The Coronavirus Aid, Relief, and Economic Security Act (CARES Act; Pub. L. 116-136) provides $9,500,000,000 to the Secretary of Agriculture to provide assistance to agricultural producers impacted by the effects of the COVID-19 outbreak. In accordance with 15 U.S.C. 714b, the Secretary of Agriculture is also using funds of the Commodity Credit Corporation (CCC) to assist producers with the purchase of materials and facilities required in connection with the production and marketing of agricultural commodities, and the removal of surplus commodities from normal marketing channels that may be currently unavailable. At this time, the amount of CCC funds available for these purposes is limited to $6.5 billion. USDA implemented CFAP for certain commodities in the regulation in 7 CFR part 9.

For the purpose of potentially supplementing the commodities listed in the CFAP regulation, this document requests information on agricultural commodities not already included in CFAP, which may be negatively impacted by the COVID-19 pandemic, and for which sufficient information is not currently available to USDA to include them in CFAP. If sufficient information is received and a decision is made to add commodities to the program, USDA will issue another NOFA listing the additional commodities, the respective payment rates, application dates, and any other unique information that producers will need to know for those commodities and the availability of CFAP payments.

Generally, in order to be eligible for a CFAP payment, a producer must have suffered a 5-percent-or-greater price loss over a specified time resulting from the COVID-19 outbreak or face additional significant marketing costs for inventories—whether caused by lower prices given significant declines in certain types of demand, surplus production, or by disruptions to shipping patterns and the orderly marketing of commodities. In addition, due to the COVID-19 outbreak, many farmers markets, restaurants, and schools have temporarily or permanently closed, thus causing significantly decreased demand for commodities grown by producers that are ordinarily supplied to these places.

The following commodities are included in CFAP as specified in the CFAP regulation in 7 CFR part 9.

Agricultural commodities that are not listed in the table above and have widely published price data, such as those whose prices are collected by USDA and commodities traded on the futures markets, have been determined as having a minimal price impact due to COVID-19 and are not included in CFAP.

Information regarding producer eligibility, the application process, and calculation of payments is specified in the regulation in 7 CFR part 9. Agricultural commodities included in the regulation were determined by USDA to have incurred a price decline of at least 5 percent between the weeks of January 13-17, 2020, and April 6-9, 2020, for non-specialty crops, and April 6-10, 2020, for all other agricultural commodities.

One purpose of this document is to request information from the public to assist USDA in determining whether additional agricultural commodities not listed above should be eligible for CFAP. It is not to collect information on commodities already included in CFAP, commodities already excluded from CFAP, or information on non-agricultural products.

USDA requests information about agricultural commodities that the public believes to have suffered a 5-percent-or-greater price loss between the weeks of January 13-17, 2020, and April 6-10, 2020, for specialty crops, and April 6-10, 2020, for all other agricultural commodities. In providing input, please consider the following questions; these questions are not intended to limit the type or amount of information provided. The most helpful and informative information for consideration by USDA is information that describes how the decline in price was determined and documentation of the sources used to make this determination.

(1) What commodities not listed above have suffered a 5-percent-or-greater price loss between January and April 2020 and face additional marketing costs due to COVID-19?

(2) What was the price received per unit of measure sold the week of January 13 through January 17, 2020, (or if not available, the nearest to this date) and what is the basis for the determination of this price?

(3) What was the price received per unit of measure sold the week of April 6 through April 10, 2020, (or if not available, the nearest date to this) and what is the basis for the determination of this price?

USDA is particularly interested in the obtaining information with respect to the following specific categories of agricultural commodities.

If you are providing information for a nursery that produces multiple products, such as trees, shrubs, or perennial plants, please specify your responses to the questions below separately by product:

(1) For live trees, shrubs, or other plants that you produced, had vested ownership in, and had in inventory at some point between January 15, 2020, and April 15, 2020, what was:

(a) The average price you received per plant specified by type of nursery product sold (for example, roses, boxwoods, junipers) you sold the week of January 13 through January 17, 2020, (or if not available, nearest date to this);

(b) The average price you received per plant you sold the week of April 6 through April 10, 2020, (or if not available, nearest date to this);

(c) The number of plants you sold between January 15, 2020, and April 15, 2020.

(2) The number and the contracted price of plants you produced that left your nursery by April 15, 2020, and subsequently died or withered due to no market, and for which you did not have Federal crop insurance or obtain Noninsured Crop Disaster Assistance Program (NAP) to cover the loss.

(3) The inventory of plants ready for sale that did not leave the nursery by April 15, 2020, and that will not be sold due to lack of markets.

The CFAP regulation provided that certain aquaculture producers would be eligible for participation in CFAP. The determination of eligible producers was made based upon consultation with the Department of Commerce, as that agency is also establishing a program to assist certain aquaculture producers. For CFAP, an eligible aquaculture producer is one who has a privately-owned aquaculture business that propagates freshwater and saltwater products in controlled environments (including raceways, ponds, tanks, and recirculating systems). Farmed shrimp and salmonids (trout and salmon) will be included in CFAP to the extent USDA determines individual types of these products have incurred a requisite decline in price.

Accordingly, through this document, USDA requests information from aquaculture producers to make the determination of a price decline. If the farm produces multiple aquaculture products, please specify your responses to the questions below separately by product.

(1) For live aquaculture that you produced, had vested ownership in, and had in inventory at some point between January 15, 2020, and April 15, 2020, what was:

(a) The average price you received per product the week of January 13 through January 17, 2020, (or if not available, nearest date to this);

(b) The average price you received per aquaculture product you sold the week of April 6 through April 10, 2020, (or if not available, nearest date to this);

(c) The number of aquaculture products you sold between January 15, 2020, and April 15, 2020.

(2) The number and the contracted price of aquaculture products you produced that left your farm by April 15, 2020, and subsequently spoiled due to no market, and for which you did not have Federal crop insurance or obtained NAP to cover the loss.

(3) The inventory of aquaculture products as April 15, 2020, that will not be sold due to lack of markets.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), FSA is requesting comments from interested individuals and organizations on the information collection activities related to CFAP. FSA received emergency approval from OMB for 6 months, and FSA will request 3-years approval for CFAP information collection activities.

Title: Coronavirus Food Assistance Program (CFAP).

OMB Control Number: 0560-0295.

Type of Request: New Collection.

Abstract: This information collection is required to support all CFAP information collection activities (applicable NOFAs and the regulation in 7 CFR part 9) to provide payments to eligible producers who, with respect to their agricultural commodities, have been impacted by the effects of the COVID-19 outbreak. The information collection is necessary to evaluate the application and other required paperwork for determining the producer's eligibility and assist in the producer's payment calculations. FSA will start accepting CFAP applications later this month. If a producer who applies must submit additional documentation for eligibility, such as certifications of compliance with adjusted gross income provisions and conservation compliance activities, those additional documents and forms must be submitted no later than 60 days from the date the producer signs the application.

For the following estimated total annual burden on respondents, the formula used to calculate the total burden hour is the estimated average time per response multiplied by the estimated total annual responses.

Type of Respondents: Producers or farmers.

Estimated Annual Number of Respondents: 1,630,000.

Estimated Number of Responses per Respondent: 2.6822.

Estimated Total Annual Responses: 4,372,000.

Estimated Average Time per Response: 0.79309 hours.

Estimated Total Annual Burden on Respondents: 3,467,400 hours.

FSA is requesting comments on all aspects of this information collection to help us to:

(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of FSA, including whether the information will have practical utility;

(2) Evaluate the accuracy of FSA's estimate of burden, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All comments received in response to this document, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for Office of Management and Budget approval.

The environmental impacts of CFAP have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and, because USDA will be making the payments to producers, the USDA regulations for compliance with NEPA (7 CFR part 1b).

Although OMB has designated the CFAP rule as “economically significant” under Executive Order 12866, “. . . economic or social effects are not intended by themselves to require preparation of an environmental impact statement” when not interrelated to natural or physical environmental effects (see 40 CFR 1508.14). CFAP was designed to avoid skewing planting decisions. Producers continue to make their planting and production decisions with market signals in mind, rather than any expectation of what a new USDA program might look like. The discretionary aspects of CFAP (for example, determining Adjusted Gross Income and payment limitations) were designed to be consistent with established USDA and CCC programs and are not expected to have any impact on the human environment, as CFAP payments will only be made after the commodity has been produced. Accordingly, the following Categorical Exclusion in 7 CFR part 1b applies: 1b.3(2), which applies to activities that deal solely with the funding of programs, such as program budget proposals, disbursements, and the transfer or reprogramming of funds. As such, the implementation of and participation in CFAP do not constitute major Federal actions that would significantly affect the quality of the human environment, individually or cumulatively. Therefore, an environmental assessment or environmental impact statement for CFAP will not be prepared; this document serves as documentation of the programmatic environmental compliance decision for this federal action.

The title and number of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which this NOFA applies is CFAP and 10.130.

Table of Contents I. Introduction A. Authority B. Rulemaking History II. Request for Information and Comments A. Scope & Definitions B. Test Procedure 1. Connected Clothes Washers 2. Testing Conditions, Instrumentation, and Installation 3. Test Cloth 4. Capacity Measurement Alternatives 5. Cycle Selection and Settings 6. Wash/Rinse Temperature Selections for Semi-Automatic Clothes Washers 7. Usage Factors 8. Associated Equipment Efficiencies 9. Non-Conventional Features C. Metrics 1. Energy Efficiency Metric 2. Water Efficiency Metric 3. Annual Energy Calculation III. Other Comments, Data, and Information IV. Submission of Comments I. Introduction

Residential clothes washers (“RCWs”) are included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(7)) DOE's test procedures for RCWs are prescribed at 10 CFR 430.23(j) and appendices J1, J2, and J3 to subpart B of 10 CFR part 430. Commercial clothes washers (“CCWs”) are included in the list of “covered equipment” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6311(1)(H)) The test procedures for CCWs must be the same as those for established for RCWs. (42 U.S.C. 6314(a)(8)) The following sections discuss DOE's authority to establish and amend test procedures for RCWs and CCWs, as well as relevant background information regarding DOE's consideration of test procedures for these products.

The Energy Policy and Conservation Act of 1975, as amended (“EPCA”)  1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment, among other things. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. These consumer products include RCWs. (42 U.S.C. 6292(a)(7)) Title III, Part C  3 of EPCA, added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment. This equipment includes CCWs. (42 U.S.C. 6311(1)(H)) Both RCWs and CCWs are the subject of this RFI.

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 the Act specifically include definitions (42 U.S.C. 6291; 42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6295; 42 U.S.C. 6313), test procedures (42 U.S.C. 6293; 42 U.S.C. 6314), labeling provisions (42 U.S.C. 6294; 42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6296; 42 U.S.C. 6316).

Federal energy efficiency requirements for covered products and covered 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(b)(2)(D))

The Federal testing requirements consist of test procedures that manufacturers of covered products and covered equipment must use as the basis for: (1) Certifying to DOE that their products or equipment comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s); 42 U.S.C. 6316(a)), and (2) making representations about the efficiency of those covered products or 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 or equipment comply with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s); 42 U.S.C. 6316(a))

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section 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 or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

If DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2))

In addition, EPCA requires that DOE amend its test procedures for all covered products, including RCWs, to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, taking into consideration the most current versions of Standards 62301 and 62087 of the International Electrotechnical Commission (“IEC”), 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))  4 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. ( Id. ) As described in the following sections, DOE's current clothes washer test procedure includes provisions for measuring energy consumption in standby mode and off mode.

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including clothes washers, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A)) If the Secretary determines, on his 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)) If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this RFI to collect data and information to inform its decision pursuant to the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A))

Additionally, 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)) This document also seeks input from the public to assist in a determination as to whether amendments to test procedures are necessary in the context of CCWs.

DOE originally established its clothes washer test procedure, codified at 10 CFR part 430, subpart B, appendix J (“Appendix J”), in a September 1977 final rule. 42 FR 49802 (Sept. 28, 1977). Since that time, the test procedure has undergone a number of amendments. In August 1997, DOE published a final rule (“August 1997 Final Rule”) amending Appendix J to include a measurement of remaining moisture content (“RMC”) to account for more efficient water extraction and to reflect changes in clothes washer features and consumer usage patterns, among other changes. 62 FR 45484 (Aug. 27, 1997). The August 1997 Final Rule also established an appendix J1 at 10 CFR part 430, subpart B (“Appendix J1”), which included a new definition of the energy test cycle, new energy test cloth pre-conditioning requirements, the use of a third load size (average load) for adaptive water fill control systems, a load size table for all clothes washers (including clothes washers with manual water fill control systems), and a simplified Temperature Use Factor (“TUF”)  6 table, among other minor technical changes. Id.

In the January 2001 Final Rule, DOE provided further minor technical amendments to Appendix J and Appendix J1, as well as a sunset provision specifying that the provisions of Appendix J would expire on December 31, 2003. 66 FR 3313. Additional amendments to Appendix J1 included, among other things, a methodology for developing correction factors for each new lot of test cloth to reduce variability in the RMC measurement due to differences in test cloth lots. Id.

In March 2012, DOE published a final rule (“March 2012 Final Rule”) amending Appendix J1 to expand the load size table to accommodate clothes washers with capacities up to 6 cubic feet (“cu.ft.”) as well as some other minor changes. 77 FR 13887 (March 7, 2012). The March 2012 Final Rule also established a new test procedure at 10 CFR part 430, subpart B, appendix J2 (“Appendix J2”), which incorporated the following amendments: (1) Provisions for measuring energy consumption in standby mode and off mode; (2) a more comprehensive efficiency metric for water consumption; (3) a more accurate reflection of consumer usage patterns; (4) revisions to the energy test cycle definition; (5) revisions to the capacity measurement method; (6) revisions related to the test cloth, including the preconditioning detergent and test equipment; (7) clarification of certain testing conditions and certain provisions of the test procedure; and (8) revisions to the calculation for annual operating cost. 77 FR 13887, 13891. The March 2012 Final Rule also removed the obsolete Appendix J. 77 FR 13887, 13892.

On August 5, 2015, DOE published a final rule (“August 2015 Final Rule”) that provided clarifying edits to Appendix J1 and Appendix J2. 80 FR 46729. The August 2015 Final Rule also moved the test cloth qualification procedures from Appendix J1 and Appendix J2 to a new test procedure at 10 CFR part 430, subpart B, appendix J3 (“Appendix J3”). The test cloth qualification procedure specifies a standard extractor RMC test to evaluate the moisture absorption and retention characteristics, and to develop a unique correction curve for each new lot of test cloth, which helps ensure that a consistent RMC measurement is obtained for any test cloth lot used during testing. This procedure is performed for each new lot of test cloth before the cloths can be used in the test procedure provisions that measure clothes washer performance; it is not performed as part of the testing required for any particular unit under test. Therefore, DOE moved the test cloth qualification procedure to the new Appendix J3 as a standalone test method to improve the clarity and overall logical flow of the Appendix J1 and Appendix J2 test procedures. Id. The correction factors developed for each new cloth lot are used to adjust the RMC measurements obtained when performing an Appendix J1 or Appendix J2 test on an individual clothes washer unit.

The current version of the test procedure at Appendix J2 includes provisions for determining modified energy factor (“MEF”) and integrated modified energy factor (“IMEF”) in cubic feet per kilowatt-hour per cycle (“cu.ft./kWh/cycle”); and water factor (“WF”) and integrated water factor (“IWF”) in gallons per cycle per cubic feet (“gal/cycle/cu.ft.”). RCWs manufactured on or after January 1, 2018 must meet current energy conservation standards, which are based on IMEF and IWF, as determined using Appendix J2. 10 CFR 430.23(j)(2)(ii) and (4)(ii); 430.32(g)(4) CCWs manufactured on or after January 1, 2018 must meet energy conservation standards for this equipment based on MEF  7 and IWF, which are also determined using Appendix J2. 10 CFR 431.154 and 10 CFR 431.156(b)

As an initial matter, DOE seeks comment on whether there have been changes in product testing methodology or new products on the market since the last test procedure update. DOE also seeks data and information that could enable the agency to propose that the current test procedure produces results that are representative of an average use cycle for the product and is not unduly burdensome to conduct, and therefore does not need amendment. DOE also seeks information on whether an existing private-sector developed test procedure would produce such results and should be adopted by DOE rather than DOE establishing its own test procedure, either entirely or by adopting only certain provisions of one or more private-sector developed tests.

In the following sections, DOE has also identified a variety of issues on which it seeks input to determine whether amended test procedures for clothes washers would more accurately or fully comply with the requirements in EPCA that test procedures: (1) Be reasonably designed to produce test results which reflect energy use during a representative average use cycle, and (2) not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3), 6314(a)(2))

Additionally, DOE welcomes comments on other issues relevant to the conduct of this process that may not be specifically identified in this document. In particular, DOE notes that under Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” Executive Branch agencies such as DOE are directed to manage the costs associated with the imposition of expenditures required to comply with Federal regulations. 82 FR 9339 (Feb. 3, 2017). Consistent with that Executive Order, DOE also encourages the public to provide input on measures DOE could take to lower the cost of its regulations applicable to RCWs and CCWs, consistent with the requirements of EPCA.

DOE defines “clothes washer” as a consumer product designed to clean clothes, utilizing a water solution of soap and/or detergent and mechanical agitation or other movement, and must be one of the following classes: Automatic clothes washers, semi-automatic clothes washers, and other clothes washers. 10 CFR 430.2

An “automatic clothes washer” is a class of clothes washer that has a control system that is capable of scheduling a preselected combination of operations, such as regulation of water temperature, regulation of the water fill level, and performance of wash, rinse, drain, and spin functions without the need for user intervention subsequent to the initiation of machine operation. Some models may require user intervention to initiate these different segments of the cycle after the machine has begun operation, but they do not require the user to intervene to regulate the water temperature by adjusting the external water faucet valves. Id.

A “semi-automatic clothes washer” is a class of clothes washer that is the same as an automatic clothes washer except that user intervention is required to regulate the water temperature by adjusting the external water faucet valves. Id.

“Other clothes washer” means a class of clothes washer that is not an automatic or semi-automatic clothes washer. Id.

“Commercial clothes washer” is defined as a soft-mount front-loading or soft-mount top-loading clothes washer that—

(A) has a clothes container compartment that—

(i) for horizontal-axis clothes washers, is not more than 3.5 cubic feet; and

(ii) for vertical-axis clothes washers, is not more than 4.0 cubic feet; and

(B) is designed for use in—

(i) applications in which the occupants of more than one household will be using the clothes washer, such as multi-family housing common areas and coin laundries; or

(ii) other commercial applications.

(42 U.S.C. 6311(21); 10 CFR 431.452).

DOE is currently aware of several “connected” RCW models on the market, from at least four major manufacturers. These products offer optional wireless network connectivity to enable features such as remote monitoring and control via smartphone, as well as limited demand response features  8 available through partnerships with a small number of local electric utilities. In addition, connected features are available via certain external communication modules for CCWs. However, DOE is not aware of any CCW models currently on the market that incorporate connected features directly into the unit.

DOE recently published an RFI on the emerging smart technology appliance and equipment market. 83 FR 46886 (Sept. 17, 2018). In that RFI, DOE sought information to better understand market trends and issues in the emerging market for appliances and commercial equipment that incorporate smart technology. DOE's intent in issuing the RFI was to ensure that DOE did not inadvertently impede such innovation in fulfilling its statutory obligations in setting efficiency standards for covered products and equipment.

Issue II.B.1. DOE seeks comments, data and information on the issues presented in the “smart products” RFI as they may be applicable to RCWs and CCWs.

Issue II.B.2. DOE requests feedback on its characterization of connected RCWs, and any CCWs, currently on the market. Specifically, DOE requests input on the types of features or functionality enabled by connected clothes washers that exist on the market or that are under development.

Section 3.2.7 of Appendix J2 specifies using the manufacturer default settings for any cycle selections except temperature selection, wash water fill level, or spin speed; and section 3.9.1 of Appendix J2 specifies performing the combined low-power mode testing without changing any control panel settings used for the active mode wash cycle. With regard to the measurement of network mode energy use, however, DOE stated in its 2012 rule (a conclusion not affected by the 2015 amendments), that “DOE cannot thoroughly evaluate these [IEC Standard 62301 (Second Edition)] network mode provisions, as would be required to justify their incorporation into DOE's test procedures at this time. DOE notes that although an individual appliance may consume some small amount of power in network mode, the potential exists for energy-related benefits that more than offset this additional power consumption if the appliance can be controlled by the “smart grid” to consume power during non-peak periods. Although DOE is supportive of efforts to develop smart-grid and other network-enabled technologies in clothes washers, this final rule does not incorporate the network mode provisions due to the lack of available data that would be required to justify their inclusion.” 77 FR 13888, 13900 (Mar. 7, 2012). Consistent with the goals of the “smart products” RFI, DOE will ensure that it does not impede innovation in the development of smart or connected products in considering any amendments to the test procedure for clothes washers with regard to measuring the energy use of connected features.

Issue II.B.3. DOE requests comment on whether changes to the current clothes washer test procedure would advance the goal of the “smart products” RFI. In particular, DOE seeks comment on adding a clarifying provision that would require testing to be conducted with any network functionality turned off, or without measuring or reporting the energy use of the clothes washer in network mode.

Issue II.B.4. DOE requests data on the percentage of users purchasing connected RCWs who activate the connected capabilities, and, for those users, the percentage of the time when the connected functionality of the RCW is activated and using additional energy.

DOE seeks to understand the potential effects of connected functionality as it relates to a clothes washer's energy use or energy efficiency, including the following:

• Hardware or software-related energy use implications of such features; for example, whether including communication chips on a circuit board could affect a product's energy consumption in standby mode.

• Consumer behavioral energy use implications of such features; for example, allowing the consumer to remotely activate a “wrinkle prevention” feature that periodically tumbles the drum after completion of a wash cycle would increase that cycle's energy use.

• Utility grid-level benefits enabled by such features; for example, using demand response capabilities to shift power loads from peak periods to off-peak periods and possibly automating cycle starts to coincide with periods of off-peak pricing.

Issue II.B.5. DOE requests data on the amount of additional or reduced energy use by connected clothes washers. DOE also requests data on the pattern of additional or reduced energy use; for example, whether it is constant, periodic, or triggered by the user.

Issue II.B.6. DOE requests information about which existing modes ( e.g., active, standby, off) are affected by connected functionality.

Issue II.B.7. DOE requests information on any existing testing protocols that account for connected features of clothes washers.

Section 2.2 of Appendix J2 requires maintaining the hot water supply temperature between 130 degrees Fahrenheit (“°F”) (54.4 degrees Celsius (“°C”)) and 135 °F (57.2 °C), using 135 °F as the target temperature.

DOE has revised the hot water supply temperature requirements several times throughout the history of the clothes washer test procedure to remain representative of household water temperatures at the time of its analysis. When establishing the original clothes washer test procedure at Appendix J in 1977, DOE specified a hot water supply temperature of 140 °F ± 5 °F. In the August 1997 Final Rule, DOE specified in Appendix J1 that for clothes washers in which electrical energy consumption or water energy consumption is affected by the inlet water temperature, 9 the hot water supply temperature cannot exceed 135 °F (57.2 °C); and for other clothes washers, the hot water supply temperature is to be maintained at 135 °F ± 5 °F (57.2 °C ± 2.8 °C). 62 FR 45484, 45497. DOE maintained these same requirements in the original version of Appendix J2. In the August 2015 Final Rule, DOE adjusted the allowable tolerance of the hot water supply temperature in section 2.2 of Appendix J2 to between 130 °F (54.4 °C) and 135 °F (57.2 °C) for all clothes washers, but maintained 135 °F as the target temperature. 80 FR 46729, 46734.

DOE most recently analyzed household water temperatures as part of the consumer water heater test procedure rulemaking. In the July 11, 2014, consumer water heater test procedure final rule, DOE revised the hot water delivery temperature from 135 °F to 125 °F. 79 FR 40541, 40554. This change was primarily based on data available in DOE's analysis for the April 16, 2010, consumer water heater energy conservation standards final rule, which found that the average set point temperature for consumer water heaters in the field is 124.2 °F (51.2 °C). 75 FR 20111. Additionally, a 2011 compilation of field data across the United States and southern Ontario by Lawrence Berkeley National Laboratory (“LBNL”)  10 found a median daily outlet water temperature of 122.7 °F (50.4 °C). 79 FR 40541, 40554. Further, DOE noted in the consumer water heater energy conservation standards final rule that water heaters are commonly set with temperatures in the range of 120 °F to 125 °F. Id.

Additionally, DOE's consumer dishwasher test procedure, codified at 10 CFR part 430 subpart B, appendix C1, specifies a hot water supply temperature of 120 °F ± 2 °F for water-heating dishwashers designed for heating water with a nominal inlet temperature of 120 °F, which includes nearly all consumer dishwashers currently on the U.S. market.

Issue II.B.8. DOE requests comments on whether DOE should consider updating the hot water supply temperature for the clothes washer test procedure. DOE also requests information on the use of the current hot water supply temperature for clothes washers in relation to the consumer water heater and dishwasher test procedures. Specifically, DOE is interested in data and information on the hot water temperature used in practice, any potential impact to testing costs that may occur by harmonizing temperatures between the clothes washer and dishwasher test procedures, and the impacts on manufacturer burden associated with any changes to the hot water supply temperature.

Based on experience working with third-party test laboratories, as well as its own testing experience, DOE recognizes that maintaining 135 °F as the target temperature for the hot water supply may be difficult given that the target temperature of 135 °F lies at the edge, rather than the midpoint, of the allowable temperature range of 130 °F to 135 °F. On electronic temperature mixing valves typically used by test laboratories, the output water temperature is maintained within an approximately two-degree tolerance above or below a target temperature programmed by the user ( e.g., if the target temperature is set at 135 °F, the controller may provide water temperatures ranging from 133 °F to 137 °F). To ensure that the hot water inlet temperature remains within the allowable range of 130 °F to 135 °F, such a temperature controller would need to be programmed to 132.5 °F, the midpoint of the range, which conflicts with the test procedure requirement to use 135 °F as the target temperature. An analogous difficulty exists for the cold water inlet temperature. Section 2.2 of appendix J2 specifies maintaining a cold water temperature between 55 °F and 60 °F, using 60 °F as the target.

Issue II.B.9. DOE requests comments on whether it should consider any changes to the target temperature or allowable range of temperatures specified for the hot and cold water inlets, and if so what alternate specifications should be considered.

Changing the hot water supply temperature could change the relative hot and cold water usage of clothes washers with thermostatically controlled mixing valves, which includes nearly all clothes washers in the current market. If DOE were to update the supply water temperature, DOE would also investigate what impact, if any, such a change would have on a clothes washer's measured IMEF value. DOE seeks comment on such impact in response to this RFI.

Issue II.B.10. DOE requests comments on how any changes to the hot water supply temperature would impact a clothes washer's measured IMEF value.

In the August 2015 Final Rule, DOE amended section 3.3 of Appendix J2, “Extra-Hot Wash/Cold Rinse,” to allow the use of non-reversible temperature indicator labels to confirm that a wash temperature greater than 135 °F has been achieved. 80 FR 46729, 46753. Since the publication of the August 2015 Final Rule, DOE has become aware that some third-party laboratories measure wash temperature using self-contained temperature sensors in a waterproof casing placed inside the clothes washer drum.

Issue II.B.11. DOE requests comments on manufacturers' or test laboratories' experience with these or any other methods for determining the temperature during a wash cycle that may reduce manufacturer burden, including any information regarding the reliability and accuracy of those methods.

Appendix J2 requires the use of water meters to measure water flow and/or water consumption. Section 2.5.5 of Appendix J2 requires a resolution no larger than 0.1 gallons for the water meters, and a maximum error no greater than 2 percent of the measured flow rate. DOE has observed that some clothes washers use very small amounts of hot water on some temperature selections, on the order of 0.1 gallons or less. For example, some clothes washers have both Cold and Tap Cold temperature selections, and the Cold selection may use a fraction of a gallon of hot water. DOE believes that Appendix J2 may not provide the necessary resolution to accurately and precisely measure the hot water usage of such temperature selections.

Issue II.B.12. DOE requests comments on the benefits and test burden of requiring a water meter with a resolution more precise than 0.1 gallons. Additionally, DOE requests comments on manufacturers' and testing laboratories' experiences in testing with a water meter with a resolution more precise than 0.1 gallons, including information on related testing burden and benefits.

Section 2.10 of Appendix J2 provides specifications for installing a clothes washer, referencing both the hot water and cold water inlets. Additionally, section 2.5.5 of Appendix J2 specifies that a water meter must be installed in both the hot and cold water lines.

DOE is aware of RCWs on the market that have a single water inlet rather than separate hot and cold water inlets. DOE has observed two types of single-inlet RCWs: (1) Automatic clothes washers intended to be connected only to a cold water inlet, and which regulate the water temperature through the use of internal heating elements to generate any hot water used during the cycle; and (2) semi-automatic clothes washers that are intended to be connected to a kitchen or bathroom faucet, and which require user intervention to regulate the water temperature by adjusting the external water faucet valves.

Issue II.B.13. DOE requests input on whether any other types of single-inlet clothes washers exist on the market today or are under development.

For a single-inlet automatic clothes washer ( i.e., the first example described above), DOE understands that a “Y”-shaped hose connector or other similar device may be provided by the manufacturer on some models to allow both water supply lines to be connected to the single inlet on the unit; however, other models may not include such a connector. DOE is considering whether testing single-inlet automatic clothes washers installed to only the cold water supply line during the test would be representative of the energy used during a representative average use cycle or period of use.

Issue II.B.14. DOE requests comments or information on how single-inlet automatic clothes washers are typically installed by customers. Specifically, DOE requests information on the percentage of single-inlet automatic clothes washers sold with a Y-shaped hose connector or similar such device; the extent that consumers use any provided device; and in instances in which no device is provided, whether it is typical for customers to connect the water inlet to a cold or hot water supply line.

For single-inlet semi-automatic clothes washers ( i.e., the second example described above), DOE has observed that these clothes washers are most often designed to be connected to a kitchen or bathroom faucet, with a single hose connecting the faucet to the single inlet on the clothes washer ( i.e., both cold and hot water are supplied to the clothes washer through a single hose). The user regulates the water temperature externally by adjusting the faucet to provide cold, warm, or hot water temperatures for the wash and rinse portions of the cycle. Appendix J2 specifies the use of two separate water supply connections, one for cold water and one for hot water. Connecting a single-inlet semi-automatic clothes washer to only a single water supply would limit the available water temperature to either 60 °F (provided by the cold water supply) or 135 °F (provided by the hot water supply). In effect, only Cold Wash/Cold Rinse or Hot Wash/Hot Rinse could be tested with a single-hose installation. Appendix J2 does not provide explicit direction on how to connect a single-inlet semi-automatic clothes washer to allow testing at other wash/rinse temperatures. DOE seeks data on whether, and if so how, consumers using this type of clothes washer adjust the water temperature for the wash and rinse portions the cycle. Section II.B.6 of this document provides further details on wash/rinse temperature selections for semi-automatic clothes washers. DOE also seeks comment on how such clothes washers are currently tested.

Issue II.B.15. DOE requests comments, data, and information on the typical connection and representative average use of single-inlet semi-automatic clothes washers. Additionally, DOE requests information on how manufacturers are currently testing single-inlet semi-automatic clothes washers under Appendix J2.

Section 3.2.9 of appendix J2 specifies to “discard the data from a wash cycle that provides a visual or audio indicator to alert the user that an out-of-balance condition has been detected, or that terminates prematurely if an out-of-balance condition is detected, and thus does not include the agitation/tumble operation, spin speed(s), wash times, and rinse times applicable to the wash cycle under test.” Aside from out-of-balance conditions, DOE seeks input on whether the test procedure should also require discarding data for wash cycles in which any other anomalous behavior may be observed. DOE also requests information on whether the test procedure should be clarified to explicitly require that any wash cycle for which data was discarded due to anomalous behavior must also be repeated to obtain data without the anomalous behavior to be included in the energy test cycle.

Issue II.B.16. DOE requests comment on whether the test procedure should exclude data from wash cycles in which any other type of anomalous behavior aside from out-of-balance conditions is observed. If so, DOE requests further comment on how such anomalies could be defined in the test procedure and detected by the testing party, particularly when testing only a single unit of a basic model ( i.e., with no basis for comparison against other units of the same basic model to determine whether the observed behavior is anomalous). DOE additionally requests comment on whether the test procedure should clarify that any wash cycle for which data was discarded due to anomalous behavior must be repeated to obtain valid data for that wash cycle without such anomalous behavior.

DOE originally developed the energy test cloth specifications as part of the January 2001 Final Rule, based on the results of a detailed investigation of the cloth material used for testing. 11 In particular, DOE observed that the material properties of the energy test cloth had a significant effect on the RMC measurement, 12 which was added to Appendix J1 to measure the effectiveness of the final spin cycle in removing moisture from the wash load. As described in the test cloth report, the final specifications for the energy test cloth were developed to provide for the representativeness of the test cloth to a consumer load: A 50-percent cotton/50-percent polyester blended material was specified to approximate the typical mix of cotton, cotton/polyester blend, and synthetic articles that are machine-washed by consumers. DOE also considered:

• Manufacturability: A 50/50 cotton-polyester momie weave was specified because at the time, such cloth was produced in high volume, had been produced to a consistent specification for many years, and was expected to be produced on this basis for the foreseeable future.

• Consistency in test cloth production: The cloth material properties were specified in detail, including fiber content, thread count, and fabric weight; as well as requirements to verify that water repellent finishes are not applied to the cloth.

• Consistency of the RMC measurement among different lots: A procedure was developed to generate correction factors for each new “lot” ( i.e., batch) of test cloth to normalize test results and ensure consistent RMC measurements regardless of which lot is used for testing.

DOE understands that the qualification process for new test cloth lots may be burdensome and that delays in the process may periodically lead to shortages of test cloth available for purchase. Furthermore, it is possible that different energy test cloth specifications could more optimally balance the various factors addressed by the test cloth specification.

Issue II.B.17. DOE requests comments on manufacturers' and testing laboratories' experience using the current test cloth specifications and whether DOE should consider any changes to the energy test cloth specifications to reduce burden and improve testing results. DOE also seeks comment on whether it is necessary to specify any qualification procedure that must be conducted on all new lots of energy test cloth prior to use of such test cloths, as opposed to simply providing requirements for the test cloth without specifying in DOE's regulations the procedure for achieving those requirements. Industry could then continue with its current pre-qualification process, making changes as it determined necessary to improve that process, without the need to seek permission from DOE and participate in a rulemaking proceeding to make such improvements.

Appendix J3 specifies a qualification procedure that must be conducted on all new lots of energy test cloth prior to use of such test cloths. This qualification procedure provides a set of correction factors that correlate the measured RMC values of the new test cloth lot with a set of standard RMC values established as the historical reference point. These correction factors are applied to the RMC test results in section 3.8.2.6 of appendix J2 to ensure the repeatability and reproducibility of test results performed using different lots of test cloth. The measured RMC of each clothes washer has a significant impact on the final IMEF value.

Industry has developed a process in which this qualification test is performed by a third-party laboratory, and the results are reviewed and approved by the AHAM Test Cloth Task Force, after which the new lot of test cloth is made available for purchase by manufacturers and test laboratories.

DOE has received a request from members of the AHAM Test Cloth Task Force to add to Appendix J3 an additional qualification procedure that has historically been performed on each new lot of test cloth to ensure uniformity of RMC test results on test cloths from the beginning, middle, and end of each new lot. Industry practice is to perform this uniformity test before conducting the procedure to develop the RMC correction factors currently specified in the DOE test procedure, as described above. Specifically, the uniformity test involves performing an RMC measurement on nine bundles of sample cloth representing the beginning, middle, and end locations of the first, middle, and last rolls of cloth in a new lot. The coefficient of variation across the nine RMC values must be less than or equal to 1 percent for the test cloth lot to be considered acceptable for use.

Issue II.B.18. DOE requests comments on whether it is necessary to incorporate the aforementioned test cloth uniformity test into Appendix J3, or whether the current regulations, with the existing requirements for test cloth and qualification procedure, are sufficient to ensure the quality of the test cloth. DOE requests comment on any burden that results from the current qualification procedure, or would result from incorporating the discussed uniformity test, particularly for small businesses. As noted above, DOE also seeks comment on whether it is necessary to specify any qualification procedure that must be conducted on all new lots of energy test cloth prior to use of such test cloths, as opposed to simply providing requirements for the test cloth without specifying in DOE's regulations the procedure for achieving those requirements. Industry could then continue with its current pre-qualification process, making changes as it determined necessary to improve that process, without the need to seek permission from DOE and participate in a rulemaking proceeding to make such improvements.

Several provisions within Appendix J2 that pertain to the energy test cloth are applicable to each new lot of test cloth, but are not required to be conducted again for each individual clothes washer test performed under Appendix J2. For example, section 2.7.4.6 of Appendix J2 specifies performing American Association of Textile Chemists and Colorists (“AATCC”) Test Method 118-2007 and AATTCC Test Method 79-2010 (incorporated by reference in 10 CFR 430.3) to verify that water-repellent finishes, such as fluoropolymer stain resistant finishes, are not applied to the test cloth.

Based on discussions with the AHAM Test Cloth Task Force, DOE is aware that these AATCC test methods, among other test cloth provisions in section 2.7 of Appendix J2, are performed by a third-party laboratory on each new lot of test cloth, along with the RMC tests described previously. Once the absence of water-repellent finishes has been verified for the new lot of test cloth, the AATCC tests do not need to be conducted again for each individual Appendix J2 clothes washer test performed by manufacturers or test laboratories.

Issue II.B.19. DOE requests comments on whether to consolidate into Appendix J3 provisions from section 2.7 of Appendix J2 that relate only to the testing of the manufactured test cloth, and are not required to be performed for each individual Appendix J2 clothes washer test. DOE also seeks comment on whether to remove these provisions entirely (see Issues II.B.17 and II.B.18).

Section 3.1 of Appendix J2 provides the procedure for measuring the clothes container capacity, which represents the maximum usable volume for washing clothes. In the March 2012 Final Rule, DOE revised the clothes container capacity measurement to better reflect the actual usable capacity compared to the previous measurement procedures. 77 FR 13887, 13917. In the August 2015 Final Rule, DOE further clarified the capacity measurement procedure by incorporating a revised description of the maximum fill volume for front-loading clothes washers, as well as illustrations of the boundaries defining the uppermost edge of the clothes container for top-loading vertical-axis clothes washers and the maximum fill volume for horizontal-axis clothes washers. 80 FR 46729, 46733.

Measuring the clothes container capacity involves filling the clothes container with water and using the weight of the water to determine the volume of the clothes container. For front-loading clothes washers, this procedure requires positioning the clothes washer on its back surface such that the door opening of the clothes container faces upwards and is leveled horizontally.

DOE is aware that for some front-loading clothes washers, positioning the clothes washer on its back surface may be impractical or unsafe, particularly for very large or heavy clothes washers or those with internal components that could be damaged by the procedures outlined in section 3.1 of Appendix J2. On other clothes washers, filling the clothes container volume as described could be difficult or impractical, particularly for clothes washers with concave or otherwise complex door geometries.

Recognizing these challenges, DOE is considering whether to allow manufacturers to determine the clothes container capacity by performing a calculation of the volume based upon computer-aided design (“CAD”) models of the basic model in lieu of physical measurements of a production unit of the basic model. DOE allows a CAD-based approach for consumer refrigerators, refrigerator-freezers, and freezers, as specified at 10 CFR 429.27(c). 13

Issue II.B.20. DOE requests comments on whether to allow CAD-based determination of clothes container capacity for clothes washers in lieu of physical measurements of a production unit of the basic model. DOE requests comments on the impacts on manufacturer burden associated with any such change to the capacity measurement procedure.

As the clothes washer market evolves to include clothes washers with increasingly larger capacities, DOE understands that for larger-capacity clothes washers, the capacity value as measured by Appendix J2, which is intended to reflect the maximum usable volume, may not necessarily result in a test method that measures the energy efficiency and water use of the clothes washer during a representative average use cycle or period of use.

In addition, DOE understands that in Europe and elsewhere ( e.g., the United Arab Emirates, Australia, and New Zealand), clothes washer capacity is represented in terms of the weight of clothing ( e.g., kilograms or pounds) that may be washed, rather than the physical volume of the clothes container. Furthermore, some international test procedures allow for the clothes washer capacity to be declared by the manufacturer, representing the maximum weight of clothing that the clothes washer is designed to successfully clean.

Some of the alternate representations of clothes washer capacity that DOE could consider include:

• A weight-based capacity, such as pounds of clothing, which could be derived from the measured volume of the clothes container in a similar manner to the way that the maximum test load is currently specified in Table 5.1 of Appendix J2 based on the measured clothes container volume.

• A clothes container capacity that is declared by the manufacturer using an industry-standard methodology. For example, IEC Standard 60456, “Clothes washing machines for household use—Methods for measuring the performance” Edition 5.0 (“IEC Standard 60456 Edition 5.0”) provides two optional methodologies for determining test load mass, using either table tennis balls or water. 14

Issue II.B.21. DOE requests comment on whether to consider any changes to the representation of clothes washer capacity, including, but not limited to, a weight-based capacity or manufacturer-declared capacity based on an industry-standard methodology. Specifically, DOE requests comment on whether the two methodologies provided in IEC Standard 60456 Edition 5.0 provide capacity measurements that result in a test method that measures the energy use of the clothes washer during a representative average use cycle or period of use.

DOE recently issued an RFI to seek more information on whether its test procedures are reasonably designed, as required by EPCA, to produce results that measure the energy use or efficiency of a product during a representative average use cycle or period of use. 84 FR 9721 (Mar. 18, 2019). DOE seeks comment on this issue as it pertains to the test procedure for clothes washers, and specifically to all of the issues and comment requests set forth in the following paragraphs.

Table 2.8 within section 2.8 of Appendix J2 requires that, for clothes washers with manual water fill control systems, each temperature selection that is part of the energy test cycle be tested using both the minimum and maximum water fill levels, using the minimum and maximum load sizes, respectively. 15 Section 3.2.6 of Appendix J2 describes these water fill levels as the minimum and maximum water levels available for the wash cycle under test. DOE has observed at least one clothes washer with electronic controls in which the maximum water fill level on the unit cannot be selected ( i.e., is “locked out”) with one of the temperature selections required for testing; on that temperature setting, the maximum water fill that can be selected is one of the intermediate fill levels on the unit. The resulting water fill level (which is a significantly lower fill level) is thus misaligned with the maximum load size required for that particular cycle under test. Using a maximum load size with an intermediate water fill level may not provide results that measure energy efficiency and water use during a representative average use cycle or period of use, since the locking out of the maximum water fill level indicates that the particular temperature selection is not intended to be used with a maximum load size. More generally, electronic controls on such a clothes washer could lock out either the minimum or maximum water fill level available on the unit from any of the temperature selections required for testing under Appendix J2, rendering the resulting water fill level for that temperature selection inappropriate for the maximum (or minimum) load size defined for the unit.

DOE previously addressed the issue of locked-out water fill levels in a notice of proposed rulemaking (“NOPR”) published on May 24, 1995. 60 FR 27442, 27444. At that time, three manufacturers expressed concern about the possibility of a maximum water level being locked out. DOE stated that it was not aware of any products employing such lockout designs at that time, but should such designs emerge, they could be addressed in a future rulemaking. Id.

DOE welcomes input from interested parties on how the test procedure should accommodate locked-out water fill levels required for testing. As discussed, the current test procedure requires that the maximum load size be tested with the maximum water fill level available in combination with the selected temperature selection, which may be a lower fill level than the maximum available on the machine and not intended for maximum size clothing loads. DOE would consider other approaches that would produce results that measure energy efficiency or water use during a representative average use cycle or period of use for this category of clothes washer.

Issue II.B.22. DOE requests comments on how clothes washers with locked-out water fill levels could be tested. DOE also requests data on the water level that consumers use on this type of clothes washer when a specific water level is locked-out.

Section 3.8.4 of Appendix J2 requires that for clothes washers that have multiple spin settings  16 available within the energy test cycle that result in different RMC values, the maximum and minimum extremes of the available spin settings must be tested on the Cold/Cold temperature selection. The final RMC is the weighted average of the maximum and minimum spin settings, with the maximum spin setting weighted at 75 percent and the minimum spin setting weighted at 25 percent. DOE is aware of clothes washers on the market that offer multiple spin settings, but which offer only the maximum spin setting on the Cold/Cold temperature selection; i.e., the minimum spin setting is locked out of the Cold/Cold temperature selection. This results in the lower spin setting not being factored into the RMC calculation, despite being available at other temperature selections in the energy test cycle. According to the TUF Table 4.1.1 in Appendix J2, the Cold/Cold temperature selection represents 37 percent of consumer temperature selections, with the other available temperature selections, for which the lower spin settings are available, representing a combined 63 percent of clothes washer cycles.

Issue II.B.23. DOE requests comment on testing for clothes washers that offer only the maximum spin setting on the Cold/Cold temperature selection but provide lower spin settings on other temperature selections. For example, RMC could be measured at the default spin setting for each temperature selection, and averaged using the TUFs. DOE requests data on the extent to which this or any other suggested approach measures the energy use of the clothes washer during a representative average use cycle or period of use. DOE also seeks data on the burden that may be added or reduced as a result of these other testing configurations.

Issue II.B.24. DOE requests input on whether any changes to the RMC measurement are warranted to address the issue of locked-out spin settings, taking into account the requirements that the test procedure must be reasonably designed to measure the energy use of the clothes washer during a representative average use cycle or period of use and not be unduly burdensome to conduct.

Section 3.5 of Appendix J2 states that for a clothes washer that offers four or more Warm Wash/Cold Rinse temperature selections, either all discrete selections shall be tested, or the clothes washer shall be tested at the 25-percent, 50-percent, and 75-percent positions of the temperature selection device between the hottest hot (≤135 °F (57.2 °C)) wash and the coldest cold wash. If a selection is not available at the 25, 50 or 75-percent position, in place of each such unavailable selection, the next warmer temperature selection shall be used. Hereafter in this document, DOE refers to the latter provision as the “25/50/75 test.”

DOE introduced the 25/50/75 test in the original version of Appendix J1, as established by the August 1997 Final Rule, out of concern regarding the test burden for clothes washers that offer a large number of intermediate warm wash temperature selections, if the test procedure were to require testing all intermediate warm temperature selections. 62 FR 45484, 45497. DOE had originally proposed a similar method  17 in the April 22, 1996 supplemental NOPR (“April 1996 SNOPR”) preceding the August 1997 Final Rule, for clothes washers having infinite warm wash selections that are non-uniformly distributed. 61 FR 17589, 17599. In the August 1997 Final Rule, DOE agreed with a suggested option to consider clothes washers with more than three warm wash temperatures to be clothes washers with infinite warm wash temperature selections, therefore allowing them to also use the 25/50/75 test. 62 FR 45484, 45498. DOE concluded at that time that testing at the various test points of the temperature range, with a requirement to test to the next higher selection if a temperature selection is not available at a specified test point, would provide data representative of the warm wash temperature selection offerings. Id.

DOE notes that the 25/50/75 test was adopted before the widespread use of electronic controls, which now allow for the assignment of wash water temperatures that may not reflect the physical spacing between temperature selections on the control panel. For example, with electronic controls, the 25-percent, 50-percent, and 75-percent positions on the dial may not necessarily correspond to 25-percent, 50-percent, and 75-percent temperature differences between the hottest and coldest selections. DOE is aware of clothes washers on the market with four or more warm wash temperature selections, in which the temperature selections located at the 25, 50, and 75-percent positions are low-temperature cycles that have wash temperatures only a few degrees higher than the coldest wash temperature; whereas the temperature selection labeled “Warm” is located beyond the 75 percent position on the temperature selection dial and is therefore not included for testing under the 25/50/75 test.

Issue II.B.25. DOE requests feedback on the representativeness of using the 25/50/75 test on clothes washers with electronic controls; particularly for clothes washers in which the 25-percent, 50-percent, and 75-percent positions on the dial do not correspond to 25-percent, 50-percent, and 75-percent temperature increments between the hottest and coldest selections.

Issue II.B.26. DOE also seeks information on alternative approaches for testing clothes washers with four or more Warm Wash/Cold Rinse temperature selections that would ensure that the test procedure is reasonably designed to measure the energy use of the clothes washer during a representative average use cycle or period of use, and is not unduly burdensome to conduct. Specifically, DOE requests comment on whether there is a less burdensome means for the test procedure to be reasonably designed to measure energy use or efficiency of the clothes washer during a representative average use cycle.

DOE is aware of clothes washers on the market that draw only cold water and internally generate all hot water that may be required for a cycle by means of internal heating elements. As observed on the market, these clothes washers offer cold, warm, hot, and extra hot temperature selections. As part of determining the Cold Wash/Cold Rinse temperature selection, the instruction box in the flowchart in Figure 2.12.1 of Appendix J2 refers to “. . . multiple wash temperature selections in the Normal cycle [that] do not use any hot water for any of the water fill levels or test load sizes required for testing . . .” DOE is considering rephrasing the text in Figure 2.12.1 of Appendix J2 to say “. . . use or internally generate any heated water . . .” (emphasis added) so that the wording of the Cold Wash/Cold Rinse flowchart in Figure 2.12.1 of Appendix J2 explicitly addresses these clothes washers. This change would reflect DOE's interpretation of the current Cold Wash/Cold Rinse flowchart and subsequent flowcharts for the Warm Wash and Hot Wash temperature selections for this type of clothes washer.

Issue II.B.27. DOE requests input on revising the phrasing of Figure 2.12.1 of Appendix J2 to specifically address the test method for clothes washers that internally generate all hot water used for a cycle by means of internal heating elements. DOE also seeks comment on whether and if so, to what extent, this change would affect the measured energy use of these clothes washers as compared to the current test procedure.

Table 2.8 of Appendix J2 prescribes the required test load sizes based on the type of water fill control system (“WFCS”) on the clothes washer. Appendix J2 defines two main types of WFCS: Manual WFCS and automatic WFCS, which includes adaptive WFCS and fixed WFCS. Section 3.2.6.2 of Appendix J2 further distinguishes between user-adjustable and not-user-adjustable automatic WFCSs. Additionally, section 3.2.6.3 of Appendix J2 accommodates clothes washers that have both an automatic WFCS and an alternate manual WFCS.

As electronic control panels become more sophisticated, determining which type of WFCS is used in a particular clothes washer can be difficult. Furthermore, the use of an electronic control panel enables a clothes washer to have combinations of WFCSs that were previously unforeseen and therefore not addressed in the test procedure ( e.g., multiple different adaptive WFCSs, or both adaptive and fixed WFCSs). The following are examples of such clothes washers that DOE has observed on the market:

Example #1: A clothes washer that uses an adaptive WFCS but includes an optional cycle modifier, most typically in the form of a control panel button, that affects the water level by adding either more or less water than would otherwise be used by the adaptive WFCS. DOE has observed several types of such optional cycle modifiers, such as “deep fill” and “water plus,” which use more water than the default adaptive WFCS; and “eco,” which uses less water than the default adaptive WFCS.

Example #2: A clothes washer that defaults to a fixed maximum water level if the user takes no action ( i.e., a fixed WFCS), and that offers a single optional button that provides a lower fill level than the default fill level if activated.

Example #3: A clothes washer with a control panel that allows the user to choose between two separate automatic WFCSs: One of which is an adaptive WFCS, and the other is a fixed WFCS that provides the maximum fill level regardless of load size ( e.g., “deep fill”).

Example #4: A clothes washer with a control panel that allows the user to choose between two separate adaptive WFCSs: One that provides more efficient performance; and the other that provides higher fill levels, both of which adapt to the size of the clothing load.

Example #5: A clothes washer with a separate cycle labeled “deep fill,” as an alternative to the Normal cycle.

Issue II.B.28. DOE requests input on whether any changes are warranted for the definitions of automatic WFCS, manual WFCS, adaptive WFCS, and fixed WFCS, specifically in the context of clothes washers currently on the market, and whether the current definitions appropriately reflect the products currently available. DOE also requests input on whether a definition of user-adjustable automatic WFCS should be considered, and if so, how it could be defined to best reflect the type of user-adjustable WFCSs currently on the market. Comments are also welcome on whether a less complex method of WFCS differentiation could be used that would still result in the test procedure being reasonably designed to measure energy efficiency and water use of clothes washers during a representative average use cycle or period of use, and not be unduly burdensome to conduct.

Issue II.B.29. As an alternative to considering revisions to the definitions of each type of WFCS, DOE could consider alternate approaches, such as using a flow chart—similar to the energy test cycle flowcharts in section 2.12 of Appendix J2—to guide the determination of which type of WFCS is available on a clothes washer. DOE requests comment on such an approach.

Issue II.B.30. DOE requests input on an approach that would result in a measurement of energy and water use during a representative average use cycle for clothes washers with unconventional WFCSs, such as in the examples provided, including the impacts on manufacturer burden associated with any such approach.

Section 3.2.6.3 of Appendix J2 states that if a clothes washer with an automatic WFCS allows consumer selection of manual controls as an alternative, both the manual and automatic modes are tested. The energy and water consumption values are measured separately under each mode and then averaged; the average values are then used in the final calculations in section 4 of Appendix J2. The averaging of each value implies a 50-percent usage factor for each of the available WFCSs on the clothes washer.

Section 3.2.6.2.2 of Appendix J2 provides instructions for a clothes washer with a user-adjustable automatic WFCS. For this type of WFCS, four tests are conducted: (1) The first test uses the maximum test load and the automatic WFCS set in the setting that will give the most energy intensive result; (2) the second test uses the minimum test load and the automatic WFCS set in the setting that will give the least energy intensive result; (3) the third test uses the average test load and the automatic WFCS set in the setting that will give the most energy intensive result for the given test load; and (4) the fourth test uses the average test load and the automatic WFCS set in the setting that will give the least energy intensive result for the given test load. The energy and water consumption for the average test load are the average of the third and fourth tests' results.

Issue II.B.31. DOE requests comment on whether the above test procedure requiring four separate tests meets the EPCA requirements of measuring the energy and water use during a representative average use cycle and not being unduly burdensome to conduct, and whether an approach that required less than four tests would meet this EPCA requirement.

Issue II.B.32. DOE requests comments on the representativeness of the WFCS setting and load size combinations tested for clothes washers with both automatic and manual WFCSs, as well as clothes washers with user-adjustable automatic WFCSs.

Section 3.2.5 of Appendix J2 defines how to select the wash time setting on a clothes washer. If no one wash time is prescribed for the wash cycle under test, the wash time setting is the higher of either the minimum or 70 percent of the maximum wash time available, regardless of the labeling of suggested dial locations. Hereafter in this document, DOE refers to this provision as the “70-percent test.”

In the March 2012 Final Rule, DOE added instructions to the wash time section of Appendix J1 and Appendix J2 that specified the direction of rotation of electromechanical dials, and that the 70-percent test applies regardless of the labeling of suggested dial locations. 77 FR 13887, 13927. In the August 2015 Final Rule, DOE specified that, if 70-percent of the maximum wash time is not available on a dial with a discrete number of wash time settings, the next-highest setting greater than 70-percent must be chosen. 80 FR 46729, 46745. DOE is considering, as described in the following sections, whether additional changes to section 3.2.5 of Appendix J2 are warranted to provide further clarity, particularly with regard to how the wash time setting should be interpreted for electronic control dials.

DOE has observed on the market clothes washers that have an electronic cycle selection dial designed to visually simulate a conventional electromechanical dial. 18 In particular, DOE has observed clothes washers with an electronic dial that offers multiple Normal cycle selections; for example, “Normal-Light,” “Normal-Medium,” and “Normal-Heavy,” with the descriptor referring to the soil level of the clothing. On such clothes washers, the only difference between the three Normal cycles apparent to consumers when performing each cycle may be the wash time, although other less observable parameters may also differ. Although the electronic dial simulates the visual appearance of an electromechanical dial, the electronic dial is programmed with a pre-established set of wash cycle parameters, including wash time, for each of the discrete cycle selections presented on the machine. For this type of cycle selection dial, each of the discrete cycle selection options represents a selectable “wash cycle” as referred to in section 3.2.5 of Appendix J2, and a wash time is prescribed for each available wash cycle. Therefore, for clothes washers with this type of electronic dial, the wash cycle selected for testing must correspond to the wash cycle that meets the definition of Normal cycle in section 1.25 of Appendix J2. The wash time setting thus would be the prescribed wash time for the selected wash cycle; i.e., the 70-percent test would not apply to this type of dial. DOE is considering whether any changes to section 3.2.5 of Appendix J2 are warranted to qualify further which type of dial would be subject to the 70-percent test.

Issue II.B.33. DOE requests feedback on whether section 3.2.5 of Appendix J2 should be further clarified regarding electronic cycle selection dials that visually simulate conventional electromechanical dials.

Section 3.2.5 of Appendix J2 also states that, for clothes washers with electromechanical dials controlling wash time, the dial must be turned in the direction of increasing wash time to reach the appropriate wash time setting. DOE is aware that not all electromechanical dials currently on the market can be turned in the direction of increasing wash time. On such models, the dial can only be turned in the direction of decreasing wash time. DOE believes that the direction of rotation need only be prescribed on a clothes washer with an electromechanical dial that can rotate in both directions. Therefore, DOE is considering further amending section 3.2.5 of Appendix J2 to clarify that the requirement to rotate the dial in the direction of increasing wash time applies only to dials that can rotate in both directions.

Issue II.B.34. DOE requests comment on its understanding of the functioning of dials currently on the market, specifically with regard to the direction(s) of rotation and whether the wording of section 3.2.5 of Appendix J2 warrants revision to clarify that the requirement to rotate the dial in the direction of increasing wash time applies only to dials that can rotate in both directions.

Finally, DOE is considering whether to state that the phrase “wash time” in section 3.2.5 of Appendix J2 refers to the period of agitation or tumble. This clarification would be consistent with the historical context of this section of the test procedure. In Appendix J as established by the September 1977 Final Rule, section 2.10 Clothes washer setting defined “wash time” as the “period of agitation.” As part of the January 2001 Final Rule, DOE amended section 2.10 of Appendix J by renaming it Wash time (period of agitation or tumble) setting. 19 66 FR 3313, 3330. When establishing Appendix J1 in the August 1997 Final Rule, DOE did not include reference to “period of agitation” in section 2.10 of Appendix J1. 62 FR 45484, 45510. DOE did not address this difference from Appendix J in the preamble of the August 1997 Final Rule or the NOPRs that preceded that final rule, but given the continued reference to “wash time” in Appendix J1, did not intend to change the general understanding that wash time refers to the wash portion of the cycle, which includes agitation or tumble time. DOE has since further amended section 2.10 of both Appendix J1 and Appendix J2 as part of the March 2012 Final Rule and August 2015 Final Rule (in which section 2.10 was renumbered as section 3.2.5), with no discussion in these final rules of the statement that remained in Appendix J, where wash time referred to agitation or tumble time. DOE further notes that in current RCW models on the market, agitation or tumble may be periodic or continuous during the wash portion of the cycle.

Issue II.B.35. DOE requests feedback on whether DOE should consider reincorporating language into section 3.2.5 of Appendix J2 to clarify that the term “wash time” refers to the wash portion of the cycle, including agitation or tumble time.

Section 3.2.7 of Appendix J2 states that for clothes washers with electronic control systems, the manufacturer default settings must be used for any cycle selections, except for (1) the temperature selection, (2) the wash water fill levels, or (3) if necessary, the spin speeds on wash cycles used to determine RMC. Specifically, the manufacturer default settings must be used for wash conditions such as agitation/tumble operation, soil level, spin speed on wash cycles used to determine energy and water consumption, wash times, rinse times, optional rinse settings, water heating time for water-heating clothes washers, and all other wash parameters or optional features applicable to that wash cycle. Any optional wash cycle feature or setting (other than wash/rinse temperature, water fill level selection, or spin speed on wash cycles used to determine RMC) that is activated by default on the wash cycle under test must be included for testing unless the manufacturer instructions recommend not selecting this option, or recommend selecting a different option, for washing normally soiled cotton clothing.

Issue II.B.36. DOE seeks comment on whether testing of cycle settings other than the manufacturer default settings would measure the energy efficiency and water use of the clothes washer during a representative average use cycle or period of use. DOE also seeks comment on whether the non-default selections required by the current DOE test procedure meet this requirement.

DOE has observed a trend towards increased availability of optional cycle modifiers such as “deep fill,” as described previously in this document, and “extra rinse,” among others. These optional settings may significantly impact the water and/or energy consumption of the clothes washer when activated. DOE has observed that the default setting of these optional settings on the Normal cycle is most often in the off position; i.e., the least energy- and water-intensive setting. The growing presence of such features may, however, be indicative of an increase in consumer demand and/or usage of these features.

Issue II.B.37. DOE requests information regarding how frequently consumers use “deep fill,” “extra rinse,” or other cycle modifiers, as well as whether (and if so, by how much) such modifiers may increase the energy or water consumption of a wash cycle compared to the default settings on the Normal cycle. DOE also requests comment on whether testing these features in the default settings would produce test results that measure energy efficiency and water use of clothes washers during a representative average use cycle or period of use, and the burden of such testing on manufacturers.

Section II.B.2.d of this document discussed the installation of single-inlet semi-automatic clothes washers. This section discusses the wash/rinse temperature selections and TUFs applicable to all semi-automatic clothes washers. Semi-automatic clothes washers are defined at 10 CFR 430.2 as a class of clothes washer that is the same as an automatic clothes washer except that user intervention is required to regulate the water temperature by adjusting the external water faucet valves. DOE's test procedure requirements at 10 CFR 430.23(j)(2)(ii) state that the use of Appendix J2 to determine IMEF is required for both automatic and semi-automatic clothes washers. Similarly, the IWF measurement requirements at 10 CFR 430.23(j)(3)(ii) apply to “clothes washer[s],” which is defined in 10 CFR 430.2 to include semi-automatic clothes washers.

Semi-automatic clothes washers do not provide wash/rinse temperature selections on the control panel, and any combination of cold, warm, and hot wash temperatures and rinse temperatures can be implemented by the user. The following discussion provides relevant historical context on this issue.

Section 6.1 of Appendix J-1977  20 and Appendix J-1997 provided TUFs for the following wash/rinse temperature combinations for semi-automatic clothes washers: Hot/Hot, Hot/Warm, Hot/Cold, Warm/Warm, Warm/Cold, and Cold/Cold. The definition of these TUFs indicated that these six wash/rinse temperature combinations were required for testing. Section 3.2.2.6 of Appendix J-1977 and Appendix J-1997 and section 3.2.3.1.6 of Appendix J1-1997 and Appendix J1-2001 provided a table indicating the following external water faucet valve positions required to achieve each wash and rinse temperature selection:

• Hot: Hot valve completely open, cold valve closed;

• Warm: Hot valve completely open, cold valve completely open; and

• Cold: Hot valve closed, cold valve completely open.

Under Appendix J-1977 and Appendix J-1997, the Hot/Hot, Warm/Warm, and Cold/Cold temperature combinations were tested for semi-automatic clothes washers without regulating the water temperature between the wash and rinse portions of the cycle. However, for the Hot/Warm, Hot/Cold, and Warm/Cold temperature combinations to be tested, Appendix J-1977 and Appendix J-1997 required the test administrator to manually regulate the water temperature in between the wash and rinse portions of the cycle by adjusting the external water faucet valves. As reflected in DOE's definition of semi-automatic clothes washer, user intervention is required to regulate the water temperature of all semi-automatic clothes washers ( i.e., user regulation of water temperature is the distinguishing characteristic of a semi-automatic clothes washer).

When it established Appendix J1-1997, DOE combined all of the TUF tables—for both automatic and semi-automatic clothes washers—that were also provided in section 5 and section 6 of Appendix J-1997 into a single condensed table in Table 4.1.1 of Appendix J1-1997. 62 FR 45484, 45512. In contrast to Appendix J-1997, which provided separate TUF tables for every possible set of available wash/rinse temperature selections, the new simplified table in Appendix J1-1997 was organized into columns based on the number of wash temperature selections available on a clothes washer. Warm rinse was considered separately within each column of the table. Id. In the current version of Appendix J2, Table 4.1.1 remains a single simplified table, although in the August 2015 Final Rule, DOE clarified the column headings by listing the wash/rinse temperature selections applicable to each column. 80 FR 46729, 46782.

The simplified Table 4.1.1 in Appendix J2 does not state which column(s) of the table are applicable to semi-automatic clothes washers. In the May 2012 Direct Final Rule, DOE stated that it was not aware of any semi-automatic clothes washers on the market. 77 FR 32307, 32317. However, DOE is currently aware of several semi-automatic clothes washer model available in the U.S. market.

Issue II.B.38. DOE requests input on whether the test procedure should be amended with regard to the specificity of wash/rinse test combinations for semi-automatic clothes washers in Appendix J2, and whether those updates would provide test results that measure energy efficiency and water use during a representative average use cycle or period of use, and whether they would be unduly burdensome to conduct.

DOE requests information on whether, in accordance with 42 U.S.C. 6293(b)(3), the consumer usage factors incorporated into the test procedure produce test results that measure energy efficiency and water use of clothes washers during a representative average use cycle or period of use. DOE also seeks comment on whether testing cycle configurations with usage factors below a certain percentage would be unduly burdensome to conduct and would not be considered to be reasonably designed to measure energy and water use during a representative average use cycle or period of use because they are rarely used by consumers.

As described in section II.B.6 of this document, TUFs are weighting factors that represent the percentage of wash cycles for which consumers choose a particular wash/rinse temperature selection. The TUFs in Table 4.1.1 of Appendix J2 are based on the TUFs introduced in Appendix J1-1997 by the August 1997 Final Rule. As described in the April 1996 SNOPR, DOE established the TUFs in Appendix J1-1997 based on an analysis of consumer usage data provided by Procter & Gamble (“P&G”), the Association of Home Appliance Manufacturers (“AHAM”), General Electric Company (“GE”), and Whirlpool Corporation (“Whirlpool”), as well as linear regression analyses performed by P&G and the National Institute of Standards and Technology (“NIST”). 61 FR 17589, 17593. DOE understands that consumer usage patterns may have changed since the introduction of Table 4.1.1 in Appendix J1-1997.

DOE recognizes that some possible combinations of wash/rinse temperature selections that could be offered on a clothes washer are not represented in Table 4.1.1 ( e.g., the current table would not accommodate a clothes washer that offers only Extra-Hot/Cold and Cold/Cold wash/rinse temperature selections).

Issue II.B.39. DOE requests data on current consumer usage frequency of the wash/rinse temperature selections required for testing in Appendix J2.

Issue II.B.40. DOE requests input on whether requiring measurement of cycle selections with low TUFs (for example, the current Table 4.1.1 lists TUFs including 5, 9, and 14 percent) is consistent with the EPCA requirement that the test procedure be reasonably designed to measure the energy use or efficiency of the clothes washer during a representative average use cycle or period of use, and not be unduly burdensome to conduct.

Issue II.B.41. DOE requests information on whether any combinations of wash/rinse temperature selections not currently represented in Table 4.1.1 of Appendix J2 exist. DOE also seeks data to support how the TUFs for such combinations could be defined to ensure that the test procedure measures energy and water consumption during a representative average use cycle or period of use. DOE also seeks comments on whether any of the combinations in Table 4.1.1 should be removed as not reasonably designed to measure the energy use of the clothes washer during a representative average use cycle or period of use.

For semi-automatic clothes washers, DOE is considering whether amendments with regard to the specificity of wash/rinse temperature combinations and associated TUFs for semi-automatic clothes washers in Appendix J2 would provide test results that are reasonably designed to measure energy and water consumption during a representative average use cycle or period of use. As discussed in section II.B.6 of this RFI, Appendix J specified TUFs for semi-automatic clothes washers for six wash/rinse temperature combinations. Appendix J2 does not currently provide separate TUFs for semi-automatic clothes washers. Because the wash and rinse temperatures on a semi-automatic clothes washer are controlled directly by the consumer by adjusting the hot and cold water faucets, DOE understands that the appropriate TUFs for semi-automatic clothes washers that best reflect energy and water consumption during a representative average use cycle or period of use may be different from those of automatic clothes washers.

Issue II.B.42. DOE requests input on whether to specify TUFs for semi-automatic clothes washers in Appendix J2, and if so, how the TUFs should be defined to be reasonably designed to measure energy and water consumption during a representative average use cycle or period of use for semi-automatic clothes washers.

Load Usage Factors (“LUFs”) are weighting factors that represent the percentage of wash cycles that consumers run with a given load size. Table 4.1.3 of Appendix J2 provides two sets of LUFs based on whether the clothes washer has a manual WFCS or automatic WFCS.

For a clothes washer with a manual WFCS, the two LUFs represent the percentage of wash cycles for which consumers choose the maximum water fill level and minimum water fill level, regardless of the actual load size. For a clothes washer with an automatic WFCS, the three LUFs represent the percentage of cycles for which the consumer washes a minimum-size, average-size, and maximum-size load. The values of these LUFs are intended to approximate a normal distribution that is slightly weighted towards the minimum load size. This distribution is based on consumer load size data provided by P&G in support of the development of Appendix J1-1997. 21

Issue II.B.43. DOE requests data on current consumer usage as related to the LUFs and whether any updates to the LUFs in Table 4.1.3 of Appendix J2 are warranted to reflect current consumer usage patterns. DOE specifically requests comment on whether the use of certain LUFs in the test procedure is consistent with the EPCA requirement that the test procedure be reasonably designed to measure energy and water use during a representative average use cycle or period of use without being unduly burdensome to conduct, because certain load sizes may be rarely used by consumers.

Table 5.1 of Appendix J2 provides the minimum, average, and maximum load sizes to be used for testing based on the measured capacity of the clothes washer. The table defines capacity “bins” in 0.1 cu.ft. increments. The load sizes for each capacity bin are determined as follows:

• Minimum load is 3 pounds (“lb”) for all capacity bins;

• Maximum load (in lb) is equal to 4.1 times the mean clothes washer capacity of each capacity bin (in cu.ft.); and

• Average load is the arithmetic mean of the minimum load and maximum load.

DOE originally introduced the load size table in Appendix J1 in the August 1997 Final Rule, which accommodated clothes container capacities up to 3.8 cu.ft. This load size table was provided by AHAM as part of AHAM's recommended test procedure changes for Appendix J1, as described in the April 1996 SNOPR. 61 FR 17589, 17595.

In the March 2012 Final Rule, DOE expanded Table 5.1 to accommodate clothes container capacities up to 6.0 cu.ft. 77 FR 13887, 13910. DOE extrapolated the load sizes to 6.0 cu.ft. using the same equations to define the maximum and average load sizes as described previously.

On May 2, 2016 and April 10, 2017, DOE granted waivers to Whirlpool and Samsung Electronics America Inc., respectively, for testing RCWs with capacities between 6.0 and 8.0 cu.ft., 22 by further extrapolating Table 5.1 using the same equations to define the maximum and average load sizes as described previously. 81 FR 26215, 82 FR 17229. DOE's regulations in 10 CFR 430.27 contain provisions allowing any interested person to seek a waiver from the test procedure requirements if certain conditions are met. A waiver allows manufacturers to use an alternative test procedure in situations where the DOE test procedure cannot be used to test the product or equipment, or where use of the DOE test procedure would generate unrepresentative results. 10 CFR 430.27(a)(1) DOE's regulations at 10 CFR 430.27(l) require that as soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a NOPR to amend its regulations so as to eliminate any need for the continuation of such waiver. As soon thereafter as practicable, DOE will publish in the Federal Register a final rule. Therefore, DOE will consider amending its test procedure to accommodate RCWs with capacities up to 8.0 cu.ft. as part of a future rulemaking.

Note that section II.B.4 of this document provides additional discussion regarding potential alternative approaches for representing clothes container capacity that DOE could consider, which might suggest a different solution for addressing larger-capacity clothes washers than extrapolation of the existing Table 5.1.

Issue II.B.44. DOE requests comment on whether Table 5.1 of Appendix J2 should be extrapolated to accommodate RCW capacities up to 8.0 cu.ft., and if so, appropriate methods for extrapolation. More generally, DOE also requests data and information on whether the minimum, average, and maximum load size definitions in Table 5.1 are representative of the range of load sizes used by consumers for each capacity bin in the table, particularly for larger-capacity RCWs. 23

The dryer usage factor (“DUF”) represents the percentage of clothes washer loads dried in a clothes dryer. The DUF is used in section 4.3 of Appendix J2 in the equation for calculating the per-cycle energy required to remove the remaining moisture of the test load ( i.e., “drying energy”).

DOE first introduced the drying energy equation in Appendix J1 as part of the August 1997 Final Rule. DOE originally established a DUF value of 0.84, which was based in part on data provided by P&G, as described in the April 1996 SNOPR. 61 FR 17589, 17592; 62 FR 45484, 45489.

In the March 2012 Final Rule, DOE revised the DUF in Appendix J2 to 0.91 based on updated consumer usage data from the Energy Information Administration (“EIA”) 2005 Residential Energy Consumption Survey (“RECS”). 77 FR 13887, 13913.

Issue II.B.45. DOE specifically requests comment on whether the DUF in the test procedure is consistent with the EPCA requirement that the test procedure be reasonably designed to measure energy and water use during a representative average use cycle or period of use without being unduly burdensome to conduct, because certain drying cycles may be rarely used by consumers. DOE also requests data and information on whether any further adjustments to the DUF are warranted to reflect current consumer usage patterns.

Section 3.8.4.1 of Appendix J2 provides weighting factors for calculating the RMC value for clothes washers that have options such as multiple spin speeds or spin time settings that result in different RMC values, and that are available within the energy test cycle. The equation in section 3.8.4.1 of Appendix J2 assigns a 75-percent usage factor to the maximum spin setting and a 25-percent usage factor to the minimum spin setting. In originally establishing the spin setting usage factors in Appendix J-1997, DOE considered P&G usage factor data for normal/regular cycle usage (in which maximum water extraction is assumed) as compared to delicate and permanent-press cycle usage (in which minimum water extraction is assumed). 62 FR 45484, 45489; see also AHAM comment in docket EE-RM-94-230A, pp. 2 and 8. 24 DOE determined that the consumers washing less durable articles of clothing would refrain from using a higher spin cycle to prevent possible fabric damage, and that the spin setting usage factors correlated to the use of normal/regular cycle usage as compared to delicate and permanent-press cycle usage. Id.

Note that section II.B.5.c of this document provides additional discussion regarding potential alternative approaches that DOE could consider for clothes washers with multiple spin speeds, which might suggest a different solution than maintaining the existing spin speed usage factors.

Issue II.B.46. DOE requests data and information on whether current consumer usage patterns warrant any adjustments to the spin speed usage factors. In particular, DOE requests consumer usage data regarding the selection of spin speeds on clothes washers that offer multiple spin speeds, and particularly the percentage of wash cycles for which consumers use the default spin settings. DOE also requests comment on whether the use of certain spin speed usage factors in the test procedure is consistent with the EPCA requirement that the test procedure be reasonably designed to measure energy and water use during a representative average use cycle or period of use without being unduly burdensome to conduct, because certain spin speeds may be rarely used by consumers.

Section 4.4 of Appendix J2 provides the representative average number of annual clothes washer cycles for the purpose of translating the annualized inactive and off mode energy consumption measurements into a per-cycle value applied to each active mode wash cycle. Separately, the number of annual wash cycles is also referenced in DOE's test procedure provisions at 10 CFR 430.23(j)(1)(i)(A) and (B), (j)(1)(ii)(A) and (B), and (j)(3)(i) and (ii) for the purpose of calculating annual operating cost and annual water consumption of a clothes washer.

In the August 1997 Final Rule, DOE estimated the representative number of annual wash cycles per RCW to be 392, which represented the average number of cycles per year from 1986 through 1994, based on P&G survey data provided to DOE as described in a NOPR published on March 23, 1995. 60 FR 15330, 15335; 62 FR 45484, 45501.

In the March 2012 Final Rule, DOE updated the representative number of wash cycles per year to 295 based on an analysis of the 2005 RECS data. 77 FR 13887, 13909. More recently, analysis of the 2009 RECS data suggests 284 cycles per year, and analysis of the 2015 RECS data (the most recent available) suggests 234 cycles per year.

Issue II.B.47. DOE requests data and information on whether any further adjustments to the number of annual wash cycles are warranted to reflect current RCW consumer usage patterns, as suggested by RECS data.

Section 4.4 of Appendix J2 allocates 8,465 combined annual hours for inactive and off modes. If a clothes washer offers a switch, dial, or button that can be optionally selected by the user to achieve a lower-power inactive/off mode than the default inactive/off mode, section 4.4 assigns half of those hours ( i.e., 4,232.5 hours) to the default inactive/off mode and the other half to the optional lowest-power inactive/off mode. This allocation is based on an assumption that if a clothes washer offers such a feature, consumers will select the optional lower-power mode half of the time. 77 FR 13887, 13904. The allocation of 8,465 hours to combined inactive and off modes is based on an assumption of 295 active mode hours (assuming one hour per active mode wash cycle), for a total of 8,760 hours per year for all operating modes.

Issue II.B.48. DOE requests input on whether the annual hours allocated to combined inactive and off modes, as well as the assumed 50-percent split between default inactive/off mode and any optional lower-power inactive/off mode, result in a test method that measures the energy efficiency of the clothes washer during a representative average use cycle or period of use and would not be unduly burdensome to conduct.

Section 4.1.2 of Appendix J2 provides equations for calculating total per-cycle hot water energy consumption for all water fill levels tested. The hot water energy consumption is calculated by multiplying the measured volume of hot water by a constant fixed temperature rise of 75 °F and by the specific heat of water, defined as 0.00240 kilowatt-hours per gallon per degree Fahrenheit (kWh/gal-°F). No efficiency or loss factor is included in this calculation, which implies an electric water heater efficiency of 100 percent.

Similarly, section 4.1.4 of Appendix J2 provides an equation for calculating total per-cycle hot water energy consumption using gas-heated or oil-heated water, for product labeling requirements. 25 This equation includes a multiplication factor “e,” representing the nominal gas or oil water heater efficiency, defined as 0.75.

These water-heating energy equations estimate the energy required by the household water heater to heat the hot water used by the clothes washer. Per-cycle hot water energy consumption is one of the four energy components in the IMEF metric.

Issue II.B.49. DOE requests input on whether any updates are warranted to the water heater efficiency values implied in section 4.1.2 and provided in section 4.1.4 of Appendix J2.

Section 4.3 of Appendix J2 provides an equation for calculating total per-cycle energy consumption for removal of moisture from the test load in a clothes dryer; i.e., the “drying energy.” The drying energy calculation is based on the following three factors: (1) A clothes dryer final RMC of 4 percent; (2) a clothes dryer energy factor (“DEF”), which is defined as 0.5 kWh/lb and represents the nominal energy required for a clothes dryer to remove moisture from a pound of clothes; and (3) the DUF which, as described previously in this document, is defined as 0.91 and represents the percentage of clothes washer loads dried in a clothes dryer. DOE is soliciting information to determine whether the final RMC value after drying and the DEF value should be revised as a result of recent updates to the DOE clothes dryer test procedure and any market changes due to the most recent energy conservation standards for clothes dryers.

DOE's test procedure for clothes dryers, codified at 10 CFR part 430, subpart B, appendix D1 (“Appendix D1”), prescribes a final RMC of between 2.5 and 5.0 percent, which is consistent with the 4-percent final RMC value in the clothes washer test procedure for determination of the DEF. However, DOE's alternate clothes dryer test procedure, codified at 10 CFR part 430, subpart B, appendix D2 (“Appendix D2”), prescribes a final RMC of between 1 and 2.5 percent for timer dryers, which are clothes dryers that can be preset to carry out at least one operation to be terminated by a time, but may also be manually controlled and do not include any automatic termination function. For automatic termination control dryers, which can be preset to carry out at least one sequence of operations to be terminated by means of a system assessing, directly or indirectly, the moisture content of the load, the test cycle is deemed invalid if the clothes dryer terminates the cycle at a final RMC greater than 2 percent. In the final rule establishing Appendix D2, DOE determined that a clothes dryer final RMC of 2 percent using the DOE test load would be more representative of clothes dryers currently on the market in that generally consumers would find a final RMC above this level unacceptable. Timer dryers are provided with a range of allowable final RMC during the test because DOE concluded that it would be unduly burdensome to require the tester to dry the test load to an exact RMC; however, the measured test cycle energy consumption for timer dryers is normalized to calculate the energy consumption required to dry the test load to 2-percent final RMC. 78 FR 49607, 49612-49624 (Aug. 14, 2013). Manufacturers may elect to use Appendix D2 to demonstrate compliance with the January 1, 2015, energy conservation standards; however, the procedures in Appendix D2 need not be performed to determine compliance with energy conservation standards for clothes dryers at this time.

Issue II.B.50. DOE requests input on whether the final RMC value in the drying energy calculation in Appendix J2 should be revised to align with the DOE clothes dryer test procedure at Appendix D2 or another value that is representative of clothes dryers currently on the market.

Issue II.B.51. DOE requests input on whether the current value of the DEF is representative of the nominal energy required for a clothes dryer to remove moisture from a pound of clothes, or whether an alternative value would be more representative.

DOE is aware of “auxiliary” or “supplementary” RCWs designed to accompany a standard-size RCW from the same manufacturer. In one configuration, a top-loading wash drum ( i.e., “auxiliary” clothes washer) is integrated into the top of a standard-size front-loading clothes washer ( i.e., “primary” clothes washer). The primary front-loading clothes washer and the auxiliary top-loading clothes washer are powered through a single electrical plug; however, the primary clothes washer and the auxiliary clothes washer have separate control systems and can be operated independently from one another. Another configuration comprises a top-loading RCW sold as a separate product ( i.e., “supplementary” clothes washer) with independent controls and a separate electrical plug, and which is designed to be installed underneath certain front-loading RCWs within the space of a conventional pedestal or riser.

Because such auxiliary and supplementary clothes washers are installed in conjunction with a primary clothes washer, the presence and operation of two separate clothes washers may affect consumer usage patterns for both the primary and auxiliary or supplementary clothes washers, compared to if the consumer had only a primary clothes washer. For example, separating certain items from a clothing load to be washed in the auxiliary or supplementary clothes washer would reduce the size of the clothing load washed in the primary clothes washer or could result in fewer cycles being run in the primary clothes washer.

Additionally, in the case of an auxiliary clothes washer, which is integrated with the primary clothes washer and powered through a single electrical plug, the standby power might be “double counted” for both the primary clothes washer and the auxiliary clothes washer, since the standby power consumed by both clothes washers would be measured through the single electrical plug during both independent tests.

Issue II.B.52. DOE requests information on whether or how the presence of an auxiliary or supplementary clothes washer may affect usage patterns in the primary clothes washer.

Issue II.B.53. DOE requests input on the appropriate allocation of combined low-power mode energy consumption between auxiliary and primary clothes washers that are powered through a single electrical plug.

DOE is aware of RCWs that contain a built-in basin that can be used to pre-treat and soak clothing before the start of a wash cycle. As observed among models currently on the market, the soaking basin is separate from the main clothing drum and is filled with water through an auxiliary water nozzle separate from the water fill control system used for the main clothing drum. As described in the user manual, the pre-treat and soaking feature is recommended to be used before the RCW begins its main wash cycle operation. As observed among models currently on the market, use of the built-in basin and auxiliary water nozzle are not considered part of active washing mode, as defined by section 1.2 of Appendix J2.

Issue II.B.54. DOE requests consumer usage data on built-in pre-treat soak basins, as well as information on the amount of energy and water these basins typically use. DOE also requests information on whether and to what extent the energy and water use in the subsequent wash cycle would be impacted by the transfer of water and wet clothing from the pre-treat basin to the clothes washer drum.

In addition to adjustments to the current test procedure to produce MEF, IMEF, and IWF values that reflect current clothes washers and consumer use, DOE may also consider in a future rulemaking broader changes to key metrics that would, for example, harmonize the DOE test procedure with other industry test methods. In particular, DOE may consider changes to the energy efficiency metric and the water efficiency metric. DOE may also consider adjustments to the annual energy calculation.

The current energy efficiency standards for RCWs are based on the IMEF metric, measured in cu.ft./kWh/cycle, as calculated in section 4.6 of Appendix J2. IMEF is calculated as the capacity of the clothes container (in cu.ft.) divided by the total clothes washer energy consumption (in kWh) per cycle. The total clothes washer energy consumption per cycle is the sum of: (a) The machine electrical energy consumption; (b) the hot water energy consumption; (c) the energy required for removal of the remaining moisture in the wash load; and (d) the combined low-power mode energy consumption.

The current energy efficiency standards for CCWs are based on the MEF J2 metric, measured in cu.ft./kWh/cycle, as determined in section 4.5 of Appendix J2. The MEF J2 metric differs from the IMEF metric by not including the combined low-power mode energy consumption in the total clothes washer energy consumption per cycle.

DOE could consider changing the energy efficiency metrics for RCWs or CCWs to maintain consistency with any changes to the capacity metric or for other reasons. For example, the MEF J2 or IMEF metric could be modified to incorporate a capacity based on weight of clothing, as described previously in this document, which would result in an MEF J2 or IMEF expressed in terms of pounds of clothing per kWh per cycle.

Issue II.C.1. DOE requests feedback on whether to consider any changes to the energy efficiency metric defined in the test procedure, including the drivers for such a change and the form of a new metric.

The current water efficiency standards for both RCWs and CCWs are based on the IWF metric, measured in gal/cycle/cu.ft, as calculated in section 4.2.13 of Appendix J2. IWF is calculated as the total weighted per-cycle water consumption (in gallons) for all wash cycles divided by the capacity of the clothes container (in cu.ft.). Unlike the IMEF metric, in which a higher number indicates more efficient performance, a lower IWF value indicates more efficient performance. DOE could consider inverting the existing calculation such that a higher value of IWF would represent more efficient performance, which would provide greater consistency with the IMEF metric.

Issue II.C.2. DOE requests feedback on whether to consider any changes to the water efficiency metric defined in the test procedure to maintain consistency with any changes to the capacity metric or for any other purpose, including those described for the energy efficiency metric, and whether it would be appropriate to invert the existing calculation such that a higher value of IWF would represent more efficient performance.

The annual energy consumption of an RCW is calculated as part of the estimated annual operating cost calculations at 10 CFR 430.23(j)(1)(ii)(A) and (B). 26 In each equation, annual energy consumption is calculated by multiplying the per-cycle energy consumption  27 by the representative average RCW use of 295 cycles per year. The annual operating cost is provided to the consumer on the Federal Trade Commission (“FTC”) EnergyGuide label for RCWs.

DOE could consider changes to the method for calculating annual energy use to ensure that the calculation results in a measurement of energy use during a representative average use cycle. DOE may also consider changes to the overall calculation methodology that could improve the usefulness of the information presented to the consumer on the product label.

An increasingly wide range of RCW capacities are available on the market, ranging from less than 1 cu.ft. to greater than 6 cu.ft. When DOE originally developed the annual energy calculation methodology at 10 CFR 430.23(j)(1)(i), the test procedure accommodated clothes washers with capacities up to 3.8 cu.ft. 28 According to the current calculation methodology, all RCWs are assumed to be used for 295 cycles per year, while the per-cycle energy reflects a weighted-average load size based on the clothes washer capacity. Therefore, the annual energy calculation reflects an annual volume of laundered clothing that scales with clothes washer capacity. The increasing range of RCW capacities available on the market may mean that the total amount of laundered clothing reflected in the annual energy calculation is no longer reflective of energy use during a representative average use cycle of RCWs of different sizes. For example, the current annual energy calculation methodology is based on an annual laundry volume of 2,258 pounds for a 3-cu.ft. RCW and 4,036 pounds for a 6-cu.ft. RCW.

This potential disparity is particularly notable when comparing the product labels of two RCW models with the same IMEF efficiency rating, but different capacities. Under the current annual energy calculation methodology, the information presented on the product label would indicate that the larger-capacity RCW would use significantly more annual energy than the smaller-capacity model; however, the larger RCW's label would be based on a significantly larger amount of annual laundry than the smaller model, as illustrated above. If compared on the basis of an equivalent volume of laundered clothing, both RCWs could be expected to use the same amount of annual energy since they have the same IMEF efficiency rating. This potential disparity may limit the ability of an individual consumer to use the information presented on the product label to compare the differences in expected energy use among RCW models with the same rated energy efficiency but different capacities.

Given the increasingly wide range of RCW capacities available on the market, and the significant changes over time in estimated annual RCW cycles, DOE may consider whether any changes are warranted for the annual energy and annual water calculations to ensure that the results continue to reflect representative average use for all clothes washer sizes, to harmonize with any changes to other metrics within the DOE test procedures, and to continue to provide useful comparative information to consumers. For example:

• Revising the annual energy and annual water calculation methodology from being based on a fixed number of annual cycles to a fixed number of annual pounds of clothing.

• Varying the annual number of wash cycles based on clothes washer capacity, rather than a fixed number of annual cycles for all clothes washers.

Issue II.C.3. DOE requests data and information regarding whether and how the annual number of wash cycles varies as a function of clothes washer capacity. DOE also requests feedback on whether DOE should consider any changes to the annual energy or annual water calculation methodology and the burden associated with these potential changes.

In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of the existing test procedures for clothes washers not already addressed by the specific areas identified in this document.

For example, as a general matter, DOE test procedures are intended to be performed to completion while a unit is installed in the test fixture. If a unit were to be uninstalled or removed from the test fixture before completion of the full test procedure, DOE would consider it a best practice to redo the complete test once the unit is reinstalled in the test fixture. Appendix J2 does not currently specify that the entire test procedure should be conducted without interruption, but DOE could consider adding such specification if doing so would lead to more repeatable and reproducible test results, particularly for the active mode portion of the test. DOE recognizes that given the differences in test conditions between active mode and inactive/off mode testing, 29 that these two portions of the test could be performed in separate test fixtures.

DOE recently issued an RFI to seek more information on whether its test procedures are reasonably designed, as required by EPCA, to produce results that measure the energy use or efficiency of a product during a representative average use cycle or period of use. 84 FR 9721 (Mar. 18, 2019). DOE seeks comment and information on this issue as it pertains to the test procedure for clothes washers along with comments and information on the following:

Issue III.1. DOE particularly seeks information regarding whether amended test procedures would more accurately or fully comply with the requirement that they be reasonably designed to produce test results that measure energy efficiency and water use of clothes washers during a representative average use cycle or period of use.

Issue III.2. DOE requests information that would ensure that the test procedure is not unduly burdensome to conduct. Specifically, DOE requests comments on whether potential amendments based on the issues discussed would result in a test procedure that is unduly burdensome to conduct, particularly in light of any new products on the market since the last test procedure update.

Issue III.3. DOE requests feedback on any potential amendments to the existing test procedures that could be considered to address impacts on manufacturers, including small businesses.

Issue III.4. DOE requests comment on the benefits and burdens of adopting any industry/voluntary consensus-based or other appropriate test procedure, without modification.

Issue III.5. DOE seeks information on how the test procedures could be amended to reduce the cost of new or additional features and make it more likely that such features are included on clothes washers.

DOE invites all interested parties to submit in writing by the date specified in the DATES section, comments and information on matters addressed in this document and on other matters relevant to DOE's consideration of test procedures for clothes washers. These comments and information will aid in the development of a test procedure NOPR for RCWs and CCWs if DOE determines that amended test procedures may be appropriate for these products.

Submitting comments via http://www.regulations.gov. The http://www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to http://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through http://www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through http://www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that http://www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to http://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email to ResClothesWasher2016TP0011@ee.doe.gov or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process.

Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via e- mail at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on February 25, 2020, by Alexander N. Fitzsimmons, Deputy Assistant Secretary for Energy Efficiency, 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 .

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0456; Product Identifier 2020-NM-053-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. The FAA will consider all comments received by the closing date and may amend this NPRM based on those comments.

The FAA will post all comments the FAA receives, without change, to https://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact the FAA receives about this NPRM.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0077, dated March 31, 2020 (“EASA AD 2020-0077”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A330-202, -203, -223, -243, -301, -321, -322, -323, -341, -342, and -343 airplanes; and Model A340-211, -212, -213, -311, -312, and -313 airplanes.

This proposed AD was prompted by a report indicating that the allowable load limits on the vertical tail plane could be reached and possibly exceeded in cases of multiple rudder doublet inputs. The FAA is proposing this AD to address cases of multiple rudder doublet inputs, which could lead to excessive loads on the vertical tail plane and a subsequent loss of control of the airplane. See the MCAI for additional background information.

EASA AD 2020-0077 describes procedures for upgrading the FCDC, associated FCPC, and FWC, and activation of the SRIW device. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2020-0077 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0077 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2020-0077 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2020-0077 that is required for compliance with EASA AD 2020-0077 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0456 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 10 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

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

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

I. Background

The Commission typically reviews its rules every ten years to ensure that the rules have kept up with changes in the marketplace, technology, and business models. 1 The Commission issued the HBN Rule in 2009, and companies were subject to enforcement beginning in 2010. The Commission now requests comment on the HBN Rule, including the costs and benefits of the Rule, and whether particular sections should be retained, eliminated, or modified. All interested persons are hereby given notice of the opportunity to submit written data, views, and arguments concerning the Rule.

The HBN Rule, issued pursuant to section 13407 of the American Recovery and Reinvestment Act of 2009 (“Recovery Act” or “the Act”), 2 became effective on August 25, 2009, 3 and companies were subject to FTC enforcement beginning on February 22, 2010. Section 13407 of the Recovery Act created certain protections for “personal health records” or “PHRs,” electronic records of identifiable health information that can be drawn from multiple sources and that are managed, shared, and controlled by or primarily for the individual. Specifically, the Recovery Act recognized that vendors of personal health records and PHR related entities ( i.e., companies that offer products and services through PHR websites or access information in or send information to PHRs) were collecting consumers' health information but were not subject to the privacy and security requirements of the Health Insurance Portability and Accountability Act (“HIPAA”). 4 The Recovery Act directed the FTC to issue a rule requiring these entities, and their third-party service providers, to provide notification of any breach of unsecured individually identifiable health information. Accordingly, the HBN Rule requires vendors of PHRs and PHR related entities to provide: (1) Notice to consumers whose unsecured individually identifiable health information has been breached; (2) notice to the media, in many cases; and (3) notice to the Commission. The Rule also requires third party service providers ( i.e., those companies that provide services such as billing or data storage) to vendors of PHRs and PHR related entities to provide notification to such vendors and entities following the discovery of a breach.

The Rule requires notice “without unreasonable delay and in no case later than 60 calendar days” after discovery of a data breach. If the breach affects 500 or more individuals, notice to the FTC must be provided “as soon as possible and in no case later than ten business days” after discovery of the breach. The FTC makes available a standard form for companies to use to notify the Commission of a breach. 5 The FTC posts a list of breaches involving 500 or more individuals on its website. 6 This list only includes two breaches, because the Commission has predominantly received notices about breaches affecting fewer than 500 individuals.

Importantly, the Rule does not apply to health information secured through technologies specified by the Department of Health and Human Services (“HHS”) and it does not apply to businesses or organizations covered by HIPAA. HIPAA-covered entities and their “business associates” must instead comply with HHS's breach notification rule. 7 The FTC has not had occasion to enforce its Rule because, as the PHR market has developed over the past decade, most PHR vendors, related entities, and service providers have been HIPAA-covered entities or “business associates” subject to HHS's rule. 8 However, as consumers turn towards direct-to-consumer technologies for health information and services (such as mobile health applications, virtual assistants, and platforms' health tools), more companies may be covered by the FTC's Rule.

The Commission periodically reviews all of its rules and guides. These reviews seek information about the costs and benefits of the Commission's rules and guides and their regulatory and economic impact. The information obtained assists the Commission in identifying those rules and guides that warrant modification. Therefore, the Commission solicits comments on, among other things, the economic impact and benefits of the Rule; possible conflict between the Rule and state, local, or other federal laws or regulations; and the effect on the Rule of any technological, economic, or other industry changes.

The Commission invites members of the public to comment on any issues or concerns they believe are relevant or appropriate to the Commission's review of the HBN Rule, and to submit written data, views, facts, and arguments addressing the Rule. All comments should be filed as prescribed in the ADDRESSES section of this document, and must be received by August 20, 2020. If your comment proposes any modifications to the Rule, please also address whether your proposed modification may conflict with the statutory provisions of the Recovery Act and, if so, whether you propose seeking legislative changes to the Recovery Act. The Commission is particularly interested in comments addressing the following questions:

1. Is there a continuing need for specific provisions of the Rule? Why or why not?

2. What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?

3. What modifications, if any, should be made to the Rule to increase the benefits to consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

4. What significant costs, if any, has the Rule imposed on consumers? What evidence supports the asserted costs?

5. What modifications, if any, should be made to the Rule to reduce any costs imposed on consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Rule?

6. What benefits, if any, has the Rule provided to businesses, including small businesses? What evidence supports the asserted benefits?

7. What modifications, if any, should be made to the Rule to increase its benefits to businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

c. How would these modifications affect the benefits to consumers?

8. What significant costs, if any, including costs of compliance, has the Rule imposed on businesses, including small businesses? What evidence supports the asserted costs?

9. What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits the Rule provides to consumers?

10. What evidence is available concerning the degree of industry compliance with the Rule?

11. What modifications, if any, should be made to the Rule to account for changes in relevant technology, economic conditions, or laws? For example, as the healthcare industry adopts standardized application programming interfaces (“APIs”) to help individuals to access their electronic health information with smartphones and other mobile devices (as required by rules implementing the 21st Century Cures Act  9 ), will the number of entities subject to the Commission's HBN Rule increase?

a. What evidence supports the proposed modifications?

12. Are there modifications or changes the Commission should make to the Rule to address any developments in health care products or services related to COVID-19?

13. Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?

a. What evidence supports the asserted conflicts?

b. With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?

1. What evidence exists that the Rule has resulted in under-notification, over-notification, or an efficient level of notification?

2. Section 318.1 provides that the Rule does not apply to HIPAA-covered entities or to any other entity to the extent that it engages in activities as a business associate of a HIPAA-covered entity. Has this limitation helped to harmonize the Commission's HBN Rule with HHS's rule? Why or why not?

3. Do the definitions set forth in §  318.2 of the Rule accomplish the Recovery Act's goal of advancing the use of health information technology while strengthening the privacy and security protections for health information?

4. Are the definitions in §  318.2 clear and appropriate? If not, how can they be improved, consistent with the Act's requirements?

5. Should the definition of “PHR identifiable health information” in §  318.2(d) be modified in light of technological advances in methods of de-identification and re-identification? If so, how, consistent with the Act's requirements?

6. Should the definitions of “PHR related entity” in §  318.2(f), “Third party service provider” in §  318.2(h), or “Vendor of personal health records” in Section 318.2(j) be modified in light of changing technological and economic conditions, such as the proliferation of mobile health applications (“apps”), virtual assistants offering health services, and platforms' health tools? If so, how, consistent with the Act's requirements?

7. Section 318.4 sets out the timing requirements for notification. Are these requirements clear and appropriate? If not, how can they be improved, consistent with the Act's requirements?

8. Section 318.5 sets out the requirements for the method of notice of a breach. Are these requirements clear and appropriate? Do technological changes, such as the increased use of in-app messaging, text messages, and platform messaging, warrant any changes to this section, consistent with the Act's requirements?

9. Section 318.6 sets out the requirements for the content of notice of a breach. Are these requirements clear and appropriate? If not, how can they be improved, consistent with the Act's requirements?

10. What are the implications (if any) for enforcement of the Rule raised by direct-to-consumer technologies and services such as mobile health apps, virtual assistants, and platforms' health tools?

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before August 20, 2020. Please write “Health Breach Notification Rule, 16 CFR part 318, Project No. P205405” on the comment. Because of the public health emergency in response to the COVID-19 outbreak and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comment online through the https://www.regulations.gov website. To ensure the Commission considers your online comment, please follow the instructions on the web-based form provided by regulations.gov. Your comment, including your name and your state, will be placed on the public record of this proceeding, including the https://www.regulations.gov website.

If you file your comment on paper, please write “Health Breach Notification Rule, 16 CFR part 318, Project No. P205405” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 20024.

Because your comment will be placed on the public record, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . . is privileged or confidential”—as provided by section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted publicly at www.regulations.gov, we cannot redact or remove your comment unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Visit the Commission website at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before August 20, 2020. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

ONDCP has undertaken a review of agency practices related to the collection, use, protection and disclosure of ONDCP records and information in light of the FOIA Improvement Act of 2016 and the Privacy Act. As a result of that review, ONDCP is updating its regulation on FOIA and the Privacy Act. The FOIA, 5 U.S.C. 552 et seq., provides a right of access to certain records and information Federal agencies maintain and control. The FOIA requires each Federal agency to publish regulations describing how to submit a FOIA request and how people responsible for FOIA will process these requests. ONDCP's current FOIA regulation, codified at 21 CFR part 1401, was last revised in 1999. See 64 FR 69901 (Dec. 15, 1999). Due to the passage of time and amendments to the FOIA, we are updating the regulation. ONDCP's proposed regulation on FOIA and the Privacy Act incorporates the practical experience of the agency's staff who handle FOIA and privacy issues and guidance from the Office of Management and Budget and the U.S. Department of Justice, Office of Information Policy. It also strives for consistency with FOIA and Privacy Act regulations among other agencies of the Executive Office of the President.

Section 1401.1—Purpose: This section describes the purpose of the regulation, which is to implement the FOIA.

Section 1401.2—ONDCP: Organization and functions: This section describes the mission and leadership structure of the agency. It specifies where media inquiries may be submitted and notes that oral requests for information under FOIA will be rejected.

Section 1401.3—Definitions: This section defines the key terms used in the regulation.

Section 1401.4—Access to information: This section describes the types of information that ONDCP will make available under FOIA.

Section 1401.5—Proactive disclosures: This section describes information about ONDCP the public can access without filing a FOIA request. Pursuant to the FOIA Improvement Act of 2016, ONDCP will make records available that have been requested three or more times in an electronic format.

Section 1401.6—Records requiring consultation. This section describes how ONDCP will process records that originated with another agency but are in the custody of ONDCP.

Section 1401.7—How to request records—Form and content: This section explains what an individual must do to submit a valid FOIA request to ONDCP and where a request should be sent. It also describes the information requesters must provide so ONDCP can identify the records sought and process their requests.

Section 1401.8—Initial determination: This section provides that the ONDCP General Counsel has the authority to approve or deny FOIA requests and describes how to appeal FOIA decisions made by the General Counsel.

Section 1401.9—Response—form and content: This section explains that ONDCP will respond to your request in writing either with the requested records or an explanation of the reasons why all or portions of the requested records were not disclosed. We also will provide information about the right of appeal and the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration. The response will include any fees associated with the FOIA request.

Section 1401.10—Expedited Process: This section describes the circumstances under which expedited processing of a FOIA request may be granted.

Section 1401.11—Prompt response: This section describes the period of time within which ONDCP will determine whether it is appropriate to grant or deny a FOIA request, i.e., ordinarily within twenty working days after the date the request is received. If ONDCP determines that a request is denied or that additional time is required to process the request, it will provide written notification to the requestor with an explanation of the reasons for denial or delay.

Section 1401.12—Extension of Time: This section describes and defines the “unusual circumstances” under which ONDCP may extend the time limit for making a determination on a FOIA request.

Section 1401.13—Appeal procedures: This section describes when and how a requester may appeal a determination on a FOIA request and how and within what period of time ONDCP will make a determination on an appeal.

Section 1401.14—Fees to be charged—general: This section describes the general FOIA processing activities performed by ONDCP personnel and the rates charged by ONDCP to recoup the employee costs associated with responding to FOIA requests.

Section 1401.15—Fees to be charged—Miscellaneous provisions: This section contains miscellaneous FOIA fee provisions such as where payment should be sent, when advance payment is required, and rates of interest charged on late payments, etc.

Section 1401.16—Fees to be charged—Categories of Requester: This section describes the different categories of requesters and the types and amounts of fees ONDCP may assess to process and respond to a FOIA request.

Section 1401.17—Restrictions on charging fees. This provision describes the circumstances under which ONDCP is restricted in charging fees normally associated with processing FOIA request such as when ONDCP does not meet time limits mandated by the FOIA.

Section 1401.18—Waiver or Reduction of Fees: This section describes the factors that ONDCP may consider when deciding whether to waive or reduce the fees associated with processing FOIA requests.

Section 1401.19—Aggregation of requests: This section describes the circumstances under which ONDCP may aggregate a series or group of requests for purposes of fee assessment.

Section 1401.20—Deletion of exempted information: This section provides that ONDCP will redact exempt information from its FOIA disclosures to the extent that exempt information can be segregated from other information subject to disclosure.

Section 1401.21—Confidential commercial information: This section explains when and how a person or entity that submits information to ONDCP must identify confidential commercial information. It also describes how ONDCP staff will handle such information.

Section 1401.22—Definitions: This section defines the key terms used in this Subpart.

Section 1401.23—Purpose and scope: This section describes the purpose of the regulation, which is to implement the Privacy Act, and explains general policies and procedures for individuals requesting access to records, requesting amendments or corrections to records, and requesting an accounting of disclosures of records.

Section 1401.24—How do I make a Privacy Act request?: This section explains what an individual must do to submit a request to ONDCP for access to records, to amend or correct records, or for an accounting of disclosures of records. It also describes the information an individual must provide so ONDCP can identify the records sought and determine whether the request can be granted.

Section 1401.25—How will ONDCP respond to a Privacy Act request?: This section describes the period of time within which ONDCP will respond to requests. It also explains that ONDCP will grant or deny requests in writing, provide reasons if a request is denied in whole or in part, and explain the right of appeal.

Section 1401.26—What can I do if I am dissatisfied with ONDCP's response to my Privacy Act request?: This section describes when and how an individual may appeal a determination on a Privacy Act request and how and within time period ONDCP will make a determination on an appeal.

Section 1401.27—What does it cost to get records under the Privacy Act?: This section explains that requesters are required to pay fees for the duplication of requested records.

ONDCP has considered the impact of the proposed rule and determined that if adopted as a final rule it is not likely to have a significant economic impact on a substantial number of small business entities because it only applies to ONDCP's internal operations and legal obligations. See 5 U.S.C. 601 et seq.

The proposed rule does not contain any information collection requirement that requires approval from the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Background

This document contains proposed amendments to Title 26 part 1 under section 47 of the Internal Revenue Code (Code). The rehabilitation credit under section 47 is listed as an investment credit under section 46, and the investment credit under section 46 is a current year general business credit under section 38. On December 22, 2017, section 47 was amended by section 13402 of Public Law 115-97, 131 Stat. 2054 (2017), commonly referred to as the Tax Cuts and Jobs Act (TCJA).

Prior to the TCJA, former section 47(a) provided a two-tier credit for qualified rehabilitation expenditures (QREs) incurred in connection with the rehabilitation of a qualified rehabilitated building (QRB). Former section 47(a)(2) allowed a 20-percent credit for QREs with respect to a certified historic structure, and former section 47(a)(1) allowed a 10-percent credit for QREs with respect to a QRB other than a certified historic structure (for certain buildings first placed in service before 1936 (pre-1936 buildings)). Under former section 47, both the 20-percent and 10-percent credits were fully allowed in the taxable year the QRB was placed in service.

Section 13402(a) of the TCJA repealed the 10-percent credit for pre-1936 buildings and modified the rules for claiming the 20-percent credit for certified historic structures. Section 13402(c)(1) of the TCJA provides that these amendments are generally applicable to QRE amounts paid or incurred after December 31, 2017, subject to a transition rule provided in section 13402(c)(2) of the TCJA. This statutory transition rule provides that in the case of QREs (for either a certified historic structure eligible for a 20-percent credit or a pre-1936 building eligible for a 10-percent credit prior to December 31, 2017), with respect to any building owned or leased (as provided under present law) by the taxpayer at all times on and after January 1, 2018, the 24-month period selected by the taxpayer (section 47(c)(1)(B)(i), as amended by section 13402(b)), or the 60-month period selected by the taxpayer under the rule for phased rehabilitation (section 47(c)(1)(B)(ii), as amended by section 13402(b)), is to begin not later than the end of the 180-day period beginning on December 22, 2017, and the amendments made by section 13402 of the TCJA apply to such QREs paid or incurred after the end of the taxable year in which such 24-month or 60-month period ends.

As amended by the TCJA, section 47(a)(1) provides that for purposes of the investment credit under section 46, for any taxable year during the 5-year period beginning in the taxable year in which a QRB is placed in service, the rehabilitation credit for such taxable year is an amount equal to the ratable share for the year. Also, as amended by the TCJA, section 47(a)(2) defines the ratable share for any taxable year during the credit period as the amount equal to 20 percent of the QREs with respect to the QRB, as allocated ratably to each year during the credit period. Section 47(b)(1), which the TCJA did not amend, provides that QREs with respect to any QRB are taken into account for the taxable year in which the QRB is placed in service.

As noted in the Background, the rehabilitation credit is no longer fully allowed in the taxable year the QRB is placed in service. Instead, the rehabilitation credit must be claimed ratably over the 5-year period beginning in the taxable year in which a QRB is placed in service. The Treasury Department and the IRS are aware that taxpayers and practitioners have questioned how the 5-year period impacts taxpayers claiming the rehabilitation credit, including how to apply the special rules of section 50 relating to recapture, basis adjustment, and leased property. In particular, practitioners have questioned whether the rehabilitation credit is determined in the year the QRB is placed in service and allocated ratably over the 5-year period, or whether five separate rehabilitation credits are determined during each year of the 5-year period.

As explained in Part II of this Explanation of Provisions, these proposed regulations provide that the rehabilitation credit is properly determined in the year the QRB is placed in service (consistent with prior law) but allocated ratably over the 5-year period as required by the TCJA, rather than resulting in the determination of five separate rehabilitation credits. Similarly, as explained in Part III of this Explanation of Provisions, these proposed regulations follow this same prior law approach for the determination of a single rehabilitation credit for purposes of applying the rules of section 50. Therefore, taxpayers claiming the rehabilitation credit under section 47 with respect to QREs paid or incurred after December 31, 2017, generally will have the same Federal income tax consequences from the rules under section 50 for recapture, basis adjustment, and leased property as taxpayers claiming the rehabilitation credit under prior law.

The proposed regulations add § 1.47-7(a) through (e) and include: A general rule for calculating the rehabilitation credit; definitions of ratable share and rehabilitation credit determined; and a rule coordinating the changes to section 47 with the special rules in section 50. The proposed regulations also contain examples, including examples illustrating the interaction of section 47 with rules in section 50(a) (recapture in case of dispositions, etc.), section 50(c) (basis adjustment to investment credit property), and section 50(d)(5) (relating to certain leased property when the lessee is treated as owner and subject to an income inclusion requirement).

Consistent with section 47(a)(1), proposed § 1.47-7(a) provides a general rule that, for purposes of the investment credit under section 46, for any taxable year during the 5-year period the rehabilitation credit for the year is the ratable share.

Proposed § 1.47-7(b) generally follows the definition of ratable share in section 47(a)(2) but, for clarification, replaces “QREs” with the term “rehabilitation credit determined” as defined in proposed § 1.47-7(c). Specifically, proposed § 1.47-7(b) defines the term ratable share as the amount equal to 20 percent of the rehabilitation credit determined with respect to the QRB, as allocated ratably to each taxable year during the 5-year credit period. Proposed § 1.47-7(c) defines the term rehabilitation credit determined as the amount equal to 20 percent of the QREs, as defined in section 47(c)(2) and § 1.48-12(c) of the Income Tax Regulations, taken into account under section 47(b)(1) for the taxable year in which the QRB is placed in service. However, if the taxpayer claims the additional first year depreciation for the QREs pursuant to § 1.168(k)-2(g)(9), proposed § 1.47-7(c) defines the rehabilitation credit determined as the amount equal to 20 percent of the remaining rehabilitated basis, as defined in § 1.168(k)-2(g)(9)(i)(B), of the QRB for the taxable year in which such building is placed in service. Proposed § 1.47-7(c) is included to clarify that the rehabilitation credit is determined in the year the QRB is placed in service and allocated ratably over the 5-year period under proposed § 1.47-7(b).

Determining the total amount of the credit in the first year the QRB is placed in service and allocating the credit over the 5-year period is consistent with the text of the statute, as well as the intent of Congress, because the determination does not change the total amount of rehabilitation credit over the 5-year period or the amount of rehabilitation credit for purposes of section 46 in any individual year of the 5-year period. The plain language in section 47(a)(1), (a)(2), and (b)(1) makes clear that one rehabilitation credit is allocated ratably over a 5-year period. First, section 47(a)(1) and (a)(2) effectively allocate the 20-percent rehabilitation credit over a 5-year period. Second, section 47(b)(1) requires that QREs are taken into account in the taxable year the QRB is placed in service, which is the first year in the 5-year period. Because QREs are taken into account in the first taxable year the QRB is placed in service under section 47(b)(1), the rehabilitation credit for a QRB is effectively fixed, or determined, as of that first year. In sum, the overall structure of section 47(a) and (b)(1) functions to allocate the rehabilitation credit that is determined in the taxable year the QRB is placed in service over a 5-year period for each of those taxable years, rather than creating five separate rehabilitation credits for a single QRB.

Further, this reading of the statutory text is consistent with the conference report accompanying the TCJA (H.R. Rept. No. 466, 115th Cong.435-436 (2017)) (Conference Report) and the Joint Committee on Taxation's General Explanation of Public Law 115-97, 210 (Staff of the Joint Committee on Taxation, 115th Cong., General Explanation of Public Law 115-97 (Comm. Print 2018) (Bluebook)). The Conference Report states that Congress “intended that the sum of the ratable shares for the taxable years during the five-year period does not exceed 100 percent of the credit for qualified rehabilitation expenditures for the qualified rehabilitated building.” See Conference Report, at 435-436; Bluebook, at 210. By determining the rehabilitation credit based on 100 percent of the QREs in the year QREs are taken into account under section 47(b)(1), that is, the year in which the QRB is placed in service, and ratably allocating the amount determined over the 5-year period, the proposed regulations ensure that the sum of the ratable shares will never violate Congressional intent. Comments are requested with respect to any specific concerns taxpayers may have with this plain reading of the operative statutory text.

Proposed § 1.47-7(d) describes the coordination with the special rules of section 50 and makes clear that, for purposes of applying the rules in section 50, the full rehabilitation credit amount is determined in the first year of the 5-year period, and then allocated ratably over that 5-year period. Determining the credit in the same manner for purposes of sections 47 and 50 provides certainty and reduces the complexity under section 50 that would result if taxpayers were required to determine five separate rehabilitation credits. For example, if five separate rehabilitation credits were determined, then there would be five separate recapture periods under section 50(a) with respect to a single QRB. This would increase the length of the recapture period and increase the recapture amount as compared to results under section 50(a) prior to the TCJA changes to section 47. The proposed regulations ensure that this is not the result under section 50.

Moreover, in coordinating the rules between sections 47 and 50, the Treasury Department and the IRS considered the fact that that there is no indication that, in changing section 47, Congress intended to modify the application of section 50. The Conference Report and the Bluebook explain that the TCJA's amendments to section 47 retain the 20-percent credit for QREs with respect to a certified historic structure while extending the credit period from one year to five years, but nowhere in the Conference Report or the Bluebook is there any suggestion that the results for taxpayers claiming the rehabilitation credit under the rules of section 50 were intended to be different. See Conference Report, at 435-436; Bluebook, at 210. Further, the TCJA made no changes to section 50. Accordingly, the proposed regulations generally place taxpayers claiming the rehabilitation credit after the TCJA in the same position with respect to the rules of section 50 as taxpayers prior to the TCJA. Comments are requested with respect to any specific concerns taxpayers may have with this plain reading of the operative statutory text.

Proposed § 1.47-7(e) provides examples that illustrate these rules with respect to the most relevant fact patterns. In addition to examples that show the general calculation for claiming the rehabilitation credit, proposed § 1.47-7(e) demonstrates the interaction with section 50(a) (recapture in case of dispositions, etc.), section 50(c) (basis adjustment to investment credit property), and two examples to illustrate interaction with section 50(d)(5) (relating to certain leased property when the lessee is treated as owner and subject to an income inclusion requirement). The first example illustrating the interaction with section 50(d)(5) describes a transaction in which the lessee is a corporation, and in the second example the lessee is a partnership that is subject to special rules under § 1.50-1(b)(3)(i).

The Treasury Department and the IRS request comments on these examples and whether any additional examples illustrating the coordination of section 47 with other provisions of the Code and regulations are necessary. The Treasury Department and the IRS are aware that other provisions of the Code and regulations require computations that are impacted by the amount of the rehabilitation credit determined with respect to a QRB and the adjusted basis of a QRB. The Treasury Department and the IRS also request comments regarding whether special rules are needed to address how the amount of the rehabilitation credit determined and the adjusted basis of a QRB interact with those other provisions of the Code and regulations.

These regulations are proposed to apply to taxable years beginning on or after the date the Treasury decision adopting these regulations as final regulations is published in the Federal Register . Taxpayers may rely on these proposed regulations for QREs paid or incurred after December 31, 2017, in taxable years beginning before the date the Treasury decision adopting these regulations as final regulations is published in the Federal Register , provided the taxpayers follow the proposed regulations in their entirety and in a consistent manner.

This regulation is not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget regarding review of tax regulations.

In accordance with the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these proposed regulations will not have a significant economic impact on a substantial number of small entities. Although the rules may affect small entities, data are not readily available about the number of taxpayers affected. The economic impact of these regulations is not likely to be significant, however, because these proposed regulations substantially incorporate statutory changes made to section 47 by the TCJA that have been effective for QREs paid of incurred after December 31, 2017. The proposed regulations will assist taxpayers in understanding the changes to section 47 and make it easier for taxpayers to comply with those changes and section 50, which was not changed by the TCJA. Notwithstanding this certification, the Treasury Department and the IRS welcome comments on the impact of these regulations on small entities.

Pursuant to section 7805(f) of the Internal Revenue Code, these regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to comments that are submitted timely to the IRS as prescribed in the preamble under the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. Any electronic comments submitted, and to the extent practicable any paper comments submitted, will be made available at www.regulations.gov or upon request.

A public hearing will be scheduled if requested in writing by any person who timely submits electronic or written comments. Requests for a public hearing are also encouraged to be made electronically. If a public hearing is scheduled, notice of the date and time for the public hearing will be published in the Federal Register . Announcement 2020-4, 2020-17 IRB 1, provides that until further notice, public hearings conducted by the IRS will be held telephonically. Any telephonic hearing will be made accessible to people with disabilities.

The principal author of these proposed regulations is Barbara J. Campbell, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking PATCOM Coast Guard Patrol Commander § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

The Coast Guard published a NPRM on April 1, 2020 (85 FR 18157), proposing to establish a special local regulation for the Washington, DC Sharkfest Swim on the Potomac River, on June 20, 2020. After publication of that notice, the Coast Guard was informed by the sponsor that the event was being postponed until September 27, 2020. This is the only change from the original proposal published on April 1st. We are issuing this supplemental proposal to amend the special local regulation due to account for the change in the event date, and re-open the comment period to account for this change.

The purpose of this rulemaking is to protect event participants, non-participants and transiting vessels on certain waters of the Upper Potomac River before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP Maryland-National Capital Region is proposing to establish special local regulations from 7 a.m. through 11 a.m. on September 27, 2020. There is no alternate date planned for this event. The regulated area would cover all navigable waters of the Upper Potomac River, within an area bounded by a line connecting the following points: From the Rosilie Island shoreline at latitude 38°47′30.30″ N, longitude 077°01′26.70 W, thence west to latitude 38°47′30.00″ N, longitude 077°01′37.30″ W, thence south to latitude 38°47′08.20″ N, longitude 077°01′37.30″ W, thence east to latitude 38°47′09.00″ N, longitude 077°01′09.20″ W, thence southeast along the pier to latitude 38°47′06.30″ N, longitude 077°01′02.50 W, thence north along the shoreline and west along the southern extent of the Woodrow Wilson (I-95/I-495) Memorial Bridge and south and west along the shoreline to the point of origin, located at National Harbor, MD. The regulated area is approximately 1,210 yards in length and 740 yards in width.

The proposed special local regulations duration and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after the open water swim event, scheduled from 7:30 a.m. to 10:30 a.m. on September 27, 2020. The COTP and the Coast Guard Patrol Commander (PATCOM) would have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area.

Except for Washington, DC Sharkfest Swim event participants and vessels already at berth, a vessel or person would be required to get permission from the COTP or PATCOM before entering the regulated area. Vessel operators can request permission to enter and transit through the regulated area by contacting the PATCOM on VHF-FM channel 16. Vessel traffic would be able to safely transit the regulated area once the PATCOM deems it safe to do so. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols would be considered a non-participant. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

If permission is granted by the COTP or PATCOM, a person or vessel would be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels would be required to operate at a safe speed that minimizes wake while within the regulated area. Official patrol vessels will direct non-participants while within the regulated area. Vessels would be prohibited from loitering within the navigable channel. Only participant vessels and official patrol vessels would be allowed to enter the swim race area.

The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on size, time of day and duration of the regulated area, which would impact a small designated area of the Upper Potomac River for 4 hours. The Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule would allow vessels to seek permission to enter the regulated area, and vessel traffic would be able to safely transit the regulated area once the PATCOM deems it safe to do so.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area lasting for 4 hours. Normally such actions are categorically excluded from further review under paragraph L[61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this docket, see DHS's Correspondence System of Records notice (84 FR 48645, September 26, 2018).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:

I. Table of Abbreviations COTP Captain of the Port Sector Ohio Valley CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

On March 17, 2020, the Coast Guard was notified of a delay to the Thunder Over Louisville Marine Event originally scheduled for April 17, 2020 through April 19, 2020. The event has been postponed until August 14, 2020 through August 16, 2020 and will take place on the Ohio River, between Mile Marker (MM) 597.0 to MM 607.0 The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the Thunder Over Louisville airshow and fireworks display would be a safety concern for anyone within a 10 mile stretch of the Ohio River.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the ten mile stretch of the Ohio River before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP is proposing to establish a special local regulation that will be enforced from 11 a.m. to 6 p.m. on August 14, 2020, from 12 p.m. to 11:59 p.m. on August 15, 2020, and from 12 a.m. to 2 a.m. on August 16, 2020. The special local regulation would cover all navigable waters of the Ohio River from MM 597.0 to MM 607.0. The duration of the special local regulation is intended to ensure the safety of waterway users and these navigable waters before, during, and after the scheduled event. No vessel or person is permitted to enter the special local regulated area without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Entry into the regulated area will be prohibited from 11 a.m. to 6 p.m. on August 14, 2020, from 12 p.m. to 11:59 p.m. on August 15, 2020, and from 12 a.m. to 2 a.m. on August 16, 2020 from Ohio River MM 597.0 to MM 607.0, unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative. Moreover, the Coast Guard will issue written Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the temporary special local regulation that is in place.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a special local regulation area lasting 21 hours over three days on all navigable waters extending ten miles of the Ohio River. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

I. General Information A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OA-2020-0128, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

This is a rule of Agency procedure and practice. The provisions only apply to the EPA and do not regulate any external entities.

This action solicits comment from the public on a proposed regulation establishing procedures that the EPA intends to use to issue guidance documents that are subject to the requirements of Executive Order (E.O.) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents” (84 FR 55237, October 15, 2019), which directs Federal agencies to develop regulations to set forth processes and procedures for issuing guidance documents. The Administrator has sole and unreviewable discretion to deviate from this procedure.

The EPA is authorized to promulgate this rule under its housekeeping authority. The Federal Housekeeping Statute provides that “[t]he head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.” 5 U.S.C. 301. The EPA gained housekeeping authority through the Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (July 9, 1970), which “convey[s] to the [EPA] Administrator all of the housekeeping authority available to other department heads under section 301” and demonstrates that “Congress has vested the Administrator with the authority to run EPA, to exercise its functions, and to issue regulations incidental to the performance of those functions.”  1

The Agency considers this action a rule of agency organization, procedure, or practice that lacks the force and effect of law. The EPA determined, as a matter of good government, to seek comment from the public. The Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(A), provides that an agency may issue interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice without providing notice and an opportunity for public comment.

The EPA uses an open and fair regulatory process, including notice and an opportunity for comment, when imposing new obligations on the public, consistent with applicable law and following appropriate procedures. The EPA considers and responds to applicable comments before publishing final regulations in the Federal Register. Legally binding requirements are imposed on the public only through statutes and implementing regulations and on parties on a case-by-case basis through adjudications. Exceptions may exist when legally binding requirements are authorized by law through other means or when they are incorporated into a contract.

The EPA may issue non-binding guidance using a variety of methods to clarify existing obligations and provide information to help regulated entities comply with requirements. Guidance documents come in a variety of formats, including interpretive memoranda, policy statements, manuals, bulletins, advisories, and more. Any document that satisfies the definition of “guidance document” above would qualify, regardless of name or format.

Such guidance is not subject to APA notice-and-comment requirements. As such, EPA guidance documents are legally non-binding. The EPA does, however, often work with stakeholders to develop guidance documents, provide opportunities for public review and comment on the draft guidance document, and announces the availability of final guidance documents. Nevertheless, members of the public have noted that it is often difficult to identify all guidance documents that the EPA uses and relies upon. This regulation will improve the ability of members of the public to more easily identify all the guidance documents that the EPA uses and relies upon, resolving any concerns over the difficulty assessing the final and effective guidance of the Agency.

Well-designed guidance documents can serve many important functions in regulatory programs. The EPA may provide guidance to interpret existing law or to clarify how it intends to implement a legal requirement. Additionally, EPA may generate guidance that sets forth a policy on a statutory, regulatory, or technical issue. Guidance documents, when used properly, can also help increase efficiency, and improve the public's understanding of the EPA's policies. Over reliance on guidance, to the exclusion of rulemaking, however, decreases the transparency of Agency implementation of legal requirements and can lead to inequitable outcomes.

On October 9, 2019, the President signed E.O. 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” E.O. 13891 directs Federal agencies to finalize regulations that “set forth processes and procedures for issuing guidance documents.”  2 E.O. 13891 notes that “Americans deserve an open and fair regulatory process that imposes new obligations on the public only when consistent with applicable law and after an agency follows appropriate procedures.”  3 A central principle of E.O. 13891 is that guidance documents should clarify existing obligations only; they should not be a vehicle for implementing new, binding requirements on the public. E.O. 13891 recognizes that these documents, when designated as significant guidance documents, could benefit from public input prior to issuance. On October 31, 2019, the White House Office of Management and Budget (OMB) Office of Information and Regulatory Affairs (OIRA) issued a memorandum to Federal agencies outlining how to implement, E.O. 13891. 4

Consistent with E.O. 13891 and OMB's implementing memorandum, this action proposes the EPA's procedures for developing and issuing guidance documents and to establish a petition process for public requests to modify or withdraw an active guidance document. The purpose is to ensure that the EPA's guidance documents are:

• Developed with appropriate review;

• Accessible and transparent to the public; and,

• Provided for public participation in the development of significant guidance documents.

Implementing these procedures will lead to enhanced transparency and help to ensure that guidance documents are not improperly treated as legally binding requirements by the EPA or by the regulated community. Moreover, the proposed regulation includes a definition of “guidance document” to provide greater clarity to the public regarding the scope of the proposed regulation.

Specifically, consistent with the E.O., this regulation provides that the EPA will use an online portal to clearly identify EPA guidance documents for the public and proposes to establish: Definitions of “guidance document” and “significant guidance document,” standard elements for such guidance documents and significant guidance documents, procedures for the EPA to enable the public to comment on proposed significant guidance documents, and procedures for the public to request that an active guidance document be modified or withdrawn. The EPA intends that this regulation be interpreted and implemented in a manner that, consistent with the goals of improving the Agency's accountability and the transparency of the EPA's guidance documents, provides appropriate flexibility for the EPA to take those actions necessary to accomplish its mission.

This rule proposes to establish the EPA's internal policies and procedures for the issuance of future guidance documents pursuant to the directives included in E.O. 13891 as well as codify the requirement that the Agency maintain an internet portal with all active and effective guidance of the Agency. The procedures contained in this proposed rule would apply to guidance documents issued by the EPA that are subject to the requirements of E.O. 13891 but not excluded under Section 4(b) of the E.O., as described in Unit III.A below. Section 4(b) of the E.O. directs the Administrator of OIRA to issue memoranda establishing exceptions from the E.O. for categories of guidance documents, as appropriate. Categorical exceptions may include documents that generally are only routine or ministerial, or that are otherwise of limited importance to the public. The EPA is proposing that the procedures established in this rule would not apply to guidance documents excepted from the requirements of E.O. 13891 under Section 4(b) of the E.O.

Consistent with the definitions in E.O. 13891 and OMB's implementing memorandum, the EPA is proposing the following definitions of the terms “guidance document” and “significant guidance document.”

1. Guidance Document. For the purposes of this rule, “guidance document” would mean an Agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation. The definition is subject to the following exclusions:

• Rules promulgated pursuant to notice and comment under 5 U.S.C. 553, or similar statutory provisions;

• Rules exempt from rulemaking requirements under section 5 U.S.C. 553(a);  5

• Rules of Agency organization, procedure, or practice;

• Decisions of Agency adjudications under 5 U.S.C. 554, or similar statutory provisions;

• Internal guidance directed to the EPA or its components or other agencies that is not intended to have substantial future effect on the behavior of regulated parties;

• Agency statements of specific, rather than general, applicability. The definition of “guidance document” would not apply to advisory or legal opinions directed to particular parties about circumstance-specific questions; notices regarding particular locations or facilities; and correspondence with individual persons or entities about particular matters, including congressional correspondence or notices of violation;

• Agency statements that do not set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation. This would exclude from the definition of “guidance document” Agency statements that merely communicate news updates about the Agency, such as most speeches and press releases as well as Agency statements of general applicability concerning participation in the EPA's voluntary programs;

• Internal executive branch legal advice or legal opinions addressed to executive branch officials or courts, including legal opinions by the Office of General Counsel;

• Legal briefs and other court filings, because these are intended to persuade a court rather than affect the conduct of regulated parties;

• Grant solicitations and awards; or

• Contract solicitations and awards.

2. Significant Guidance Document. For the purposes of this rule, “significant guidance document” would mean a guidance document determined to be significant pursuant to E.O. 12866 and E.O. 13891.

Section 2(c) of E.O. 13891 defines “significant guidance document” to mean a guidance document that may reasonably be anticipated to: (i) Lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (ii) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (iii) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or, (iv) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles of E.O. 12866. 6

Section 3(a) of E.O. 13891 directs agencies to establish and maintain a website guidance portal that contains or links to guidance documents that are “active”, i.e., those guidance documents under this rule that the EPA expects to cite, use, or rely upon. The EPA Guidance Portal was made publicly available on February 28, 2020 ( https://www.EPA.gov/guidance ). 7 The E.O. requires that all active guidance documents issued by an agency be included on the agency's guidance portal and that any guidance document excluded from the portal does not represent the final guidance of the agency and will have no effect.

The EPA is providing here a description of the information that is currently available on the EPA Guidance Portal. The EPA Guidance Portal following information for each guidance document:

• A concise name for the guidance document;

• The date on which the guidance document was issued;

• The date on which the guidance document was posted to the Guidance Portal;

• An EPA unique identifier;

• A hyperlink to the guidance document and any supporting or ancillary documents;

• The general topic, program, and/or statute addressed by the guidance document; and

• A brief summary of the guidance document's content.

In addition to the information associated with each guidance document, the EPA Guidance Portal includes a clearly visible note expressing that (a) guidance documents lack the force and effect of law, unless authorized by statute or incorporated into a contract; and (b) the Agency may not cite, use, or rely on any guidance document as defined in this rule, that is not posted on the EPA Guidance Portal, except to establish historical facts. The EPA Guidance Portal will also include a link to these EPA procedural regulations for guidance documents once issued as final regulations, as well as to any future proposed or final amendments. 8

Consistent with E.O. 13891, the EPA proposes to require certain standard elements for all guidance documents issued after this rule is finalized. Specifically, the EPA is proposing to require that each guidance document would satisfy the following:  9

• Include the term “guidance;”

• Identify the office issuing the document;

• Provide the title of the guidance;

• Provide the unique document identification number;

• Include the date of issuance;

• When practicable, identify the general activities to which and the persons to whom the document applies;

• Include the citation to the statutory provision (including the U.S.C. citation) or regulation (in CFR format) to which the guidance document applies or which it interprets;

• Note if the guidance document is a revision to a previously issued guidance document and, if so, identify the guidance document that it modifies or replaces;

• Include a short summary of the subject matter covered in the guidance document at the beginning of the document; and

• Include a disclaimer stating that the contents of the guidance document do not have the force and effect of law and that the Agency does not intend to bind the public in any way and intends only to provide clarity to the public regarding existing requirements under the law or Agency policies. If the guidance document is binding because it is authorized by law or because the guidance is incorporated into a contract, the EPA will make that clear in the document. 10

Consistent with the requirements of E.O. 13891 and OMB's implementing memorandum, each new guidance document will be posted in the EPA Guidance Portal upon issuance. 11 When a new guidance document has been issued, or an active guidance document has been modified, or an active guidance document has been withdrawn, the EPA proposes to inform the public via the EPA Guidance Portal or other Agency website. The EPA solicits comment on the most effective means to inform the public that a new guidance document has been issued, an active guidance document has been modified, or an active guidance document has been withdrawn. Note that specific procedures for announcing new, modified, or withdrawn significant guidance documents are discussed in Unit III.D. of this document.

Given their legally nonbinding nature, guidance documents will avoid including mandatory language such as “shall,” “must,” “required” or “requirement,” unless these words are used to describe a statutory or regulatory requirement, or the language is addressed to EPA staff and will not foreclose consideration by the EPA of positions advanced by affected private parties. For example, a guidance document may explain how the EPA believes a statute or regulation applies to certain regulated entities or activities. As a practical matter, the EPA also may describe laws of nature, scientific principles, and technical requirements in mandatory terms so long as it is clear that the guidance document itself does not impose legally enforceable rights or obligations. 12

Before issuing a new guidance document covered by this rule that is developed by an EPA Regional Office, the EPA is proposing that the EPA Regional Office must receive concurrence from the corresponding Presidentially-appointed EPA official ( i.e., the relevant Assistant Administrator or an official who is serving in the acting capacity) at EPA headquarters who is responsible for administering the national program to which the guidance document pertains.

The EPA will seek significance determinations from OIRA for certain guidance documents, as appropriate, in the same manner as for rulemakings.

In addition to all the requirements described in Unit III.C., and consistent with the requirements of E.O. 13891, the EPA is proposing specific requirements for significant guidance documents.

The EPA does not intend to supersede non-conflicting internal policy and procedures that the EPA established for significant guidance documents in 2007 as part of its implementation of the OMB Bulletin for Agency Good Guidance Practices. 13 Specifically, the EPA is proposing the following additional requirements for significant guidance documents.

1. Notice and Public Comment Opportunities. This proposed rule would establish a public review and comment opportunity for all significant guidance documents, whether that document is new or a modification or withdrawal of an active guidance document. The EPA is proposing to generally require the EPA to publish a Notice in the Federal Register to announce the availability of a new draft significant guidance document and provide a 30-day public comment opportunity prior to issuing the final significant guidance document. It also proposes to require the EPA to similarly publish a Notice in the Federal Register announcing the proposed modification or withdrawal of an active significant guidance document and provide a 30-day public comment opportunity before finalizing the modification or withdrawal of such a document. In addition to the published announcement of the availability of the draft significant guidance document, the draft significant guidance document itself (including a link to any supporting documents) would be posted on the EPA's website concurrently and labeled appropriately. 14 To ensure comments will be received and responded to by the EPA, public comments on draft significant guidance documents and draft modifications or withdrawals of significant active guidance documents should be submitted using the methods specified in the Notice in the Federal Register announcing the availability of the draft significant guidance document or its withdrawal.

All comments received on a draft significant guidance document, or draft modification or withdrawal of an active significant guidance document, would be made available to the public either through the Federal eRulemaking Portal ( i.e., https://www.regulations.gov/ ) or on the EPA website.

2. Finalizing significant guidance documents. The EPA is proposing to publish a Notice in the Federal Register announcing when the issuance of a new or modified active significant guidance document or withdrawal of an active significant guidance document is finalized.

The proposed regulations would also require the EPA, when issuing a final new significant guidance document or a final modification or withdrawal of an active significant guidance document, to respond to major public comments and identify in the required Notice in the Federal Register how the public may access the comments received and the Agency's response.

The EPA solicits comment on whether the issuance of a modification to an active significant guidance document or the withdrawal of an active significant guidance document should be announced via the Federal Register and subject to a 30-day public comment period, or if other means of public engagement, such as the EPA's Guidance Portal or other Agency website, could be used to announce such actions.

3. Procedural exceptions. The EPA proposes limited exceptions to the significant guidance document notice and comment process. The EPA would not seek or respond to public comment before it implements a significant guidance document (or any other category of guidance document) if exigent circumstances, as determined by the Administrator, ( e.g., a public health, safety, environment or other emergency) make it impracticable to delay issuance of the guidance document, or there is a statutory or judicial requirement that compels the EPA to immediately issue the document. 15 Further, the EPA would not seek or respond to public comment when it finds good cause that notice and public comment is impracticable, unnecessary, or contrary to public interest. The EPA would present the good cause finding in the guidance document or notice of availability in the Federal Register.

4. Required approval. The EPA Administrator or other Presidentially-appointed EPA official, or an official who is serving in an acting capacity of either of the foregoing, would approve each significant guidance document before it is issued and posted on the EPA Guidance Portal. 16

5. Compliance with other applicable requirements. Section 5 of E.O. 13891 specifies that significant guidance documents must demonstrate compliance with the requirements of E.O. 12866, “Regulatory Planning and Review;” E.O. 13563, “Improving Regulation and Regulatory Review;” and E.O. 13609, “Promoting International Regulatory Cooperation,” consistent with the requirements of section 4 of E.O. 13891. E.O. 13891 directs that significant guidance documents must comply with the applicable requirements for regulations or rules, including significant regulatory actions, set forth in these executive orders.

Accordingly, the EPA would comply with the requirements of Executive Orders 12866, 13563, 13609, and 13891 when issuing significant guidance documents. For example, the EPA would assess the potential impacts of the significant guidance document if those effects may reasonably be anticipated to lead to an annual effect on the economy of $100 million. 17 The analysis (Regulatory Impact Analysis (RIA) or Economic Analysis (EA)) would focus on how that economically significant guidance document affects the incentives of regulated parties and would conform to OMB Circular A-4 on Regulatory Analysis and EPA Guidelines for Preparing Economic Analyses. 18 The EPA has not historically issued economically significant guidance documents ( i.e., those that lead to an annual effect on the economy of $100 million or more).

Consistent with E.O. 13891, the EPA is proposing procedures to allow the public to petition the EPA for the modification or withdrawal of an active guidance document posted on the EPA Guidance Portal. The EPA Guidance Portal will provide clear and specific instructions to the public regarding how to request the modification or withdrawal of an active guidance document. The EPA is proposing that the public may submit petitions using one of the two following methods described on the EPA Guidance Portal: (1) An electronic submission through the EPA's designated submission system identified on the EPA Guidance Portal ( i.e., using a link labeled “Submit a petition for Agency modification or withdrawal of guidance documents”), or, (2) a paper submission to the EPA's designated mailing address listed on the EPA Guidance Portal.

1. Format and content elements for public petitions. The EPA is proposing the following formatting elements for petitions:

• The petitioner's name and a means for the EPA to contact the petitioner such as an email address or mailing address, in addition to any other contact information (such as telephone number) that the petitioner chooses to include; and

• A heading, preceding its text that states, either “Petition to Modify a Guidance Document” or “Petition to Withdraw a Guidance Document.”

The EPA is proposing that a petition should include the following content elements:

• Identification of the specific title and the EPA unique identifier of the guidance document that the petitioner is requesting be modified or withdrawn;

• The nature of the relief sought ( i.e., modification or withdrawal);

• An explanation of the interest of the petitioner in the requested action;

• If practicable, specification of the text that the petitioner request be modified or withdrawn, and, where possible, suggested text for the Agency to consider; and

• A rationale for the requested modification or withdrawal.

Although the EPA may be able to consider incomplete petitions, petitions that omit the specified information may impede the EPA from fully evaluating the merits of the requested action. The EPA is proposing that a petition that is not submitted using one of the two methods described above (as well as on the EPA Guidance Portal), but that includes the required formatting and content elements, will be treated as a properly filed petition, received as of the time it is discovered and identified. The EPA notes that if a document does not include all of the format and content elements described above, the EPA may be unable to identify the document as a petition for modification or withdrawal of a guidance document. These will instead be treated according to the existing correspondence or other appropriate procedures of the EPA, and any suggestions contained in it will be considered at the discretion of the Administrator.

The EPA solicits comment on whether the procedural rule should specify any other information elements that should be addressed in a petition to modify or withdraw an active guidance document. The EPA requests that any such comments explain how additional information elements would enable the Agency to correctly identify and more completely evaluate a petition.

2. Required EPA response to public petitions. The EPA would respond to petitions in a timely manner, but no later than 90 calendar days after receipt of the petition. If the EPA requires more than 90 calendar days to consider a petition, the EPA would inform the petitioner that more time is required and indicate the reason why and provide an estimated decision date. The EPA will only extend the response date one time for a period not to exceed 90 calendar days before providing a response.

It is important to note that the response and the set timeframes for responding to the petition are not intended to capture the implementation of the response. For example, if the Agency agrees with a petitioner seeking a modification to a guidance document, the Agency will pursue the modification in accordance with applicable procedures. In such cases, the Agency intends for the response to the petition to include its approach for completing the modification of that guidance document.

Duplicative petitions and petitions submitted as part of a mass petitioning effort may be responded to in a single response to ensure an efficient and consistent response to the petitions. Petitions that request a change to the underlying statute or promulgated rules, rather than specific text in the guidance document, will not be considered valid petitions under this process because they are not petitions to modify or withdraw a guidance document.

The EPA requests comment on whether the Agency should create unified public petition procedures, similar to those proposed in this rule for guidance documents, for EPA rulemakings in addition to the public petition right established in APA section 553(e). 19

Additional information about these statues and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to OMB for review under Executive Orders 12866. The EPA does not anticipate that this rulemaking will have an economic impact on regulated entities. This is a rule of agency procedure and practice. The EPA expects the benefits of this rule to be improved transparency and management of the EPA's guidance documents.

This action is not expected to be an Executive Order 13771 regulatory action because it relates to “agency organization, management or personnel.”

This action does not contain any information collection activities and therefore does not impose an information collection burden under the PRA.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This is a rule of agency procedure and practice. The EPA expects the benefits of this rule to be improved transparency and management of the EPA's guidance documents.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children. Per the definition of “covered regulatory action” in section 2-202 of Executive Order 13891 and because this action does not concern an environmental health risk or safety risk, it is not subject to Executive Order 13045.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard.

For the reasons set forth in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 2 as follows:

I. Background

EPA is proposing to approve a revision to the Georgia SIP submitted through a letter dated October 18, 2019, 1 modifying Rule 391-3-1-.03(13), Emission Reduction Credits, 2 in the State's air permitting rules. This submittal revises the counties in which sources may create emission reduction credits (ERCs). This change aligns Georgia's ERC program with the current status of counties designated nonattainment or contributing to a nonattainment area.

Georgia's SIP-approved ERC program is codified at Rule 391-3-1-.03(13). The ERC program allows eligible sources that voluntarily reduce emissions in the affected counties to certify and “bank” these reductions as ERCs for future use. By its terms, the ERC program only applies in counties in a nonattainment area, or counties determined by the Director of Georgia's Environmental Protection Division (GA EPD) to contribute to ambient air quality in the nonattainment area. The banked ERCs hold their value for ten years, at which point they begin devaluing ten percent per year until they have reached 50 percent of their original value. The ERC program is intended to help the Atlanta area achieve compliance with federal standards for ground-level ozone. The program does not allow for any increase in emissions of oxides of nitrogen (NO X ) or volatile organic compounds (VOC) in the area to which it is applicable.

The current SIP-approved Rule 391-3-1-.03(13), at subparagraph (a)1., allows sources within 13 counties that have the potential to emit (PTE) 25 tons per year (tpy) of either NO X or VOCs to participate in the ERC program. These counties correspond to the prior nonattainment area for the 1979 1-hour ozone National Ambient Air Quality Standard (NAAQS). Georgia Rule 391-3-1-.03(13)(a)2. provides that sources within seven counties that have the potential to emit 100 tpy of either NO X or VOCs may participate in the program. These seven counties were included in the nonattainment area for the 1997 8-hour ozone NAAQS. Finally, Georgia Rule 391-3-1-.03(13)(a)3. provides that electrical generating units (EGU) within 25 counties that have the potential to emit 100 tons per year of either NO X or VOCs may participate in the ERC program. These counties were determined by the Director of GA EPD to contribute to ozone ambient air concentrations in nonattainment areas.

EPA redesignated all nonattainment counties in Georgia to attainment for the 1979 1-hour ozone NAAQS on June 15, 2005, 3 and has since revoked the 1-hour ozone NAAQS. 4 EPA redesignated all nonattainment counties in Georgia to attainment for the 1997 8-hour ozone NAAQS on June 23, 2011. See 76 FR 36873. Additionally, EPA redesignated all nonattainment counties in Georgia to attainment for the 2008 8-hour ozone NAAQS on June 2, 2017. See 82 FR 25523. On June 4, 2018, EPA designated seven counties surrounding Atlanta as nonattainment and classified them as a “marginal” nonattainment area for the 2015 8-hour ozone NAAQS (hereinafter referred to as the Atlanta 2015 8-hour Ozone Area). 5 See 83 FR 25776. This area is the only nonattainment area in the State.

Georgia's October 18, 2019 SIP submittal revises the counties listed in Rule 391-3-1-.03(13)(a) to ensure that only sources in counties currently designated nonattainment—and counties contributing to the ambient air quality in the nonattainment area—may participate in the ERC program. The details of the submittal and EPA's rationale for proposing to approve the changes are discussed below.

The first revision to Georgia's ERC rule removes subparagraph 391-3-1-.03(13)(a)1., which lists 13 counties containing stationary sources with the potential to emit more than 25 tpy of NO X or VOCs, and that are eligible to create and bank NO X and VOC ERCs. This list corresponds to the previous Atlanta 1-hour ozone nonattainment area, which has since been redesignated to attainment. 6 Because these counties have since been redesignated to attainment for the 1979 1-hour ozone NAAQS, Georgia seeks to remove subparagraph (13)(a)1. from the SIP.

Next, GA EPD revises the counties listed at subparagraph (a)2. to add the 13 counties removed from subparagraph (a)1. Sources in counties listed in this subparagraph that emit greater than 100 tpy of NO X or VOCs may participate in the ERC program. Of these 13 added counties, six are part of the Atlanta 2015 8-hour Ozone Area. The remaining seven counties are part of the maintenance area for the 2008 8-hour ozone NAAQS. Georgia's SIP-approved rules require these counties to comply with requirements applicable to nonattainment areas. See Georgia Rule 391-3-1-.03(8)(c)(14). Because these 13 counties either are in a nonattainment area or must otherwise comply with GA EPD's nonattainment area requirements, EPA believes they are appropriately included in the State's ERC program at subparagraph (a)2.

Finally, subparagraph (13)(a)2. is further modified to remove the five counties that were previously part of the maintenance area for the 1997 8-hour ozone NAAQS and are not part of the maintenance area for the 2008 8-hour ozone NAAQS ( i.e., Barrow, Carroll, Hall, Spalding, and Rockdale counties). GA EPD adds these five counties to the list of counties determined to contribute to ambient levels of ozone within the nonattainment area at subparagraph (a)3. See Georgia Rules 391-3-1-.03(8)(c)15. and 391-3-1-.03(8)(e)1. The effect of this change is that EGUs with a PTE greater than 100 tpy of NO X or VOCs in these counties are eligible to create and bank NO X and VOC ERCs.

In sum, these revisions clarify eligibility for sources in certain counties to bank and create ERCs. These changes also make paragraph 391-3-1-.03(13)(a) consistent with current provisions under the State's Nonattainment New Source Review (NNSR) permitting program. 7 EPA also notes that the ERC program is a flexibility tool used by States and affected sources to comply with otherwise applicable requirements and is not expected to impact emissions in the State. Therefore, EPA is preliminarily concluding that these changes are consistent with the CAA and applicable EPA regulations. 8

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Georgia Rule 391-3-1-.03(13), titled “Emission Reduction Credits,” effective September 26, 2019, to clarify which sources in which areas of the State are eligible to create and bank emission reduction credits. EPA has made, and will continue to make, the State Implementation Plan generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

EPA is proposing to approve the Georgia SIP revision with changes to Regulation 391-3-1-.03(13), Emission Reduction Credits, submitted October 18, 2019, to clarify which sources in which areas are eligible to create, bank, transfer, or use ERCs of NO X and VOCs, corresponding to the counties that are either currently in nonattainment or contributing to the current nonattainment area. EPA has preliminarily concluded that the SIP revision is consistent with the CAA and EPA's federal regulations.

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Throughout this document, “we,” “us” and “our” refer to the EPA.

Table 1 lists the rule addressed by this proposal with the dates that it was adopted and submitted by the ADEQ.

On July 17, 2017, the EPA determined that the submittal for the rules and documents in Table 1 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review. 1

There are no previous versions of R18-2-B1302 (“Rule B1302”) in the SIP.

On June 22, 2010, the EPA promulgated a new 1-hour primary sulfur dioxide (SO 2 ) National Ambient Air Quality Standard (NAAQS) of 75 parts per billion (ppb). On August 5, 2013, the EPA designated the Hayden area within Arizona as nonattainment for the 2010 SO 2 NAAQS. This designation became effective on October 4, 2013. Section 191(a) of the CAA directs states to submit SIPs for areas designated as nonattainment for the SO 2 NAAQS to the EPA within 18 months of the effective date of the designation, i.e., by no later than April 4, 2015, in this case. Under CAA section 192(a), these plans are required to have measures that will help their respective areas attain the NAAQS as expeditiously as practicable, but no later than 5 years from the effective date of designation, which for the Hayden SO 2 NAA was October 4, 2018.

ADEQ submitted an attainment plan for the Hayden SO 2 nonattainment area on March 9, 2017 (“Hayden SO 2 Plan”) and submitted associated final rules, including Rule B1302, on April 6, 2017. 2 Rule R18-2-B1302 establishes control requirements for SO 2 emissions from the copper smelter located in the Hayden, AZ nonattainment area (“Hayden Smelter”).

Rules in a SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). CAA section 172(c)(1) requires that SIPs for nonattainment areas provide for the implementation of all reasonably available control measures (RACM), including any reasonably available control technology (RACT), in order to provide for attainment of the NAAQS, and CAA section 172(c)(6) requires that such SIPs “include enforceable emission limitations, and such other control measures means or techniques . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date . . .”

Guidance and policy documents that we use to evaluate enforceability, revision and rule stringency requirements for the applicable criteria pollutants include the following:

• “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

• “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).

• “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

• “Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions,” EPA Office of Air Quality Planning and Standards (April 23, 2014).

Rule B1302 improves the SIP by establishing a more stringent SO 2 emission limit for the main stack at the Hayden smelter than the existing requirements in state law, as well as new operational standards and monitoring, recordkeeping and reporting requirements for the smelter. The rule is partly consistent with CAA requirements and relevant guidance regarding enforceability and SIP revisions. Rule provisions that do not meet the evaluation criteria are summarized below and discussed further in the technical support document (TSD) for this action.

These aspects of the rule do not satisfy the requirements of section 110 and 172(c)(6) of the Act and prevent full approval of the SIP revision:

1. The rule does not contain any numeric emission limit(s) or ongoing monitoring requirements corresponding to the levels of fugitive emissions that were modeled in the Hayden SO 2 Plan. 3 Therefore, the rule does not fully satisfy CAA section 172(c)(6).

2. Rule subsection (E)(4) provides an option for alternative sampling points that could undermine the enforceability of the stack emission limit by providing undue flexibility to change sampling points without undergoing a SIP revision.

3. Rule subsection (E)(6) allows for just under 10% of total facility SO 2 emissions annually to be exempt from CEMS; this could compromise the enforceability of the main stack emission limit.

4. The rule lacks a method for measuring or calculating emissions from the shutdown ventilation flue; this could compromise the enforceability of the main stack emission limit. 4

5. The rule lacks a method for calculating hourly SO 2 emissions, so it is unclear what constitutes a “valid hour” for purposes of allowing data substitution.

In addition to detailing the rule deficiencies listed in the previous section, the TSD includes several other recommendations for improvement for the next time the State modifies the rule.

As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is proposing a limited approval and limited disapproval of the submitted rule. We will accept comments from the public on this proposal until June 22, 2020. If finalized, this action would incorporate the submitted rule into the SIP, including those provisions identified as deficient. This approval is limited because the EPA is simultaneously proposing a limited disapproval of the rule under section 110(k)(3).

Rule B1302 is relied upon by Arizona in the Hayden SO 2 Attainment State Implementation Plan, which is required under CAA title I, part D. Therefore, if finalized, this disapproval would trigger sanctions under CAA section 179 and 40 CFR 52.31, unless the EPA determines that a subsequent SIP revision corrects the rule deficiencies within 18 months of the effective date of the final action.

Note that the submitted rule has been adopted by ADEQ, and the EPA's final limited disapproval would not prevent the State from enforcing it. The limited disapproval also would not prevent any portion of the rule from being incorporated by reference into the federally enforceable SIP. 5

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the ADEQ rules described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Additional information about these statutes and Executive Orders can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

I. Background

EPA is proposing to approve a revision to the Georgia SIP to make clarifying and ministerial changes to its permitting regulations at Rule 391-3-1-.03(8), Permit Requirements. Georgia's October 18, 2019, 1 submittal changes the status of five counties under paragraph (e), which specifies counties that are contributing to the ambient air levels of the current nonattainment area, and makes other minor typographical edits to other subparagraphs for consistent formatting.

Georgia requires compliance with Nonattainment New Source Review (NNSR) requirements under paragraph (c) in nonattainment areas. The State has one current nonattainment area, which is in nonattainment for the 2015 8-hour ozone NAAQS. 2 At subparagraph (c)14., “Additional Provisions for Ozone Non-Attainment Areas,” the State also requires NNSR for certain counties surrounding the current nonattainment area. Specifically, these counties comprise the current maintenance area for the 2008 8-hour ozone NAAQS, 3 which was redesignated to attainment effective June 2, 2017. See 82 FR 25523.

In addition, paragraph (e) explains that the Director shall designate any counties that are contributing to the ambient air level of the nonattainment area. Under subparagraph (c)15., those contributing counties are required to carry out certain elements of NNSR for any new or modified electric generating units (EGU). Specifically, those counties must: Define “major source” and “major stationary source” to include certain sources that emit or have the potential to emit at least 100 tons per year of volatile organic compounds or oxides of nitrogen;  4 identify the net emissions increase threshold triggering the permitting requirement as a result of a physical or operational change at a major stationary source; and require an emissions offset ratio of at least 1.1:1. 5

In a January 16, 2020, action (85 FR 2646), EPA approved revisions to Georgia's NNSR rules at Rule 391-3-1-.03(8). As relevant here, GA EPD removed five counties from the list of counties subject to NNSR requirements under subparagraph (c)14. and added these counties to the list of contributing counties subject to some NNSR requirements at Subparagraph (c)15. 6 Georgia's October 18, 2019, SIP revision is intended to align paragraph (e) with the existing requirements in subparagraph (c)(15) by adding those five counties to the list at paragraph (e).

Georgia's October 18, 2019, submittal changes Rule 391-3-1-.03(e)1. to list Barrow, Carroll, Hall, Spalding, and Walton Counties among those determined by the Director to contribute to the ambient air level of ozone in a revised list of metropolitan Atlanta counties. As discussed above, EPA previously approved the removal of these counties from the list of counties subject to NNSR requirements at subparagraph (c)14. and, in the same action, approved adding these counties to the list of contributing counties at subparagraph (c)15. EPA does not believe that the corresponding change to subparagraph (e)1. requested in the current submittal will substantively impact implementation of Georgia's NNSR program. To the contrary, this change merely makes the list of counties at subparagraph (e)1. consistent with other SIP-approved requirements. In addition, EPA notes that Georgia's October 18, 2019, submittal makes other minor changes to Rule 391-3-1-.03(8), which EPA believes will not substantively impact the State's permitting program. Therefore, EPA is proposing to approve the SIP revision because EPA has preliminarily concluded it is consistent with the CAA and EPA's federal regulations.

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the Georgia Rule 391-3-1-.03(8), titled “Permit Requirements” State effective September 26, 2019, which incorporates minor revisions to the State's permitting requirements. EPA has made and will continue to make the State Implementation Plan generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

EPA is proposing to approve the Georgia SIP revision to Rule 391-3-1-.03(8) titled “Permit Requirements,” submitted on October 18, 2019, to update the status of five counties that are designated as attainment for the 2015 8-hour ozone NAAQS, but which the Director has determined to impact ambient ozone concentrations in the metropolitan Atlanta area, and therefore must comply with certain additional permitting requirements under subparagraph (8)(c)15. In addition, the October 18, 2019, submittal makes typographical edits to Rule 391-3-1.03(8). EPA has preliminarily concluded that the SIP revision is consistent with the CAA and EPA's regulations.

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Throughout this document, the words “we,” “us,” or “our” refer to the EPA.

On June 22, 2010, the EPA promulgated a new 1-hour primary SO 2 NAAQS of 75 parts per billion (ppb). This standard is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations does not exceed 75 ppb, as determined in accordance with appendix T of 40 CFR part 50. 1 On August 5, 2013, the EPA designated a first set of 29 areas of the country as nonattainment for the 2010 SO 2 NAAQS, including the Hayden SO 2 NAA within Arizona. 2 These area designations became effective on October 4, 2013. Section 191(a) of the CAA directs states to submit SIPs for areas designated as nonattainment for the SO 2 NAAQS to the EPA within 18 months of the effective date of the designation, i.e., by no later than April 4, 2015, in this case (hereinafter called “plans” or “nonattainment plans”). Under CAA section 192(a), these plans are required to have measures that will provide for attainment of the NAAQS as expeditiously as practicable, but no later than five years from the effective date of designation, i.e., October 4, 2018, for the Hayden SO 2 NAA.

For a number of areas, including the Hayden SO 2 NAA, the EPA published a document on March 18, 2016, finding that Arizona and other pertinent states had failed to submit the required SO 2 nonattainment plan by the submittal deadline. 3 The finding became effective on April 18, 2016, and initiated a deadline under CAA section 179(a) for the potential imposition of new source review offset and highway funding sanctions. Additionally, under CAA section 110(c), the finding triggered a requirement that the EPA promulgate a federal implementation plan within two years of the effective date of the finding unless by that time the state had made the necessary complete submittal and the EPA had approved the submittal as meeting applicable requirements.

In response to the requirement for SO 2 nonattainment plan submittals, the Arizona Department of Environmental Quality (ADEQ) submitted the Hayden SO 2 Plan on March 9, 2017, and submitted associated final rules on April 6, 2017. 4 The EPA issued letters dated July 17, 2017, and September 26, 2017, finding the submittals complete and halting the sanctions clock under CAA section 179(a). 5

The remainder of this preamble describes the requirements that nonattainment plans must meet in order to obtain EPA approval, provides a review of the Hayden SO 2 Plan with respect to these requirements, and describes the EPA's proposed action on the Plan.

Nonattainment plans for SO 2 must meet the applicable requirements of the CAA, specifically CAA sections 110, 172, 191, and 192. The EPA's regulations governing nonattainment SIP submissions are set forth at 40 CFR part 51, with specific procedural requirements and control strategy requirements residing at subparts F and G, respectively. Soon after Congress enacted the 1990 Amendments to the CAA, the EPA issued comprehensive guidance on SIP revisions in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (“General Preamble”). 6 Among other things, the General Preamble addressed SO 2 SIP submissions and fundamental principles for SIP control strategies. 7 On April 23, 2014, the EPA issued recommended guidance for meeting the statutory requirements in SO 2 SIP submissions, in a document entitled, “Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions” (“2014 SO 2 Guidance”). In the 2014 SO 2 Guidance, the EPA described the statutory requirements for a complete nonattainment plan, including: an accurate emissions inventory of current emissions for all sources of SO 2 within the NAA; an attainment demonstration; a demonstration of RFP; implementation of RACM (including RACT); new source review; enforceable emission limitations and control measures; and adequate contingency measures for the affected area.

For the EPA to fully approve a SIP revision as meeting the requirements of CAA sections 110, 172, 191, and 192, and the EPA's regulations at 40 CFR part 51, the plan for the affected area needs to demonstrate to the EPA's satisfaction that each of the aforementioned requirements has been met. Under CAA section 110(l), the EPA may not approve a plan that would interfere with any applicable requirement concerning NAAQS attainment and RFP, or any other applicable requirement. Under CAA section 193, no requirement in effect (or required to be adopted by an order, settlement, agreement, or plan in effect before November 15, 1990) in any area that is nonattainment for any air pollutant may be modified in any manner unless it ensures equivalent or greater emission reductions of such air pollutant.

Sections 172(c)(1) and 172(c)(6) of the CAA direct states with areas designated as nonattainment to demonstrate that the submitted plan provides for attainment of the NAAQS. 40 CFR part 51, subpart G further delineates the control strategy requirements that plans must meet, and the EPA has long required that all SIPs and control strategies reflect four fundamental principles of quantification, enforceability, replicability, and accountability. 8 SO 2 nonattainment plans must consist of two components: (1) Emission limits and other control measures that assure implementation of permanent, enforceable, and necessary emission controls, and (2) a modeling analysis that meets the requirements of 40 CFR part 51, appendix W and demonstrates that these emission limits and control measures provide for timely attainment of the primary SO 2 NAAQS as expeditiously as practicable, but no later than the attainment date for the affected area. In cases where the necessary emission limits have not previously been made a part of the state's SIP or have not otherwise become federally enforceable, the plan needs to include the necessary enforceable limits in an adopted form suitable for incorporation into the SIP in order for the plan to be approved by the EPA. In all cases, the emission limits and control measures must be accompanied by appropriate methods and conditions to determine compliance with the respective emission limits and control measures and must be quantifiable ( i.e., a specific amount of emission reduction can be ascribed to the measures), fully enforceable ( i.e., specifying clear, unambiguous and measurable requirements for which compliance can be practicably determined), replicable ( i.e., the procedures for determining compliance are sufficiently specific and non-subjective so that two independent entities applying the procedures would obtain the same result), and accountable ( i.e., source specific limits must be permanent and must reflect the assumptions used in the SIP demonstrations).

The EPA's 2014 SO 2 Guidance recommends that the emission limits be expressed as short-term average limits not to exceed the averaging time for the applicable NAAQS that the limit is intended to help maintain ( e.g., addressing emissions averaged over one or three hours), but it also describes the option to utilize emission limits with longer averaging times of up to 30 days as long as the state meets various suggested criteria. 9 The 2014 SO 2 Guidance recommends that, should states and sources utilize longer averaging times (such as 30 days), the longer-term average limit should be set at an adjusted level that reflects a stringency comparable to the 1-hour average limit at the critical emission value shown to provide for attainment.

The 2014 SO 2 Guidance provides an extensive discussion of the EPA's rationale for concluding that appropriately set, comparable stringent limitations based on averaging times as long as 30 days can be found to provide for attainment of the 2010 SO 2 NAAQS. In evaluating this option, the EPA considered the nature of the standard, conducted detailed analyses of the impact of use of 30-day average limits on the prospects for attaining the standard, and carefully reviewed how best to achieve an appropriate balance among the various factors that warrant consideration in judging whether a state's plan provides for attainment. 10

Preferred air quality models for use in regulatory applications are described in appendix A of the EPA's “Guideline on Air Quality Models” (40 CFR part 51, appendix W (“appendix W”)). 11 In general, nonattainment SIP submissions must demonstrate the adequacy of the selected control strategy using the applicable air quality model designated in appendix W. 12 However, where an air quality model specified in appendix W is inappropriate for the particular application, the model may be modified or another model substituted, if the EPA approves the modification or substitution. 13 In 2005, the EPA promulgated the American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD) as the Agency's preferred near-field dispersion model for a wide range of regulatory applications addressing stationary sources ( e.g., in estimating SO 2 concentrations) in all types of terrain based on an extensive developmental and performance evaluation. Supplemental guidance on modeling for purposes of demonstrating attainment of the SO 2 standard is provided in appendix A of the 2014 SO 2 Guidance. Appendix A provides extensive guidance on the modeling domain, the source inputs, assorted types of meteorological data, and background concentrations. Consistency with the recommendations in the 2014 SO 2 Guidance is generally necessary for the attainment demonstration to offer adequately reliable assurance that the plan provides for attainment.

As stated previously, attainment demonstrations for the 2010 1-hour primary SO 2 NAAQS must demonstrate future attainment and maintenance of the NAAQS in the entire area designated as nonattainment ( i.e., not just at the violating monitor) by using air quality dispersion modeling (see appendix W) to show that the mix of sources and enforceable control measures and emission rates in an identified area will not lead to a violation of the SO 2 NAAQS. For the short-term ( i.e., 1-hour) standard, the EPA believes that dispersion modeling, using allowable emissions and addressing stationary sources in the affected area (and in some cases those sources located outside the NAA that may affect attainment in the area) is technically appropriate. This approach is also efficient and effective in demonstrating attainment in NAAs because it takes into consideration combinations of meteorological and source operating conditions that may contribute to peak ground-level concentrations of SO 2 .

The meteorological data used in the analysis should generally be processed with the most recent version of AERMET, which is the meteorological data preprocessor for AERMOD. Estimated concentrations should include ambient background concentrations, follow the form of the standard, and be calculated as described in the EPA's August 23, 2010 clarification memorandum. 14

ADEQ's attainment demonstration used AERMOD version 15181, the regulatory version at the time it conducted its nonattainment planning. As input to AERMOD, ADEQ used one year of on-site surface meteorological data collected by ASARCO  15 LLC (“Asarco”) between August 16, 2013, through August 15, 2014, at a 10-meter tower located approximately 0.35 kilometers south of the smelter building. After submittal, ADEQ discovered an error in the processing of the on-site surface meteorological data. Correcting this error changed predicted SO 2 concentrations such that the modeling no longer shows attainment of the 2010 SO 2 NAAQS. ADEQ has been working with Asarco and the EPA on revised modeling and intends to submit a new attainment demonstration and revised emission limits at a future date. 16

An important prerequisite for approval of a nonattainment plan is the inclusion of “enforceable emission limitations . . . as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date . . . .” 17 The emission limits that were intended to provide for attainment of the 2010 SO 2 NAAQS for the Hayden area are codified in the Arizona Administrative Code (AAC), Title 18, Chapter 2, Article 13, Section R18-2-B1302 (“Rule B1302”). ADEQ submitted Rule B1302 to the EPA on March 3, 2017. In a separate action, the EPA is proposing a limited approval and limited disapproval of Rule B1302. We are proposing a limited approval because the rule includes a more stringent SO 2 emission limit for the main stack at the Hayden Smelter compared to the existing SIP-approved limit, as well as operational standards and monitoring, recordkeeping and reporting requirements that strengthen the SIP. At the same time, we are proposing a limited disapproval because of deficiencies in the rule's enforceability. Of particular relevance to the Hayden SO 2 Plan, Rule B1302 does not contain any numeric fugitive emission limits or ongoing monitoring requirements corresponding to the levels of fugitive emissions that were modeled in the Plan. Instead, the rule relies on requirements in an operations and maintenance plan and two year-long fugitive emissions studies to verify compliance with the modeled fugitive emissions. While the fugitive emissions studies will provide useful information to verify the nature and extent of fugitive emissions from the facility, this approach does not satisfy the requirements for enforceable limits that provide for attainment of the SO 2 NAAQS under CAA section 172(c)(6).

In addition, Rule B1302 has several other deficiencies that undermine its enforceability in certain circumstances:

• Rule subsection (E)(4) provides an option for alternative sampling points that could undermine the enforceability of the stack emission limit by providing undue flexibility to change sampling points without undergoing a SIP revision.

• Rule subsection (E)(6) allows for nearly 10 percent of total facility SO 2 emissions annually to be exempt from continuous emissions monitoring systems; this deficiency could compromise the enforceability of the main stack emission limit.

• The rule lacks a method for measuring or calculating emissions from a shutdown ventilation flue; this omission could compromise the enforceability of the main stack emission limit.

• The rule lacks a method for calculating hourly SO 2 emissions; this omission makes it is unclear what constitutes a “valid hour” for purposes of allowing data substitution. 18

In light of these deficiencies, we propose to find that the Hayden SO 2 Plan does not include emissions limits necessary to provide for attainment of the SO 2 NAAQS.

Finally, we note that the main stack emission limit in Rule B1302 takes the form of a “dual limit,” under which “[e]missions from the Main Stack shall not exceed 1069.1 pounds per hour on a 14-operating day average unless 1,518 pounds or less is emitted during each hour of the 14-operating day period.”  19 This dual limit is intended to provide a level of stringency comparable to a one-hour limit of 1,518 pounds per hour. Because we are proposing to find (1) that ADEQ has not demonstrated the emission limits in Rule B1302 are sufficient to provide for attainment and (2) that the stack emission limit is not fully enforceable due to various deficiencies in Rule B1302, we have not evaluated whether the dual limit is of comparable stringency to a simple one-hour limit of 1,518 pounds per hour.

The EPA has reviewed ADEQ's submitted modeling supporting the attainment demonstration for the Hayden SO 2 NAA and has preliminarily determined that this modeling is inconsistent with CAA requirements, appendix W, and the 2014 SO 2 Guidance due to an error in the meteorological fields used. Without accurate modeling we are unable to determine that the emission limits are sufficient for the Hayden SO 2 NAA to attain the 2010 SO 2 NAAQS. Furthermore, Rule B1302 does not include a numeric fugitive emissions limit and has other deficiencies related to the enforceability of the main stack emission limit. Therefore, we are proposing to disapprove the attainment demonstration in the Hayden SO 2 Plan pursuant to 172(c) and 192(a).

The emissions inventory and source emission rate data for an area serve as the foundation for air quality modeling and other analyses that enable states to estimate the degree to which different sources within a NAA contribute to violations within the affected area and assess the expected improvement in air quality within the NAA due to the adoption and implementation of control measures. The state must develop and submit to the EPA a comprehensive, accurate, and current inventory of actual emissions from all sources of SO 2 emissions in each NAA, as well as any sources located outside the NAA that may affect attainment in the area. 20

The base year inventory establishes a baseline that is used to evaluate emission reductions achieved by the control strategy and to assess RFP requirements. ADEQ used 2011 as the base year for emissions inventory preparation. At the time of preparation of the Plan, 2011 reflected the most recent triennial National Emission Inventory, supported the requirement for timeliness of data, and was also representative of a year with violations of the primary SO 2 NAAQS. ADEQ reviewed and compiled actual emissions of all sources of SO 2 in the NAA in the 2011 base year emissions inventory. In addition to developing an emissions inventory of SO 2 emission sources within the NAA, ADEQ also provided an SO 2 emissions inventory for those emission sources within a 50 kilometer buffer zone of the NAA. Table 1 summarizes 2011 base year SO 2 emissions inventory data for the NAA, categorized by emission source type (rounded to the nearest whole number).

As shown in Table 1, the majority of SO 2 emissions in the 2011 base year inventory can be attributed to the point source category. Emissions for this category are provided in further detail in Table 2.

A projected attainment year emissions inventory should also be included in the SIP submission according to the 2014 SO 2 Guidance. This emissions inventory should include, in a manner consistent with the attainment demonstration, estimated emissions for all SO 2 emission sources that were determined to have an impact on the affected NAA for the projected attainment year. Table 3 summarizes Arizona's projected 2018 SO 2 emissions inventory data for the NAA, categorized by source type. The 2011 base year emissions, as well as the projected change between base year and projected year emissions, are also summarized (rounded to the nearest whole number).

As shown in Table 3, both the majority of SO 2 emissions in the projected 2018 emission inventory, as well as the majority of projected SO 2 emission reductions, can be attributed to point sources. Emissions for this category were determined based on a potential to emit at 100 percent load capacity or federally enforceable permit limits and are provided in further detail in Table 4. The single largest decrease in emissions is attributed to the Hayden Smelter.

The EPA has evaluated ADEQ's 2011 base year inventory and projected 2018 emissions inventory for the Hayden SO 2 NAA and finds these inventories and the methodologies used for their development to be consistent with EPA guidance. As a result, the EPA is proposing to determine that the Hayden SO 2 Plan meets the requirements of CAA section 172(c)(3) and (4) for the Hayden SO 2 NAA.

ADEQ's Plan for attaining the 1-hour SO 2 NAAQS in the Hayden SO 2 NAA is based on implementation of controls at the Hayden Smelter. These controls include the replacement of the existing five converter units with three larger units, installation of more extensive, efficient, and effective fugitive gas control ducting around the converters, and the installation of additional process gas controls before venting to the main stack. These controls are collectively referred to as the “Converter Retrofit Project.” ADEQ conducted a RACM/RACT analysis in the Hayden SO 2 Plan, comparing the requirements at the Hayden Smelter with controls in use at other large sources of SO 2 to identify potentially available control measures and eliminating any measures that were not feasible at the Hayden Smelter or not more stringent than those measures already being implemented. ADEQ then compared the proposed control measures for the Hayden Smelter with the measures not eliminated in the first step of the RACM/RACT analysis and concluded that the proposed control measures would be more stringent. Our assessment of ADEQ's RACM/RACT analysis follows.

The State's RACM/RACT analysis can be found in section 4.4.3 of the Hayden SO 2 Plan. ADEQ compared SO 2 controls at eight different facilities and found that all these units use an acid plant to recover or reduce SO 2 emissions. Some of these facilities also use acid absorption equipment (wet and dry scrubbers) to further control emissions of SO 2 .

ADEQ concluded that the Hayden Smelter's use of an acid plant, the Converter Retrofit Project, and dry lime scrubbing are comparable to SO 2 control measures employed by similar sources. ADEQ reviewed the EPA's RACT/BACT/LAER Clearinghouse and air permits for facilities likely to have analogous processes as provided by the Air & Waste Management Association and determined that the Converter Retrofit Project controls for the Hayden Smelter are representative of RACM/RACT level of control.

As explained in section IV of this document, we find that ADEQ has not demonstrated that implementation of the control measures required under the Plan is sufficient to provide for attainment of the NAAQS in the Hayden SO 2 NAA because the modeling submitted with the attainment plan is flawed. As explained in the General Preamble, “control technology which failed to achieve the SO 2 NAAQS would, by definition, fail to be SO 2 RACT.”  21 Given that RACT is a necessary component of RACM under CAA section 172(c)(1), we propose to conclude that the State has not satisfied the requirement in CAA section 172(c)(1) to adopt and submit all RACM/RACT as needed to attain the standard as expeditiously as practicable.

On November 2, 2015, the EPA published a final limited approval and limited disapproval of revisions to ADEQ's new source review (NSR) rules. 22 On May 4, 2018, the EPA approved additional rule revisions to address many of the deficiencies identified in the 2015 action. 23 Collectively, these rule revisions ensure that ADEQ's rules provide for appropriate NSR for SO 2 sources undergoing construction or major modification in the Hayden SO 2 NAA without need for further modification. Therefore, the EPA has already concluded that the NSR requirement has been met for this area, and we are not reopening that determination in this proposed action. We note that Rule B1302 subsection (I) (Preconstruction review) indicates that the smelter emission limits contained in the rule shall be determined to be SO 2 RACT for purposes of minor NSR requirements. This provision does not interfere with or adversely affect existing nonattainment NSR rules.

In the Hayden SO 2 Plan, Arizona explained its rationale for concluding that the Plan meets the requirement for RFP in accordance with EPA guidance. Specifically, ADEQ's rationale is based on EPA guidance interpreting the RFP requirement being satisfied for SO 2 if the Plan requires “adherence to an ambitious compliance schedule” that “implement[s] appropriate control measures as expeditiously as practicable.” ADEQ noted that its Plan provides for attainment as expeditiously as practicable, i.e., by October 4, 2018, and finds that the Plan thereby satisfies the requirement for RFP.

ADEQ finds that the Hayden SO 2 Plan requires affected sources to implement appropriate control measures as expeditiously as practicable to ensure attainment of the standard by the applicable attainment date. ADEQ concludes that the Plan provides for RFP in accordance with the approach to RFP described in the 2014 SO 2 Guidance.

We note that the EPA's policy indicating RFP for SO 2 may be satisfied by “adherence to an ambitious compliance schedule” is based on the fact that, “for SO 2 there is usually a single `step' between pre-control nonattainment and post-control attainment.”  24 In this instance, however, ADEQ has not demonstrated that implementation of the control measures required under the Plan is sufficient to provide for attainment of the NAAQS in the Hayden SO 2 NAA. In the absence of a demonstration that the required controls will lead to attainment, a compliance schedule to implement these controls is not sufficient to provide for RFP. Therefore, we propose to conclude that the State has not satisfied the requirement in section 172(c)(2) to provide for RFP toward attainment in the Hayden SO 2 NAA.

In the Hayden SO 2 Plan, ADEQ explained its rationale for concluding that the Plan meets the requirement for contingency measures. Specifically, ADEQ relies on the 2014 SO 2 Guidance, which notes the special circumstances that apply to SO 2 and explains on that basis why the contingency requirement in CAA section 172(c)(9) is met for SO 2 by having a comprehensive program to identify sources of violations of the SO 2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement of applicable emission limitations. ADEQ stated that it has such an enforcement program pursuant to state law in Arizona Revised Statutes (ARS) sections 49-461, 49-402, 49-404, and 49-406. ADEQ also describes the process under state law to apply contingency measures for failure to make RFP and/or for failure to attain the SO 2 NAAQS by the attainment date and concludes that ADEQ's Plan satisfies contingency measure requirements.

We note that the EPA has approved ARS 49-402, 49-404, 49-406, and 49-461 into the Arizona SIP. 25 In addition, we have approved ARS 49-422(A) (“Powers and Duties”), which authorizes ADEQ to require sources of air contaminants to “monitor, sample or perform other studies to quantify emissions of air contaminants or levels of air pollution that may reasonably be attributable to that source” for purposes of determining whether the source is in violation of a control requirement. We have also approved ARS 49-460 through 49-463, which authorize ADEQ to request compliance-related information from sources, to issue orders of abatement upon reasonable cause to believe a source has violated or is violating an air pollution control requirement, to establish injunctive relief, to establish civil penalties of up to $10,000 per day per violation, and to conduct criminal enforcement, as appropriate, through the Attorney General. 26 Therefore, we agree that the Arizona SIP establishes a comprehensive enforcement program, allowing for the identification of sources of SO 2 NAAQS violations and aggressive compliance and enforcement follow-up.

However, the EPA's policy that a comprehensive enforcement program can satisfy the contingency measures requirement is premised on the idea that full compliance with the controls required in the plan will assure attainment. In this case, as explained above, ADEQ has not demonstrated that implementation of the control measures required under the Plan is adequate to provide for RFP and attainment of the NAAQS in the Hayden SO 2 NAA. Accordingly, there is no evidence that a program to enforce these controls would be sufficient to bring the area into attainment in the event of NAAQS violations after the attainment date. Furthermore, the enforceability of these control measures is undermined by the deficiencies in Rule B1302 described in section IV.B. Therefore, we propose to conclude that the State has not satisfied the requirement in section 172(c)(9) to provide for contingency measures to be undertaken if the area fails to make RFP or to attain NAAQS by the attainment date.

Generally, as set forth in section 176(c) of the CAA, conformity requires that actions by federal agencies do not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant NAAQS. General conformity applies to federal actions, other than certain highway and transportation projects, if the action takes place in a NAA or maintenance area ( i.e., an area which submitted a maintenance plan that meets the requirements of section 175A of the CAA and has been redesignated to attainment) for ozone, particulate matter, nitrogen dioxide, carbon monoxide, lead, or SO 2 . The EPA's General Conformity Rule establishes the criteria and procedures for determining if a federal action conforms to the SIP. 27 With respect to the 2010 SO 2 NAAQS, federal agencies are expected to continue to estimate emissions for conformity analyses in the same manner as they estimated emissions for conformity analyses under the previous NAAQS for SO 2 . The EPA's General Conformity Rule includes the basic requirement that a federal agency's general conformity analysis be based on the latest and most accurate emission estimation techniques available. 28 When updated and improved emission estimation techniques become available, the EPA expects the federal agency to use these techniques.

Transportation conformity determinations are not required in SO 2 nonattainment and maintenance areas. The EPA concluded in its 1993 transportation conformity rule that highway and transit vehicles are not significant sources of SO 2 . Therefore, transportation plans, transportation improvement programs, and projects are presumed to conform to applicable implementation plans for SO 2 . 29

The EPA is proposing to partially approve and partially disapprove portions of the Hayden SO 2 Plan, which includes ADEQ's attainment demonstration for the Hayden SO 2 NAA and addresses requirements for RFP, RACM/RACT, base year and projected emissions inventories, new source review, and contingency measures. The EPA proposes to determine that the Hayden SO 2 Plan meets the emissions inventory requirements under CAA section 172(c)(3) and (4) and to affirm that the State has met the new source review requirements for the Hayden SO 2 NAA under section 172(c)(5). We propose to determine that the Hayden SO 2 Plan does not meet the attainment demonstration, RACM/RACT, enforceable emission limitations, RFP, or contingency measure requirements of the CAA for the 2010 SO 2 NAAQS. Final partial disapproval of the Hayden SO 2 Plan would trigger sanctions under CAA section 179 and 40 CFR 52.31 unless the EPA determines that Arizona has corrected the deficiencies within 18 months of the effective date of the final action.

The EPA is taking public comments for 30 days following the publication of this proposed action in the Federal Register . We will take all relevant timely comments into consideration in our final action.

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

Participation in virtual public hearing. Please note that the EPA is deviating from its typical approach because the President has declared a national emergency. Due to the current Centers for Disease Control and Prevention (CDC) recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, the EPA cannot hold in-person public meetings at this time.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing upon publication of this document in the Federal Register . To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/residential-wood-heaters or contact Adrian Gates at (919) 541-4860 or by email at gates.adrian@epa.gov to register to speak at the virtual hearing. The last day to pre-register to speak at the hearing will be June 4, 2020. On June 5, 2020, the EPA will post a general agenda for the hearing that will list pre-registered speakers in approximate order at: https://www.epa.gov/residential-wood-heaters.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule.

Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to Nathan Topham and Adrian Gates. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/residential-wood-heaters. While the EPA expects the hearing to go forward as set forth above, if requested, please monitor our website or contact Adrian Gates at (919) 541-4860 or gates.adrian@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or a special accommodation such as audio description, please pre-register for the hearing with Adrian Gates and describe your needs by May 29, 2020. The EPA may not be able to arrange accommodations without advance notice.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2018-0195. All documents in the docket are listed on the https://www.regulations.gov/ website. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. Publicly available docket materials are available electronically through https://www.regulations.gov/.

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2018-0195. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https://www.regulations.gov/ or email. This type of information should be submitted by mail as discussed below.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

The EPA is temporarily suspending its Docket Center and Reading Room for public visitors to reduce the risk of transmitting COVID-19. Written comments submitted by mail are temporarily suspended and no hand deliveries will be accepted. Notwithstanding the suspension of mail submission of regular comments, comments containing CBI should be submitted by mail. 1 Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov/. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

The EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/ or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI and then identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined above. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2018-0195. Note that written comments containing CBI and submitted by mail may be delayed and no hand deliveries will be accepted.

Preamble acronyms and abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Organization of this document. The information in this preamble is organized as follows:

Table 1 lists the categories and entities that are the subject of this proposal. Table 1 is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this proposed action is likely to affect. The proposed revisions, if finalized, will be directly applicable to the affected entities. Federal, state, local, and tribal government entities will not be affected by this proposed action. Table 1 lists the types of entities that the EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your entity is affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 60, subpart AAA, 40 CFR 60.530 and 40 CFR part 60, subpart QQQQ, 40 CFR 60.5472. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

EPA is proposing to establish an exemption from the requirement of a tolerance for residues of the antimicrobial pesticides dipropylene glycol and triethylene glycol on food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. EPA is proposing this exemption to cover residues of dipropylene glycol and triethylene glycol that may be found in food as a result of the use of these antimicrobials on food-contact surfaces.

As noted in the December 2017, Propylene Glycol, Dipropylene Glycol and Triethylene Glycol Interim Registration Review Decision (“Glycol Interim Decision”) (available at http://www.regulations.gov in docket ID numbers EPA-HQ-OPP-2013-0219 and EPA-HQ-OPP-2013-0218), dipropylene glycol and triethylene glycol are registered for use as disinfectants on food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. As a result of that use, residues of dipropylene glycol and triethylene glycol may be found in food that comes into contact with treated surfaces.

According to the Agency's 2016 Antimicrobial Use Site Index ( https://www.epa.gov/pesticide-registration/antimicrobial-pesticide-use-site-index ), EPA categorizes that use as an “indirect food use.” 40 CFR 158W requires a tolerance or exemption for direct and indirect food uses. Historically, EPA did not require a tolerance or tolerance exemption for the registered uses of dipropylene glycol and triethylene glycol because the labels required a potable water rinse after application. EPA's scientific assumption had been that if an antimicrobial pesticide use required a potable water rinse on the label, residues of the pesticide would be rinsed away. With no residues available to transfer to foods coming into contact with the treated food surface, the use was considered nonfood, and no tolerance or tolerance exemption was needed. That presumption of no available residues for transfer is no longer supportable because available data now suggests that a potable water rinse may not be 100% efficient in removing residues; therefore, the Agency no longer considers a use to be “nonfood” just because the label requires a potable water rinse. Absent information supporting a conclusion that no residues would be available for transfer to food from the use, a tolerance or tolerance exemption is required. As of this time, the Agency has not received any information supporting a conclusion that residues of dipropylene glycol and triethylene glycol would not be available for transfer to food after application to food surfaces.

A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346(a), authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues are considered unsafe and therefore “adulterated” under FFDCA section 402(a), 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce, 21 U.S.C. 331(a).

Section 408(e)(1)(B) of the FFDCA authorizes EPA to issue an exemption from the requirement of a tolerance on its own initiative. 21 U.S.C. 346a(e)(1)(B). It is under section 408(e) of the FFDCA that EPA is proposing to establish the exemption in this rulemaking. The standard for establishing an exemption is found in section 408(c)(2)(A) of the FFDCA and is discussed below. 21 U.S.C. 346a(c)(2)(A).

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement of a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(c)(2)(B) requires EPA to take into account, among other things, the considerations set forth in section 408(b)(2)(C) and (D). Specifically, section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure to support the establishment of exemptions from the requirement of a tolerance for residues of dipropylene glycol and triethylene glycol.

As noted in the Glycol Interim Decision, there is no evidence of adverse effects for dipropylene and triethylene glycol in the toxicity database; therefore, EPA did not identify any toxicological endpoints of concern for assessing risk. Although the current uses have the potential to result in exposure to residues of dipropylene and triethylene glycol in or on food, including uses of these chemicals as inert ingredients, the low order of toxicity and low application rates from the current uses of these chemicals support a conclusion that exemptions from the requirement of a tolerance for these pesticide chemicals when used in antimicrobial formulations on food-contact surfaces in public eating places, on dairy-processing equipment, and on food-processing equipment and utensils would be safe. Based on the low order of toxicity and low exposure levels, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including all subpopulation groups, from aggregate exposure to dipropylene glycol or triethylene glycol. For further information, the Glycol Interim Decision can be found at https://www.regulations.gov in docket identification numbers EPA-HQ-OPP-2013-0218 (propylene and dipropylene glycol) and EPA-HQ-OPP-2013-0219 (triethylene glycol).

An analytical method for residue is not needed. Due to the lack of risk, EPA is establishing exemptions without limits for dipropylene glycol and triethylene glycol; therefore, measuring residues of dipropylene glycol and triethylene glycol is not necessary.

Therefore, EPA is proposing to establish an exemption from the requirement of a tolerance for residues of dipropylene glycol and triethylene glycol when used in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils.

In this document, EPA is proposing to establish exemptions from the requirement of a tolerance under FFDCA section 408(e). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), nor is it subject to Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ). Nor does it require any special considerations as required by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This proposed rule does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published in the Federal Register of May 4, 1981 (46 FR 24950) and December 17, 1997 (62 FR 66020) (FRL-5753-1), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this proposed rule, the Agency hereby certifies that this proposed rule will not have a significant negative economic impact on a substantial number of small entities. Furthermore, for the pesticides named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposed rule that would change EPA's previous analysis. Any comments about the Agency's determination should be submitted to the EPA along with comments on the proposed rule and will be addressed prior to issuing a final rule.

In addition, the Agency has determined that this proposed rule will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule directly regulates growers, food processors, food handlers, and food retailers, not States. This proposed rule does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Executive Order 13175 requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

The EPA published a proposed rulemaking on March 13, 2020 (85 FR 14622), which was a proposal to expand the Port Everglades ODMDS. Additionally, the EPA released on March 13, 2020, and will re-release concurrent with this notice, a draft Environmental Assessment (EA) including a draft Site Monitoring and Management Plan (appendix to the EA) for comment. The draft EA is available on the EPA Region 4 web page, which may be accessed at: https://www.epa.gov/aboutepa/about-epa-region-4-southeast#Public%20Notices. The EPA is reopening the comment period for an additional 30 days on all associated documents.

This is a summary of the Commission's document, Report No. 3147, released May 8, 2020. Petitions may be accessed online via the Commission's Electronic Comment Filing System at: http://apps.fcc.gov/ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. because no rules are being adopted by the Commission.

Subject: Promoting Telehealth for Low-Income Consumers; COVID-19 Telehealth Program, FCC 20-44, published at 85 FR 19892, April 9, 2020 in WC Docket Nos. 18-213 and 20-89. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

Number of Petitions Filed: 2.