of this document. Under EPCA, DOE may include a type of industrial equipment, including compressors, as covered equipment if it determines that doing so is necessary to carry out the purposes of Part A-1. (42 U.S.C. 6311(1)(L), 6311(2)(B)(i), and 6312(b)). The purpose of Part A-1 is to improve the efficiency of electric motors and pumps and certain other industrial equipment to conserve the energy resources of the Nation. (42 U.S.C. 6312(a)). On November 15, 2016, DOE published a final rule, which determined that coverage for compressors is necessary to carry out the purposes of Part A-1 of Title III of EPCA. 81 FR 79991. (42 U.S.C. 6311(1)(L); 42 U.S.C. 6311 (2)(A); 42 U.S.C. 6311 (2)(B)(i))

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296).

The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)), and (2) making other representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s))

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 6297). DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. 42 U.S.C. 6316(b)(2)(D).

Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results that reflect energy efficiency, energy use, or estimated annual operating cost of a given type of covered equipment during a representative average use cycle (as determined by the Secretary) and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment, including compressors, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1))

In addition, if the Secretary determines that a test procedure amendment is warranted, the Secretary must publish proposed test procedures in the Federal Register and afford interested persons an opportunity (of not less than 45 days' duration) to present oral and written data, views, and arguments on the proposed test procedures. (42 U.S.C. 6314(b)) If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. (42 U.S.C. 6314(a)(1)(A)(ii))

DOE is publishing this final rule in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6314(b)(1))

DOE's existing test procedure for compressors appears at title 10 of the Code of Federal Regulations (CFR) part 431, subpart T, appendix A—Uniform Test Method for Certain Air Compressors (hereafter “appendix A”).

As stated, DOE published a final rule on November 15, 2016, in which DOE determined that coverage of compressors is necessary to carry out the purposes of Part A-1 of Title III of EPCA. 81 FR 79991. DOE's test procedure for determining compressor energy efficiency of certain varieties of compressors was established in a final rule published on January 4, 2017 (hereafter, the “January 2017 Final Rule”). 82 FR 1052.

On May 17, 2019, DOE published a notice of petition for rulemaking and request for comment regarding the test procedure for compressors in response to a petition from Atlas Copco North America (“Atlas Copco”). 84 FR 22395. Atlas Copco's petition was received on April 17, 2019. Atlas Copco requested that DOE amend the compressors test procedure to specify that manufacturers could satisfy the test procedure requirements by using the industry test method for rotary air compressor energy efficiency, ISO 1217:2009(E) “Displacement compressors—Acceptance tests”. In the notice of petition for rulemaking, DOE sought comment as to whether to proceed with the petition, but took no position at the time regarding the merits of the suggested rulemaking or the assertions made by Atlas Copco. 84 FR 22395. 3

On January 10, 2020, DOE published a final rule for energy conservation standards for air compressors (hereafter, the “January 2020 ECS Final Rule”). 85 FR 1504. Compliance with the energy conservation standards established in the January 2020 ECS Final Rule is required for compressors manufactured starting on January 10, 2025. 10 CFR 431.345.

On May 6, 2022, DOE issued a Request for Information (“RFI”) for a test procedure for compressors to consider whether to amend DOE's test procedure for compressors (hereafter, the “May 2022 RFI”). 87 FR 27025. To inform interested parties and to facilitate this process, DOE identified certain issues associated with the currently applicable test procedure on which DOE is interested in receiving comment. On June 6, 2022, DOE granted a 14-day extension to the public comment period, allowing comments to be submitted until June 20, 2022. 87 FR 34220.

In general, representations of compressor performance must be in accordance with the DOE test procedure. (42 U.S.C. 6314(d)). However, DOE guidance (issued Dec. 6, 2017; revised Jun. 8, 2018) stated that it would discretionarily not enforce this requirement until compliance with a standard is required or a labeling requirement is established. On May 2, 2022, DOE announced that it was suspending the enforcement policy regarding the test procedure for air compressors and removed the policy from the DOE enforcement website.

Following retraction of the enforcement policy and to aid manufacturers in understanding DOE's regulatory requirements regarding the test procedure and forthcoming energy conservation standards, DOE held a “Compressors Regulations 101” webinar on May 24, 2022. The webinar reviewed testing, rating, certification, and compliance responsibilities. 4

On February 13, 2023, DOE published a notice of proposed rulemaking and announcement of public meeting for test procedures for compressors (hereafter, the “February 2023 NOPR”). 88 FR 9199. To inform interested parties and to facilitate this process, DOE identified certain issues associated with the currently applicable test procedure on which DOE is interested in receiving comment. On March 22, 2023, DOE held a public meeting (hereafter, the “March 2023 Public Meeting”) to obtain stakeholder input regarding the issues and proposed amendments raised by the February 2023 NOPR.

DOE received comments in response to the February 2023 NOPR from the interested parties listed in table I.1.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 5 To the extent that interested parties have provided written comments that are substantively consistent with any oral comments provided during the March 2023 Public Meeting, DOE cites the written comments throughout this final rule. DOE did not identify any oral comments provided during the March 2023 Public Meeting that are not substantively addressed by written comments.

In this final rule, DOE is amending subpart T of title 10 of the Code of Federal Regulations, part 431 (10 CFR part 431), which contains definitions, materials incorporated by reference, and the test procedure for determining the energy efficiency of certain varieties of compressors, as follows:

(1) Correct the formula for calculating isentropic efficiency and specific energy consumption of the packaged compressor by incorporating a K6 correction factor to correct for the change in pressure ratio when testing at differing elevations;

(2) Revise the formula for pressure ratio at full-load operating pressure currently in 10 CFR part 431, subpart T to correct a typographical error, and to calculate pressure ratio using terms expressed in absolute pressure; and

(3) Modify the current definition of “air compressor” to clarify that compressors with more than one compression element are still within the scope of this test procedure, and to revise the typographical error of “compressor element” to “compression elements.”

DOE's actions are summarized in table II.1 compared to the current test procedure as well as the reason for the proposed change.

DOE has determined that the amendments described in section III and adopted in this document will more accurately comply with the requirements that test procedures be reasonably designed to produce test results that reflect energy use during a representative average use cycle and are not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) The amendments adopted in this final rule will ensure that any test for isentropic efficiency and specific energy consumption of a packaged compressor performed at any elevation other than 364 ft, or during low- or high-pressure weather events, will be correct. As such, these amendments will ensure accurate measured/calculated efficiency of compressors. DOE has also determined that these amendments will not require retesting or recertification solely as a result of DOE's adoption of the amendments to the test procedures since the amendment aligns the test procedure with existing industry practice. Additionally, DOE has determined that the amendments will not increase the cost of testing. Discussion of DOE's actions are addressed in detail in section III of this document.

The effective date for the amended test procedures adopted in this final rule is 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 procedures beginning 180 days after the publication of this final rule.

In the following sections, DOE adopts certain amendments to its test procedure for compressors. For each amendment, DOE provides relevant background information, explains why the amendment merits consideration, discusses relevant public comments, and adopts an approach.

DOE's test procedure applies to a compressor that meets all of the following criteria: is an air compressor; is a rotary compressor; is not a liquid ring compressor; is driven by a brushless electric motor; is a lubricated compressor; has a full-load operating pressure of 75-200 pounds per square inch gauge (psig); is not designed and tested to the requirements of the American Petroleum Institute Standard 619; has full-load actual volume flow rate greater than or equal to 35 cubic feet per minute (cfm), or is distributed in commerce with a compressor motor nominal horsepower greater than or equal to 10 horsepower (hp); and has a full-load actual volume flow rate less than or equal to 1,250 cfm, or is distributed in commerce with a compressor motor nominal horsepower less than or equal to 200 hp. 10 CFR 431.344.

DOE received comments both supporting and opposing scope changes. CAGI, supported by Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek, stated that they support DOE's proposal to maintain the current scope of the test procedure. (CAGI, No. 21 at pp. 1-3; Kaeser Compressors, No. 24 at pp. 3-5; Ingersoll Rand, No. 25 at pp. 1-3; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1) On the other hand, NEEA & NPCC, CA IOUs, and ASAP, ACEEE, & NRDC encouraged DOE to consider expanding the scope of the test procedure to include additional air compressor types. (NEEA & NPCC, No. 26 at pp. 2-4; CA IOUs, No. 27 at pp. 2-9; ASAP, ACEEE, & NRDC, No. 28 at pp. 1-3)

As discussed in more detail in the following sections, DOE is not amending the scope of the test procedure at this time. DOE may consider test procedure scope expansion, including related comments discussed in this final rule, in a future test procedure rulemaking.

DOE responds to specific scope expansion topics in sections III.A.1 through III.A.7 of this final rule.

As stated in section III.A of this document, the current test procedure for compressors applies to rotary compressors (and, therefore, does not apply to reciprocating compressors). 10 CFR 431.344. In the February 2023 NOPR, DOE proposed to continue excluding reciprocating compressors from the scope of the test procedure. 88 FR 9199, 9203. DOE stated that it will continue reviewing potential test procedures for reciprocating compressors, including existing test methods, and may consider expanding the scope of the test procedure to include these compressors in a future test procedure rulemaking. Id. DOE also asked for comment regarding its proposal to not include reciprocating compressors within the scope of test procedure applicability. Id.

In response to the February 2023 NOPR, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all expressed support for the DOE proposal to exclude reciprocating compressors from the scope of test procedure applicability. (CAGI, No. 21 at p. 1; Kaeser Compressors, No. 24 at p. 3; Ingersoll Rand, No. 25 at p. 1; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

However, in response to the request for comment, NEEA & NPCC recommended that DOE modify the proposed test procedure or develop a new test procedure for testing both one- and three-phase reciprocating compressors because ISO 1217:2009(E) contains a commonly used test procedure for rating reciprocating compressors among manufacturers. However, NEEA & NPCC commented that the reasons discussed in the February 2023 NOPR (88 FR 9199, 9202) for DOE not using ISO 1217:2009(E), as currently written, as the test method for reciprocating compressors are reasonable. NEEA & NPCC also stated that, by establishing a test procedure for reciprocating compressors, DOE is ensuring consistent representation of efficiency in this market and creating a path for industry stakeholders to gather data on this equipment type that would better inform future rulemakings. (NEEA & NPCC, No. 26 at pp. 2-3) ASAP, ACEEE, & NRDC agreed with this point and added that, given the significant potential energy savings for reciprocating compressors, DOE should consider the inclusion of reciprocating compressors within the test procedure scope. ASAP, ACEEE, & NRDC also stated that this would make it easier for DOE to pursue future energy conservation standards for reciprocating compressors and could provide helpful efficiency data to support voluntary programs. (ASAP, ACEEE, & NRDC, No. 28 at pp. 2-3)

DOE agrees that there could be benefits to including reciprocating compressors within the scope of the test procedure. DOE also agrees that the test method in ISO 1217:2009(E) might be appropriate for some reciprocating compressors but inappropriate for others, as there are a wide range of intended duty cycles for reciprocating compressors.

DOE is continuing to exclude reciprocating compressors from the scope of the compressors test procedure. DOE will continue reviewing potential test procedures for reciprocating compressors, including existing test methods, and may consider expanding the scope of the test procedure to include reciprocating compressors in a future test procedure rulemaking.

As stated in section III.A of this document, the current test procedure for compressors applies to rotary positive displacement compressors (and therefore does not apply to centrifugal air compressors). 10 CFR 431.344. In the February 2023 NOPR, DOE proposed to continue excluding centrifugal compressors from the scope of the test procedure. 88 FR 9199, 9203. DOE stated that it will continue to review and consider potential test methods for centrifugal compressors and may consider developing test procedures for centrifugal compressors as a part of a future rulemaking process. Id. DOE also asked for comment regarding its proposal to not include centrifugal compressors within the scope of test procedure applicability and regarding whether dynamic compressor varieties other than centrifugal compete with the air compressor categories discussed in the February 2023 NOPR. Id.

In response to the request for comment in the February 2023 NOPR, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all expressed support for DOE's proposal to exclude centrifugal compressors from the scope of test procedure applicability. (CAGI, No. 21 at p. 2; Kaeser Compressors, No. 24 at p. 3; Ingersoll Rand, No. 25 at p. 1; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1) Additionally, in response to the request for comment regarding clarification on “dynamic” versus “centrifugal” compressors, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all supported the position that centrifugal compressors are the only form of dynamic compressor that competes with the air compressor categories discussed in the February 2023 NOPR. (CAGI, No. 21 at p. 2; Kaeser Compressors, No. 24 at p. 3; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

NEEA & NPCC also recommended that DOE consider a separate future test procedure rulemaking for centrifugal compressors, which would create a path for expanding the current test procedure scope to rotary compressors up to 500 hp. NEEA & NPCC commented that centrifugal compressors make up a small market share but represent 18 percent of annual energy consumption for industrial compressors, and are typically above 200 hp. NEEA & NPCC also stated that rotary and centrifugal compressors from 200 hp to 500 hp represent 25 percent of total commercial and industrial compressor energy consumption. NEEA & NPCC stated that ISO 5389 is an industry-accepted test procedure for centrifugal compressors and recommended this as an option for a future centrifugal compressor test procedure rulemaking. NEEA & NPCC also stated that there is little overlap in the applications that would use a centrifugal compressor instead of a rotary compressor because centrifugal compressors are more expensive and are used for specific applications that require clean air. (NEEA & NPCC, No. 26 at pp. 3-4)

CA IOUs recommended DOE expand the scope of this test procedure to cover centrifugal compressors. CA IOUs stated that dynamic air compressors account for approximately 18 percent of total industrial air compressor national energy consumption. CA IOUs also stated that the inclusion of dynamic compressors would give end users more data to compare with and that these compressors provide oil- and particulate-free air, which would allow them to compete with regulated and large positive displacement rotary compressors in certain applications. (CA IOUs, No. 27 at pp. 7-9) ASAP, ACEEE, & NRDC also encouraged DOE to include centrifugal compressors in the scope of this test procedure final rule due to the significance of their energy usage and the fact that centrifugal compressors may compete with large rotary positive displacement compressors. ASAP, ACEEE, & NRDC added that ISO 5389, the industry test procedure for dynamic compressors, could potentially serve as the basis of the test procedure. (ASAP, ACEEE, & NRDC, No. 28 at p. 3)

It is true that centrifugal compressors can compete with large rotary positive displacement compressors, as stated by commenters. (CA IOUs, No. 27 at pp. 8-9; ASAP, ACEEE, & NRDC, No. 28 at p. 3) DOE discussed the potential for competition between these categories in the January 2017 Final Rule. 82 FR 1052, 1061-1063. Competition between these categories is considerable above 200 hp, and this reasoning was used to set the upper bound of the compressor test procedure motor nominal horsepower at 200 hp. 82 FR 1052, 1062. As discussed in section III.A.3 of this final rule, DOE is maintaining this upper bound on compressor motor nominal horsepower in the test procedure. This ensures that there is not considerable competition between unregulated centrifugal compressors and regulated positive displacement rotary compressors within the scope of the DOE compressors test procedure.

DOE has not yet determined a test procedure for centrifugal compressors that would produce test results that reflect efficiency during a representative average use cycle and that would not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) Due to the reasons discussed in the February 2023 NOPR and previous paragraphs, DOE is not expanding the scope of this test procedure to include centrifugal compressors. DOE continues to review and consider potential methods for centrifugal compressors and may consider developing test procedures for centrifugal compressors as part of a future rulemaking process.

As stated in section III.A of this document, the current test procedure for compressors applies to compressors that have a full-load operating pressure of 75 to 200 psig (inclusive) and either (1) a full-load actual volume flow rate of 35 to 1,250 cfm (inclusive) or (2) compressor motor nominal horsepower of 10 to 200 hp (inclusive). 10 CFR 431.344. In the February 2023 NOPR, DOE tentatively determined that the same burden concerns as discussed in the January 2017 Final Rule would continue to exist for the current compressor market. 88 FR 9199, 9203. These include a small number of shipments of units greater than 200 hp and the potential for competitive disadvantage for rotary positive displacement compressors that compete with centrifugal compressors. Id. Therefore, DOE did not propose any changes to the current horsepower range of 10 to 200 hp for the existing test procedure in the February 2023 NOPR. Id. DOE asked for comment regarding the determination to not include compressors with a horsepower rating above 200 hp within the scope of test procedure applicability. Id.

In response to the February 2023 NOPR, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all expressed support for the DOE proposal to not include compressors with a horsepower rating above 200 hp within the scope of test procedure applicability. (CAGI, No. 21 at p. 2; Kaeser Compressors, No. 24 at pp. 3-4; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

Kaeser Compressors encouraged DOE to investigate increasing the maximum horsepower above 200 hp to 500 hp in a future rulemaking. (Kaeser Compressors, No. 24 at p. 2) NEEA & NPCC recommended that DOE consider a separate future test procedure rulemaking for centrifugal compressors, which would create a path for expanding the current test procedure scope to rotary compressors up to 500 hp. NEEA & NPCC also stated that rotary and centrifugal compressors from 200 hp to 500 hp represent 25 percent of total commercial and industrial compressor energy consumption. (NEEA & NPCC, No. 26 at pp. 3-4)

CA IOUs recommended that DOE expand the scope of the test procedure to cover large (201-500 hp) rotary positive displacement air compressors. CA IOUs stated that all compressor types in this size range consume 29 percent of total industrial air compressor energy, and that increasing the scope of the test procedure would support the goal of fully evaluating the cost-effectiveness, technological feasibility, and economically justified savings opportunities for end users. CA IOUs also stated that air compressor manufacturers voluntarily provide CAGI data sheets for large and oil-free rotary positive displacement air compressors, therefore the additional test burden of covering compressors with motors operating at 201-500 hp is limited. CA IOUs provided data showing that there is a wide range of isentropic efficiencies for rotary positive displacement compressors with motor nominal power greater than 200 hp. Finally, CA IOUs provided data indicating that centrifugal compressors likely compete with fixed-speed rotary positive displacement compressors to provide baseload, but they do not likely compete with variable-speed rotary positive displacement compressors providing low part load. (CA IOUs, No. 27 at pp. 2-7)

ASAP, ACEEE, & NRDC also encouraged DOE to expand the scope of the test procedure to cover rotary positive displacement air compressors greater than 200 hp. ASAP, ACEEE, & NRDC disagreed with DOE's rationale for excluding rotary compressors greater than 200 hp for several reasons. First, ASAP, ACEEE, & NRDC indicated that CAGI performance data is already available for many of these larger models. Second, ASAP, ACEEE, & NRDC acknowledged that larger compressors have lower shipment numbers, but they indicated that DOE has recently expanded the scope of the electric motors test procedure to 750 hp and stated that very large electric motors are also often low-volume, custom products. Third, ASAP, ACEEE, & NRDC stated that most compressor manufacturers make both in-scope rotary compressors and out-of-scope compressors, so it is unclear whether certain manufacturers would be disadvantaged by inclusion of larger rotary compressors. Finally, ASAP, ACEEE, & NRDC stated that DOE should consider expanding the test procedure scope to currently out-of-scope compressor types, such as centrifugal compressors, as this would mitigate concerns over disadvantaging certain manufacturers or pushing the market towards out-of-scope substitutions. (ASAP, ACEEE, & NRDC, No. 28 at pp. 1-2)

DOE recognizes that a considerable amount of the market for compressors greater than 200 hp is served by centrifugal compressors. As discussed in the January 2017 Final Rule, the inclusion of rotary compressors greater than 200 hp could create a competitive disadvantage for manufacturers of these compressors, as centrifugal compressors of the same horsepower do not have the same testing and representation requirements. 82 FR 1052, 1061-1062. DOE concluded at the time that this competitive advantage could incentivize users to switch from regulated rotary compressors to unregulated centrifugal compressors, thus creating a competitive advantage for manufacturers of unregulated centrifugal compressors. Id. Although commenters have indicated that these categories compete in only a subset of the market and that some manufacturers make both regulated and unregulated compressors, the same competitive issues still largely exist today.

Although ASAP, ACEEE, & NRDC have suggested that DOE can mitigate the concerns over competition by covering both rotary positive displacement and centrifugal compressors over 200 hp in the test procedure scope (ASAP, ACEEE, & NRDC, No. 28 at pp. 1-2), section III.A.2 of this final rule discusses that DOE is continuing to exclude centrifugal compressors from the scope of the test procedure at this time. As a result, in order to ensure that there is not considerable competition between unregulated centrifugal compressors and regulated positive displacement rotary compressors, DOE is also continuing to exclude rotary positive displacement compressors over 200 hp from the scope of the test procedure at this time.

For the reasons discussed in the February 2023 NOPR and the previous paragraphs, DOE is maintaining the current horsepower range of 10 to 200 hp for this test procedure final rule. DOE continues to review and consider potential methods for testing positive displacement rotary compressors with nominal motor horsepower greater than and less than the current scope and may consider developing test procedures for these compressors as part of a future rulemaking process.

As stated in section III.A of this document, the current test procedure for compressors applies to lubricated compressors (and therefore does not apply to lubricant-free compressors). 10 CFR 431.344. In the February 2023 NOPR, DOE proposed to not expand the scope of the test procedure to include lubricant-free compressors. 88 FR 9199, 9203-9204. DOE stated that it may evaluate the justification for developing test procedures for lubricant-free compressors as part of a future rulemaking process. DOE also asked for comment regarding its proposal to not include lubricant-free compressors within the scope of test procedure applicability.

In response to the request for comment, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all responded in agreement with DOE's proposal to not include lubricant-free compressors within the scope of test procedure applicability. (CAGI, No. 21 at p. 2; Kaeser Compressors, No. 24 at p. 4; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

Kaeser Compressors encouraged DOE to evaluate recently added/verified test standards for oil-free compressors and blowers for potential incorporation in a future rulemaking. Kaeser Compressors also added that, since there are many different compressor and blower technologies in the oil-free category, they may require different ways to develop efficiency and test standards. (Kaeser Compressors, No. 24 at p. 2)

ASAP, ACEEE, & NRDC recommended DOE expand the scope of this test procedure to cover lubricant-free compressors, because including lubricant-free compressors would mitigate the risk of unregulated product substitutions, which was a concern in the January 2017 Final Rule. (ASAP, ACEEE, & NRDC, No. 28 at p. 3)

DOE discussed lubricant-free compressors in both the January 2017 Final Rule (82 FR 1052, 1063) and the January 2020 ECS Final Rule (85 FR 1504, 1519-1520), concluding that justification did not exist at the time to support extending the scope of test procedures or energy conservation standards to apply to lubricant-free compressors. DOE has determined that the conclusion made in the 2017 and 2020 final rules still applies for lubricant-free compressors.

ASAP, ACEEE, & NRDC recommended that DOE mitigate the risk of unregulated product substitutions by expanding the scope of the test procedure to cover lubricant-free compressors and other categories of compressors, such as centrifugal and scroll compressors, instead of excluding lubricant-free compressors. (ASAP, ACEEE, & NRDC, No. 28 at p. 3) Section III.A.2 of this final rule, however, discusses that DOE is continuing to exclude centrifugal compressors from the scope of the test procedure at this time. As a result, in order to ensure that there is not competition between unregulated centrifugal compressors and regulated lubricant-free positive displacement rotary compressors, DOE is also excluding lubricant-free rotary positive displacement compressors from the scope of the test procedure at this time.

For the reasons discussed in the previous paragraphs, at this time, DOE is not expanding the scope of the test procedure to include lubricant-free compressors. DOE may evaluate the justification for developing test procedures for lubricant-free compressors as part of a future rulemaking process.

As stated in section III.A, the current test procedure for compressors applies only to compressors with brushless motors. 10 CFR 431.344. In the February 2023 NOPR, DOE proposed to not expand the scope of the test procedure to include compressors with brushed motors. 88 FR 9199, 9204. DOE stated that it may evaluate the justification for developing test procedures for compressors with brushed motors as part of a future rulemaking process. DOE also asked for comment regarding its proposal to not include compressors with brushed motors within the scope of test procedure applicability.

In response to the request for comment, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all responded in agreement with DOE's proposal to exclude compressors with brushed motors from the scope of test procedure applicability. (CAGI, No. 21 at p. 2; Kaeser Compressors, No. 24 at p. 4; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

ASAP, ACEEE, & NRDC encouraged DOE to include compressors with brushed motors in the test procedure scope. (ASAP, ACEEE, & NRDC, No. 28 at p. 1) ASAP, ACEEE, & NRDC commented that they were concerned that manufacturers could consider replacing brushless motors with less efficient brushed motors to avoid compressor regulations. (ASAP, ACEEE, & NRDC, No. 28 at p. 3)

DOE discussed compressors with brushed motors in both the January 2017 Final Rule (82 FR 1052, 1060) and the January 2020 ECS Final Rule (85 FR 1504, 1515), concluding that the burden associated with establishing testing requirements for brushed motor compressors outweighed the associated benefits. This was because, although there were potential benefits to expanding scope to include these models, brushed motors are uncommon in compressors with significant operating hours, and most brushed motor compressors are not tested for efficiency. 82 FR 1052, 1060. In addition, DOE stated that brushed motors are uncommon in compressors with significant potential energy savings ( i.e., high operating hours) due to higher maintenance costs, short operating lives, significant acoustic noise, and electrical arcing. Id. For these reasons, DOE concluded that brushed motors are not a viable substitution risk for compressors within the scope of the DOE compressor test procedure. Id.

DOE has determined that the conclusions made in the January 2017 Final Rule still apply for compressors with brushed motors. Due to this reasoning, at this time, DOE is not expanding the scope of the test procedure to include compressors with brushed motors. DOE may evaluate the inclusion of compressors with brushed motors as part of a future rulemaking.

As stated in section III.A, the current test procedure for compressors applies only to compressors that have a full-load operating pressure greater than or equal to 75 psig and less than or equal to 200 psig. 10 CFR 431.344. In the February 2023 NOPR, DOE proposed to not include equipment for compressed air applications for pressures under 75 psig within the scope of test procedure applicability. 88 FR 9199, 9204. DOE stated that it may evaluate the justification for developing test procedures for compressors with output pressure of less than 75 psig as part of a future rulemaking process. Id. DOE also asked for comment regarding its proposal to not include equipment for compressed air applications for pressures under 75 psig within the scope of test procedure applicability. Id.

In response to the request for comment, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all commented in agreement with DOE's proposal to not include compressors with output pressure less than 75 psig. (CAGI, No. 21 at p. 2; Kaeser Compressors, No. 24 at p. 4; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

Kaeser Compressors encouraged DOE to evaluate recently added/verified test standards for oil-free compressors and blowers for potential incorporation in a future rulemaking, which would include pressure ranges of 50-160 psig. Kaeser Compressors added that 1-30 psig is also a large area of energy consumption, which includes wastewater treatment and other aeration and conveying applications that include 24/7 operation. (Kaeser Compressors, No. 24 at p. 2)

At this time, DOE is not expanding the scope of the test procedure to include compressors with output pressure of less than 75 psig. DOE discussed compressors with output pressure of less than 75 psig in both the January 2017 Final Rule (82 FR 1052, 1062-1063) and the January 2020 ECS Final Rule (85 FR 1504,1519), concluding that justification did not exist at the time to support extending the scope of either test procedures or energy conservation standards to apply to compressors with output pressure of less than 75 psig. DOE has determined that the conclusion made in the January 2017 Final Rule and the January 2020 ECS Final Rule still applies for compressors with output pressure of less than 75 psig. DOE may evaluate the justification for developing test procedures for compressors with output pressure of less than 75 psig as part of a future rulemaking process.

In response to the February 2023 NOPR, Kaeser Compressors commented that, while integrated dryers inside a compressor package are not listed in the DOE procedure, it might be necessary to specifically exclude them from this test procedure. (Kaeser Compressors, No. 24 at p. 8)

Section 2.2.4 of appendix A contains tables 1 and 2, which specify the compressor components and ancillary equipment that must be present and installed when testing an air compressor. These tables were discussed in the January 2017 Final Rule. 82 FR 1052, 1055-1057, 1080-1082. Table 1 to appendix A contains the equipment that must be present and installed for all tests. If the compressor is distributed in commerce without an item from table 1 to appendix A, the manufacturer must provide an appropriate item to be installed for the test. If any of the equipment listed in table 2 to appendix A is distributed in commerce with units of the compressor basic model, it must be present and installed for all tests specified in appendix A. Additional ancillary equipment beyond the items listed in tables 1 and 2 to appendix A may be installed for the test, if distributed in commerce with the compressor, but this additional ancillary equipment is not required.

Neither table 1 nor table 2 to appendix A specify an integrated dryer, or any type of dryer, as a piece of equipment that must be installed for testing. Table 1 to appendix A specifies a moisture separator and drain, but this is different from a dryer, in that a moisture separator removes liquid water from the air, whereas a dryer removes water vapor from the air. As a result, an integrated dryer is not required to be present and installed for the tests specified in the compressors test procedure. A manufacturer may install an integrated dryer for the tests if the integrated dryer is distributed in commerce with the compressor, but the integrated dryer is not required.

Although Kaeser Compressors suggested that it might be necessary to specifically exclude integrated dryers from the test procedure, DOE is not doing that in this final rule. As discussed in the previous paragraphs, a manufacturer is not required to install an integrated dryer for testing, but the manufacturer may install an integrated dryer if they wish to represent the performance of their compressor with an integrated dryer installed. This flexibility is indicated by the text of section 2.2.4 of appendix A and tables 1 and 2 to appendix A, and no changes are required at this time to clarify this flexibility.

DOE's current test procedure incorporates by reference certain sections of ISO 1217:2009(E) as amended through Amendment 1:2016 for test methods and acceptance tests regarding volume rate of flow and power requirements of displacement compressors, in addition to the operating and testing conditions that apply when a full performance test is specified. In the February 2023 NOPR, DOE did not propose amendments to the existing reference to ISO 1217:2009(E) as amended through Amendment 1:2016 as the basis for the compressors test procedure. 88 FR 9199, 9204-9205. DOE also asked for comment regarding its initial determination to continue to use ISO 1217:2009(E) as amended through Amendment 1:2016 as the basis for the compressors test procedure.

In response to the request for comment, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all commented in agreement with DOE's proposal to continue to use ISO 1217:2009(E) as amended through Amendment 1:2016 as the basis for the compressors test procedure. (CAGI, No. 21 at p. 3; Kaeser Compressors, No. 24 at p. 4; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

DOE agrees with the comments received and is continuing to incorporate by reference certain sections of ISO 1217:2009(E) as amended through Amendment 1:2016 in the compressors test procedure at 10 CFR 431.343. As discussed in section III.E.1, DOE is revising 10 CFR 431.343 to add section B.4.5 of Annex B of ISO 1217:2009(E) to the list of sections that DOE is incorporating by reference in the compressors test procedure. See section III.E.1 for a full discussion of this revision.

DOE adopted the ambient temperature range for testing of 68 to 90 °F in the January 2017 Final Rule partially in response to concern that creating a climate-controlled space for testing compressors could be a significant burden on small businesses. DOE stated that this temperature range provides representative measurements without unduly burdening manufacturers. 82 FR 1052, 1079-1080. In the February 2023 NOPR, DOE proposed to maintain the current ambient temperature range requirement of 68 to 90 °F for testing air compressors. 88 FR 9199, 9205. DOE also asked for comment regarding its proposal to maintain the current ambient temperature range requirement.

In response to the request for comment, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all commented in agreement with DOE's proposal to maintain the current ambient temperature range requirement of 68 to 90 °F for testing air compressors. (CAGI, No. 21 at p. 3; Kaeser Compressors, No. 24 at p. 5; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1) They added that narrowing the range or specifying specific requirements would add burden to the industry without providing any advantages to consumers. ( Id.)

For the reasons discussed in the February 2023 NOPR and the previous paragraphs, DOE is not amending the current ambient temperature range requirement of 68 to 90 °F for testing air compressors in this final rule.

Air compressors may include multiple compression elements to increase compression efficiency or to generate a greater pressure increase than would be possible with a single compression element. The current definition of “air compressor” specifies inclusion of a compression element but does not exclude air compressors that include more than one compression element. DOE discussed the current definition of “air compressor” as applying to multi-element air compressors in both the January 2017 Final Rule (82 FR 1052, 1068) and the January 2020 ECS Final Rule, in which multi-staging was identified as a technology option for improving the energy efficiency of compressors. 85 FR 1504, 1537.

In the February 2023 NOPR, DOE tentatively determined that revising the definition of “air compressor” to explicitly include air compressors with more than one compression element would reduce the probability that the definition is misinterpreted to exclude air compressors with more than one compression element. 88 FR 9199, 9205-9206. DOE proposed to amend the definition of “air compressor” such that “compression element (bare compressor)” is replaced by “one or more compression elements (bare compressors).” Id. Additionally, DOE proposed to change “compressor element” to “compression elements” to correct a typographical error. Id. DOE also issued a request for comment in the February 2023 NOPR regarding its proposed amendment of the definition of “air compressor.” 88 FR 9199, 9206.

In response to the request for comment, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, Sullivan-Palatek, and CA IOUs all expressed support for DOE's proposed amendment to the definition of “air compressor.” (CAGI, No. 21 at p. 2; Kaeser Compressors, No. 24 at p. 4; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1; CA IOUs, No. 27 at p. 1)

The current formulation of the definition of “air compressor” does not exclude air compressors with more than one compression element; nonetheless, stating expressly that multi-element compressors meet the definition of “air compressor” limits the potential for misinterpretation.

For the reasons discussed in the February 2023 NOPR and the preceding paragraphs, DOE is amending the definition of “air compressor” to be “a compressor designed to compress air that has an inlet open to the atmosphere or other source of air, and is made up of one or more compression elements (bare compressors), driver(s), mechanical equipment to drive the compression elements, and any ancillary equipment.”

The current efficiency metric for fixed-speed compressors, full-load package isentropic efficiency, uses a single load point at 100 percent of full-load actual volume flow rate. In the February 2023 NOPR, DOE proposed to maintain the requirement to measure the performance of fixed-speed compressors at full load, or more specifically, full-load actual volume flow rate at full-load operating pressure, as described in paragraph 3.3.1 of appendix A. 88 FR 9199, 9209. DOE also asked for comment on whether the test procedure reflects actual operating costs for compressors based on their realistic average use cycles. Id.

In response to the February 2023 NOPR, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all expressed support for the provision that the test procedure can be considered reflective of realistic average use cycles. They commented that, in practical terms, no one compressor installation will have identical or predictable use cycles, and that the current regulatory provision to certify fixed-speed machines based on their performance at 100 percent flow rate and for variable-speed machines based on a weighted average for flow conditions provides a realistic, representative framework for testing, certifying, and presenting meaningful and consistent data to customers. (CAGI, No. 21 at p. 5; Kaeser Compressors, No. 24 at p. 8; Ingersoll Rand, No. 25 at p. 4; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

For the reasons discussed in the February 2023 NOPR and preceding paragraphs, DOE is not proposing to alter the current metric for fixed-speed compressors in this test procedure final rule.

The part-load package isentropic efficiency metric for variable-speed air compressors uses three load points: 40, 70, and 100 percent of full-load actual volume flow rate. In the February 2023 NOPR, DOE proposed to continue using those load points. 88 FR 9199, 9208-9209. DOE requested comment on its proposal to maintain the number of load points for variable-speed air compressors and to not include points with greater than 100 percent of full-load actual volume flow rate. Id.

In response to the request for comment in the February 2023 NOPR, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all expressed support for the DOE proposal to maintain the number of test points and to not include points with greater than 100-percent load.

For the reasons discussed in the February 2023 NOPR and the previous paragraphs, in this final rule, DOE is maintaining the load points for the part-load package isentropic efficiency metric for variable-speed air compressors at 100 percent, 70 percent, and 40 percent of full-load actual volume flow rate.

The isentropic efficiency metric for fixed-speed compressors currently includes performance at full-load operation only. No measure of performance is included from unloaded operation. In the February 2023 NOPR, DOE proposed to maintain this exclusion of unloaded operation from the isentropic efficiency metric. 88 FR 9199, 9208.

ASAP, ACEEE, & NRDC encouraged DOE to explore how unloaded power measurements could be incorporated into the test procedure. ASAP, ACEEE, & NRDC stated that fixed-speed air compressors are tested and evaluated only at full load. However, they elaborated that fixed-speed compressors often include controls such as “load/unload” or “start/stop” and commented that testing and evaluating fixed-speed compressor efficiency at both fully loaded and fully unloaded ( i.e., zero flow) conditions would be more representative of typical usage. ASAP, ACEEE, & NRDC further stated that the CAGI Performance Verification Program already specifies testing at a fully unloaded test point, and that capturing differences in unloaded power usage will become increasingly important as compressor efficiencies improve. (ASAP, ACEEE, & NRDC, No. 28 at p. 3)

NEEA & NPCC recommended that DOE include a no-load power measurement in the test procedure for fixed-speed compressors that use start/stop and load/unload control strategies. NEEA & NPCC stated that unlike variable-airflow controls, fixed-speed air compressors that use start/stop and load/unload control strategies operate at either fully loaded or fully unloaded states, and testing units that have start/stop or load/unload control strategies at fully loaded and fully unloaded states would be more representative of typical usage. NEEA & NPCC commented that the January 2020 ECS Final Rule indicates that a significant portion of annual energy consumption is spent in a no-load or fully unloaded state for fixed-speed compressors with unload strategies. NEEA & NPCC further stated that, because the metric does not currently account for a no-load power, DOE can't consider technologies that reduce no-load power consumption in its standard analysis; manufacturers that develop products that use less energy in no-load are not given credit in their regulated ratings; and the DOE test procedure assumption for non-operating hours is zero, which is not in agreement with the analysis performed in the January 2020 ECS Final Rule and does not align with the typical usage of compressors. NEEA & NPCC also stated that standby mode and off mode energy consumption measurements are required for all consumer products' test procedures, and that including a no-load power measurement for industrial equipment that consumes power in a no-load state, such as start/stop and load/unload compressors, ensures consistency in test procedure requirements across industrial and consumer products. (NEEA & NPCC, No. 26 at pp. 5-6)

NEEA & NPCC disagreed with DOE's statement in the February 2023 NOPR that testing at a no-load state is not an essential output of the test procedure and, therefore, would cause unneeded incremental burden on testing and reporting requirements. NEEA & NPCC stated that DOE requiring testing at a no-load state is the necessary step for no-load power measurement to be an essential output of the test procedure. NEEA & NPCC also stated that the incremental burden of testing a unit at a no-load state is minimal, as units under test are already set up for testing at specified load points and the CAGI data sheets already specify tolerances for testing at a fully unloaded test point. (NEEA & NPCC, No. 26 at p. 6)

DOE agrees that information describing unloaded states of operation could be useful to the end user. This subject was discussed in the January 2017 Final Rule. 82 FR 1052, 1068-1070. This included mention of possible methods to include loaded and unloaded points in a representative manner, including, potentially, the energy required during the transient periods between loaded and unloaded operation. Id. At the time, it was noted that there were no methods that had been developed and accepted by industry consensus, although Atlas Copco did provide an example of a cycle energy requirement approach to consider the energy during loaded operation, unloaded operation, and the transient periods between loaded and unloaded operation. Id. At the time, DOE did not include unloaded performance in its isentropic efficiency metric because there was no accepted industry test method. Id. DOE indicated at the time that DOE may consider incorporating such a method in future rulemakings if the metric gains acceptance in the industry and the test method can be formalized and validated beyond a case study. 82 FR 1052, 1069. DOE also stated that manufacturers may measure and advertise unloaded power, but it would not require measurement of unloaded performance as part of the test procedure. 82 FR 1052, 1070.

At the current time, DOE is not aware that an industry standard test method has been developed to provide a representative measure of performance across loaded and unloaded operation. In a comment in response to the February 2023 NOPR, Kaeser Compressors indicated that DOE could consider new industrial standards for a future rulemaking, including ISO 4376, Cycle energy requirement. 6 This standard is described on the ISO website as measuring the additional energy required for a single cycle caused by transient conditions, which sounds similar to the method from Atlas Copco that was discussed in the January 2017 Final Rule. The standard is currently listed as “under development” on the ISO website, and DOE is not aware of any compressors that are currently rated using this standard. As a result, it appears that this standard is not currently being used widely by industry. DOE is also not aware of any other industry consensus method to combine loaded and unloaded performance.

The concerns that existed in the January 2017 Final Rule regarding the lack of an accepted industry test method to combine loaded and unloaded performance still exist. As a result, DOE is not including any measure of unloaded performance in the metrics of the compressors test procedure at this time, although manufacturers may measure and advertise unloaded power. DOE may consider including unloaded performance in the metrics of the compressors test procedures as part of a future rulemaking process.

The isentropic efficiency metric for fixed-speed compressors includes performance at full-load operation only. No measure of performance is included from part-load operation. In the February 2023 NOPR, DOE proposed to maintain this exclusion of part-load operation from the isentropic efficiency metric for fixed-speed compressors. 88 FR 9199, 9208.

ASAP, ACEEE, & NRDC encouraged DOE to include voluntary testing and reporting of part-load performance of fixed-speed compressors with variable-airflow controls. ASAP, ACEEE, & NRDC stated that fixed-speed compressors sold with variable-airflow controls, such as “variable displacement” or “inlet modulation,” can provide similar utility as variable-speed compressors. Thus, ASAP, ACEEE, & NRDC stated that DOE should provide specific voluntary provisions to test and rate compressors with variable-airflow controls ( e.g., using the variable-speed compressor test points at 40, 70, and 100 percent of full load). ASAP, ACEEE, & NRDC further stated that part-load testing of fixed-speed compressors with airflow controls would facilitate comparison of part-load efficiency among variable-airflow compressors as well as between variable-airflow and variable-speed compressors. Finally, ASAP, ACEEE, & NRDC indicated that these provisions would also ensure that any manufacturer representations of variable-airflow compressor part-load performance are consistent across the industry. (ASAP, ACEEE, & NRDC, No. 28 at pp. 3-4)

NEEA & NPCC recommended DOE coordinate with CAGI in rating fixed-speed rotary compressors with variable-airflow controls at variable load points to align with variable-speed compressors. NEEA & NPCC stated that many fixed-speed rotary compressors have variable-airflow controls and non-flat load profiles. Fixed-speed compressors that use variable-airflow controls, such as inlet valve modulation and variable displacement, provide the same function as variable-speed compressors; however, these compressors are tested only at full-load operation currently. Testing fixed-speed rotary compressors with variable-airflow controls at variable load points would be more representative of typical usage and produce a more representative isentropic efficiency. Furthermore, NEEA & NPCC stated that by not testing compressors with variable-airflow controls at part-load set points, consumers cannot compare and select the most efficient air compressors for part-load operations. (NEEA & NPCC, No. 26 at p. 4)

NEEA & NPCC disagreed with DOE's reasoning in the February 2023 NOPR that because fixed-speed rotary compressors in the CAGI data sheets are rated at only full-load isentropic efficiency, establishing part-load isentropic efficiencies for compressors with variable-airflow controls in the test procedure is not warranted at this time. NEEA & NPCC stated that DOE should consider improvements to the testing of variable-airflow compressors for several reasons. First, NEEA & NPCC stated that DOE is not limited to CAGI's performance verification program or the information on CAGI data sheets in their test procedure, and that DOE should fully consider the burden and value of changes to the testing of fixed-speed variable-airflow compressors. Second, NEEA & NPCC commented that the January 2020 ECS Final Rule indicated that about 37 percent of fixed-speed industrial air compressors use inlet valve modulation or variable displacement with high, low, or even load profiles, indicating that a significant portion of fixed-speed air compressors are tested in conditions at which they rarely or never operate. Finally, NEEA & NPCC commented that there may be a significant savings opportunity for fixed-speed rotary compressors with variable-airflow controls, and that DOE should investigate the savings opportunity by testing these compressors the same as variable-speed compressors. NEEA & NPCC stated that if significant savings potential is noted, DOE should update testing to better reflect the energy consumption and potential for savings in this equipment. In addition, NEEA & NPCC stated that DOE could also coordinate with CAGI on how to include these reporting requirements in their data sheets so that both continue to align, should DOE make changes. (NEEA & NPCC, No. 26 at p. 6)

DOE agrees that a part-load package isentropic efficiency metric for fixed-speed variable-airflow compressors could acceptably represent the typical energy use of fixed-speed compressors with variable-airflow controls. This subject was discussed in the January 2017 Final Rule. 82 FR 1052, 1072-1073. At the time, it was noted that CAGI was doing preliminary work on developing a method for one of these control methods (variable displacement), but that there was not yet an industry consensus method for measuring the part-load performance of variable-airflow fixed-speed compressors. Id. at 82 FR 1073. The lack of an accepted test method was one of the reasons that DOE did not include a part-load package isentropic efficiency metric for fixed-speed variable-airflow compressors in the test procedure. The other reasons included the lack of historical part-load performance data for these compressors and the approach taken by CAGI and the EU Lot 31 draft standard. Id. DOE also acknowledged in the January 2017 Final Rule that part-load performance information for these varieties of compressors can provide valuable information for the end user, and that manufacturers of fixed-speed compressors may continue making graphical or numerical representations of package isentropic efficiency and package specific power as functions of flow rate or rotational speed. Id.

At the current time, DOE is not aware of an industry consensus method for measuring part-load package isentropic efficiency for fixed-speed variable-airflow compressors, nor is DOE aware of this metric being used widely for this category of compressors. As a result, the concerns that existed in the January 2017 Final Rule regarding the lack of an accepted industry test method still exist. Therefore, DOE is not including any measure of part-load package isentropic efficiency for fixed-speed variable-airflow compressors in the compressors test procedure at this time. DOE may consider part-load package isentropic efficiency for fixed-speed variable-airflow compressors as part of a future rulemaking process.

ISO 1217:2009(E) contains several correction factors that correct for variables of the environment, process gas, and compressor operation. The K 6 correction factor in ISO 1217:2009(E) is labeled in section 4.1 of ISO 1217:2009(E) as the correction factor for the isentropic exponent. The DOE test procedure uses only a subset of the correction factors in ISO 1217:2009(E), and it does not use the K 6 correction factor. The DOE test procedure specifies in sections 3.3.2.2, 3.4.3.2, 3.4.4.2, and 3.5 of appendix A to multiply measured power by the K 5 correction factor, which is labeled in section 4.1 of ISO 1217:2009(E) as the correction factor for the inlet pressure, polytropic exponent, and pressure ratio.

In response to the May 2022 RFI, DOE received comments about potentially needing to use the K 6 correction factor in certain situations. CAGI, supported by Kaeser Compressors, commented that if testing is conducted at sites significantly above sea level, use of the K 6 correction factor may be necessary to obtain accurate representative results. (CAGI, No. 11 at p. 2; Kaeser Compressors, No. 17 at p. 1)

In the February 2023 NOPR, DOE explained that DOE had deliberately omitted the K 6 correction factor during the January 2017 Final Rule. 82 FR 1052, 1084; 88 FR 9199, 9206. As listed in the footnotes of the January 2017 Final Rule, the isentropic exponent of air has some limited variability with atmospheric conditions, and DOE adopted a fixed value of 1.400 to align with the EU Lot 31 draft standard's metric calculations. Id. As such, DOE did not propose to amend the current fixed value of 1.400 for the isentropic exponent in the February 2023 NOPR. 88 FR 9199, 9206. DOE also asked for comment regarding its initial determination to continue to use a fixed value of 1.400 for the isentropic exponent, as opposed to incorporating a K 6 correction factor. Id.

In response to the request for comment, CAGI, supported by Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek, commented in support of DOE's initial determination to continue to use a fixed value of 1.400 for the isentropic exponent of air. However, they added that to ensure results derived from testing at elevation are accurate, the K 6 correction factor is necessary to incorporate both isentropic exponent and pressure ratio. They indicated that is necessary to correct the measured power with both the K 5 and K 6 correction factors in order to correct for inlet pressure and pressure ratio. The DOE test procedure directs that performance be normalized to a reference ambient inlet pressure of 100 kPa, approximately corresponding to an altitude of 364 ft above sea level. CAGI presented a table illustrating that calculated results are incorrect at elevations greater than and less than 364 ft if K 6 is not used. (CAGI, No. 21 at pp. 3-5; Kaeser Compressors, No. 24 at p. 6; Ingersoll Rand, No. 25 at p. 3; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1) The commenters also indicated that correcting the DOE test procedure to include K 6 will reduce burdens and potential burdens for the industry, because currently the DOE test method and its correction deviates from the national consensus standard. They also stated that correcting the procedure will not result in a need to retest and recertify but will ensure that any verification/certification performed at any elevation other than 364 ft or during low- or high-pressure weather events will be correct. (CAGI, No. 21 at pp. 4-5; Kaeser Compressors, No. 24 at pp. 8-9; Ingersoll Rand, No. 25 at pp. 4-5; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

After reviewing CAGI's comments and the content of ISO 1217:2009(E), DOE now understands that K 6 is required to calculate package isentropic efficiency and specific power accurately in the DOE test procedure. Although K 5 is labeled as “correction factor for inlet pressure, polytropic exponent and pressure ratio” and K 6 is labeled as “correction factor for isentropic exponent” in section 4.1 of ISO 1217:2009(E), which appears to be inaccurate. K 5 , as determined in section C.4.3.2 of Annex C to ISO 1217:2009(E), appears to correct only for inlet pressure, because it is a ratio of inlet pressures. K 6 , as determined in section B.4.5 of Annex B to ISO 1217:2009(E), appears to correct for both the isentropic exponent and pressure ratio, because it contains ratios of isentropic exponents and pressure ratios. In the case of the DOE test procedure, for which a fixed value of 1.400 is used for the isentropic exponent, K 6 will correct for only pressure ratio. For the packaged compressors covered by the DOE test procedure, both inlet pressure and pressure ratio change with elevation and weather conditions. By including the K 5 correction factor but excluding the K 6 correction factor, the DOE test procedure currently corrects for variations in inlet pressure but does not correct for variations in pressure ratio. By including K 6 as well, the DOE test procedure will correct for variations in both inlet pressure and pressure ratio, thereby resulting in more accurate measurements of isentropic efficiency and specific power.

To incorporate the K 6 correction factor, DOE is making the following changes in the DOE test procedure. First, DOE is incorporating by reference section B.4.5 of ISO 1217:2009(E) into subpart T of 10 CFR part 431, which includes equations to calculate the K 6 correction factor: equation B.9 for single-stage displacement compressors with or without cooling and multi-stage compressors without intercooling, and equation B.10 for multi-stage displacement compressors with intercoolers. Second, DOE is revising sections 3.3.2.2, 3.4.3.2, 3.4.4.2, and 3.5 of appendix A to multiply measured power by both K 5 and K 6 , instead of only multiplying measured power by K 5 .

As indicated by commenters, these changes will make the results of the DOE test procedure more accurate, reduce burden by making the DOE test procedure consistent with the industry test method, and not require any retesting or recertifying.

Section 3.6 of appendix A specifies a formula for pressure ratio at full-load operating pressure, which is used to classify whether a machine or apparatus qualifies as a compressor, as the definition of “compressor” stated in 10 CFR 431.342 states that the machine or apparatus must have a pressure ratio at full-load operating pressure greater than 1.3. Pressure ratio at full-load operating pressure does not factor directly into the measured values of compressor performance.

In response to the May 2022 RFI, DOE received comments noting that there is an apparent error in the formula for pressure ratio. In the February 2023 NOPR, DOE concurred with the commenters that the current formula contains an error, as it both does not match the discussion in the preamble of the January 2017 Final Rule and does not contain terms related to the calculation of pressure ratio at full-load operating pressure. 88 FR 9199, 9207.

The current formula for pressure ratio at full-load operating pressure inadvertently duplicates a formula used in a calculation related to determining a represented value of performance for a compressor basic model from a tested sample of units. Specifically, the current formula of pressure ratio at full-load operating pressure exactly matches the formula for the lower 95-percent confidence limit (“LCL”) of the true test mean divided by 0.95. In the February 2023 NOPR, DOE proposed to change the formula for pressure ratio at full-load operating pressure in section 3.6 of appendix A to rectify this error and reflect the proper pressure ratio at full-load operating pressure equation that will be utilized in the test procedure. The numerator of this proposed formula for pressure ratio incorporated full-load operating pressure, determined in section 4.3.4 of appendix A (Pa gauge), while the denominator was standard atmospheric pressure, 100 kPa. 88 FR 9199, 9207.

DOE requested comment in the February 2023 NOPR regarding its proposal to correct the equation for pressure ratio at full-load operating pressure. In response, CAGI, supported by Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek, commented in support of DOE's proposal to correct the equation for pressure ratio at full-load operating pressure to amend a previous typographical error. In addition, the commenters noted that pressure ratio must always be calculated in terms of absolute pressure and recommended the addition of 100 kPa to the numerator of the equation to achieve this. (CAGI, No. 21 at p. 4; Kaeser Compressors, No. 24 at p. 7; Ingersoll Rand, No. 25 at p. 4; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

DOE evaluated the stakeholders' recommendation to express pressure ratio in terms of absolute pressure and agrees with the proposed solution. “Absolute pressure” is defined as pressure relative to a perfect vacuum. In the correction proposed in the February 2023 NOPR, the equation for pressure ratio expresses pressure in terms of gauge pressure in the numerator and absolute pressure in the denominator. 88 FR 9199, 9207. “Gauge pressure” is defined as the pressure above atmospheric pressure and has a different reference pressure compared to absolute pressure. For the calculated pressure ratio to be accurate, both the numerator and denominator must be expressed in terms of absolute pressure.

As a result, in this test procedure final rule, DOE is amending the formula for pressure ratio at full-load operating pressure in section 3.6 of appendix A to rectify the typographical error and to adjust the proposed equation so that pressure ratio is calculated in terms of absolute pressure by adding atmospheric pressure of 100 kPa to the numerator. The amended calculation for pressure ratio at full-load operating pressure is shown below in equation 1:

This change has no effect on the scope of compressors subject to the test procedure and does not increase the associated testing burden on manufacturers.

DOE adopted the tolerances specified in table 1 of ISO 1217:2009(E) in the January 2017 Final Rule in order to align with ISO 1217:2009(E), as amended, to reduce the burden and cost to manufacturers. DOE stated that most manufacturers currently use ISO 1217:2009(E), and with the modifications adopted in the January 2017 Final Rule, the test methods established for compressors are intended to produce results equivalent to those produced historically under ISO 1217:2009(E). 82 FR 1052, 1076. In the February 2023 NOPR, DOE proposed to continue to use the tolerances for measured energy efficiency values specified in ISO 1217:2009(E) and asked for comment regarding this proposal. 88 FR 9199, 9205.

In response to the request for comment, CAGI, Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek all commented in support of DOE's proposal to continue to use the tolerances for measured energy efficiency values specified in ISO 1217:2009(E). (CAGI, No. 21 at p. 3; Kaeser Compressors, No. 24 at p. 5; Ingersoll Rand, No. 25 at p. 2; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1) CAGI stated that uncertainty of measurement and variation in performance as a result of variation in manufacturing needs to be reflected in data presented to consumers, and that tolerances defined in Annex C of ISO 1217:2019 relate only to the verification of the measured parameters by a practical test. Id.

For the reasons discussed in the previous paragraphs, DOE is not amending the tolerances for measured energy efficiency values specified in ISO 1217:2009(E).

Manufacturers, including importers, must use product-specific certification templates to certify compliance to DOE. For compressors, the certification template reflects the general certification requirements specified at 10 CFR 429.12 and the product-specific requirements specified at 10 CFR 429.63. DOE is not amending the product-specific certification requirements for these products at this time.

EPCA requires that test procedures established by DOE not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The following sections discuss DOE's evaluation of estimated costs associated with the amendments included in this final rule.

In this final rule, DOE is amending the test procedure for compressors by: (1) correcting the formula for calculating isentropic efficiency and specific energy consumption of the packaged compressor to the specified pressure ratio by incorporating a K 6 correction factor, (2) updating the formula for pressure ratio at full-load operating pressure currently presented in appendix A to rectify a previous error, and (3) modifying the current definition of “air compressor” to clarify that compressors with more than one compression element are still within the scope of this test procedure, and to revise the typographical error of “compressor element” to “compression element.”

In the February 2023 NOPR, DOE issued a request for comment on the benefits and burdens of the proposed updates to the test procedure for compressors. 88 FR 9199, 9210. In response to DOE's request for comment, regarding DOE's amendment to include a K 6 correction factor, DOE received comments from CAGI, supported by Kaeser Compressors, Ingersoll Rand, Saylor-Beall, and Sullivan-Palatek, stating that this correction will reduce potential burdens for the industry. These commenters commented that, currently, the DOE test method and its correction deviate from the national consensus standard. These commenters believe this deviation was not intentional, as it provides no benefit and reduces test accuracy. These commenters further stated that the error and deviation are more significant the farther the elevation is from 364 ft. These commenters also stated that error can occur during atmospheric weather events leading to extreme low or high pressure, and that testing that is not performed at the exact rated full-load operating pressure is incorrectly converted to efficiency and specific power in the current DOE test procedure. CAGI elaborated that 100 kPa represents the mean ambient pressure at 111 m (364 ft), and that if lab elevation differs significantly from this level, measurements deriving efficiency will deviate when using the DOE test method. CAGI stated that, using the industry standard correction, the efficiency as measured (with no corrections) is the same exact value as applying K 5 and K 6 factors to correct specific power consumption and deriving isentropic efficiency at the conclusion (as presented in Annex C and Annex H of ISO 1217:2009). CAGI concluded that correcting the test procedure using their recommendations will not result in a need to retest and recertify, but will ensure that any verification/certification performed at any elevation other than 364 ft or during low- or high-pressure events will be correct. (CAGI, No. 21 at pp. 5-6; Kaeser Compressors, No. 24 at pp. 8-9; Ingersoll Rand, No. 25 at pp. 4-5; Saylor-Beall, No. 22 at p. 1; Sullivan-Palatek, No. 23 at p. 1)

DOE agrees with the stakeholder comments that the incorporation of the K 6 correction factor will not add any test burden or associated costs and will only increase the accuracy of efficiency representations in this test procedure. DOE has also determined that this amendment will not require retesting or recertification solely as a result of DOE's adoption of the amendment to the test procedures, since the amendment aligns the test procedure with existing industry practice. Current industry practice is to use the K 6 correction factor to correct for error introduced by non-standard ambient pressures when testing at elevations above or below 364 ft. As such, although the newly incorporated correction factor would alter the final efficiency output of the DOE test procedure for compressors tested at non-standard ambient pressures as compared to the incorrect calculation in the current test procedure, this correction will not result in a need for manufacturers to retest or to update the isentropic efficiency ratings of their compressors because the industry already uses the appropriate correction factor consistent with the existing industry test procedure. This amendment serves to harmonize the DOE test procedure with the existing industry practice for testing compressor efficiency.

DOE does not anticipate any added test burden or associated costs from the amendment incorporating the K 6 correction factor, as: (1) the test method follows accepted industry practice, and (2) representations of compressor efficiency would not need to be updated, since the amendment DOE is adopting in this final rule will align DOE's test procedure with current industry testing practice, making it so manufacturers do not need to retest their models. As any representations are voluntary prior to the compliance date of any energy conservation standards for compressors, there is no direct burden associated with any of the testing requirements adopted in this final rule.

The amendment regarding updating the formula for pressure ratio at full-load operating pressure will not impact the representations of compressor energy efficiency/energy use. The definition of a compressor is “a machine or apparatus that converts different types of energy into the potential energy of gas pressure for displacement and compression of gaseous media to any higher-pressure values above atmospheric pressure and has a pressure ratio at full-load operating pressure greater than 1.3,” as stated in 10 CFR 431.342. In the test procedure for compressors, the calculation of pressure ratio at full-load operating pressure is only used to determine if a compressor meets the statutory definition of “compressor” by ensuring that the pressure ratio at full-load operating pressure is greater than 1.3. As such, this amendment does not impact representations of energy efficiency/energy use, and DOE does not anticipate any added test burden or associated costs for manufacturers stemming from this correction to the compressors test procedure.

DOE does not anticipate any added test burden or associated costs from the amendment updating the definition of “air compressor.” This amendment serves to clarify that compressors with more than one compression element are still within the scope of this test procedure, and to revise the typographical error of “compressor element” to “compression elements.” As such, DOE does not anticipate any added test burden or associated costs for compressor manufacturers due to this amendment.

DOE's established practice is to adopt relevant industry standards as DOE test procedures, unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA), or estimated operating costs of that product during a representative average use cycle. 10 CFR 431.4; section 8(c) of appendix A of 10 CFR part 430 subpart C. In cases where the industry standard does not meet EPCA statutory criteria for test procedures, DOE will make modifications through the rulemaking process to these standards as the DOE test procedure.

The test procedure for compressors at appendix A is based on, and incorporates by reference, much of ISO 1217:2009(E), “Displacement compressors—Acceptance tests,” as amended through Amendment 1:2016. In this final rule, DOE will incorporate by reference section B.4.5 of Annex B of ISO 1217:2009(E) via amendment. The industry standards DOE has incorporated by reference for the test procedure for compressors are located in 10 CFR 431.343.

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. 6314(d)(1)) 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. 6314(d)(2)) 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. )

Currently, appendix A is organized using a hierarchy that uses Roman numerals ( i.e., “I, II, III, IV . . .”) for first-level headings, Latin capital letters for second-level headings ( i.e., “A, B, C, D . . .”), and Arabic numerals ( i.e., 1, 2, 3 . . .”) for third-level headings.

In this final rule, DOE is revising the numbering hierarchy of appendix A to use only Arabic numerals, consistent with the numbering hierarchy that DOE uses across test procedures for consumer products at 10 CFR part 430, subpart B and for commercial and industrial equipment generally at 10 CFR part 431. For example, the current heading “I.B.2” of appendix A is renumbered to “2.2.2” (also reflecting the addition of a new section at the beginning of appendix A). This renumbering is for consistency purposes only and does not result in any substantive changes solely as a result of the renumbering.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in 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.

For manufacturers of compressors, the Small Business Administration (“SBA”) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 13 CFR part 121. The size standards are listed by North American Industry Classification System (“NAICS”) code and industry description and are available at www.sba.gov/document/support-table-size-standards. Compressor manufacturing is classified under NAICS 333912, “air and gas compressor manufacturing.” The SBA sets a threshold of 1,000 employees or less for an entity to be considered a small business in this category. This employment figure is enterprise-wide, encompassing employees at all parent, subsidiary, and sister corporations.

To identify and estimate the number of small business manufacturers of equipment within the scope of this rulemaking, DOE conducted a market survey using available public information. DOE's research involved industry trade association membership directories (including CAGI), individual company and online retailer websites, and market research tools ( e.g., Hoovers reports) to create a list of companies that manufacture equipment covered by this rulemaking. DOE additionally reviewed publicly available data, data available through market research tools, and contacted select companies on its list, as necessary, to determine whether they met the SBA's definition of a small business manufacturer. DOE screened out companies that do not offer equipment within the scope of this rulemaking, do not meet the definition of a “small business,” or are foreign owned and operated.

DOE identified a total of 12 domestic small businesses manufacturing compressors. However, as previously stated, the amendments adopted in this final rule revise certain definitions and formulas to ensure the clarity and accuracy of existing requirements and procedures, and the amendments harmonize the DOE test procedure with existing industry practices, without requiring manufacturers to retest their compressors. DOE has determined that the adopted test procedure amendments would not impact testing costs otherwise experienced by manufacturers.

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 compressors 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 compressors. ( 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 compressors in this final rule. Instead, DOE may consider proposals to amend the certification requirements and reporting for compressors under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.

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

In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for compressors. 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 proposed rule or policy that may affect family well-being. When developing a Family Policymaking Assessment, agencies must assess whether: (1) the action strengthens or erodes the stability or safety of the family and, particularly, the marital commitment; (2) the action strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children; (3) the action helps the family perform its functions, or substitutes governmental activity for the function; (4) the action increases or decreases disposable income or poverty of families and children; (5) the proposed benefits of the action justify the financial impact on the family; (6) the action may be carried out by State or local government or by the family; and whether (7) the action establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility of youth, and the norms of society. In evaluating the above factors, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment as none of the above factors are implicated. Further, this proposed determination would not have any financial impact on families nor any impact on the autonomy or integrity of the family as an institution.

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 promulgates or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order, and is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) 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 compressors adopted in this final rule incorporate testing methods contained in certain sections of the following commercial standards: ISO 1217:2009(E), as amended through ISO 1217:2009(E)/Amd.1:2016. While this test procedure is not exclusively based on this industry testing standard, some components of the DOE test procedure adopt definitions, test parameters, measurement techniques, and additional calculations from them without amendment. DOE has evaluated these standards and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA ( i.e., whether it was developed in a manner that fully provides for public participation, comment, and review.) In the January 2017 Final Rule, DOE 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 received no comments objecting to their use. 82 FR 1052, 1099.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The following standards have not previously been approved for incorporation by reference in subpart T, appendix A, but are incorporated by reference in this final rule on the basis that they are referenced by other standards which had been previously and remain incorporated by reference in subpart T, appendix A.

ISO 1217:2009(E), “Displacement compressors—Acceptance tests,” fourth edition, July 1, 2009. ISO 1217:2009(E) specifies methods for acceptance tests regarding volume rate of flow and power requirements of displacement compressors. It also specifies methods for testing liquid-ring type compressors and the operating and testing conditions which apply when a full performance test is specified.

ISO 1217:2009/Amd.1:2016(E), Displacement compressors—Acceptance tests (fourth edition, July 1, 2009), AMENDMENT 1: Calculation of isentropic efficiency and relationship with specific energy, April 15, 2016. ISO 1217:2009/Amd.1.:2016(E) provides a method for the calculation of isentropic efficiency and relationship with specific energy.

ISO 5167-1:2022(E), Measurement of fluid flow by means of pressure differential devices inserted in circular cross-section conduits running full—Part 1: General principles and requirements, third edition, June 2022. ISO 5167-1:2022(E) defines terms and symbols and establishes the general principles for methods of measurement and computation of the flow rate of fluid flowing in a conduit by means of pressure differential devices (orifice plates, nozzles, Venturi tubes, cone meters, and wedge meters) when they are inserted into a circular cross-section conduit running full. The standard also specifies the general requirements for methods of measurement, installation and determination of the uncertainty of the measurement of flow rate.

ISO 9300:2022(E), Measurement of gas flow by means of critical flow nozzles, third editions, June 2022. ISO 9300:2022(E) specifies the geometry and method of use (installation in a system and operating conditions) of critical flow nozzles used to determine the mass flow rate of a gas flowing through a system basically without the need to calibrate the critical flow nozzle. It also gives the information necessary for calculating the flow rate and its associated uncertainty.

IEC 60584-1:2013, Thermocouples—Part 1: EMF specifications and tolerances, edition 3.0, August 2013. IEC 60584-1:2013 specifies reference functions and tolerances for letter-designated thermocouples.

IEC 60584-3:2021, Thermocouples—Part 3: Extension and compensating cables—Tolerances and identification system, edition 3.0, February 2021. IEC 60584-3:2021 provides tolerances and an identification system necessary for the measurement of thermocouple circuits.

In this final rule, DOE includes revisions to the regulatory text that contained references to section B.4.5 of Annex B of ISO 1217:2009(E), which was not specifically incorporated by reference before this test procedure final rule.

See SUPPLEMENTARY INFORMATION section of this document for availability information of this material.

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

This document of the Department of Energy was signed on January 10, 2025, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE amends part 431 of chapter II of title 10 of the Code of Federal Regulations as set forth below:

Table of Contents I. Introduction A. Authority B. Energy Conservation Standards Rulemaking Process Under EPCA C. Background II. Discussion A. Appendix B Test Procedure for TE2 B. Comment Period Length C. Application of the ASHRAE Trigger Provision in 42 U.S.C. 6314(a)(4)(B) III. Conclusion IV. Procedural Issues and Regulatory Review V. Approval of the Office of the Secretary I. Introduction A. Authority

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317, as codified) Title III, Part C of EPCA, added by Public Law 95-619, title IV, sec. 441(a), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes CWAFs, the subject of this document. (42 U.S.C. 6311(1)(J)).

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296).

The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) making other representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. DOE's test procedures for CWAFs are currently prescribed at subpart D of part 431 of title 10 of the Code of Federal Regulations (“CFR”).

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede state laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular state laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6316(b)(2)(D)).

Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results that reflect energy efficiency, energy use, or estimated annual operating cost of a given type of covered equipment during a representative average use cycle (as determined by DOE) and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)).

EPCA generally requires that, at least once every seven years, DOE evaluate test procedures for each type of covered equipment, including CWAFs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1)-(3)) DOE refers to these provisions as the “lookback” provisions and rulemakings conducted under these provisions as “lookback” rulemakings.

Specific to certain commercial equipment, including CWAFs, EPCA required that the initial test procedures for this equipment be those generally accepted industry testing procedures or rating procedures developed or recognized by AHRI or ASHRAE, as referenced in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings” (“ASHRAE Standard 90.1”), that were in effect on June 30, 1992. (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry test procedure is amended, DOE must update its test procedure to be consistent with the amended industry test procedure unless DOE determines, by rule published in the Federal Register and supported by clear and convincing evidence, that the amended test procedure would not meet the requirements in 42 U.S.C. 6314(a)(2) and (3), in which case DOE may establish an amended test procedure that does satisfy those statutory provisions. (42 U.S.C. 6314(a)(4)(B) and (C)) DOE refers to these provisions as the “ASHRAE trigger” provisions and rulemakings conducted under these provisions as “ASHRAE trigger” rulemakings.

Whether pursuant to the lookback provision or the ASHRAE trigger provision, if DOE determines that a test procedure amendment is warranted, EPCA requires that the Department publish proposed test procedures in the Federal Register and afford interested persons an opportunity (of not less than 45 days duration) to present oral and written data, views, and arguments on the proposed test procedures. (42 U.S.C. 6314(b)).

The purpose of energy conservation standards issued under EPCA is to reduce energy use by improving the energy efficiency of covered products and equipment. ( See 42 U.S.C. 6312(a)). The first step in establishing new or amended energy conservation standards for any covered product or equipment is to determine what energy use by a covered product or equipment will be within the scope of the energy conservation standard, i.e., what is the representative average use cycle for the covered product or equipment. For example, prior to the Energy Independence and Security Act of 2007 (“EISA 2007”), the representative average use cycle for many covered products only included active mode energy use, i.e., energy used while the product was performing its main function. As such, the representative use cycle did not include any energy used while the product was in a standby or off mode. Thus, manufacturers had little incentive to reduce standby or off mode energy use as it had no effect on whether a covered product complied with the applicable energy conservation standards. But in EISA 2007, Congress required DOE to include standby and off mode energy use as part of the representative average use cycle for any energy conservation standard adopted after July 1, 2010. (42 U.S.C. 6295(gg)(3)).

Representative average use cycles for covered products and equipment can also change over time as DOE's understanding of how the product or equipment is used in the field improves, consumer habits change, or technologies improve. Of particular importance here is the introduction of variable-speed compressors in the heating, ventilation, and air conditioning (HVAC) market. Variable-speed technology allows compressors used in HVAC equipment to run at part-load values in response to different operating conditions in the field. For example, if a room temperature is only 2 or 3 degrees warmer than the set temperature, an HVAC unit with variable-speed technology could run at partial capacity, e.g., 40% capacity, to cool the room to the setpoint. This saves energy as the HVAC unit uses less energy running at a lower speed. And variable-speed HVAC units still maintain the capability of operating at 100% capacity when needed, e.g., cooling down a home after a homeowner returns from vacation. As HVAC units with variable-speed technology have become more prevalent in the market, the representative average use cycle for this equipment has changed. HVAC units with variable-speed technology run for longer periods of time at slower speeds that single-speed HVAC units. As a result, DOE amends the test procedures for specific HVAC equipment to ensure the representative average use cycle reflects manufacturer innovation and how models with this technology will operate in the field. For example, DOE recently issued an amended test procedure for air-cooled commercial package air conditioners and heat pumps that, among other things, has provisions for measuring part-load energy use because of the presence of variable-speed technology in the market. 89 FR 43986 (May 20, 2024). DOE adopted this new test procedure for air-cooled commercial air conditioners and heat pumps with the support of a cross-section of stakeholders, including the heating and cooling industry, who recommended the details of the new test procedure to DOE as part of a negotiated consensus recommendation. Id. at 89 FR 43991. In fact, every type of HVAC consumer product or covered equipment regulated by DOE that has an energy conservation standard that accounts for part-load operation, e.g., residential central air conditioners and heat pumps and variable refrigerant flow air conditioners and heat pumps has an associated test procedure that has provisions for measuring energy use during part-load operation.

Having determined a representative average use cycle for a covered product or equipment, the next step in EPCA's energy conservation standards rulemaking process is to prescribe a test procedure that is reasonably designed to produce test results that measure energy use of the covered product or equipment for that representative average use cycle and that is not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2)). For example, when Congress required DOE to include standby and off mode energy use in standards for covered products, it first directed DOE to amend test procedures for all covered products to include provisions for measuring standby and off mode energy use. (42 U.S.C. 6295(gg)(2)(A)). Congress then directed DOE to use these amended test procedures when prescribing new or amended standards that incorporate standby and off mode energy use. (42 U.S.C. 6295(gg)(3)(A)). As the new standards would be based on a different representative use cycle, i.e., one that includes active mode, standby mode, and off mode, Congress clarified that the amended test procedures “shall not be used to determine compliance with product standards established prior to the adoption of the amended test procedures.” (42 U.S.C. 6295(gg)(2)(C)). It would have made little sense for Congress to require manufacturers to use test procedures that measure active, standby, and off mode energy when determining compliance with an energy conservation standard that is only based on active mode energy use. DOE takes the same approach when prescribing an amended test procedure for use in evaluating new or amended energy conservation standards that are based on an updated representative average use cycle. Use of the amended test procedure is only required upon the compliance date of the new or amended energy conservation standards. See section 8(f) of appendix A to subpart C of 10 CFR part 430.

Under EPCA's lookback provision, DOE initiated a test procedure rulemaking for CWAFs by publishing a request for information (“RFI”) in the Federal Register on May 5, 2020 (“May 2020 RFI”). 85 FR 26626. The current energy conservation standards for CWAFs are based on a representative average use cycle that assumes CWAFs always operate at 100 percent capacity in the field and that the only energy losses are from flue exhaust gases. The May 2020 RFI solicited public comments, data, and information on aspects of the existing DOE test procedure for CWAFs at 10 CFR part 431, subpart D, appendix A (“appendix A”), which measures Thermal Efficiency (“TE”) and is used for determining compliance with the current energy conservation standards for CWAFs, including whether there were any issues with the existing test procedure at that time and whether it was in need of updates or revisions. Id.

DOE subsequently published a notice of proposed rulemaking (“NOPR”) for the CWAFs test procedure in the Federal Register on February 25, 2022, which proposed amendments to the existing test procedure for TE as well as a new test procedure based on DOE's tentative determination that the representative average use cycle for CWAFs should include jacket losses and part-load operation. 87 FR 10726 (“February 2022 NOPR”). DOE noted that CWAFs are typically installed outdoors and, as a result, jacket losses can be a significant source of energy loss. 87 FR 10726, 10735. DOE also noted that many CWAFs now have multiple heating stages and performance for these CWAFs can vary at different heating loads. Id. As a result, DOE proposed that any new or amended energy conservation standards for CWAFs should be based on a representative average use cycle that includes jacket losses and part-load operation, and proposed a new metric, TE2, that captured those aspects of CWAF energy use. DOE proposed a new test procedure in 10 CFR part 431, subpart D, appendix B (“appendix B”), to measure energy efficiency under the TE2 metric. DOE tentatively determined that the appendix B test procedure met the statutory criteria in 42 U.S.C. 6314(a)(2) and (3). 87 FR 10726, 10737-10738. The February 2022 NOPR had a 60-day comment period and DOE held a webinar public meeting on March 29, 2022.

Following publication of the February 2022 NOPR, the latest update to ASHRAE Standard 90.1 was released in January 2023 (“ASHRAE Standard 90.1-2022”). ASHRAE Standard 90.1-2022 references CSA/ANSI Z21.47-2021, Gas-fired central furnaces (“ANSI Z21.47-2021”), as the test method for gas-fired CWAFs and Underwriters Laboratories (“UL”) standard UL 727-2018, “Standard for Safety Oil-Fired Central Furnaces” (“UL 727-2018”), as the test method for oil-fired CWAFs.

On June 2, 2023, DOE published a test procedure final rule for CWAFs. 88 FR 36217 (“June 2023 Final Rule”). In the June 2023 Final Rule, DOE amended the current test procedure for TE in appendix A and incorporated by reference the latest industry test procedures referenced in ASHRAE Standard 90.1-2022. The amendments to the industry test procedure were relatively minor and not based on any updates to the representative average use cycle for CWAFs. Rather, they were clarifications to the existing test procedure intended to improve clarity and help with the execution of the current test procedure. DOE also finalized the proposed appendix B test procedure that is based on an updated representative average use cycle that includes jacket losses and part-load operation. Similar to other rulemakings where DOE has determined that the representative average use cycle should be updated, e.g., air-cooled commercial air conditioners and heat pumps, the June 2023 Final Rule states that use of the appendix B test procedure would not be required until such time as compliance is required with amended energy conservation standards based on the new metric, should DOE adopt such standards.

On August 1, 2023, following publication of the June 2023 Final Rule, the Air-Conditioning, Heating, and Refrigeration Institute (“AHRI”) filed a petition for review of the final rule in the United States Court of Appeals for the Fourth Circuit. In its opening brief, AHRI argued that DOE failed to provide notice and an opportunity for comment after being triggered by the ASHRAE Standard 90.1-2022 publication prior to publishing the June 2023 Final Rule; that DOE did not undertake the required analysis under 42 U.S.C. 6314(a)(4)(B); and that if DOE had conducted the correct analysis under that provision, it would necessarily have concluded that it lacked clear and convincing evidence that the industry test procedure did not meet the statutory requirements. See Air-Conditioning, Heating, and Refrigeration Institute v. United States Department of Energy, No. 23-1793 (4th Cir. Oct. 23, 2023), 15-1.

On February 6, 2024, the Fourth Circuit granted the Department's motion for voluntary remand. In its order, the Court granted DOE's motion for voluntary remand to clarify that, in this particular circumstance, where ASHRAE published an amended industry test procedure during the pendency of a rulemaking under the 7-year lookback provision, the Department will solicit public comment prior to making: (1) a final determination that the test procedure in appendix B for the TE2 metric is consistent with the amended industry test procedure; or (2) a final determination, supported by clear and convincing evidence, that the industry test procedure fails to satisfy the statutory requirements. See Air-Conditioning, Heating, and Refrigeration Institute v. United States Department of Energy, No. 23-1793 (4th Cir. Feb. 6, 2024), 22-1 (hereafter “Remand Order”). The Remand Order did not vacate the June 2023 Final Rule; the challenged failure to solicit public comment (and other related claims brought in the petition for review) applied only to the determination that the industry test procedure did not meet the applicable statutory requirements and not DOE's determination that the appendix B test procedure satisfied the applicable statutory criteria. But, per the Remand Order, DOE will not enforce the appendix B test procedure until the Department determines that the appendix B test procedure is consistent with the amended industry test procedure or DOE determines, supported by clear and convincing evidence, that the amended industry test procedure fails to satisfy the statutory requirements in 42 U.S.C. 6314(a)(2) and (3). See Remand Order at 2.

In accordance with the Remand Order from the Fourth Circuit, on December 26, 2024, DOE published a notification of tentative determination and request for comment (“December 2024 NOTD”), which tentatively determined, supported by clear and convincing evidence, that the industry test procedure is not reasonably designed to produce test results that reflect energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation. 89 FR 104859. The December 2024 NOTD sought comment on DOE's proposed determination that the amended industry test procedure, which does not have provisions for measuring energy loss to the ambient environment (jacket losses) and energy use during part-load operation, is not reasonably designed to produce test results that reflect energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation.

DOE received comments in response to the December 2024 NOTD from the interested parties listed in table I.1.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 2

As discussed in the December 2024 NOTD, EPCA requires that if the industry test procedure for CWAFs is amended, DOE must update its test procedure to be consistent with the amended industry test procedure unless DOE determines, by rule published in the Federal Register and supported by clear and convincing evidence, that the amended test procedure would not meet the requirements in 42 U.S.C. 6314(a)(2) and (3), in which case DOE may establish an amended test procedure that does satisfy those statutory provisions. (42 U.S.C. 6314(a)(4)(B) and (C)) The publication of ASHRAE Standard 90.1-2022 represented an ASHRAE trigger for CWAFs.

However, due to the timing of the ASHRAE trigger, which occurred after DOE had published the February 2022 NOPR, but prior to the June 2023 Final Rule, DOE had not sought comment in the February 2022 NOPR on whether the amended industry test procedure met the applicable statutory requirements for measuring energy use for the TE2 metric, which is based on a representative average use cycle that includes jacket losses and part-load operation in the field. DOE also did not initiate a separate process to determine whether the amended industry test procedure satisfied the applicable statutory criteria. DOE did, on the other hand, follow all of the procedural requirements in 42 U.S.C. 6314(b) for prescribing the appendix B test procedure. DOE published the proposed appendix B test procedure in the Federal Register , provided a comment period of not less than 45 days ( i.e., 60 days), and held a public webinar meeting on March 29, 2022. See 42 U.S.C. 6314(b)(1)-(2). As a result, in accordance with the Remand Order, DOE is addressing only the challenged failure to determine, after notice and comment, whether the amended industry test procedure is consistent with the appendix B test procedure, or whether, as supported by clear and convincing evidence, the amended industry test procedure fails to satisfy the statutory requirements. Remand Order p. 2.

In the December 2024 NOTD, DOE tentatively determined, supported by clear and convincing evidence, 3 that the amended industry test procedure is not reasonably designed to produce test results that reflect energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation. In making that tentative determination, DOE noted that a CWAF with a TE of 81 percent as measured by the amended industry test procedure could, depending on jacket losses and part-load operation, have an actual range of efficiencies from 77.5 to 82 percent using the appendix B test procedure for TE2. 89 FR 104859, 104864. DOE found that to be a significant difference that would impact both consumers and manufacturers. The following sections discuss comments received in response to the December 2024 NOTD and DOE's decision to finalize its determination that the amended industry test procedure is not reasonably designed to produce test results that reflect energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation.

DOE received several comments that focused on the appendix B test procedure. For example, both Trane and JCI stated that DOE had not shown that the appendix B test procedure met the statutory requirement of not being unduly burdensome to conduct. (Trane, No. 8, p. 3; JCI, No. 9, pp. 1-2) Similarly, AHRI commented on the representativeness, burden, and costs of the appendix B test procedure and attached comments that were previously submitted in response to the February 2022 NOPR. (AHRI, No. 6, pp. 6-9).

In response to these and similar comments, DOE reiterates that the scope of this rulemaking process, as laid out in the Remand Order, is to determine whether the amended industry test procedure is consistent with the appendix B test procedure for TE2, or whether the amended industry test procedure fails to satisfy the applicable requirements in 42 U.S.C. 6314(a)(2) and (3). In accordance with the Remand Order, DOE issued the December 2024 NOTD, which tentatively determined, supported by clear and convincing evidence, that the amended industry test procedure was not reasonably designed to produce test results that reflect energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation. DOE sought comment on this tentative determination. In the December 2024 NOTD, DOE specifically noted that the remand order did not vacate the June 2023 Final Rule, nor did it require DOE to revisit its determination that the appendix B test procedure meets the statutory requirements at 42 U.S.C. 6314(a)(2) and (3). 89 FR 104859, 104862. As such, DOE will not address comments on whether the appendix B test procedure meets the statutory requirements in 42 U.S.C. 6314(a)(2) and (3). Instead, DOE invites stakeholders to review the June 2023 Final Rule where these same comments regarding representativeness, burden, and cost of the appendix B test procedure were fully addressed.

Several commenters expressed concerns about the length of the comment period provided in the December 2024 NOTD. (Daiken, No. 10, p. 2; JCI, No. 9, p. 1; AHRI, No. 6, pp. 2-4) More specifically, JCI commented that there was not sufficient time to complete a notable research effort including the necessary internal reviews and approvals. (JCI, No. 9, p. 1) JCI also expressed concern that the shortened comment period could set a dangerous precedent for future rulemakings. Id. AHRI stated that the comment period fell short of the minimum 45-day comment period required for proposed test procedures under 42 U.S.C. 6314(b).

In response to these comments, DOE first notes, as AHRI correctly pointed out, that prior to prescribing a final test procedure DOE is required to publish the proposed test procedure in the Federal Register and provide at least a 45-day comment period. (42 U.S.C. 6314(b)) But, as clearly stated in the Remand Order, the December 2024 NOTD, and throughout this document, the court did not vacate the June 2023 Final Rule, nor did it require DOE to revisit its determination that the appendix B test procedure meets the statutory requirements at 42 U.S.C. 6314(a)(2) and (3), which remains in effect. Hence, this is not a rulemaking to prescribe a final test procedure to which the 45-day comment period would apply. Instead, DOE is determining, “by rule, published in the Federal Register and supported by clear and convincing evidence,” that the amended industry test procedure does not meet the applicable statutory criteria in EPCA. (42 U.S.C. 6314(a)(4)(B)) There is no minimum comment period specified in EPCA for this type of determination. In some cases, DOE may choose to conduct one rulemaking to make this determination and propose an amended test procedure ( see 42 U.S.C. 6314(a)(4)(C)), which would require a 45-day comment period. But in other cases, DOE may issue a rule that only makes a determination, supported by clear and convincing evidence, that the amended industry test procedure does not satisfy the requirements in 42 U.S.C. 6314(a)(2) and (3). For example, if the current DOE test procedure satisfies the requirements in 42 U.S.C. 6314(a)(2) and (3) and DOE determines that the amended industry test procedure does not satisfy the requirements in 42 U.S.C. 6314(a)(2) and (3), there would be no need for DOE to propose an amended test procedure. As another example, if the ASHRAE trigger occurs after DOE has already proposed an amended test procedure under the 7-year lookback provision (as was the case here), DOE would conduct a separate rulemaking to make the required ASHRAE determination under 42 U.S.C. 6314(a)(4)(B).

Under the Administrative Procedure Act (APA), an agency engaged in rulemaking must: (1) publish a general notice of proposed rulemaking in the Federal Register that includes the terms or substance of the proposed rule or a description of the subjects and issues involved; (2) give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments; and (3) after consideration of the relevant matter presented incorporate in the rules adopted a concise general statement of their basis and purpose. See 5 U.S.C. 553(b) and (c). Taken together, Courts have typically understood these provisions to require Federal agencies to provide the public with a “meaningful opportunity” to comment. See N. Carolina Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755, 763 (4th Cir. 2012). Daiken, JCI, and AHRI take issue with the length of time provided to stakeholders to review the December 2024 NOTD and develop comments.

In response, DOE first notes that the Administrative Procedure Act does not provide for a minimum comment period ( see 5 U.S.C. 553) and rules proposed by Federal agencies run the gamut from the incredibly complex to the relatively simple. In other words, the length of time required to give the public a meaningful opportunity to comment will vary based on the content of the proposed rule. For example, the National Highway Traffic Safety Administration typically used a 60-day comment period when it proposed new fuel economy standards for passenger cars and light trucks. 88 FR 56128 (Aug. 17, 2023). This proposed rule was over 260 pages and used complex analytical methods to propose new fuel economy standards.

In contrast, the 7-page December 2024 NOTD simply sought comment on DOE's tentative determination that an amended industry test procedure that does not have provisions for measuring two sources of energy consumption, jacket losses and part-load operation, which can account for an over 4 percent difference in overall measured efficiency, is not reasonably designed to measure energy efficiency during a representative average use cycle that, as determined by DOE for the TE2 metric, includes jacket losses and part-load operation. It should be emphasized that DOE was not seeking comment on methodologies for calculating jacket losses and energy use in part-load operation for a CWAF, which would have warranted a longer comment period to give stakeholders time to evaluate those testing provisions. Instead, DOE sought comment on whether—as opposed to every other type of HVAC equipment where DOE determined that part-load operation was part of the representative average use cycle—an amended industry test procedure for CWAFs that does not have provisions for measuring jacket losses and energy use during part-load operation of a CWAF is reasonably designed to measure energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation.

DOE posted the signed, pre-publication copy of the December 2024 NOTD on the DOE website on December 13, 2024. That same day DOE sent an email to stakeholders, including AHRI, Daiken, and JCI, announcing the public availability of the document and providing stakeholders with a website link to the document. The document was then published in the Federal Register on December 26, 2024, with a 14-day comment period that ended on January 8, 2025. In total, stakeholders like AHRI, Daiken, and JCI had 4 weeks to review the document and provide comments. As such, this proceeding provided stakeholders with sufficient time to review the December 2024 NOTD and develop any comments on why an amended industry test procedure that does not have provisions for measuring jacket losses and energy use during part-load operation still gives reasonable results when used to measure CWAF energy use in the field that includes jacket losses and part-load operation.

In the December 2024 NOTD, DOE evaluated the amended industry test procedure in the context of the ASHRAE trigger provision and presented DOE's tentative determination, supported by clear and convincing evidence, that the amended industry test procedure is not reasonably designed to produce test results which reflect energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation. As support for this tentative determination, DOE estimated that the amended industry test procedure could not account for as much as a 4.5 percent difference in efficiency between a CWAF model with high jacket losses and poor part-load performance and a model with negligible jacket losses and good part-load performance. DOE noted that this variation in efficiency was significant. For example, when DOE last amended the standards for gas-fired CWAFs, the minimum required efficiency went from 80 to 81 percent, which DOE determined would result in significant additional conservation of energy. 81 FR 2420, 2430. Further, the average life-cycle cost savings to a consumer from that 1 percent increase in efficiency was $284. Id. at 81 FR 2423. Those already significant impacts are only magnified when larger differences in measured efficiency are considered. Therefore, DOE tentatively determined, supported by clear and convincing evidence, that the amended industry test procedures referenced in ASHRAE Standard 90.1-2022 are not reasonably designed to produce test results which reflect energy efficiency during a representative average use cycle that, as determined by DOE for the TE2 metric, includes jacket losses and part-load operation.

In response to the December 2024 NOTD, the Joint Commenters stated that the potential 4.5 percent difference in energy efficiency corresponds to a significant difference in energy consumption and that the amended industry test procedure would likely result in an inaccurate ranking of equipment in the market in terms of energy use and operating cost. (Joint Commenters, No. 7, p. 1) As such, the Joint Commenters agreed with DOE's tentative determination that the amended industry test procedure is not reasonably designed to measure energy efficiency during a representative average use cycle. Id.

Daiken, on the other hand, stated that DOE did not provide any data to support its assertion that the industry test procedure is not representative but has stated that clear and convincing evidence is present. (Daiken, No. 9, p. 3) DOE strongly disagrees with this statement. As discussed previously, DOE provided estimates that jacket losses and part-load operation could account for as much as a 4.5 percent difference in efficiency. And DOE noted that even a 1 percent increase in efficiency corresponded to average life-cycle cost savings of $284.

AHRI asserted that DOE cannot satisfy the clear-and-convincing evidence requirements because AHRI believes the record did not demonstrate the test procedures referenced in Standard 90.1 would fail to meet the requirements of sections 6314(a)(2) and (a)(3). More specifically, AHRI commented that the range of efficiencies that would result from the inclusion of part-load operation is narrower than for other air-conditioning products. AHRI pointed to an example of a furnace in a large commercial unit in a milder climate primarily operating at night or during morning warm up to demonstrate its belief that CWAFs are basically on-off, i.e., do not spend a significant amount of time operating at part-load. (AHRI, No. 6 at p. 7)

In the June 2023 Final Rule, after considering comments and input from stakeholders, DOE determined that the representative average use cycle for the TE2 metric should include part-load operation and adopted the 50 percent weighting at full load and part load. 88 FR 36217, 36226. In making that determination, DOE reviewed modeling submitted by NEEA that showed a range of times for CWAF operation at full and part loads, from operating as much as 70 percent of the time at full load (and 30 percent of the time at part load) to operating as little as 25 percent of the time at full load (and 75 percent at part load). DOE also observed that in the modeling certain building types (warehouses) were modeled to operate at full load over 50 percent of the time, while other buildings (retail) were modeled to operate at full load less than 50 percent of the time. DOE acknowledges that the time a CWAF operates at full load and part load could vary based on the climate region, building type and load, and CWAF sizing. But based on the available data, it is clear that CWAFs in the field spend a significant amount of time operating at part-load.

Even if AHRI were correct and part-load operation is less of a contributor to the overall energy efficiency of a CWAF, DOE notes that none of the commenters argued that jacket losses are not important to the overall efficiency of a CWAF. In fact, AHRI points out its importance by citing to the relevant provisions in ASHRAE 90.1 showing that CWAFs installed in buildings where ASHRAE 90.1-2022 building code requirements apply ( e.g., newly constructed commercial equipment where a jurisdiction has adopted the ASHRAE Standard 90.1-2022 building energy codes) must meet certain jacket loss provisions. This position highlights the importance of including jacket losses in the representative average use cycle for any future standards, which as DOE noted in the December 2024 NOTD could account for as much as a 2.5 percent difference in efficiency. 89 FR 104859, 104863.

The potential difference in CWAF efficiency measured under the industry test procedure and the appendix B test procedure is an excellent example of why Congress updated representative use cycles for covered products to include standby and off mode energy use in new or amended energy conservation standards and why stakeholders, including manufacturers, asked DOE to update the representative average use cycle for air-cooled commercial air conditioners and heat pumps—consumers and manufacturers are both better off when DOE test procedures and energy conservation standards capture more energy use in the field. For example, as discussed previously, a CWAF with a TE of 81 percent as measured by the industry test procedure could, depending on jacket losses and part-load operation, have an actual range of efficiencies from 77.5 to 82 percent using the appendix B test procedure for TE2. That is a significant difference in efficiency and corresponds to a significant difference in fuel costs over the lifetime of the CWAF, which is important information for consumers. The industry test procedure also does not allow manufacturers to fully differentiate their products in the market. For example, under the industry test procedure, a manufacturer with a line of CWAF models with well-insulated jackets has no way to advertise their improved efficiency in the market. Under the industry test procedure, these models will have the same advertised efficiency as similar models that lack insulation and have higher jacket losses.

Having determined that any future, amended standards for CWAFs should be based on a representative average use cycle that includes jacket losses and part-load operation, DOE adopted the appendix B test procedure in the June 2023 Final Rule. The appendix B test procedure contains specific provisions for measuring jacket losses and energy use during part-load operation and will be used by DOE to evaluate potential amended standards for CWAFs. Use of the appendix B test procedure by manufacturers would not be required until such time as compliance is required with amended energy conservation standards based on the new representative average use cycle, should DOE adopt such standards.

For this final determination, as was done initially in the December 2024 NOTD, DOE evaluated whether the industry test procedure is reasonably designed to produce test results which reflect energy use during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation. Unlike the appendix B test procedure, the industry test procedure does not have provisions for calculating jacket losses and changes in energy efficiency due to part-load operation. As discussed previously, this results in the industry test procedure producing test results that do not account for significant variations in energy use across different CWAF models. As a result, DOE has determined, supported by clear and convincing evidence, that the industry test procedure is not reasonably designed to produce test results which reflect energy efficiency during a representative average use cycle that, as determined by DOE, includes jacket losses and part-load operation for the TE2 metric.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the June 2023 Final Rule remain unchanged for this notification of final determination. These determinations are set forth in the June 2023 Final Rule. 88 FR 36217, 36230-36233. DOE is publishing this document to present its final determination, supported by clear and convincing evidence, that the industry test procedure would not provide test results that are representative of an average use cycle for the TE2 metric.

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

This document of the Department of Energy was signed on January 13, 2025, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The Federal Election Campaign Act of 1971, as amended, (“Act”) 52 U.S.C. 30101-30145, provides for enforcement based upon complaints filed by the public. Such complaints are filed with the FEC, which notifies each individual or organization accused of wrongdoing (“Respondents”) and provides an opportunity to respond to the allegations of the complaint.

“Any party aggrieved by an order of the Commission dismissing a complaint filed by such party . . . or by a failure of the Commission to act on such complaint during the 120-day period beginning on the date the complaint is filed, may file a petition with the United States District Court for the District of Columbia.” 52 U.S.C. 30109(a)(8)(A). “[I]n any proceeding” brought under 52 U.S.C. 30109(a)(8) “the court may declare that the dismissal of the complaint or the failure to act is contrary to law and may direct the Commission to conform with such declaration within 30 days, failing which the complainant may bring, in the name of such complainant, a civil action to remedy the violation involved in the original complaint.” 52 U.S.C. 30108(a)(8)(C).

Because lawsuits filed under 52 U.S.C. 30108(a)(8) are brought by Complainants against the Commission, Respondents may not be aware of actions taken in these cases. Respondents' interests are implicated, however, where a MUR is remanded to the Commission for further action. In particular, because the Commission will generally be ordered to conform to a particular judicial opinion, and because the facts and circumstances of a MUR may have changed with the passage of time, any response previously provided by a Respondent may be stale. See 52 U.S.C. 30109(a)(1) (“Before the Commission conducts any vote on the complaint, other than a vote to dismiss, any person so notified shall have the opportunity to demonstrate, in writing, to the Commission within 15 days after notification that no action should be taken against such person on the basis of the complaint”).

Accordingly, the Commission is issuing this Policy Statement to announce that whenever a remand is ordered by final judgment or appellate decision in a case brought pursuant to 52 U.S.C. 30109(a)(8)(C), the FEC will provide notice of that decision by letter within 48 hours to both the email and physical address on file. This letter will be drafted by the Office of General Counsel's Litigation Division, in consultation with the Enforcement Division, and will enclose the relevant opinion and order. Further, the letter will note any deadline for Commission action and advise that the Commission will consider any supplemental response or material the Respondent may wish to provide for the purpose of the remand.

This policy describes how the Commission will provide notice to Respondents of opinions and orders that result in a remand in cases brought pursuant to 52 U.S.C. 30109(a)(8). The policy does not confer any rights on any person and does not in any way limit the right of the Commission to evaluate every MUR based upon its particular facts and circumstances.

This document represents a general statement of policy announcing the general course of action that the Commission intends to follow. This policy statement does not constitute an agency regulation requiring notice of proposed rulemaking, opportunities for public participation, prior publication, and delay effective under 5 U.S.C. 553 of the Administrative Procedure Act (“APA”). As such, it does not bind the Commission or any member of the general public. The provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), which apply when notice and comment are required by the APA or other relevant statute, are not applicable.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.). Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the FAA's authority. This rulemaking is promulgated under the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules; and 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and setting minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.

This rulemaking is also promulgated pursuant to 49 U.S.C. 44101-44106 and 44110-44113, which require aircraft to be registered as a condition of operation and establish the requirements for registration and registration processes. The FAA Civil Aviation Registry is responsible for the registration and recordation of civil aircraft.

The regulations in this rule are within the scope of that authority because they provide for the electronic issuance of aircraft registration and dealer's registration certificates.

The notice and comment procedures required under section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553) do not apply to rules of “agency organization, procedure, or practice.” Under this section, an agency may issue a final rule without seeking comment prior to the rulemaking. This rulemaking updates the regulations for aircraft registration and recordation in part 47 of title 14 of the Code of Federal Regulations (14 CFR) to provide for the electronic issuance of aircraft registration and dealer's registration certificates. This rule does not alter the substantive rights or obligations of persons applying for aircraft registration or dealer's certificates, only the procedures by which the FAA issues such certificates. Therefore, the FAA has determined that this rulemaking is a rule of agency procedure or practice for which notice and public comment are not required.

Accordingly, because this is a rule of agency practice or procedure for which notice and public comment is not required, the FAA also finds good cause to waive the delay of the effective date as set forth in 5 U.S.C. 553(d). This rule will be immediately effective upon publication.

The Civil Aviation Registry, FAA Aircraft Registration Branch (Registry) is responsible for developing, maintaining, and operating the Federal registration and recordation system for United States civil aircraft. Within these functions is the statutory requirement for issuance of aircraft registration and dealer's registration certificates. Currently, the Registry issues certificates in the physical form of a 4” x 9” document printed on card stock. The Registry delivers both aircraft registration certificates and aircraft dealer certificates in paper form. The Registry issues over 5,000 of these certificates per month. These certificates are then delivered as bulk mail to registrants in approximately 7-10 business days.

Due to the long delivery time required by using regular mail, the Registry has had to create special priority processes to meet the demands of a changing fast-paced environment of the aviation industry. Costs involved in this process include printing, supplies, mailing, and manpower needed for sorting and distribution.

Section 546 of the FAA Reauthorization Act of 2018 (Pub. L. 115-254)  1 requires that the FAA complete covered upgrades of the Civil Aviation Registry. The required upgrades include digitization of Registry functions and business operations “by leveraging digital technologies and a broader use of digitized data,” as well as expansion of electronic and remote access to the Registry by members of the public.

Following this Congressional direction, the Registry began exploring alternatives to the legacy system and developed a modernization plan. As of 2022, the Aircraft Registration Branch started implementing a new system of registration and recordation called the Civil Aviation Registry Electronic Services, or “CARES.” The project implements a web-based electronic system that allows the aviation community to securely submit applications, upload documentation, and provide the data necessary for the Registry to perform aircraft registration and airman certification services. For registrants using the system, CARES allows more comprehensive functionality, including a personal portal for users to view their submissions, pay fees online, and digitally sign their applications. Full implementation of the CARES system is expected by late 2025. Ultimately, CARES will become the central and legal repository of all aircraft registration and will fully replace the existing service.

The federal statutes that authorize the FAA to issue aircraft registration and dealer's registration certificates do not prescribe the manner in which the certificates are to be issued. 2 As discussed, the FAA has traditionally issued aircraft registration and dealer's registration certificates, including replacement certificates, in paper form by mail. This process results in costs to the FAA to print the certificates, for supplies and associated labor hours, and for postage costs required to deliver the certificates by mail, which takes approximately 7 to 10 business days to arrive. With the capability to utilize electronic delivery means, such as email, and the future implementation of the CARES system, the FAA has determined that the traditional agency procedure of printing and mailing aircraft registration and dealer's registration certificates should be replaced with the electronic issuance of these certificates.

A feature of CARES will allow the Registry to electronically issue and deliver a registration certificate, enabling almost instant delivery of the certificate to the registrant without the normal 7-10 business day wait time for regular mail delivery. Regardless of the timeline of CARES implementation, the Registry will still be able to send electronic certificates by email either through the legacy registration system or through alternate means.

Electronic delivery of certificates will provide a streamlined and expedited delivery service while also reducing the cost and labor burden of mailing for the Registry. However, if a traditional paper certificate is still desired, an applicant may request a paper certificate be issued instead of an electronic certificate.

This final rule effectuates this change in the FAA's procedures for the issuance of aircraft registration and dealer's registration certificates, from traditional paper form to electronic issuance as the primary delivery method.

The FAA emphasizes, however, that the issuance of a registration certificate in electronic form does not, in any way, obviate or affect the need to comply with statutory, regulatory, or other requirements involving aircraft registration or dealer's registration certificates. Notably, in general, a Certificate of Aircraft Registration must still be carried on the aircraft. 3

For the reasons discussed in the preceding section, in this final rule the FAA is making several additions and revisions to the regulations in 14 CFR part 47. These amendments are designed to enable and facilitate the FAA's electronic issuance of aircraft registration and dealer's registration certificates. Applicants for these certificates will continue to be able to receive paper certificates upon request.

The FAA is adding language to the end of § 47.1, which sets forth the applicability of part 47. The additional regulatory language expressly provides that part 47 applies to the issuance of a Certificate of Aircraft Registration or a Dealer's Registration Certificate, whether by mail, electronic, or other means.

The FAA is revising § 47.41(b) to address the return or destruction (in the case of § 47.41(b)(3)) of aircraft registration certificates that are issued in electronic form. Currently, § 47.41(b) requires an aircraft registration certificate be returned to the Registry within specified timeframes under the circumstances set forth in paragraphs (b)(1) through (4). For paper certificates, the holder of the certificate must notify the FAA of the reasons for a change in status by completing the reverse side of the certificate and returning it.

The FAA has determined that it is unnecessary and impractical to require the “return” of an electronically issued aircraft registration certificate. The FAA does not expect certificate holders to have to permanently delete the originating email sent by the FAA, or other electronic or digital method used by the FAA, that transmitted the registration certificate. This rule amends § 47.41(b) to maintain only the requirement that the holder of an electronically issued certificate notify the FAA by email or other acceptable means within the existing timeframes, in lieu of completing the reverse side of a paper certificate, when any of the changes specified in § 47.41(a) occurs, regarding the status of the registered aircraft or registered owner. The revised language of § 47.41(b) provides flexibility for holders of electronically issued certificates to notify the FAA of a change in status in the most practicable manner.

This rule also clarifies that only the paper or printed copies of the aircraft registration certificate need to be destroyed when required under § 47.41(b)(3). A requirement to “destroy” an electronic certificate is impractical because the certificate, even if no longer effective, can be repeatedly printed, copied, and electronically duplicated. However, even though an electronic certificate may potentially exist in electronic form indefinitely, the use of an invalid or ineffective certificate remains unlawful. The registration status of civil aircraft is publicly available online and searchable by N-number for those persons who may need to ascertain the aircraft's current registration status. 4

The FAA is also amending § 47.43(b), which currently requires that the holder of an invalid aircraft registration return the registration certificate to the Registry as soon as possible, to clarify that only a certificate issued in paper form must be returned.

Similarly, the FAA is amending § 47.49, which prescribes the procedures for requesting a replacement aircraft registration certificate, to enable the Registry to send replacement certificates electronically.

Finally, the FAA is revising several regulations in part 47 to remove the references to FAA form numbers “AC Form 8050-3” and “AC Form 8050-6,” which are the form numbers designated by the FAA for the Certificate of Aircraft Registration and the Dealer's Aircraft Registration Certificate, respectively. The affected sections of part 47 include the following: §§ 47.1; 47.5(c); 47.7(d); 47.8(c); 47.11(e); 47.13(b) 47.15(a), (f), and (i); 47.16(a); 47.31(a); 47.39; 47.40(b); 47.41(a), and (b); 47.43(b); 47.45; 47.47(a); 47.49(a); 47.61(a); 47.63; 47.65; 47.67; 47.69, and 47.71. These form numbers are associated with the issuance of traditional paper certificates. Removing the form numbers from the regulations will reduce the need to amend the regulations should new aircraft registration forms be introduced in the future. The FAA will benefit from the administrative flexibility provided to more efficiently implement the digitization requirements contained in section 546 of the FAA Reauthorization Act of 2018, among other purposes. In addition, some regulations in part 47 include the form numbers when referring to the registration certificates, while other regulations do not. Removing the form numbers will maintain consistency in the regulatory language used throughout part 47.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) require agencies to regulate in the “most cost-effective manner” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” The Office of Management and Budget has determined that this final rule is not a significant regulatory action as defined in section (3)(f)(1) of Executive Order 12866, as amended by Executive Order 14094, “Modernizing Regulatory Review.”

The rule enables the FAA to distribute registration certificates electronically. It also amends language to ensure that such electronic certificates may be used in a similar fashion to printed certificates. Paper certificates may still be issued upon request. The FAA does not know or estimate how many registrants will opt for a paper certificate.

Prior to this rulemaking, the Registry's practice had been to mail out paper copies of the certificates. The legacy registration system is scheduled to be replaced by the newer CARES system separate from this rulemaking, and the CARES system has the capability to distribute such certificates electronically. However, without this rule, the FAA would continue distributing paper certificates.

The FAA estimates that registrants using the new system will receive their certificates 7 to 10 business days sooner on average under this rule.

The rule will have minimal to no costs, as the infrastructure is scheduled to be deployed with or without the rulemaking. Furthermore, the rule is expected to result in cost savings for the FAA by reducing the postage and printing costs associated with mailing a paper certificate. It may also result in reduced costs for the FAA by reducing the time employees spend handling paper documents and preparing them to mail.

The FAA distributes an average of 60,324 certificates each year. These are printed on card stock and sent out via bulk mail. The FAA estimates the unit cost of printing and mailing each certificate is $0.971. 5 Therefore, if all future registrants use electronically issued certificates, the cost savings to the FAA may be about $58,575 per year (60,324 certificates multiplied by $0.971).

The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever 5 U.S.C. 553 or any other law requires an agency to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after that section or any other law requires publication of a general notice of proposed rulemaking. The FAA concludes that this is a rule of agency procedure or practice for which notice and comment are not required. As 5 U.S.C. 553 does not require notice and comment in this situation, 5 U.S.C. 603 and 604 similarly do not require regulatory flexibility analyses.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this rule and determined that it ensures the safety of the American public and does not exclude imports that meet this objective. As a result, the FAA does not consider this rule as creating an unnecessary obstacle to foreign commerce.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or Tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those costs. The FAA determined that this final rule will not result in the expenditure of $183 million or more by State, local, or Tribal governments, in the aggregate, or the private sector, in any one year.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The information collection for aircraft registration and recordation is approved under OMB Control Number 2120-0042. The FAA has determined that there will be no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that these regulations, as amended, do not conflict with the ICAO Standards and Recommended Practices pertaining to the issuance of a certificate of registration.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f for regulations and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The FAA has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have federalism implications.

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 6 and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, 7 the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential 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; or to affect uniquely or significantly their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on Tribes resulting from this final rule.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The FAA has determined that it is not a “significant energy action” under the Executive order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action will have no effect on international regulatory cooperation.

A copy of this final rule and all background material may be viewed online at www.regulations.gov using the docket number listed above. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at www.federalregister.gov and the Government Publishing Office's website at www.govinfo.gov. A copy may also be found on the FAA's Regulations and Policies website at www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Requesters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit www.faa.gov/regulations_policies/rulemaking/sbre_act/.

For the reasons discussed in the preamble, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, as follows:

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.). Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the FAA's authority. This rulemaking is promulgated under the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules; and 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and setting minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.

This rulemaking is also promulgated pursuant to 49 U.S.C. 44101-44108 and 44110-44113, which require aircraft to be registered as a condition of operation and establish the requirements for registration, registration processes, and the recordation of conveyances, leases, and security instruments. The FAA Civil Aviation Registry is responsible for the registration and recordation of civil aircraft and conveyances.

The regulations in this rule are within the scope of the above authorities because they prescribe the form and means by which aircraft registration applications, conveyances, and related documents and materials are to be submitted to the Registry, and the procedures for the Registry to process such documents.

The notice and comment procedures required under section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553) do not apply to rules of “agency organization, procedure, or practice.” Under this section, an agency may issue a final rule without seeking comment prior to the rulemaking. This rulemaking updates certain procedural regulations for aircraft registration and recordation in parts 47 and 49 of Title 14 of the Code of Federal Regulations (14 CFR) to provide the FAA with flexibility in accepting non-original documents and to sunset the FAA's practice of date stamping incoming documents. This rule does not alter the substantive rights or obligations of persons applying for aircraft registration or submitting conveyances for recordation. Rather, the rule allows such persons the option of submitting non-original documents electronically while retaining the existing option of submitting original documents if a person prefers. The rule also amends the internal FAA processing of submissions, which does not affect the rights or interests of regulated parties. With these inefficiencies removed, the use of modern technology will enable greater flexibility for the public and the Registry, will reduce document rejection rates, and improve the aircraft registration process. Therefore, the FAA has determined that this rulemaking is a rule of agency procedure or practice for which notice and public comment are not required.

Accordingly, because this is a rule of agency practice or procedure for which notice and public comment is not required, the FAA also finds good cause to waive the delay of effective date as set forth in 5 U.S.C. 553(d). This rule will be immediately effective upon publication.

The Civil Aviation Registry, FAA Aircraft Registration Branch (Registry) is responsible for developing, maintaining, and operating the Federal registration and recordation system for United States aircraft. The Registry's legacy information technology infrastructure, Registry Modernization Services (RMS), last updated in 2008, has been used to ensure aircraft and security conveyances are properly registered and recorded. RMS was implemented on a mainframe environment that is costly to operate and difficult to support.

In addition, section 546 of the FAA Reauthorization Act of 2018 (Pub. L. 115-254)  1 requires that the FAA complete covered upgrades of the Civil Aviation Registry. The term “covered upgrades” includes the digitization of nondigital Registry information, the digitization of manual and paper-based processes, the implementation of electronic or remote methods for the public to submit their information, and the provision of more efficient, broader, and remote access to the Registry.

Following this Congressional direction, the Registry began exploring alternatives to the legacy system and developed a modernization plan. As of 2022, the Aircraft Registration Branch started implementing a new system of registration and recordation called the Civil Aviation Registry Electronic Services, or “CARES.” The project implements a web-based electronic system that allows the aviation community to securely submit applications, upload documentation, and provide the data necessary for the Registry to perform aircraft registration and airman certification services. For registrants using the system, CARES allows more comprehensive functionality, including a personal portal for users to view their submissions, pay fees online, and digitally sign their applications. Full implementation of the CARES system is expected by late 2025. Ultimately, CARES will become the central and legal repository of all aircraft registration and airman certification records and will fully replace the existing service.

While CARES is equipped with features for online document submission, including the automated recordation of the date and time of submission, a number of regulations in 14 CFR parts 47 and 49 continue to require the submission of original documents, which occurs by mail, and also include references in various sections to the Registry's procedures for the date stamping of documents.

Historically and to this day, the Registry stamps the date and time of receipt and processing on many of the forms and documents submitted in accordance with parts 47 and 49, such as aircraft registration applications, conveyances for recordation, and supporting documentation. This agency practice is referenced in two of the regulations at issue in this final rule.

The FAA has determined that its procedures for the stamping of documents submitted to the Registry are no longer necessary. As discussed, the Registry is in the process of replacing the legacy RMS system with the cloud-based CARES system. Document stamps helped RMS users track the date and time documents were received and processed by the Registry. The CARES system will maintain digital document records that replace the need for document stamps.

Accordingly, in this rule the FAA is amending §§ 47.39 and 49.21, both of which refer to the stamping of documents. With respect to § 47.39, which concerns the effective date of aircraft registration, the FAA is removing language that refers to the effective date of registration being shown by a date stamp on the application for aircraft registration. Similarly, § 49.21 is being revised to delete the reference to stamping. Section 49.21 is also being revised because of the procedures for returning original documents and is discussed further in the section that follows.

A few procedural regulations in parts 47 and 49 require the submission of original documents, which results in inefficiencies with the CARES online submission capability. The CARES system provides a free online, self-guided aircraft registration application (Form 8050-1) with an FAA approved digital signature feature, online payment, and electronic submission to the Registry. Other required forms and supporting documents, as well as conveyances for recording, may be uploaded to CARES for submission to the Registry.

However, uploaded copies of ink signed documents are currently rejected because they are not original documents. Digitally signed original documents are also not permitted to be uploaded; they must be printed and mailed to meet the regulatory requirements for submission of original documents. The procedural requirements to submit the originals of certain documents, such as an original Aircraft Bill of Sale in support of an application for aircraft registration (§ 47.31(a)(2)), are unnecessary barriers to the FAA's ability to fully utilize the functionalities of CARES or other modern technologies.

Moreover, in accordance with the procedures in current § 49.21, the FAA is obligated to return a submitted original document when the person making the submission sends a true copy with the original. This procedural requirement is another administrative burden on the FAA that can be ameliorated if the regulations no longer mandate the submission of original documents.

To address these inefficiencies, in this rule the FAA is amending the procedural regulations at issue to relieve registrants, and others who submit conveyances and supporting materials for recordation, from the requirements to submit original documents. While the Registry will still accept original documents and materials, the preferred approach is now to submit non-original documents in a form and by a means acceptable to the FAA. For some documents and materials, a photocopy or digital image may be acceptable; for others, a true or certified copy may be required (see, e.g., §§ 47.8(a)(1), 47.11(b)(2), 49.31(a), and 49.33(c), as amended). The regulatory relief provided will enable persons to upload copies of ink signed documents and digitally signed original documents for submission via CARES and a successor system.

Accordingly, to provide this relief, the FAA is removing the term “original” in §§ 47.31(a)(2) and 49.21. In § 49.17(d)(3), the FAA is replacing the term “original agreement” with “originating agreement” to avoid confusion. And in § 49.33(c)—which requires, for the types of conveyances specified in § 49.31(a), an original document, or a duplicate original document, or if neither is available, a true copy—the FAA is re-ordering the regulatory text such that the true copy is listed first, as the preferred form for submission.

The FAA is also revising §§ 47.19 and 49.11 to provide for needed administrative flexibility in determining the acceptability of non-original documents now that original documents are no longer mandated ( e.g., if a true or certified copy will be required for authentication). Sections 47.19 and 49.11 already require applications, conveyances, requests, notifications, and other communications to be delivered to the FAA by a means acceptable to the Administrator. To clarify that any document or other material submitted in support of an application under part 47 is also covered, the FAA is adding the term “submission” to the regulatory text in § 47.19. In addition, this rule revises §§ 47.19 and 49.11 to clarify that any submission or communication must also be delivered in a form acceptable to the Administrator, and it adds descriptive language specifying that acceptable forms and means include electronic or digital forms and means compatible with systems used by the Registry. 2 These clarifications to §§ 47.19 and 49.11 will enable the FAA to accept non-original documents in an acceptable form and manner, to include electronic or digital means compatible with CARES, or a successor system.

Finally, the FAA is revising § 49.21 which currently prescribes the procedural requirement for the FAA to return an original conveyance if the person submitting the conveyance wants it returned and submits a true copy with the original. Now that original documents are no longer mandatory, the requirement for the FAA to return original documents is no longer necessary when non-original documents are submitted. However, the current procedure for processing original paper documents remains in place; original documents filed with a certified true copy will still be returned upon request. Therefore, the FAA is replacing the regulatory requirement with language expressly permitting a person to submit a true copy of a conveyance in lieu of submitting the original (except when specifically required to submit an original document by law, regulation, or other authority). The FAA is also making conforming and clarifying changes to the last sentence of § 49.21, which establishes the requirements for a copy to qualify as a “true” copy. Instead of the current requirement that the copy be imprinted on paper permanent in nature, including dates and signatures, the FAA is now requiring only that the true copy be in a form and manner acceptable to the Administrator. This change will allow acceptance of true copies that are in electronic or digital form. With regard to the requirement that a certificate stating that the copy has been compared with the original and that it is a true copy be attached with the submission, the FAA is adding language to clarify that the required certificate could take the form of some other type of acceptable attestation. This addition serves only to clarify that, for purposes of § 49.21, a statement attesting to the trueness of a copy is functionally and legally equivalent to a statement certifying the trueness of a copy.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” The Office of Management and Budget has determined that this rule is not a significant regulatory action as defined in section 3(f)(1) of Executive Order 12866, as amended by Executive Order. 14094, “Modernizing Regulatory Review.”

The rule enables the FAA to accept non-original documents and removes the requirement to stamp documents. Historically, stamping was used to track the date and time documents were received and processed by the Registry. This functionality is already built into the existing RMS and upcoming CARES system. The FAA has also determined that requiring original documents is unnecessary in many cases and restricts the efficiency gains from electronic systems such as CARES. Prior to this rulemaking, the Registry required original copies of certain documents, and ink signed copies uploaded to CARES would be rejected. Similarly, prior to this rulemaking, the FAA would mail back any received original documents.

The FAA receives original documents in registration applications, as well as other documents for recordation. The FAA receives 76,440 applications per year. This includes 60,324 approved applications and 16,116 rejected applications. The FAA also receives roughly 25,000 conveyances for recordation each year. This rule may generate cost savings including saved postage costs for registrants and other users from not having to mail in original copies. The FAA assumes all such documents are mailed together and that such applications and conveyances could be completed entirely electronically and would not require documents to be mailed under this rule. The USPS charges $1.50 to mail a flat envelope, 3 which the FAA assumes is sufficient to contain all application and recordation materials. If all Registry users submitted electronically, the rule could result in $152,160 of cost savings per year (76,440 applications plus 25,000 conveyances multiplied by $1.50).

The rule will reduce the wait time for an application by reducing the delay between an applicant submitting materials and the FAA receiving the materials. It also may reduce printing costs by allowing documents to be submitted electronically rather than requiring them to be printed or copied.

The rule will have minimal to no costs, as the infrastructure is scheduled to be deployed with or without the rulemaking. Furthermore, the rule is expected to result in cost savings for the FAA by reducing the postage costs associated with mailing back original documents. It may also result in reduced costs for the FAA by reducing the time employees spend handling and stamping paper documents and preparing them to mail.

The FAA assumes that only the 60,324 annual successful applications include original documents, and that all conveyance submissions include original documents. These are sent out via bulk mail. The FAA estimates the unit cost of mailing the original documents from each application is $0.971. 4 If all future customers use electronic document submission, the cost savings to FAA may be up to $82,849 per year (60,324 applications plus 25,000 conveyances multiplied by $0.971).

The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever 5 U.S.C. 553 or any other law requires an agency to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after that section or any other law requires publication of a general notice of proposed rulemaking. The FAA concludes that this is a rule of agency procedure or practice for which notice and comment are not required. As 5 U.S.C. 553 does not require notice and comment in this situation, 5 U.S.C. 603 and 604 similarly do not require regulatory flexibility analyses.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this rule and determined that it ensures the safety of the American public and does not exclude imports that meet this objective. As a result, the FAA does not consider this rule as creating an unnecessary obstacle to foreign commerce.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or Tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. The FAA determined that the immediately adopted final rule will not result in the expenditure of $183,000,000 or more by State, local, or Tribal governments, in the aggregate, or the private sector, in any one year.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The information collection for aircraft registration and recordation is approved under OMB control number 2120-0042. The FAA has determined that there will be no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f for regulations and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The FAA has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have federalism implications.

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 5 and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, 6 the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential 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; or to affect uniquely or significantly their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on Tribes resulting from this final rule.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The FAA has determined that it will not be a “significant energy action” under the executive order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action will have no effect on international regulatory cooperation.

A copy of this final rule and all background material may be viewed online at www.regulations.gov using the docket number listed above. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at www.federalregister.gov and the Government Publishing Office's website at www.govinfo.gov . A copy may also be found at the FAA's Regulations and Policies website at www.faa.gov/regulations_policies .

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Requesters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit www.faa.gov/regulations_policies/rulemaking/sbre_act/ .

For the reasons discussed in the preamble, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Federal Civil Penalties Inflation Adjustment Act Improvements Act (“FCPIAA”) of 2015  1 directs agencies to adjust the civil penalty maximums under their jurisdiction for inflation every January. Accordingly, the Commission issues annual adjustments to the maximum civil penalty amounts under its jurisdiction. 2

Commission Rule 1.98 sets forth the applicable civil penalty amounts for violations of certain laws enforced by the Commission. 3 As directed by the FCPIAA, the Commission is issuing adjustments to increase these maximum civil penalty amounts to address inflation since its prior 2024 adjustment. The following adjusted amounts will take effect on January 17, 2025:

• Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1) (premerger filing notification violations under the Hart-Scott-Rodino Improvements Act)—Increase from $51,744 to $53,088;

• Section 11( l ) of the Clayton Act, 15 U.S.C. 21( l ) (violations of cease and desist orders issued under Clayton Act section 11(b))—Increase from $27,491 to $28,205;

• Section 5( l ) of the FTC Act, 15 U.S.C. 45( l ) (violation of final Commission order)—Increase from $51,744 to $53,088;

• Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A) (knowing violation of rule respecting unfair or deceptive acts or practices)—Increase from $51,744 to $53,088;

• Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B) (knowing violation of cease and desist order respecting unfair or deceptive acts or practices)—Increase from $51,744 to $53,088;

• Section 10 of the FTC Act, 15 U.S.C. 50 (failure to file required reports)—Increase from $680 to $698;

• Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65 (failure by associations engaged solely in export trade to file required statements)—Increase from $680 to $698;

• Section 6(b) of the Wool Products Labeling Act, 15 U.S.C. 68d(b) (failure by wool manufacturers to maintain required records)—Increase from $680 to $698;

• Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e) (failure to maintain required records regarding fur products)—Increase from $680 to $698;

• Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2) (failure to maintain required records regarding fur products)—Increase from $680 to $698;

• Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a) (knowing violations of EPCA § 332, including labeling violations)—Increase from $560 to $575;

• Section 525(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) (recycled oil labeling violations)—Increase from $27,491 to $28,205;

• Section 525(b) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(b) (willful violations of recycled oil labeling requirements)—Increase from to $51,744 to $53,088;

• Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 1681s(a)(2) (knowing violations of the Fair Credit Reporting Act)—Increase from $4,857 to $4,983;

• Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Public Law 108-173, as amended by Public Law 115-263, 21 U.S.C. 355 note (failure to comply with filing requirements)—Increase from $18,293 to $18,768; and

• Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304 (violations of prohibitions on market manipulation and provision of false information to federal agencies)—Increase from $1,472,546 to $1,510,803.

The FCPIAA, as amended, directs federal agencies to adjust each civil monetary penalty under their jurisdiction for inflation in January of each year pursuant to a cost-of-living adjustment. 4 The cost-of-living adjustment is based on the percent change between the U.S. Department of Labor's Consumer Price Index for all-urban consumers (“CPI-U”) for the month of October preceding the date of the adjustment, and the CPI-U for October of the prior year. 5 Based on that formula, the cost-of-living adjustment multiplier for 2025 is 1.02598. The FCPIAA also directs that these penalty level adjustments should be rounded to the nearest dollar. Agencies do not have discretion over whether to adjust a maximum civil penalty, or the method used to determine the adjustment.

The following chart illustrates the application of these adjustments to the civil monetary penalties under the Commission's jurisdiction.

These new penalty levels apply to civil penalties assessed after the effective date of the applicable adjustment, including civil penalties whose associated violation predated the effective date. 6 These adjustments do not retrospectively change previously assessed or enforced civil penalties that the FTC is actively collecting or has collected.

The FCPIAA, as amended, directs agencies to adjust civil monetary penalties through rulemaking and to publish the required inflation adjustments in the Federal Register , notwithstanding section 553 of title 5 in the United States Code. Pursuant to this congressional mandate, prior public notice and comment under the APA and a delayed effective date are not required. For this reason, the requirements of the Regulatory Flexibility Act (“RFA”) also do not apply. 7 Further, this rule does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995 as amended. 44 U.S.C. 3501 et seq.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a “major rule,” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, the Federal Trade Commission amends title 16, chapter I, subchapter A, of the Code of Federal Regulations, as follows:

Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, the direct final rule published on September 20, 2024, 89 FR 77019 is withdrawn.

In a document published in the Federal Register of February 14, 2022 (87 FR 8222), we announced that FDA filed a color additive petition (CAP 2C0322) submitted by Motif FoodWorks, Inc., 27 Drydock Ave., 2nd Floor, Boston, MA 02210. The petition proposed to amend the color additive regulations in part 73 (21 CFR part 73), “Listing of Color Additives Exempt from Certification” to provide for the safe use of myoglobin as a color additive in ground meat and ground poultry analogue products where the amount of myoglobin protein does not exceed 2 percent by weight of the uncooked analogue product.

The petition used the terms “analogue” and “alternative” interchangeably to describe the type of food products in which the color additive is intended for use. This order will use the phrase “ground meat and ground poultry analogue products,” which refers to plant-based ground meat- and poultry-like food products, such as patties, sausages, links, and nuggets, subject to FDA regulation. (The petitioned use of this color additive does not include use in cell-cultured meat and poultry products under regulatory authority of the United States Department of Agriculture.)

The petition described myoglobin protein as the characterizing coloring component of a stabilized liquid mixture that imparts a red to pink coloration in uncooked ground meat and ground poultry analogue products to give an appearance similar to raw meat and poultry. The petition referred to the color additive as “myoglobin” or “myoglobin preparation.” For the purposes of this order, we refer to “myoglobin preparation” as the stabilized liquid mixture that contains myoglobin protein and note that “myoglobin” and “myoglobin preparation” are used interchangeably to refer to this color additive. We are establishing “myoglobin” as the common or usual name for this color additive.

The color additive that is the subject of this petition is the stabilized product of controlled fermentation of a non-pathogenic and non-toxicogenic strain of the yeast, Komagataella phaffii ( K. phaffii ), genetically engineered to express myoglobin protein, the principal coloring component. Although the organism is referred to as Pichia pastoris ( P. pastoris ) throughout the petition, we note that the nomenclature for P. pastoris was reassigned based on genetic typing to Komagataella phaffii. (Ref. 1). We are referring to the organism hereafter as K. phaffii to reflect the current taxonomic identity.

The color additive is manufactured by the following steps: (1) construction of the K. phaffii production strain that is genetically engineered to express a synthetic myoglobin gene from Bos taurus; (2) expression of myoglobin protein via submerged fed-batch fermentation by the K. phaffii production strain; (3) disruption of the K. phaffii cells by mechanical shearing to release myoglobin protein and removal of the K. phaffii cells by washing, lysing, centrifugation, and microfiltration; (4) ultrafiltration to concentrate the myoglobin protein; and (5) stabilization of the expressed protein as a liquid preparation. The gene that is inserted into the K. phaffii is generated by DNA synthesis and is not obtained directly from the DNA of Bos taurus. The amino acid sequence of the expressed myoglobin protein is identical to bovine myoglobin protein that has a history of being safely consumed.

Based on information in the petition, the myoglobin preparation has a moisture content of ≥92.5 percent, a myoglobin protein content of ≥3 percent, and may contain stabilizers, preservatives, and antimicrobial agents such as sodium phosphate, sodium ascorbate, and sodium chloride. The color additive is stored as a frozen liquid. FDA concurs with the petitioner that the genetic modifications made to generate the non-toxigenic and non-pathogenic production strain are well-characterized and the production process conforms to good manufacturing practice (Ref. 2). We are requiring a specification for the minimum purity of myoglobin protein as a percent of the total protein in the color additive and a specification limit for lead. The petitioner provided analytical data from the analyses of five lots of myoglobin preparation showing that the color additive can be manufactured to meet these specifications.

We have previously considered the safety of myoglobin preparation based on a submission from Motif FoodWorks, to which we had no questions, that the use of myoglobin preparation to impart flavor and aroma in ground meat and poultry analogue products is generally recognized as safe (GRAS). Under section 201(s) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 321(s)), a substance is GRAS if it is generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food before January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use. Under section 201(s) of the FD&C Act, a substance that is GRAS for a particular use in food is not a food additive and may lawfully be utilized for that use without our review and approval. There is no GRAS exemption, however, to the definition of a color additive in section 201(t) of the FD&C Act. Therefore, we must approve the use of a color additive in food before it is marketed; otherwise, the food containing the color additive is adulterated under section 402(c) of the FD&C Act (21 U.S.C. 342(c)).

A firm may voluntarily submit to FDA information supporting the firm's conclusion that a substance is GRAS for its intended use in food through our GRAS Notification Program (see 81 FR 54960, August 17, 2016). Through this program, a GRAS conclusion was submitted by Motif FoodWorks and filed on June 28, 2021, as GRAS Notice 001001(GRN 001001). This GRN informed FDA that Motif FoodWorks concluded that the use of myoglobin preparation at levels providing up to 2 percent myoglobin protein to impart flavor and aroma in ground meat and poultry analogue products was GRAS. Based on our evaluation of the information provided in GRN 001001, as well as other available information, we issued a response letter on December 3, 2021, to Motif FoodWorks stating that we had no questions regarding its conclusion that myoglobin preparation is GRAS for its intended conditions of use. In our response letter to Motif FoodWorks, we stated that because myoglobin preparation imparts a red coloration when exposed to oxygen in some food applications, its use may constitute a color additive use under section 201(t)(1) of the FD&C Act and FDA regulations in 21 CFR part 70. The specific use of myoglobin preparation to impart a reddish, meat-like color to ready-to-cook meat and poultry analogue products is important to the appearance and marketability of the analogue products. As such, this use of myoglobin preparation requires premarket approval as a color additive (see § 70.3(g) (21 CFR 70.3(g))).

Under section 721(b)(4) of the FD&C Act (21 U.S.C. 379e(b)(4)), a color additive may not be listed for a proposed use unless the data and information available to FDA establish that the color additive is safe for that use. Our color additive regulations at § 70.3(i) define “safe” to mean that there is convincing evidence establishing with reasonable certainty that no harm will result from the intended use of the color additive.

As part of our safety evaluation to establish with reasonable certainty that a color additive is not harmful under its intended conditions of use, we consider the additive's manufacturing and stability, the projected human dietary exposure to the additive and any impurities resulting from the petitioned use of the additive, the additive's toxicological data, and other relevant information (such as published literature) available to us.

Myoglobin preparation is composed mainly of water, myoglobin protein, minor quantities of K. phaffii proteins, ash, fat, carbohydrates, and stabilizers and preservatives such as sodium phosphate, sodium ascorbate, and/or sodium chloride. During our safety review of this color additive petition, we evaluated the dietary exposure estimates for the myoglobin preparation, the myoglobin protein component, and selected nutrients of the preparation. The petitioner provided two sets of dietary exposure estimates. For one set of estimates, the petitioner used U.S. food consumption for meat and poultry analogue products ( e.g., soy burgers, vegetarian hot dogs) from the combined 2013 to 2018 National Health and Nutrition Examination Survey (NHANES) and assumed these products contained myoglobin preparation at use levels that would result in myoglobin protein concentrations of 1 percent, 1.5 percent, and 2 percent in the food. The petitioner noted that typical use levels of myoglobin protein are expected to be 1 to 1.25 percent for most food categories. The petitioner estimated the eaters-only dietary exposure to myoglobin preparation at the maximum use level of 2 percent myoglobin protein for the U.S. population aged 2 years and older to be 43.7 grams/person/day (g/p/d) at the mean and 97.6 g/p/d at the 90th percentile. For the myoglobin protein, the eaters-only dietary exposure for the U.S. population aged 2 years and older was estimated to be 1.3 g/p/d at the mean and 2.9 g/p/d at the 90th percentile.

The petitioner provided a second set of dietary exposure estimates based on a use level of 1 percent myoglobin protein and food consumption data for conventional ground meat and ground poultry products assuming a 1:1 substitution for ground meat and ground poultry analogue products. For these estimates, the petitioner selected NHANES food codes that represented the most common food applications in which myoglobin preparation is expected to be used ( i.e., ground patties, crumbles, links, bacon, sausage, and meatballs from beef, pork, or poultry). The petitioner estimated the mean and 90th percentile eaters-only dietary exposures to myoglobin protein for the U.S. population aged 2 years and older to be 0.7 g/p/d and 1.5 g/p/d, respectively, and for ages 2 to 5 years to be 0.3 g/p/d and 0.7 g/p/d, respectively.

FDA replicated and confirmed the petitioner's two sets of estimates of dietary exposure to myoglobin protein and myoglobin preparation. We also conducted a third analysis using 2021 per capita food availability data for retail beef and poultry in the United States (USDA Economic Research Service), the assumption of a 1:1 substitution with meat and poultry alternative products, and a use level that provides 2 percent myoglobin protein in the food. FDA estimated the dietary exposure to myoglobin protein and myoglobin preparation for U.S. consumers to be 3.9 g/p/d and 129 g/p/d, respectively. We note that dietary exposures based on availability data typically overestimate per capita consumption because the data do not consider food loss and wastage (Ref. 2).

The petitioner also estimated dietary exposures to iron from the petitioned use of the color additive using the first two methods described above. Based on NHANES consumption data for ground meat and ground poultry analogue products and the maximum intended use level of 2 percent myoglobin protein, the petitioner estimated the mean and 90th percentile eaters-only dietary exposures to iron for the U.S. population aged 2 years and older to be 2.0 and 4.5 mg/p/d, respectively. Based on a use level of 1 percent myoglobin protein and food consumption data for conventional ground meat and ground poultry products assuming a 1:1 substitution for ground meat and ground poultry analogue products, the petitioner estimated the mean and 90th percentile eaters-only dietary exposures to iron for the U.S. population aged 2 years and older to be 1.0 and 2.0 mg/p/d, respectively, and for ages 2 to 5 years to be 0.5 and 1.0 mg/p/d, respectively.

To establish that myoglobin preparation is safe for use as a color additive that provides up to 2 percent myoglobin protein in ground meat and ground poultry analogue products, the petitioner used a weight-of-evidence approach based on the following: (1) the history of widespread and safe consumption of bovine myoglobin protein; (2) the safety of K. phaffii as a production organism; and (3) an allergenicity assessment of myoglobin and K. phaffii proteins.

Based on our review of this petition (CAP 2C0322), we conclude that the proteins in the myoglobin preparation are well defined, nontoxic, and not likely to cause an allergenic response when consumed (Ref. 3). Because the myoglobin protein expressed in K. phaffii is 100 percent identical in amino acid sequence to bovine myoglobin protein, we conclude that the history of safe consumption of bovine myoglobin protein from ingestion of meat in the diet can be extended to the safety of Motif FoodWorks' myoglobin protein. Regarding the K. phaffii strain developed by the petitioner for the production of myoglobin preparation, we conclude that it is non-toxicogenic and non-pathogenic.

We agree that the petitioned uses of the color additive are not expected to increase the dietary exposure to myoglobin protein and iron in the U.S. population, as the consumption of ground meat and poultry analogue products are substitutional for conventional ground meat and poultry products (Ref. 2). Furthermore, we note that the estimated 90th percentile eaters-only dietary exposures to K. phaffii- expressed myoglobin protein and iron are well below the Institute of Medicine's recommended dietary reference intakes for protein and iron for all age groups considered (Ref. 3).

In its assessment of the allergenicity of myoglobin preparation, the petitioner examined the incidence of beef allergy in consumers and bioinformatic analyses to determine if the myoglobin and K. phaffii proteins found in the myoglobin preparation share significant sequence identity to known allergens. We agree that the weight of evidence demonstrates the safety of myoglobin protein consumption based on the absence of beef allergy case reports since 2004; the lack of the native Bos taurus glycosylation pattern in Motif FoodWorks's myoglobin protein, which makes the color additive less likely to trigger an allergic reaction; and a lack of immunologically meaningful sequence identity similarities between the myoglobin preparation proteins and known allergenic proteins. Furthermore, we conclude that myoglobin and K. phaffii proteins in the color additive are readily digested at acidic pH conditions found in the stomach and denatured at normal cooking temperatures. Therefore, FDA agrees with the conclusion that myoglobin protein produced in K. phaffii is not likely to pose a risk of allergenicity or toxicity upon consumption (Ref. 3).

Based on the data and information in the petition and other available relevant information, we conclude that the petitioned use of myoglobin preparation as a color additive in ground meat and ground poultry analogue products is safe, provided the amount of myoglobin protein does not exceed 2 percent by weight of the uncooked product. We further conclude that this color additive will achieve its intended technical effect and is suitable for the petitioned use. Therefore, we are amending the color additive regulations in part 73 to provide for the safe use of myoglobin, the established common or usual name for this color additive, as set forth in this document. In addition, based on the factors in 21 CFR 71.20(b), we conclude that batch certification of myoglobin is not necessary to protect the public health.

In accordance with §  71.15(a) (21 CFR 71.15(a)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT ). As provided in § 71.15(b), we will delete from the documents any materials that are not available for public disclosure.

We have determined under 21 CFR 25.32(r) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This order contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Our review of this petition was limited to section 721 of the FD&C Act. This order is not a statement regarding compliance with other sections of the FD&C Act. For example, section 301(ll) of the FD&C Act (21 U.S.C. 331(ll)) prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the exemptions in section 301(ll)(1) to (4) of the FD&C Act applies. In our review of this petition, we did not consider whether section 301(ll) of the FD&C Act or any of its exemptions apply to food containing this color additive. Accordingly, this order should not be construed to be a statement that a food containing this color additive, if introduced or delivered for introduction into interstate commerce, would not violate section 301(ll) of the FD&C Act. Furthermore, this language is included in all color additive orders that pertain to food and therefore should not be construed to be a statement of the likelihood that section 301(ll) of the FD&C Act applies.

This order is effective as shown in the DATES section, except as to any provisions that may be stayed by the filing of proper objections. If you will be adversely affected by one or more provisions of this regulation, you may file with the Dockets Management Staff (see ADDRESSES ) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) to which you object, and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at https://www.regulations.gov. We will publish notice of the objections that we have received or lack thereof in the Federal Register .

The following references are on display at the Dockets Management Staff (see ADDRESSES ) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. Although FDA verified the website addresses in this document, please note that websites are subject to change over time.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs, 21 CFR part 73 is amended as follows:

The Department of State's Directorate of Defense Trade Controls (DDTC) administers the ITAR (22 CFR parts 120 through 130) to, among other things, regulate the export, reexport, retransfer, and temporary import of the defense articles and defense services identified on the USML at ITAR § 121.1. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other department or agency of the U.S. Government are subject to the Export Administration Regulations (EAR, 15 CFR parts 730 through 774, which includes the Commerce Control List (CCL) in Supplement No. 1 to part 774). The EAR is administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. This rule does not modify the list of defense articles and defense services controlled for purposes of permanent import by the Attorney General, as enumerated on the U.S. Munitions Import List (USMIL) at 27 CFR 447.21.

Section 38 of the Arms Export Control Act (AECA) (22 U.S.C. 2778), the authority from which the ITAR is derived, requires periodic review to determine what articles and services, if any, no longer warrant designation on the U.S. Munitions List at 22 CFR 121.1. In maintaining the USML, DDTC's Office of Defense Trade Controls Policy (DTCP) identifies articles and services for review through a variety of methods, including informal public and interagency comment, commodity jurisdiction reviews, advisory opinions, and technology monitoring. The Department maintains the USML such that it comprises those defense articles or defense services that provide a critical military or intelligence advantage or, in the case of firearms, have an inherently military function. The Department, informed by consultations with its interagency partners, determined that the additional defense articles this rule designates on the USML warrant ITAR control and those articles it removes from the USML no longer do. This rule also amends certain language that describes items on the USML to provide additional clarity to the regulatory language.

The Department incorporates definitional language and abbreviations currently found in various notes in the USML into 22 CFR 121.0, United States Munitions List descriptions and definitions. Section 121.0 is amended to remove the structure of paragraphs (a) and (b) and to add definitions to the USML in an alphabetical list. The definition previously at § 121.0(b) is now listed in its alphabetical order in § 121.0. Current § 121.0(a) is moved to the introductory text of § 121.0.

In USML Category II, Note 2 to paragraph (a)(5) is revised to correct a typographical error.

USML Category IV paragraph (c) is revised and paragraphs (c)(1) and (2) are added to more clearly describe the equipment controlled therein, and to differentiate between equipment specially designed for commodities enumerated in paragraphs (a) or (b) of Category IV under the new paragraph (c)(1), and equipment specially designed for improvised explosive devices (IEDs) under the new paragraph (c)(2), similar to how they are differentiated in paragraph 4.b of the Wassenaar Arrangement Munitions List. This amendment also replaces the undefined term “apparatus and devices” with the § 120.40 defined term “equipment.”

USML Category V paragraph (c)(2) is revised to add the CAS Registry Number for pentaborane and to replace the comma after “pentaborane” with a semicolon, in order to clarify this paragraph describes derivatives of carboranes, decaboranes, and pentaborane. Paragraph (f)(4)(x) is revised to correct the CAS Registry Number. Paragraphs (e)(10), (f)(19), and (g)(4) are revised to correct typographical errors.

Note 3 to USML Category VII is revised to further clarify the universe of ground vehicles described, with no change to the scope of controls. Specifically, the types of vehicular control and locomotion employed are irrelevant when evaluating a vehicle against the control criteria. The Department affirms that although some unmanned ground vehicles, based on their method of control or locomotion, may be referred to by the public colloquially as “robots,” they must still be evaluated against the criteria in USML Category VII.

USML Category VIII(h)(1) is revised to clarify which commodities are described therein by incorporating relevant portions of the existing note to paragraph (h)(1). This revision also serves to facilitate reference to the included list of aircraft by other USML paragraphs, and to better align controls with the Department's intent around U.S. Government technology demonstrators. Additionally, it precludes release of commodities from paragraph (h)(1) based solely on their subsequent use in aircraft included in USML Category XXI (pursuant to the procedures therein) or in foreign advanced military aircraft. Foreign advanced military aircraft, as newly defined in § 121.0, include non-U.S. origin aircraft and foreign derivatives of U.S. origin aircraft, either in development or entering production after 2023, with one or more of the following advanced military capabilities: Active Electronically Scanned Array (AESA) fire control radar, integrated signature management, electronic warfare systems, or the ability to engage targets beyond visual range (BVR). The Department further highlights the use of the term “AESA fire control radar” to ensure that AESA weather radars commonly used in civil aviation are clearly excluded from this list of advanced military capabilities. The year 2023 was chosen as the production year in this definition to ensure alignment with the temporary modification to the USML issued on December 4, 2023 (88 FR 84072), and extended on November 26, 2024 (89 FR 93170), which states that parts used in or with the KF-21 continue to be described on the USML.

As practitioners have confused the F-15SE (Silent Eagle) with the F-15E (Strike Eagle), the F-15SE nomenclature is also clarified. Further, the “B1B” is replaced by “B-1.” As the B-1A never entered into production, this change does not change the export classification of existing items. The Department makes this change consistent with the majority of aircraft listed in the paragraph and its intent to include future variants of those aircraft. The Department notes the only aircraft listed with series letters (F-15SE, F/A-18E/F, and EA-18G) in this paragraph intentionally exclude earlier variants (for example, the control does not include the F-15A, which is an F-15 variant developed before the F-15SE). Additionally, the Department adds the MQ-25 and the RQ-170 to the list of aircraft in paragraph (h)(1)(i). The MQ-25 provides a critical military advantage in its ability to support the future Navy carrier air wing and is central to the Navy's strategic Unmanned Campaign Framework. The RQ-170 is a high-altitude, long-endurance, low-observable unmanned aerial vehicle that provides a critical military and intelligence advantage in its ability to perform key intelligence, surveillance, reconnaissance, target acquisition, and electronic warfare functions. Paragraph (h)(1) describes articles used in some of the most advanced U.S. military aircraft. The changes to paragraph (h)(1) ensure those specially designed articles are not released from this entry based on their subsequent use in USML Category XXI aircraft, foreign advanced military aircraft, or U.S. Government (USG) technology demonstrator aircraft.

Ensuring those elements are not released from paragraph (h)(1) based on subsequent use in foreign advanced military aircraft is consistent with the language of § 120.3(a)(2). With this change, the Department treats use of these commodities in foreign advanced military aircraft as it has in their use in advanced U.S. military aircraft. This addition facilitates opportunities for reuse and commonality with partner aircraft by enabling U.S. content to be utilized in those platforms without unnecessary redesigns or unmerited removal from the USML.

The Department further considered amending the language to remove commodities designed exclusively for non-Department of Defense (DoD) USG technology demonstrators from paragraph (h)(1). The Department declines to do so, as such commodities are generally not currently described in paragraph (h)(1). Specifically, USG technology demonstrators are unique among the aircraft listed in paragraph (h)(1), as some technology demonstrators are described on the USML, while others are not. The Department notes commodities used in technology demonstrators are often developed exclusively for those demonstrators or repurposed from other USML or CCL platforms for time and cost savings; those commodities must be reviewed on a case-by-case basis for proper export classification. Specifically, for USG technology demonstrators that are themselves not described on the USML (“these aircraft”), it is generally the case that:

In the context of paragraph (h)(1), such articles are not released by § 120.41(b)(3), (4), or (5), as they were originally developed for an aircraft described in USML Category VIII. The Department is also amending the text of the current “Note to paragraph (h)(1),” redesignating it as “Note 1 to paragraph to (h)(1),” and adding “Note 2 to paragraph (h)(1).” The addition of “Note 2 to paragraph (h)(1)” outlines an example of the scope of paragraph (h)(1) for articles used in USG technology demonstrators.

With these revisions to paragraph (h)(1) and the notes to paragraph (h)(1), the Department also terminates the temporary modification to Category VIII of the USML that was issued on December 4, 2023 (88 FR 84072) and extended on November 26, 2024 (89 FR 93170).

The Department notes certain commodities designed exclusively for DoD-funded developmental aircraft, including aircraft jointly funded by DoD and another agency, remain defense articles described in paragraph (f) of USML Category VIII.

Paragraph (h)(29) of USML Category VIII is revised to clarify the commodities described therein include both those designed for the aircraft listed and the defense articles described in paragraph (h)(1), with a change in control via the removal of commodities specially designed for USG technology demonstrators.

The note located at the end of USML Category VIII is moved to follow USML Category VIII paragraph (h), renamed “Note 1 to paragraph (h),” and revised for clarity, with no change in scope.

USML Category IX(e)(2) is placed in reserve to eliminate redundancy. Technical data directly related to the software and databases enumerated in paragraph (b)(4) is already described in paragraph (e)(1).

Developmental exoskeletons have been identified as a technology warranting ITAR control due to the critical military advantage they provide. Thus, Category X is amended by removing paragraph (b) from reserve and adding a new paragraph (b) to describe exoskeletons under development for DoD, along with standard exclusions applied to other developmental articles to provide advance notice to industry and to avoid controlling those that do not provide a critical military advantage.

The Department also amends Category X to align body armor protection levels with the most recent NIJ standard, 0123.00, “Specification for NIJ Ballistic Protection Levels and Associated Test Threats.” All references to “NIJ Type IV” have been updated to NIJ RF3. “Note 1 to paragraph (a)(1)” and “Note to paragraphs (a) and (d)” have also been updated to reference the new standard. “Note to paragraphs (a) and (d)” is redesignated as “Note 1 to paragraphs (a) and (d).”

USML Category XI paragraphs (c)(10)(i) and (ii) are revised to reflect that certain anti-jam antennas no longer provide a critical military advantage, with increasing commercial utilization applicable to civil GPS resiliency. Following consultations with DoD, the beam switching speed criterion in paragraph (c)(10)(i) is revised from 50 milliseconds down to one millisecond, and the convergence time criterion in paragraph (c)(10)(ii) is revised from one second down to one millisecond, as the Department seeks to control only the most sensitive and effective anti-jam antennas in USML Category XI(c)(10)(i) and (ii). The Department further intends to exclude Controlled Reception Pattern Antennas (CRPAs) for Position, Navigation, and Timing (PNT) from paragraph (c)(10). To implement this, the Department is removing all CRPAs from paragraphs (c)(10)(i) and (ii) and adding paragraphs (c)(10)(v) and (vi) to describe the CRPAs for non-PNT applications that meet the updated criteria used in paragraphs (c)(10)(i) and (ii) the CRPA antennas were moved from. In removing CRPAs for PNT, the Department intends to facilitate civil global navigation system resiliency. CRPAs use multiple elements and advanced signal processing techniques to dynamically control their reception pattern, thereby enhancing signal reception from desired directions and suppressing interference from undesired directions. Generally, in comparing CRPAs to the antennas that remain described in paragraphs (c)(10)(i) and (ii), CRPAs are more optimized to control the reception pattern instead of the transmission beam steering or switching. This is in line with the Position, Navigation, and Timing, Advisory Board's (PNTAB) recommendation to remove CRPAs from the USML. The antennas removed from the USML by these changes are neither subject to multilateral controls nor controlled as munitions in other countries that produce them. Once removed from the USML, these anti-jam antennas will become subject to the EAR under the jurisdiction of the Department of Commerce.

USML Category XII paragraph (d)(2)(ii) is revised to update the language to reflect the current description of Positioning Service from Precise Positioning Service to Protected Positioning Service (PPS). In the 2021 Federal Radionavigation Plan published by the Departments of Defense, Transportation, and Homeland Security (available at https://rosap.ntl.bts.gov/view/dot/63024 ), PPS has been updated to “Protected” Positioning Service from the former “Precise” Positioning Service. This change accurately reflects the technology's ability to operate in degraded environments as opposed to legacy encryption abilities that facilitate greater position precision and no longer provide a critical military advantage.

USML Category XIII paragraph (b)(4) is revised to update the name of the Unified Cross Domain Management Office (UCDMO) to the National Cross Domain Strategy and Management Office (NCDSMO).

The Department further amends Category XIII to align armor protection levels with the most recent NIJ standard, 0123.00, “Specification for NIJ Ballistic Protection Levels and Associated Test Threats.” All references to “NIJ Level III” are updated to NIJ RF1. As the new RF1 standard corresponds to the previous Type III standard, this is not a significant change in control. The reference in paragraph (m)(10) is also updated to reference the new standard.

Additionally, paragraph (e)(2) is revised for clarification and to add paragraphs (e)(2)(i) and (ii). Category XIII is further revised to add specific fluids to the USML in paragraph (j)(3). Each of these fluids was developed for one or more critical military applications for which existing fluids were unsuitable; by including a specially designed criterion, general-purpose fluids subsequently selected for use in a military application are not described by this control. Lastly, paragraph (m)(9) is amended to clarify the definitions of variables in the equation for E m .

Additional nerve agents and a defoliant are added to USML Category XIV in paragraphs (a)(1)(iv) through (viii) and (j), and controls on Chemical Agent Resistive Coatings (CARC) are clarified in paragraph (f)(7). The nerve agent additions are made pursuant to changes to Schedule 1 of the Chemical Weapons Convention, while the defoliant addition is a constituent of Agent Orange, for which the Department is unaware of current commercial applications.

The clarification of CARC controls in paragraph (f)(7) is made consistent with longstanding policy published on DDTC's website. As CARC is controlled only through the point of application and curing, export applications for CARC must specify the proposed end-users and end-uses, and export licenses for CARC impose limitations on the same. Of note, the control release for CARC that has been applied and cured only applies to USML Category XIV(f)(7); this release does not apply to coatings or materials described elsewhere on the USML. For example, when a USML Category XIII(j)(2) coating is applied to an item subject to the EAR, a DDTC license or other approval continues to be required for the coating, when the item to which the coating was applied is exported, reexported, or retransferred.

USML Category XIX paragraphs (d) and (f)(1) are amended to add specific DoD-funded aircraft engines in development that provide a critical military or intelligence advantage, as well as their specially designed parts, components, accessories, and attachments. Specifically, paragraph (d) is split into two parts, paragraphs (d)(1) and (2), and amended to include the XT900, which is a developmental engine resulting from the enumerated HPW3000 technology demonstrator.

The note to paragraph (d) is redesignated as the note to paragraph (d)(1), to continue its applicability to the engines in former paragraph (d) following their movement to paragraph (d)(1), with no change in scope. Paragraph (f)(1) is amended to include specially designed parts, components, accessories, and attachments for the engine now described in paragraph (d)(2), and to incorporate a portion of the note to paragraph (f)(1). The remainder of the note to paragraph (f)(1) is redesignated as “Note 1 to paragraph (f)(1)” and revised for clarity. Paragraph (f)(1) is further amended to clarify that parts, components, accessories, and attachments are not released if common only to a listed engine and an engine designated in USML Category XXI(a), and to add a catch-all control for XA100, XA101, XA102, XA103, and T901 engine hardware. The XA-series engines represent a substantial leap in propulsion capability. Items specially designed for these engines provides a critical military or intelligence advantage in enabling the engines to provide improved thrust-to-weight capability while addressing fuel efficiency, affordability, and sustainment for warfighter operational readiness. The T901 powers the Future Vertical Lift platform and provides 33% more thrust than, but retains the same size as, its predecessor.

Paragraph (f)(2) is amended to clarify the items described in paragraph (f)(2) by replacing a term of art (“hot section components”) with defined regulatory terms (hot section “parts” and “components”), with no change in scope, and to add related cooled structures for combustion chambers and liners. Punctuation is also updated with no change in scope.

USML Category XX is amended to add paragraphs (a)(9) and (10) to control two new classes of uncrewed, untethered vessels and vehicles that provide a critical military advantage: specifically, those equipped with anti-recovery features, and larger systems with significant range or endurance. Paragraph (a)(10) includes criteria to avoid control of systems below certain weight and performance thresholds the Department assesses are best suited for scientific research or commercial applications. Tethered systems are similarly excluded from both paragraphs (a)(9) and (10).

USML Category XX(b)(2) is revised for clarity, with no change to the scope of the control.

USML Category XXI is amended to move the second sentence of paragraph (a) into a new note, and to further clarify the considerations when designating an article in USML Category XXI.

The Department notes it previously provided a 180-day transition period between the publication of the final rule for reviews of entire USML categories revised under Export Control Reform and the effective date of the transition of items to updated classifications. See 78 FR 22740, 22747 (Apr. 16, 2013). While the Department has also recently issued rules with shorter transition periods, the Department provides a 240-day delayed effective date for this rule. Consistent with prior revisions of USML categories, additional guidance that addresses specific licensing scenarios will be provided on DDTC's website.

Items removed from a USML paragraph by this rule may still be described in other USML paragraphs or may become subject to the export licensing jurisdiction of the Department of Commerce pursuant to the EAR. Exporters should evaluate the control status of their item using the orders of review in the ITAR and the EAR and may submit a commodity jurisdiction request to DDTC for assistance or—if there is no doubt it is subject to the EAR—a commodity classification request to BIS. Licensing requirements under the EAR are determined by the reasons for control applicable to the item, the destination, the end use, and the end user. General Order No. 5 in supplement no. 1 to part 736 of the EAR describes the transition process for items moving from the USML to the CCL upon the publication of the pertinent final rules. The general order describes the grandfathering of DDTC licenses and agreements, the use of BIS authorizations, and the submission of disclosures to BIS and DDTC related to the transition of items from the USML to the CCL.

For those wishing to export under the authority of the EAR as soon as possible for items moving from the USML to the CCL, applicants may submit license applications immediately after the publication of the BIS final rule adding such items to the CCL. Thus, applicants may, in effect, pre-position license applications early to facilitate processing of the license application. Such a pre-positioned license application will be processed in accordance with §  750.4 of the EAR, but if BIS completes processing the application prior to the effective date of the applicable final rule, BIS will hold the application without action (HWA), until the effective date of that final rule. Applications for transitioned items received after the effective date of the final rule will be processed as described in §  750.4 of the EAR.

Existing holders of DDTC licenses, agreements, or other approvals, may maintain existing authorizations or obtain new authorizations for items moving from the USML to the CCL. Questions regarding the continued use of DDTC licenses, agreements, or other approvals should be directed to DDTC.

During the transition period, license applications will be accepted by both DDTC and BIS for items moving from the USML to the CCL. BIS will not issue approved licenses for such items until on or after the effective date of this rule.

DSP-5 Licenses: Licenses for items transitioning to the CCL that are issued prior to the effective date of the final rule and do not include items remaining on the USML will remain valid until expired, returned by the license holder, or for a period of three years from the effective date of the final rule, whichever occurs first, unless otherwise revoked, suspended, or terminated. Licenses containing both transitioning and non-transitioning items (mixed authorizations) will remain valid until expired or returned by the license holder, unless otherwise revoked, suspended, or terminated. Any limitation, proviso, or other requirement required by the DDTC authorization remains in effect if the DDTC authorization is relied upon for export, re-export, or re-transfer. License amendment requests received by DDTC prior to the effective date of the rule will be adjudicated on a case-by-case basis up until the effective date of the rule.

DSP-61 and DSP-73 Licenses: All temporary licenses that are issued in the period prior to the effective date of the rule will remain valid until expired or returned by the license holder, unless otherwise revoked, suspended, or terminated. Any limitation, proviso, or other requirement imposed on the DDTC authorization will remain in effect if the DDTC authorization is relied upon for export. License amendment requests received by DDTC before the effective date of the rule will be adjudicated on a case-by-case basis until the effective date of the rule. All license applications, including amendments, received after the effective date for items that are transitioning to the CCL that are not identified in an (x) paragraph entry will be Returned Without Action (RWA) with instructions to contact the Department of Commerce.

Technical Assistance Agreements, Manufacturing License Agreements, Distribution Agreements, and Related Reporting Requirements: Agreements and amendments containing both USML and CCL items will be adjudicated up to the effective date of the final rule. Agreements containing transitioning and non-transitioning items that are issued prior to the effective date of the final rule will remain valid until expired, unless they require an amendment, or for a period of three years from the effective date of the final rule, whichever occurs first, unless otherwise revoked, suspended, or terminated. In order for an agreement to remain valid beyond three years, an amendment must be submitted to authorize the CCL items using the new (x) paragraph from the relevant USML category. Any activity conducted under an agreement will remain subject to all limitations, provisos, and other requirements stipulated in the agreement.

Agreements containing solely transitioning items issued prior to the effective date of the final rule will remain valid for a period of three years from the effective date of the rule, unless revoked, suspended, or terminated. After the three-year period ends, any ongoing activity must be conducted under the appropriate Department of Commerce authorization. Agreements and agreement amendments solely for items moving to the CCL which are received after the effective date of the rule will be Returned Without Action (RWA) with instructions to contact the Department of Commerce.

All reporting requirements for Manufacturing License Agreements and Distribution Agreements must be complied with and such reports must be submitted to the Department of State while the agreement is relied upon as an export authorization by the exporter.

Reexport/Retransfer of USML Items That Have Transitioned to the CCL: Foreign persons or U.S. persons abroad that have USML items in their inventory at the effective date of transition should review both the USML and the CCL to determine the proper export jurisdiction of those items. If the item is controlled by the Department of Commerce, any reexport or retransfer must comply with the requirements of the EAR. If doubt exists on the jurisdiction of the items, the foreign person should contact the original exporter or manufacturer. In instances when those parties are unavailable, the foreign person should review the DDTC or BIS website for guidance and support options.

Following the effective date, foreign persons (including end-users, consignees, and intermediate consignees) who receive, via a Department of State authorization, an item they are certain has transitioned to the CCL ( e.g., confirmed in writing by manufacturer or supplier), should treat the item as such and submit requests for post-transition reexports or retransfers to the Department of Commerce, as may be required by the EAR. If reexport or retransfer was previously authorized under an MLA or WDA that continues to provide the export authority or any stand-alone reexport/retransfer authorization received pursuant to ITAR § 123.9, such authorizations remain valid.

For those wishing to export under the authority of the ITAR as soon as possible for items moving onto the USML, applicants may submit license applications as soon as this rule is published in the Federal Register .

In reviewing the clarifications provided by this rule, if you identify a potential violation of the ITAR, you are encouraged to submit a voluntary disclosure to DDTC, consistent with the procedures outlined in § 127.12. For potential violations of the EAR, persons are encouraged to submit voluntary self-disclosures to BIS. For potential violations of both the EAR and the ITAR, persons are encouraged to submit disclosures to both agencies.

Consistent with its ongoing USML review process, the Department is requesting public comments on the revisions described in this rulemaking. The Department encourages the public to provide comments directly related to this rule and responsive to the questions described below. To facilitate timely review and assessment, comments should be provided in a concise sentence or paragraph, followed by supporting explanatory paragraphs and examples, with each distinct comment treated separately (as opposed to multiple comments in one paragraph or section). The Department requests comments focused on the following questions:

1. How much would practitioners benefit from the Department defining the term “Controlled Reception Pattern Antennas (CRPAs)” as used in USML Category XI(c)(10)? Are there criteria, other than those described in the preamble of this rule, that may help better distinguish between CRPAs described in paragraph (c)(10)(v) and antennas described in paragraph (c)(10)(i)?

2. The addition of paragraph (h)(1)(iii) to USML Category VIII ensures that parts, components, accessories, and attachments specially designed for aircraft listed in paragraphs (h)(1)(i) and (ii) are not released from paragraph (h)(1) due to their use in foreign advanced military aircraft described in paragraphs (a)(1) and (2) of USML Category VIII.

a. The Department requests comment on its consideration of adding to paragraph (h)(1) a new paragraph (h)(1)(iv), to retain parts used in paragraphs (h)(1)(i) or (ii) aircraft even when they are used in “aircraft described in paragraph (a)(3) of USML Category VIII,” as the Department assesses that training aircraft described in paragraph (a)(3) often serve as proving grounds for future paragraph (a)(1) or (2) aircraft.

b. The Department requests comment on its consideration of expanding paragraph (h)(1) to add parts, components, accessories, and attachments specially designed for the foreign advanced military aircraft listed in paragraph (h)(1)(iii), even if they are not utilized in an aircraft listed in paragraph (h)(1)(i) or (ii), commensurate with the Department's regulation of similar items for the advanced U.S. aircraft described in paragraphs (h)(1)(i) and (ii). For example, what effect would describing these foreign articles in paragraph (h)(1) have on existing international defense industrial cooperation and supply chains?

3. With this rule, the Department changes paragraph (d) of USML Category XIX to read “The following engines:” and then describes specific aircraft engines in paragraphs (d)(1) and (2). The Department requests comment on its consideration of changing that language to “The following engine series:” in order to more completely describe engines that provide a critical military or intelligence advantage.

4. Paragraphs (d)(1) and (2) of USML Category XIX describe specific aircraft engines. The Department requests comment on its consideration of expanding that scope to include “military variants” of those engines, similar to its regulation of certain gas turbine engine parts in paragraph (f)(1)(i) of USML Category XIX for military variants of the listed engines.

5. Are there commodities, services, or technical data closely related to these revisions that warrant ITAR control, but are currently either not described on the USML, or not described with sufficient clarity? If so, please provide examples and a concise explanation.

6. Are there specific commodities, services, or technical data described on the USML following these revisions that are, or have previously been, in normal commercial use, that were previously transitioned to another agency's jurisdiction, or that were previously determined not to be subject to the ITAR via a Commodity Jurisdiction determination? If so, please include supporting documentation.

7. Are there specific commodities, services, or technical data described on the USML following these revisions for which civil use is proposed, intended, or anticipated in the next five years? Please include supporting documentation and a point of contact familiar with the details.

8. Are there specific functions, performance levels, or characteristics related to these revisions that could better:

a. Distinguish between the commodities that do, and do not, warrant ITAR control;

b. Delineate the criteria for control, in lieu of using the term `specially designed'; or

c. Align with the constructions or language used in other USML entries?

9. Can any of these revisions be more concisely stated?

Include the Regulatory Information Number (RIN) (1400-AF42) for all submissions related to this rule. Parties who wish to comment anonymously may do so by submitting their comments via www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Commenters are cautioned not to include proprietary, export-controlled, personal, or other sensitive information in their comments that they would not want to be made public. If such information would provide useful insight to the comment: (1) assemble that information in a separate document with proprietary markings; (2) include “Proprietary supplement on file with: [provide POC]” as the first line in the body of the email submission; (3) submit the public portion of the comment via email; and (4) call DDTC at (202) 663-1282 to coordinate submission of the proprietary supplement.

This rulemaking is exempt from the rulemaking requirements of section 553 of the Administrative Procedure Act (APA) pursuant to section 553(a)(1) as a military or foreign affairs function of the United States. Although the Department has elected to publish this interim final rule with a concurrent 30-day request for public comment and a 240-day delayed effective date, it does so without prejudice to its determination that controlling the export, reexport, retransfer, and temporary import of defense articles and defense services is a military or foreign affairs function.

Since this rule is exempt from the notice-and-comment rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule does not meet the criteria of 5 U.S.C. 804(2).

This rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

Executive Order 12866, as amended by Executive Orders 13563 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, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. After review by the Office of Management and Budget (OMB), this rule has been deemed a “significant regulatory action.” This rule was undertaken pursuant to a statutory directive to periodically review the items on the USML. The Department generally determines which items warrant addition to, or removal from, the USML by assessing whether each provides a critical military or intelligence advantage based on national security and foreign policy considerations. Because the costs and benefits of changing what is controlled focus on the effect or utility of the item or service, rather than its market prevalence or economic value, quantitative analyses cannot be usefully estimated and are not available, particularly since the global prevalence or availability of the item or service are not known. Moreover, the Department does not have useful estimates or models to predict whether or how frequently the items added to the USML by this rule will be applied for export or to which countries, or for temporary import and from which countries. Qualitatively, the rule was assessed for costs and benefits. Because listing individual items or model numbers would necessarily lead to incomplete controls when an item is renamed or slightly modified, the USML contains many descriptive controls that are based on broader characteristics, including form, fit, function, and performance capability. To more accurately describe only what the Department intends to control, and to provide companies and individuals with better certainty, some USML revisions made by this rule are aimed to improve and clarify various entries and to more precisely focus controls. These revisions are also informed by confidential commodity jurisdiction determination and advisory opinion requests, submitted by industry. The Department takes into account common questions and strives to streamline and simplify USML entries based on how it understands industry experience with certain parts of the USML. Finally, when a complete redundancy is identified, as in one revision made by this rule, it is removed so that exporters, brokers, and temporary importers may better rely on a single entry, which can help to reduce compliance costs and increase the accuracy of relevant metrics. One alternative to this is inaction or delay. The Department could have waited to amend larger parts of the USML at once or continued to gather data to evaluate the controls affected by this rule. These alternatives were rejected. Statutory requirements, including section 38(f) of the Arms Export Control Act (22 U.S.C. 2778(f)), and section 1345 of the National Defense Authorization Act for Fiscal Year 2024, require a periodic review of the USML for edits like those made by this rule. While the Department continuously reviews the entire USML, it aims to focus on particular USML categories for targeted revisions in cycles, as it has done in implementing this rule.

The Department of State has reviewed this rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. chapter 35.

Assistant Secretary C.S. Eliot Kang, having reviewed and approved this document, has delegated the authority to electronically sign this document to Stanley L. Brown, Acting Assistant Secretary, Bureau of Political-Military Affairs, for purposes of publication in the Federal Register .

For reasons stated in the preamble, the Department of State amends 22 CFR part 121, the United States Munitions List, as follows: