Please refer to Docket ID NRC-2020-0155 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0155.

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• Attention: The Public Document Room (PDR), where you may examine and order copies of public documents is currently closed. You may submit your request to the PDR via email at pdr.resource@nrc.gov or call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays.

Please include Docket ID NRC-2020-0155 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

The petition for rulemaking (PRM) was filed by Thomas McKenna, who stated in his petition that he has worked in emergency preparedness and response at both the NRC and the International Atomic Energy Agency and is one of the authors of the NRC's 1996 draft guidance on initial protective actions in the event of a severe accident. The draft guidance, NUREG-0654/FEMA-REP-1, Rev. 1, Supp. 3, “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants: Criteria for Protective Action Recommendations for Severe Accidents,” dated July 1996, may be found in ADAMS at Accession No. ML051120480.

The petitioner requests that the NRC amend part 50 of title 10 of the Code of Federal Regulations (10 CFR) such that public protective actions implemented during a General Emergency at a nuclear power plant will most likely do more good than harm when the possible physical health effects of radiation exposure and protective actions are taken into consideration. The petition may be found in ADAMS at Accession No. ML20176A313.

The petitioner asserts that protective actions taken in accordance with NRC guidance during a General Emergency may cause 12 times more excess deaths among the public and 15 times more excess deaths among elderly residents of care facilities than caused by radiation exposure due to the General Emergency. The petitioner states that an objective of emergency response plans has been to provide dose savings and that the NRC's requirements were not established on a risk-informed basis that justifies protective actions will do more good than harm. The petitioner states that the NRC requirements are based on analyses that are 40 or more years old in some cases and do not reflect the latest studies of nuclear power plant emergencies, which project much smaller releases and thus result in smaller radiation-induced health consequences. The petitioner asks that the NRC carefully reexamine the agency's regulations and implementing guidance on protective actions during a General Emergency.

The NRC has determined that the petition meets the sufficiency requirements for docketing a PRM under 10 CFR 2.803, “Petition for rulemaking-NRC action.” The NRC will examine the issues raised in PRM-50-123 and any comments received in response to this comment request to determine whether these issues should be considered in rulemaking.

Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or, in context, “the Act'”)  1 sets forth a variety of provisions designed to improve energy efficiency. Part A of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products Other Than Automobiles. The National Energy Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA to add Part A-1 of Title III, which established an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317) Under the Act, the regulatory program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, which include performance and design standards, and (4) certification and enforcement procedures. Provisions of the Act include definitions (42 U.S.C. 6291, 6311), energy efficiency standards (42 U.S.C. 6295, 6313), test procedures (42 U.S.C. 6293, 6314), labeling provisions (42 U.S.C. 6294, 6315), and the authority to require information and reports from manufacturers, as well as enforcement authority (42 U.S.C. 6296, 6316).

The Federal Trade Commission (FTC) is primarily responsible for labeling consumer products, and DOE implements the remainder of the program. The testing requirements consist of test procedures prescribed under the authority of EPCA, which are used to aid in the development of standards for covered products or covered equipment, to make representations about equipment efficiency, and to determine whether covered products or covered equipment comply with standards promulgated under EPCA.

Sections 6298-6305, and 6316 of EPCA authorize DOE to enforce compliance with the energy conservation standards established for covered products and covered equipment. To ensure that all covered products and covered equipment distributed in the United States comply with DOE's conservation standards and certification requirements, DOE promulgated enforcement regulations in 10 CFR part 429. On September 16, 2010, the Department published in the Federal Register a notice of proposed rulemaking regarding Certification, Compliance, and Enforcement for Consumer Products and Commercial and Industrial Equipment (September 2010 NOPR). 75 FR 56796. The September 2010 NOPR proposed to revise, consolidate and streamline the Department's existing certification, compliance, and enforcement regulations for certain consumer products and commercial and industrial equipment covered under EPCA. On March 7, 2011, DOE published in the Federal Register a final rule on the matter that revised the Department's regulations to, amongst other things, allow the Department to enforce applicable conservation standards in a proactive and fair manner based on the circumstances of each case (March 2011 Final Rule). 76 FR 12422. Some issues addressed by the rule included DOE-witnessed testing; the selection of units for enforcement testing from retail, distribution, or manufacturer sources, depending on the circumstances, to ensure enforcement test results that are as unbiased, accurate, and representative as possible; and alternative approaches to enforcement testing in certain circumstances, such as when the requested model is low-volume. DOE subsequently published two correction notices in May 2011 and August 2011. 76 FR 24762; 76 FR 46202.

Separate from other covered products and equipment, the enforcement provisions for electric motors are currently located at 10 CFR part 431, subpart U. On June 24, 2016, DOE published a notice of proposed rulemaking proposing a variety of changes to the current compliance, certification, and enforcement regulations for electric motors and small electric motors. (June 2016 NOPR) 81 FR 41378. No final rule was promulgated in that rulemaking, and this proposal does not address each of the previously proposed changes. Instead, in this rulemaking, DOE is only proposing to apply the enforcement procedures found at subpart C of part 429 to electric motors and small electric motors.

DOE remains committed to establishing a systematic and fair approach to enforcement that will allow the Department to enforce standards and certification requirements effectively and ensure a level playing field in the marketplace without unduly burdening regulated entities. In this document, based on experience and a greater understanding of the challenges faced in the enforcement process by both DOE and the regulated industry, DOE proposes to again revise its enforcement regulations to ensure they convey a clear and comprehensive enforcement process. The document proposes revisions to existing enforcement procedures applicable to both covered products and covered equipment. Revising the current enforcement procedures will afford further certainty and clarity to the regulated industry, facilitate communication between DOE and the regulated industry, and advance the effective enforcement of DOE's regulations. In addition to minor edits throughout the regulation for clarity and readability, DOE's proposal is summarized below.

To provide additional process in instances where DOE is planning to make a finding of noncompliance, DOE proposes to provide manufacturers and private labelers with a letter of intent stating DOE's intent to issue a notice of noncompliance determination for a basic model. DOE also proposes a petition process to ask DOE (within 30 days after issuance of a letter of intent) to reexamine the pending determination.

To reduce manufacturer burden, DOE proposes to no longer require within its regulations that manufacturers inform customers of DOE's determination of noncompliance. Further, to ensure clarity and consistency regarding how to attain a notice of allowance to distribute a redesigned or modified basic model after a finding of noncompliance, DOE also proposes to provide the full notice of allowance process explicitly within its regulations.

DOE is also proposing regulations to make clear the extent of the Department's enforcement authority under EPCA and the Department's process for exercising that authority. DOE desires to make more transparent the process by which it may exercise its statutory authority to: (1) Make a determination of noncompliance for a basic model subject to a design requirement; (2) request from any party information concerning the certification of or compliance of a basic model with an applicable conservation standard; (3) make a finding of noncompliance based on information received through the course of an investigation, which may include information other than DOE's own test data; (4) pursue or settle enforcement actions, with adherence to statutory timeframes set forth in EPCA; (5) request and attain test units via the issuance of a test notice; and (6) seek injunctive relief.

In response to feedback from various industry associations, DOE proposes within its regulations to have the discretion to consider third-party certification program testing as official enforcement test data.

DOE proposes to restructure and clarify its regulations pertaining to DOE's sampling provisions. To provide manufacturers with a better understanding of how DOE's sampling plans apply, the proposal also explicitly provides that in addition to DOE enforcement testing, there are other bases upon which DOE may make a finding of noncompliance ( e.g., in whole or part on DOE's own enforcement testing, testing from another Federal agency, or a manufacturer's own test report).

DOE also proposes updates to current enforcement regulations to account for prohibited actions prescribed by Congress that are not reflected within DOE's enforcement regulations.

DOE proposes that it may make a finding of noncompliance based on a single test where the results of the assessment test are so far from an applicable standard ( i.e., at least 25% worse) that a finding of compliance is extremely unlikely.

DOE also notes in this proposal that the Department expects to address administrative law judge hearing procedures in a subsequent rulemaking.

DOE proposes to move the enforcement provisions for electric motors from 10 CFR part 431, subpart U, to 10 CFR 429.110 with corresponding revisions, and to move the enforcement sampling provisions unchanged to a new appendix E to subpart C of part 429. DOE also proposes to explicitly adopt for small electric motors the proposed enforcement provisions in subpart C to part 429.

In this section, DOE provides a detailed analysis of its proposed rule.

As a part of this comprehensive proposed rule regarding DOE's enforcement procedures, DOE proposes that the enforcement provisions in subpart C to part 429 that apply to all other types of covered products and equipment apply to electric motors and small electric motors. DOE proposes to transition the enforcement provisions currently in place for electric motors from 10 CFR part 431, subpart U to 10 CFR part 429, subpart C, and to move the enforcement sampling provisions to a new appendix E in subpart C of part 429. DOE proposes to reserve subpart U.

The enforcement provisions for electric motors are currently located at 10 CFR part 431, subpart U. As for other types of covered products and equipment, these regulations prescribe an enforcement process through which DOE determines whether an electric motor manufacturer is in violation of the energy conservation requirements of EPCA. The current regulations, amongst other things, identify various prohibited acts that may subject a manufacturer to civil penalties. Subpart U also details remedies for addressing cases of noncompliance and a process for the assessment and recovery of civil penalties.

Harmonizing the enforcement process for motors with the process for all other types of covered products and equipment would ensure that electric motors and small electric motors manufacturers are afforded the same processes ( e.g., the petition for reexamination process discussed in Section III.I.) as manufacturers of all other covered products and equipment. The enforcement process provided in 10 CFR part 429 is significantly more developed than the current procedures for electric motors, so transitioning motors to the Part 429 process will provide greater clarity to manufacturers. The proposal provides that enforcement testing for motors would only be conducted by a laboratory that is accredited to the International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC), “General requirements for the competence of testing and calibration laboratories,” ISO/IEC 17025:2005(E). Further, the proposal would remove the regulatory provision allowing electric motors manufacturers to request additional DOE testing after DOE makes a noncompliance determination, and permit DOE to use its discretion to conduct additional testing due to a defective unit in the initial sample.

There are also several proposed prohibited acts regarding electric motors and small electric motors that reflect the unique statutory provisions for each type of equipment, and that are proposed to be relocated to 10 CFR part 429. Those prohibited acts are discussed in more detail in Section III.B. of this proposed rulemaking.

DOE proposes to remove the prohibited act currently at 10 CFR 429.102(a)(7) ( i.e., distribution in commerce by a manufacturer or private labeler of a basic model of a covered product or covered equipment after a notice of noncompliance determination (NND) has been issued to the manufacturer or private labeler). DOE understands that this regulatory language suggests that it is a separate violation to distribute a noncompliant product after DOE issues a notice of noncompliance determination. However, pursuant to EPCA, it is a prohibited act to distribute in commerce in the U.S. any covered product or equipment not in compliance with an applicable energy conservation standard, regardless of whether DOE has issued an NND or not. 42 U.S.C. 6302(a)(5) Thus, the prohibited act intended to be covered by 10 CFR 429.102(a)(7) is currently covered under 10 CFR 429.102(a)(6).

DOE proposes to add prohibited acts to 10 CFR 429.102(a) for distribution of rough service lamps and vibration service lamps that do not meet the applicable standard(s) and to codify at 10 CFR 429.102(a) the prohibited acts related to grid-enabled water heaters. DOE also proposes to amend 10 CFR 429.102(a)(9) to clarify that DOE interprets the provision as prohibiting the distribution of an adapter designed to allow the use of a non-medium screw base lamp in a medium screw base socket. Because the term “incandescent lamp,” which is used in the current text, is defined to include only lamps with a medium screw base, the provision would lead to the absurd result of prohibiting distribution of an adapter for only medium screw base lamps that do not have a medium screw base, which renders the provision a nullity.

DOE proposes to move certain prohibited acts to 10 CFR 429.102, and adjust two of these acts to reflect that the prohibitions apply (by statute) to all covered equipment for which DOE has promulgated a labeling rule. Specifically, DOE proposes to move and adjust the prohibited acts from 10 CFR 431.382(a)(1), (2), and (4) to 10 CFR 429.102 as follows: (1) Manufacturers and private labelers are prohibited from distributing in commerce any covered equipment that is not labeled in accordance with part 431; (2) Manufacturers, distributors, retailers, and private labelers are prohibited from removing or rendering illegible from any covered equipment any label required to be provided under part 431; and (3) Manufacturers, distributors, retailers, and private labelers are prohibited from advertising electric motors in a catalog from which the equipment may be purchased, without including in the catalog all information as required by 10 CFR 431.31(b), provided, however, that this shall not apply to an advertisement of an electric motor in a catalog if distribution of the catalog began before the effective date of the labeling rule applicable to that motor. DOE requests comment on whether the last clause of the third prohibited act ( i.e., “provided, however, that this shall not apply to an advertisement of an electric motor in a catalog if distribution of the catalog began before the effective date of the labeling rule applicable to that motor”) provides any value given that the labeling provision for electric motors has been in effect for motors manufactured since October 5, 2000.

The inclusion of electric motors in 10 CFR 429.102 would also clarify that certain additional prohibited acts not currently specified in 10 CFR 431.382 also apply to electric motor manufacturers. 2 As discussed in the March 7, 2011 CCE final rule (see 76 FR 12422, 12440), these prohibited acts are within the scope of the prohibited acts specified in EPCA at 42 U.S.C. 6302 (See 42 U.S.C. 6316(a)).

EPCA provides in 42 U.S.C. 6317(f)(1)(A) prohibited acts that apply to small electric motors (and distribution transformers and HID lamps) identical in effect to those found at section 6302(a)(1) and (2); however, DOE has not adopted labeling provisions for small electric motors and is not proposing in this rule to do so. Accordingly, the prohibited acts related to labeling would not apply to small electric motors or any other type of covered equipment for which DOE has not established labeling provisions.

DOE proposes edits to 10 CFR 429.106 in order to clarify that design requirements are energy conservation standards that are subject to DOE investigation and enforcement. EPCA explicitly provides that energy conservation standards include design requirements for certain enumerated products, and that DOE may enforce such standards. (42 U.S.C. 6291, 6311, 6303, and 6316). Nevertheless, DOE believes that the proposed edits to DOE's regulations are necessary, as it has received some questions from manufacturers as to whether manufacturers and private labelers of products are subject to design standards are also subject to the enforcement process set forth in 10 CFR part 429, subpart C. To provide the regulated industry with an explicit understanding of how DOE may make its determination of noncompliance for models subject to a design standard, DOE's proposal explicitly states that a test unit of a basic model subject to a design requirement may be selected for enforcement testing or examination. In such an instance, DOE will make a determination of noncompliance for the basic model based on an examination of whether a single unit of the basic model fails to comply with the applicable design requirements, as the standard applies to a design—not the measured performance of individual units—such that one unit can demonstrate noncompliance.

Pursuant to EPCA, DOE has authority to initiate enforcement actions to ensure compliance with, amongst other things, its certification requirements and energy conservation standards. Current DOE regulations already provide that DOE may request any information relevant to determining compliance. DOE proposes to revise its procedures to provide that the Department retains the discretion to request data, underlying the certification of a basic model or belief as to whether a basic model is compliant with an applicable standard, from any party. DOE has historically requested this information from manufacturers of covered products and equipment. DOE proposes to revise its regulations to include explicitly that DOE may request the information from a party other than the manufacturer of the covered equipment, such as a third-party certification program or other manufacturer with independent test data. This proposal ensures that DOE can enforce its regulations in instances where relevant information is retained by parties other than the manufacturer. Parties other than the manufacturer often conduct independent testing to determine compliance with applicable standards. In such instances, DOE's ability to retrieve that test information could save government testing resources, and ensure that DOE can enforce in a timely manner, which will further DOE's goals of maintaining a level playing field for all parties and encouraging compliance.

Should DOE obtain information from any party demonstrating that a basic model does not comply with a certification requirement or energy conservation standard, DOE may make a finding of noncompliance and impose civil penalties pursuant to its authority under EPCA. (42 U.S.C. 6303) To provide transparency within the regulation and further align its regulations with its statutory authority, DOE also proposes regulatory text at 10 CFR 429.112, explicitly setting forth that DOE's determination of noncompliance may be based on test data from a variety of sources: The manufacturer or private labeler, another Federal agency, or a third-party certification program; testing pursuant to §§ 429.104 and 429.110; and/or an admission. Stating the various bases upon which DOE may make a determination of noncompliance provides clarity for all parties.

DOE proposes that test data (for units tested in accordance with the applicable DOE test procedure) from a third-party certification program may be considered official enforcement test data upon which DOE may make a finding of noncompliance. Various industry associations have asked DOE to consider their test results as a part of DOE's enforcement process. DOE understands that reliance on a third-party certification program test in lieu of, or in addition to, testing conducted by DOE pursuant to a test notice may save resources for all parties and may lead to a more expedient enforcement process in some circumstances. Thus, this proposal provides DOE the opportunity to contemplate and potentially rely on test data obtained under a third-party certification test program as an official enforcement test.

DOE's proposal is intended to provide more specificity and transparency regarding DOE's current test notice process, and to make consistent with all other enforcement actions the test notice process for electric motors and small electric motors.

DOE seeks to provide manufacturers with more specific information about the units requested in a test notice. Unfortunately, in various enforcement actions, DOE has often received units that are not responsive to a test notice ( e.g., units with varied designs or features as compared to the assessment test unit, units with similar nameplates but that are in fact different (in design, components, materials, etc.) from the assessment test unit). DOE's request in a test notice does not constitute a flexible request for units that a manufacturer may fulfill at its own discretion. In instances where DOE has already conducted an assessment test, the requested units are meant to be equivalent to the assessment test unit. Thus, in addition to identifying in the test notice the basic model selected for enforcement testing, DOE proposes that it may also include other characteristics or specifications of the requested units ( e.g., individual model numbers, serial numbers, manufacturer date ranges, manufacture location). DOE anticipates that additional identifying information within the test notice will alleviate any confusion about exactly what units DOE is requesting. This additional communication will result in clarity and saved resources for all parties.

Current regulations state that DOE will identify in the test notice the exact date DOE is scheduled to begin testing the requested units. The proposed edits provide instead that DOE will identify in the test notice the approximate date of testing. The proposal accounts for the fact that the test laboratory's schedule can fluctuate such that it is not realistic to assure that testing will begin on one specific day. DOE is, however, able to schedule an approximate date for testing that is usually within a one- to two-week range. Therefore, an approximate date in the test notice is more realistic and reliable.

Current regulations state that DOE will work with the manufacturer to create an enforcement plan for testing when the requested units are low volume or built to order. In current practice, DOE in fact works with manufacturers to create an enforcement plan in other instances as well, such as when the manufacturer does not have the exact requested units and is unable to produce them, but can produce similar units. DOE proposes various edits to address scenarios where fewer than the requested number of units in the test notice are available for shipment.

In instances where manufacturers believe that test units are unavailable, DOE has found that the manufacturers often send alternate units ( i.e., units that are different than those requested in the test notice) without communicating the circumstances of the potential unavailability to DOE. In some cases, DOE has learned that the manufacturer provided alternate units only upon the DOE laboratory inspection or test of the units. To foster communication and avoid wasted resources for both parties, the proposed edits address both DOE and the manufacturer's next steps when the manufacturer believes that the requested units are unavailable for shipment. Specifically, the manufacturer must inform DOE if it believes that the requested units in the test notice are unavailable and must provide details regarding the unavailability. The manufacturer must also inform DOE if it does not have the requested units but has similar ones, along with details about the similar units.

If DOE determines that the requested units are in fact unavailable, DOE will contact the manufacturer to develop a plan for enforcement testing. In such instances, DOE may test the available units, which may include testing of similar units identified by the manufacturer and/or may test units that become available within 30 days. Although these options are not novel to the test notice process, DOE proposes to restructure the options within the regulations to ensure applicability to all scenarios of test unit unavailability (as opposed to only when the units are low volume or built to order).

The proposed edits provide that a test notice will specify whether DOE or the manufacturer will select units for testing. When DOE finalized existing regulations in 2011, DOE was in the practice of selecting all test units. However, over time the process has changed such that manufacturers often select units. Thus, the proposed edits capture both scenarios.

In addition, the proposed text further explains and clarifies the process of randomly selecting units in response to a test notice. Although the random selection of units has been discussed by DOE previously in the September 2010 NOPR and March 2011 Final Rule (75 FR 56804; 76 FR 12430), DOE finds that manufacturers continue to be uncertain about how to make selections, particularly in regards to how a batch sample is selected when the units are sourced from the manufacturer's warehouse, distributor, or other facility affiliated with the manufacturer. In order to provide clarification, in this proposal, DOE explains that the batch sample must be selected at random from all units of the specified model that are in inventory on the date of the test notice, including all units that have not yet been shipped. From that batch sample, the initial test sample should be randomly selected. DOE expects that the clarifying edits to the regulatory text will alleviate confusion about how to make the required random selection of units.

DOE also proposes to explicitly provide within its regulations the current practice regarding documentation required after issuance of a test notice. Specifically, the proposed text provides that DOE may ask for documentation demonstrating the location from which each unit is selected, and that the unit was in inventory at such location on the date the test notice was issued. DOE typically asks manufacturers to provide this information as it provides assurance that the units are from inventory as required and ensures that DOE understands the source of the test units.

Current regulatory text provides that a test unit provided in response to a test notice shall not be prepared, modified, or adjusted in any manner unless such preparation, modification, or adjustment is allowed by the applicable DOE test procedure. DOE has received inquiries as to whether these restrictions on preparation, modification, and adjustment also apply to DOE, or if DOE is permitted to alter test units. Thus, DOE proposes edits to current regulations in order to clarify that upon receipt of a test unit, DOE will only prepare, modify, or adjust a unit if allowable under the DOE test procedure or authorized by the manufacturer. Further, DOE will also notify the manufacturer if a test unit is received by the test lab in a condition that may impact performance. In such an instance, DOE may decide to test another unit depending on the condition of the particular unit. DOE may also determine that it can rectify the condition easily to continue with the test, for example, by replacing a commonly available part. However, in such an instance, DOE would still discuss the matter with the manufacturer prior to any modification.

DOE proposes restructuring and clarifying edits to regulations pertaining to DOE's enforcement sampling procedures. A significant portion of the information contained within DOE's proposal is currently contained at 10 CFR 429.110(e), and is restructured in DOE's proposed 10 CFR 429.111, but the current applicable sample sizes and references to the applicable appendices remain unchanged. DOE also proposes some new provisions to 10 CFR 429.111, which are discussed in further detail below. DOE also proposes to move the current enforcement sampling plan for electric motors, which is at appendix A to subpart U of part 431, to a new appendix E to subpart C of part 429 without change.

To provide the regulated industry with a better understanding of how DOE's sampling plans apply, as noted previously, DOE's proposal explicitly provides that in addition to DOE enforcement testing, there are other bases upon which DOE may make a finding of noncompliance ( e.g., in whole or part on DOE's own enforcement testing, testing from another Federal agency, or a manufacturer's own test report.)

Current regulations at 10 CFR 429.110 indicate that, in an instance where units are unavailable for testing, DOE may make a determination of noncompliance based on a sample size of less than the otherwise required number of units. DOE's current regulations at 10 CFR 429.110(e)(7) also state that a reduced sample size may be used when testing is impractical or where a basic model has unusual testing requirements. To provide a more fulsome understanding of when DOE may rely on a reduced sample size, DOE also proposes 10 CFR 429.111(a)(7), which provides that a reduced sample size may also apply in other circumstances, such as when DOE makes a determination of noncompliance for a basic model subject to design requirements, or based on the manufacturer's test data.

DOE also proposes to explicitly state that for all products, if the sample size is comprised of a single unit, DOE will determine noncompliance for the basic model based solely on the results of the single test. In such an instance, the sampling plans in the appendices do not apply. Although DOE believes that it is inherently understood that sampling statistics would not be applicable to a single unit, explicit inclusion within regulations provides transparency in the compliance determination process.

DOE proposes that if the results of an assessment test show that the basic model performed at least 25% worse than the applicable energy conservation standard, DOE may make a determination of noncompliance for the basic model based solely on the results of such test. In such an instance, the sampling plans would not apply, as the determination is based on a single unit. This new process would avoid unnecessary expenditure of resources by both the manufacturer and DOE and would permit DOE to make a finding of noncompliance based on a single test where the results of the assessment test were so far below an efficiency standard or above a conservation standard that compliance is extremely unlikely.

DOE's proposal adds walk-in cooler and freezer doors and panels to the list of equipment subject to the low-volume enforcement sampling procedures ( i.e., the Sampling Plan for Enforcement Testing of Covered Equipment and Certain Low-Volume Covered Products in Appendix B to Subpart C of Part 429). This equipment is not currently included within DOE's list because at the time the current regulations were drafted, only design standards applied to such equipment (versus the now also applicable performance standards), and thus, sampling provisions were not necessary at that time.

In line with the above discussion regarding models that are subject to design standards, in this proposal DOE explicitly states that the sampling plans in the appendices do not apply in instances where DOE is evaluating whether a basic model complies with an applicable design requirement, as the determination is based on a single unit.

Current regulations at 10 CFR 429.114 address notification to the manufacturer of certain obligations and requirements of the manufacturer upon issuance of a notice of noncompliance determination. To this section, DOE proposes various clarifying edits for readability and proposes to remove the requirement that manufacturers must inform their customers of DOE's noncompliance determination.

DOE proposes to add new § 429.115 to 10 CFR part 429. This addition to the enforcement regulations provides the manufacturer or private labeler with a formal process to ask DOE to reexamine a pending determination of noncompliance. Historically, DOE has always accepted any information from parties both before and after the issuance of a test notice or notice of noncompliance determination. However, in order to provide manufacturers and private labelers with a specific process to request DOE to consider certain information and arguments prior to DOE's issuance of a notice of noncompliance determination, DOE proposes to adopt regulations detailing a specific procedure and substance for such a request.

The proposal states that, at least 30 calendar days prior to the issuance of a notice of noncompliance determination, DOE will issue to the manufacturer or private labeler a letter of intent stating DOE's intent to issue a notice of noncompliance determination for the basic model. Within 30 days of DOE's issuance of a letter of intent, DOE will accept a petition for reexamination of the pending determination, which must include a variety of information: The material issue(s) that the manufacturer or private labeler has with the assessment and/or enforcement testing of the basic model; complete test reports or alternative efficiency determination methods (AEDM) information (if applicable) the manufacturer or private labeler believes demonstrate the basic model meets the applicable standard; all legal and other arguments that the manufacturer or private labeler wishes to make in support of its position; and information/test data regarding any previous representations of the basic model's energy consumption. The process as proposed provides the petitioner and DOE with a clear understanding of the information DOE requires to inform its reexamination of the pending determination, while still allowing the petitioner to submit any other information it deems pertinent.

The proposed process also serves to ensure that the petitioner, in support of its request, provides DOE with test data that is in fact relevant to the finding of noncompliance. As such, all test reports must demonstrate that the applicable DOE test procedure was followed. In addition, petitioners must inform DOE if the units it tested are different (in design, components, materials, etc.) from the units that are the basis of the pending finding of noncompliance, or if the units were modified prior to or during the test. In addition, for any testing completed after the issuance of the letter of intent, the manufacturer must provide DOE with documentation, such as the source of the units, how they were selected, and if relevant, whether and how many units were available in inventory or from a retailer on the date of testing.

Upon review of a petition, DOE may modify or leave unchanged its pending determination. In any case, the process ensures that DOE considered the petitioner's submission of relevant materials. DOE also notes that although the petition must be submitted within 30 days of issuance of the letter of intent, the petitioner may always compile and share information at any earlier date, such as upon DOE's issuance of a test notice.

DOE also notes that the proposed petition for reexamination process addresses DOE's obligations under Section 6 of Executive Order 13892, “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” which requires that DOE, before issuing a notice of noncompliance determination, must afford the manufacturer or private labeler an opportunity to be heard regarding the pending determination.

The Department proposes to provide within its regulations the complete process for attaining a notice of allowance after DOE has made a finding of noncompliance for a basic model. DOE has received feedback from various respondents indicating that the process, as currently explained within 10 CFR part 429 and the body of the notice of noncompliance determination, is not intuitive and deserves clarification. After review of current regulations at § 429.114(d), DOE also believes that further clarity and explanation of the process within its regulations would be helpful to all parties. The proposal clarifies and captures various aspects of the notice of allowance process, including that a manufacturer or private labeler must, prior to distribution in commerce of a modified model, receive a notice of allowance from DOE for that modified model. The proposal also explicitly states that the manufacturer or private labeler must, prior to receipt of a notice of allowance, provide DOE with a detailed explanation of all modifications and test data demonstrating that the modified basic model meets the applicable standard(s). If the manufacturer chooses to modify the noncompliant basic model, DOE also proposes that, as a part of its records, the manufacturer or private labeler maintain records of serial numbers of and the modifications made to any units of the noncompliant basic model in existing stock.

DOE regulations currently permit in-house or independent testing for determining compliance with DOE's performance based conservation standards. Currently, § 429.116 provides that DOE may require testing by an independent third-party if DOE determines it is necessary to ensure compliance. Third-party testing may be essential to ensuring compliance in some circumstances, such as with manufacturers who are routinely found to violate standards, or in instances where DOE believes that the manufacturer's in-house testing is inaccurate or unreliable. Although DOE may rely on 10 CFR 429.116, for the sake of transparency and clarity of process, DOE proposes that the regulations pertaining to the notice of allowance process also explicitly incorporate this requirement—that the manufacturer or private labeler's testing in support of the request for a notice of allowance be performed at an independent, third-party testing facility.

DOE proposes minor edits to clarify that, in instances where a person fails to cease engaging in a prohibited act, DOE may either immediately seek an injunction or allow the person an opportunity to first implement a corrective action plan.

DOE proposes that a respondent's election of procedures in response to a notice of proposed civil penalty be made to the Department in writing. This is an established practice, and DOE believes that explicitly requiring the response to be in writing ensures that the respondent's election is made without miscommunication or misinterpretation.

The respondent's election to settle a case, while available in every enforcement case, is not explicitly stated within current regulations. Thus, the proposed text explicitly provides a respondent in an enforcement action with the option of settlement. Further, DOE's proposal explains in greater detail the settlement process, including that the compromise agreement will set forth the terms of the agreement, and that DOE's General Counsel will sign an order adopting the agreement and assessing the civil penalty. The proposal as a whole completes the comprehensive list of the respondent's election of procedures, and provides clarity of the settlement process.

DOE's proposal includes some minor edits to 10 CFR 429.126 for clarity and readability. In addition, the proposal includes a reference to a new subpart D, for which DOE plans to propose administrative law judge hearing procedures in the future.

DOE proposes edits to ensure that DOE's regulations clearly convey the statutory requirement that an election to have the procedures of 10 CFR 429.128 apply ( i.e., in lieu of an administrative law judge hearing, the respondent elects to have DOE immediately issue an order assessing the civil penalty) must be made by the respondent within 30 days of the notice of proposed civil penalty. The 30-day window within which this option is available is a timeframe mandated by EPCA and is currently captured within DOE regulations at 10 CFR 429.122. Nevertheless, DOE has found that there is confusion over the timeframe to elect this option and believes that further clarification and additional references to the 30-day window will help create a better understanding of the statutory requirement.

Further, current regulations provide that, in instances where the respondent takes the maximum 30 days allowable to make a selection for the immediate issuance of an adopting order, the General Counsel must issue such order on that very same day. In order to create a more reasonable and realistic timeline, DOE also proposes edits to current regulations such that the General Counsel will not sign an adopting order sooner than 60 days after the issuance of the notice of proposed civil penalty.

This regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).

On January 30, 2017, the President issued Executive Order (E.O.) 13771, “Reducing Regulation and Controlling Regulatory Costs.” E.O. 13771 stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. E.O. 13771 stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.

Additionally, on February 24, 2017, the President issued E.O. 13777, “Enforcing the Regulatory Reform Agenda.” E.O. 13777 required the head of each agency designate an agency official as its Regulatory Reform Officer (RRO). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

DOE initially concludes that this rulemaking is consistent with the directives set forth in these executive orders.

As discussed in this NOPR, DOE is proposing to revise its enforcement regulations to ensure they convey a clear and comprehensive enforcement process and to revise existing enforcement procedures applicable to both covered products and covered equipment. The following section provides an overview of the costs and burdens discussed previously in this document.

As discussed in section III.H, DOE proposes to remove the requirement that manufacturers must inform their customers of DOE's noncompliance determination. DOE estimates that this will reduce manufacturer burden when manufacturers are issued a noncompliance determination by DOE, resulting in costs savings for manufactures. Based on a review of previous noncompliance determinations spanning the previous five years, DOE estimates there are on average 14.8 noncompliance determinations each year.

To estimate the cost savings manufacturers would experience due to the proposal to remove the requirement to notify consumers of noncompliance determinations, DOE first estimated the cost savings of drafting a notification letter and then of identifying all customers that purchased noncompliant units.

DOE assumes manufacturers currently incur costs to write a noncompliance letter to their customers. DOE estimates that an average noncompliance determination would result in a general and operations manager spending one hour writing a letter and an executive spending 30 minutes reviewing the letter that would be sent to all customers that purchased noncompliant units. DOE estimated that the average hourly rate to employ a general and operations manager is $77.67 and the average hourly rate to employ an executive is $125.48. 3 Therefore, the average cost to draft a noncompliance notification letter to all customers is approximately $140 per basic model that is found to be noncompliant. This proposal is estimated to result in approximately $2,078 of costs savings annually for all manufacturers to forgo drafting on average 14.8 notifications of noncompliance each year.

DOE assumes manufacturers currently incur costs to identify customers that have purchased noncompliant units. DOE assumes there are two types of basic models that are found to be noncompliant, low-volume basic models with less than 100 units sold and, high-volume basic models with 100 or more units sold. DOE assumes low-volume basic models are typically sold individually, with each customer only purchasing one unit on average, while high-volume basic models are typically sold in a group of 50 units per customer, with each customer purchasing 50 units as a single purchase on average. DOE assumes that it takes manufacturers approximately 5 minutes to identify a single customer's contact information. This equally applies to customers of low-volume and high-volume basic models. Therefore, it takes manufacturers an equal amount of time to identify the low-volume customer that purchased one unit and the high-volume customer that purchased 50 units.

Based on previous noncompliance findings, DOE estimates that typically 31 units are sold for a low-volume basic model and 600 units are sold for a high-volume basic model. Therefore, a low-volume basic model manufacturer would have to identify 31 customers on average and a high-volume basic model manufacturer would have to identify 12 customers on average (600 divided by 50).

Again, DOE assumes that a general and operations manager would be responsible for identifying customers and the average hourly rate for this employee is $77.67. 4 Therefore, on average it costs approximately $201 to identify all customers of low-volume basic models and $78 to identify all customers of high-volume basic models. 5 Based on the weighted average of low-volume and high-volume basic models found noncompliant, 6 this proposal is estimated to result in cost savings of approximately $1,640 annually for all manufacturers to forgo identifying customers of noncompliant basic models.

Overall, this proposal is estimated to result in cost savings of approximately $3,718 annually for all manufacturers to forgo drafting on average 14.8 notifications of noncompliance each year, identifying customers of noncompliant models, and sending noncompliance letters to customers.

DOE anticipates that the remainder of the amendments proposed in this document would not impact manufacturers' burden during the enforcement process. Most of the proposed amendments will provide additional certainty and clarity to the regulated industry, facilitate communication between DOE and the regulated industry, and advance the effective enforcement of DOE's regulations.

This proposed rule is estimated to result in cost savings. The proposed rule would yield an annualized cost saving of approximately $2,926 (2016$) using a perpetual time horizon discounted to 2016 at a 7 percent discount rate. Therefore, if finalized as proposed, this rule is expected to be an E.O. 13771 deregulatory action.

DOE requests comment on its understanding of the impact and associated costs of these proposed amendments.

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

Under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003, DOE reviewed this proposal. DOE certifies that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis of this certification is set forth in the following paragraphs.

The Small Business Administration (SBA) considers a business entity to be a small business, if, together, with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes established by the North American Industry Classification System (NAICS) and are available at https://www.sba.gov/document/support—table-size-standards.

This proposal impacts manufacturers of all covered products and covered equipment subject to DOE's energy conservation, water conservation, and design standards. DOE estimates that the manufacturing of all these covered products and covered equipment includes approximately 20 unique NAICS codes. The SBA threshold number of employees for these 20 NAICS codes ranges from 500 to 1,500 total employees. DOE estimates there are several hundred small businesses that manufacture the products and equipment covered by this proposal.

DOE is attempting to revise the current enforcement procedures on manufacturers of covered products and covered equipment to give certainty and clarity to the regulated industries, to facilitate communication between DOE and the regulated industries, to reduce burden, and to advance the effective enforcement of DOE's regulations. Since this proposal would reduce burden and result in cost savings, as described in section IV.B, on all manufacturers, including small businesses, DOE tentatively concludes that the impacts of this proposal would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of an IRFA is not warranted. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

DOE requests comment on its finding that this proposal would not present a significant economic impact on the several hundred small businesses that manufacture products and equipment covered by this proposal.

The Paperwork Reduction Act (PRA) of 1995 requires that U.S. Federal Government agencies obtain Office of Management and Budget (OMB) approval prior to collecting data in any situation where 10 or more respondents, within a 12 month period, are involved and the questions are standardized in nature. This proposed rule does not seek to collect any information or data in such a manner; accordingly, DOE has determined that neither review nor approval by OMB under the PRA is required.

We are analyzing this proposed regulation in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). We invite the public to comment on the extent to which this proposed regulation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this regulation.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it 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. No further action is required by Executive Order 13132.

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

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

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

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

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

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

DOE has reviewed this proposed rule under the Executive Order 13211, and has concluded that it is not a significant regulatory action under Executive Order 12866; would not have a significant adverse effect on the supply, distribution, or use of energy; and that the Administrator of OIRA has not designated it as a significant energy action. Accordingly, DOE has concluded that it is not necessary to prepare a Statement of Energy Affects.

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

Because this proposed rulemaking does not authorize or require use of any commercial standard, the FEAA requirements do not apply.

In this NOPR, DOE is not proposing to incorporate by reference any new industry standard. The incorporation by reference of ISO/IEC 17025:2005(E) in § 429.110 has already been approved by the Director of the Federal Register and there are no proposed changes in this NOPR.

DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the ADDRESSES section at the beginning of this proposed rule.

Submitting comments via https://regulations.gov. The https://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 https://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 https://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 https://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 https://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 https://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 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.

Factors DOE considers when evaluating requests to treat submitted information as confidential include (1) a description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

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 welcomes written comments from the public on all aspects of its proposal, and any subject related to DOE's enforcement process, including topics not specifically raised in this proposed rule. DOE continues to seek views from all interested parties on how DOE's enforcement rules can best be developed to ensure effective enforcement. DOE requests comment on its finding that this proposal would not present a significant economic impact on the several hundred small businesses that manufacture products and equipment covered by this proposal.

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

This document of the Department of Energy was signed on July 28, 2020, by William S. Cooper III, General Counsel and Daniel R. Simmons, Assistant Secretary for Energy Efficiency, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE is proposing to amend parts 429 and 431 of Chapter II of Title 10, Code of Federal Regulations as set forth below:

The revisions and additions read as follows:

On August 13, 2020, DOE published in the Federal Register a NOPR and request for comment regarding proposals to amend the test procedures for showerheads, specifically proposals to amend the definition of a showerhead consistent with the most recent standard developed by the American Society of Mechanical Engineers in 2018. 85 FR 49284 (August 2020 NOPR). The August 2020 NOPR also announced a webinar but did not announce a webinar date.

This notice announces that DOE will hold a webinar to discuss the proposed amendments to the showerheads test procedures on Thursday, September 3, 2020. Additionally, on August 18, 2020, DOE received a request from PMI to extend the comment period for the NOPR by 30 days ( http://www.regulations.gov/docket?D=EERE-2020-BT-TP-0002-0011 ). DOE announces that it is extending the comment period until September 30, 2020.

See section IV, “Public Participation,” of the August 2020 NOPR for additional information on submitting written comments. Id. at 85 FR 49295.

The time and date of the webinar are listed in the DATES section at the beginning of this document. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website: https://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=2&action=viewlive. If you plan to attend the webinar, please notify the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email: Appliance_Standards_Public_Meetings@ee.doe.gov.

Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE of this fact as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: Regina.Washington@ee.doe.gov so that the necessary procedures can be completed.

Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, by email to: Appliance_Standards_Public_Meetings@ee.doe.gov. The request and advance copy of statements must be received at least one week before the public meeting via email. Please include a telephone number to enable DOE staff to make a follow-up contact, if needed.

A transcript of the public meeting will be included in the docket, which can be viewed as described in the Docket section at the beginning of this document. In addition, any person may buy a copy of the transcript from the transcribing reporter.

This document of the Department of Energy was signed on August 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 .

I. Background II. Legal Authority III. Summary of the Proposed Rule IV. Regulatory Procedures I. Background A. The NCUA Annual Budget and Fees Paid by FCUs

The NCUA charters, regulates, and insures deposits in FCUs and insures deposits in state-chartered credit unions that have their shares insured through the National Credit Union Share Insurance Fund (Share Insurance Fund). To cover expenses related to the NCUA's tasks, the Board adopts an annual budget in the fall of each year. The Federal Credit Union Act (FCU Act) provides two primary sources to fund the budget: (1) Requisitions from the Share Insurance Fund;  1 and (2) operating fees charged against FCUs. 2 The Board uses an allocation formula, the Overhead Transfer Rate (OTR), to determine the amount of the budget that it will requisition from the Share Insurance Fund. 3 Remaining amounts needed to fund the annual budget are charged to FCUs in the form of operating fees, based on each FCU's total assets. 4

The FCU Act requires each FCU to, “in accordance with rules prescribed by the Board [. . .] pay to the [NCUA] an annual operating fee which may be composed of one or more charges identified as to the function or functions for which assessed.”  5 The fee must “be determined according to a schedule, or schedules, or other method determined by the Board to be appropriate, which gives due consideration to the expenses of the [NCUA] in carrying out its responsibilities under the [FCU Act] and to the ability of [FCUs] to pay the fee.”  6 The statute requires the Board to, among other things, “determine the periods for which the fee shall be assessed and the date or dates for the payment of the fee or increments thereof.”  7

Section 701.6 of the NCUA's regulations governs operating fee processes. 8 The regulation establishes the following: (i) The basis for charging operating fees ( i.e., total assets of the FCU, with certain exclusions, as of December 31st of the preceding year); (ii) the notice the NCUA must provide to FCUs regarding the fees; (iii) coverage provisions providing certain exceptions for new FCU charters, conversions, mergers, and liquidations; and (iv) the assessment of administrative fees and interest for late payment, among other principles and processes. 9 Certain aspects of and adjustments to the operating fee process, such as the multipliers used to determine fees applicable to designated asset tiers, are not included in the NCUA's regulations. Instead, the Board generally adopts an operating fee schedule at an open meeting each year and publishes the schedule in the agency's annual budget and on its website. 10

Section 701.6(a) sets out the basis on which the NCUA assesses the operating fee. Paragraph (a) provides that FCUs must pay the NCUA an annual operating fee based on the credit union's total assets. 11 The NCUA calculates an FCU's operating fee by multiplying the dollar amount of its total assets by a percentage set by the Board based on asset tiers after considering the expenses of the NCUA and the ability of FCUs to pay the fee. The term “total assets” for purposes of the operating fee presently includes all assets, with certain exclusions, reported on an FCU's Call Report as of December 31st of the previous fiscal year.

Operating fee payments are due from FCUs in April each year, and the NCUA prepares invoices using reported assets from the prior year's December Call Report. 12 In order to provide clarity to FCUs about their operating fee charges for the upcoming year, the Board typically approves the budget and sets the associated operating fee rates in November of the year before the operating fee is billed. Because the budget and operating fee rates are approved before December Call Report data is available, the Chief Financial Officer uses projected FCU asset growth to set the operating fee rates. Therefore, if actual total assets reported in December Call Reports are below the projected asset growth used for setting the operating fee rates, the NCUA will collect less in operating fee revenue than it requires to fund the budget. Conversely, if total assets reported in December Call Reports are greater than projected growth, the NCUA may collect more than is required.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend the Class D and Class E airspace at Truckee-Tahoe Airport, Truckee, CA, to support IFR operations at the airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2020-0768; Airspace Docket No. 18-AWP-25”. The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S. 216th Street, Des Moines, WA 98198.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying the Class E airspace at Truckee-Tahoe Airport. The proposal would reduce the dimensions of the Class E airspace areas, designated as an extension to a Class D or Class E surface airspace area. The airspace areas would be described as follows: That airspace extending upward from the surface within 1 mile each side of the 017° bearing from the airport, extending from the 4.2-mile radius of the airport to 9.7 miles north of the airport; and within 1.2 miles west and 0.9 miles east of the 316° bearing from the airport, extending from the 4.2-mile radius of the airport to 8.3 miles northwest of Truckee-Tahoe Airport.

This action also proposes to amend Class E airspace extending upward from 700 feet above the surface. The action proposes to properly size the airspace areas north of the airport and add an area over the airport and an area west of the airport. These areas are designed to contain IFR departures to 1,200 feet above the surface and IFR arrivals descending below 1,500 feet above the surface. These airspace areas would be described as follows: That airspace extending upward from 700 feet above the surface within a 4.2-mile radius of the airport, and within 2 miles each side of the 018° bearing from the airport, extending from 9.7 miles to 11.6 miles north of the airport, and within 1.1 miles each side of the 266° bearing from the airport, extending from the 4.2-mile radius to 13.5 miles west of the airport, and within 2.7 miles west and 1.9 miles east of the 321° bearing from the airport, extending from 8.3 miles to 14.8 miles northwest of the airport, and within an area beginning at 4.2 miles on the 324° bearing from the airport, then to 6.5 miles on the 324° bearing from the airport, then clockwise within a 6.5-mile radius of the airport to the 008° bearing from the airport, then along the 008° bearing to 4.2 miles, then counterclockwise within a 4.2-mile radius of the airport to the 324° bearing northwest of Truckee-Tahoe Airport.

Lastly, this action proposes an administrative amendment to all of the airspace's legal descriptions for Truckee-Tahoe Airport. To match the FAA aeronautical database, the airport's geographical coordinates should be updated to lat. 39°19′12″ N, long. 120°08′23″ W.

Class D, E2, E4, and E5 airspace designations are published in paragraphs 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Parallel processing refers to a process that utilizes concurrent state and Federal proposed rulemaking actions. Generally, the state submits a copy of the proposed regulation or other revisions to EPA before conducting its public hearing and completing its public comment process under state law. EPA reviews this proposed state action and prepares a notice of proposed rulemaking under Federal law. In some cases, EPA's notice of proposed rulemaking is published in the Federal Register during the same time frame that the state is holding its public hearing and conducting its public comment process. The state and EPA then provide for concurrent public comment periods on both the state action and Federal action. If, after completing its public comment process and after EPA's public comment process has run, the state changes its final submittal from the proposed submittal, EPA evaluates those changes and decides whether to publish another notice of proposed rulemaking in light of those changes or to proceed to taking final action on the changed submittal and describing the state's changes in its final rulemaking action. Any final rulemaking action by EPA will occur only after the final submittal has been adopted by the state and formally provided to EPA.

In this case, however, EPA's and North Carolina's processes have not been perfectly concurrent. North Carolina's submittal was noticed for public comment by the State on June 24, 2020, and submitted to EPA for parallel processing on June 24, 2020; the submission has not yet been submitted in final form. The State's public comment period closed on July 27, 2020. After North Carolina submits the formal SIP revision, EPA will evaluate the submittal. If the State changes the formal submittal from the proposed submittal, EPA will evaluate those changes for significance. If EPA finds any such changes to be significant, then the Agency intends to determine whether to re-propose the action based upon the revised submission or to proceed to take final action on the submittal as changed by the State. Although EPA was unable to have a concurrent public comment process with the State, North Carolina's request for parallel processing allows EPA to begin action on the State's proposed submittal in advance of a formal, final submission.

EPA is proposing to approve North Carolina's June 24, 2020, draft source-specific SIP revision to incorporate, into the North Carolina SIP, specific SO 2 permit limits and associated operating restrictions, MRR, and testing compliance requirements contained in title V operating permit number 08961T29 (T29) issued to BRPP by DAQ, on June 2, 2020. Specifically, EPA is proposing to incorporate into the North Carolina SIP the maximum permitted SO 2 emission limits and compliance requirements for the seven largest SO 2 emission sources at BRPP. Currently, there are no source-specific SO 2 limits in the North Carolina SIP for BRPP. These permitted SO 2 emission limits that EPA proposes to approve are therefore in addition to and therefore more stringent than generally applicable SO 2 requirements currently in the SIP for BRPP. Incorporating specific SO 2 permit limits and associated operating restrictions, MRR, and testing compliance parameters for BRPP into the North Carolina SIP would establish these specific SO 2 permitted limits and associated operating and compliance parameters as permanently federally enforceable control measures and strengthen the North Carolina SIP. More detail on these emission limits and conditions is provided below.

The purpose of this rulemaking is to act on North Carolina's request to approve into the SIP specific SO 2 permit limits (listed in Table 1 below), and associated operating, MRR, and testing requirements established in permit T29 at section 2.2.J thereby making these limits permanently federally enforceable to strengthen the North Carolina SIP. This rulemaking does not address whether the specific SO 2 permit limits and compliance permit conditions from operating permit T29 are adequate for EPA to promulgate an attainment/unclassifiable designation of the 2010 1-hour SO 2 NAAQS for the Beaverdam Township Area near BRPP, and EPA does not seek and will not respond to comments on that issue in taking final action on this SIP. EPA intends to designate the Beaverdam Township Area near BRPP under a separate national action for all remaining undesignated areas in the country, and any comments on the adequacy of the new limits to provide for attainment should be directed to EPA's docket for that action. See docket number EPA-HQ-OAR-2020-0037.

The following provides the relevant background related to the 2010 1-hour SO 2 NAAQS and this proposed action.

On June 22, 2010, EPA published notice of a revision of the primary SO 2 NAAQS, establishing a new 1-hour SO 2 standard of 75 parts per billion (ppb). See 75 FR 35520. 1 Under EPA's regulations at 40 CFR part 50, the 2010 1-hour SO 2 NAAQS is met at a monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations is less than or equal to 75 ppb (based on the rounding convention in 40 CFR part 50, appendix T). See 40 CFR 50.17. The 2010 1-hour SO 2 NAAQS is violated at an ambient air quality monitoring site (or in the case of dispersion modeling, at an ambient air quality receptor location) when the 3-year average of the annual 99th percentile of the daily maximum 1-hour average concentrations exceeds 75 ppb, as determined in accordance with Appendix T of 40 CFR part 50. The existing primary (health-based) standard provides health protection for at-risk groups against respiratory effects following short-term ( e.g., 5-minute) exposures to SO 2 in ambient air.

After EPA promulgates a new or revised NAAQS, EPA is required to designate all areas of the country as either “nonattainment,” “attainment,” or “unclassifiable,” for that NAAQS pursuant to section 107(d)(1) of the Clean Air Act (CAA or Act). The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d) of the CAA. The CAA requires EPA to complete the initial designations process within 2 years of promulgating a new or revised standard. If the Administrator has insufficient information to make these designations by that deadline, EPA has the authority to extend the deadline for completing designations by up to 1 year.

Through a Federal Register notice published on August 3, 2012, EPA announced that the Agency had insufficient information to complete the designations for the 2010 1-hour SO 2 standard within 2 years anticipated by the CAA and extended the designations deadline to June 3, 2013. See 77 FR 46295. EPA completed the first round of designations (“Round 1”)  2 for the 2010 1-hour SO 2 NAAQS on July 25, 2013, designating 29 areas in 16 states as nonattainment for the 2010 1-hour SO 2 NAAQS based on violating ambient air monitors. See 78 FR 47191 (August 5, 2013). At that time, EPA was not yet prepared to issue designations for the remaining areas of the country.

Subsequently, three lawsuits were filed against EPA in different United States (U.S.) District Courts alleging that the Agency had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by the June 3, 2013, deadline. Under a consent decree entered by the court on March 2, 2015, in one of those cases, EPA was required to complete the remaining area designations according to a specific schedule with the following deadlines: July 2, 2016 (“Round 2”), December 31, 2017 (“Round 3”), and December 31, 2020 (“Round 4”). 3 4

On August 21, 2015 (80 FR 51052), EPA separately promulgated air quality characterization requirements in a final rule entitled “Data Requirements Rule for the 2010 1-Hour Sulfur Dioxide (SO 2 ) Primary National Ambient Air Quality Standards,” also known as the DRR. The DRR required state air agencies to characterize air quality, through air dispersion modeling or monitoring, in areas associated with sources that emitted 2,000 tons per year (tpy) or more of SO 2 , or that have otherwise been listed under the DRR by EPA or state air agencies  5 and to provide this information to inform EPA's future designations. For states that chose to use ambient air monitoring to characterize air quality in areas with large SO 2 sources and satisfy the DRR, air agencies were required to deploy and begin operation of the monitors by January 1, 2017. EPA is required, pursuant to the March 2, 2015, court order, to finalize designations for the last remaining areas in the country ( i.e., for those areas that deployed SO 2 monitors to characterize SO 2 air quality or Round 4) by December 31, 2020.

On September 5, 2019, EPA issued a guidance memorandum, from Peter Tsirigotis, Director of the Office of Air Quality Planning and Standards, entitled “Area Designations for 2010 Primary Sulfur Dioxide National Ambient Air Quality Standard—Round 4” (also known as Round 4 SO 2 Designation Guidance) to provide information on the schedule and process for Round 4 area designations, which will address areas such as the Beaverdam Township Area that have not yet been designated under the NAAQS. In EPA's Round 4 SO 2 Designation Guidance, the Agency explained that EPA might consider, on a case-by-case basis, a designation other than nonattainment for areas with violating monitors where the source impacting the monitor has recently become subject to and is complying with permanent and federally enforceable SO 2 emission limits and modeling of those limits shows attainment of the 2010 SO 2 NAAQS, but the monitored design value does not yet account for these recent emissions reductions. EPA further explained that such new SO 2 emissions limits would need to be permanently federally enforceable and in effect before EPA finalizes the designation for the area for them to be considered in determining what available information is representative of the current air quality conditions in the area. EPA stated that in such circumstances, modeling of the new allowable emissions, which should follow the Guideline on Air Quality Models (Appendix W to 40 CFR part 51), can provide a more accurate characterization of current conditions at the time of designation than would monitoring of past conditions.

BRPP, a subsidiary of Evergreen Packaging, is located in the City of Canton in Beaverdam Township, Haywood County, North Carolina, 25 kilometers (km) west of Asheville, North Carolina. The facility is located on a 200-acre site in downtown Canton on the Pigeon River. BRPP is a vertically integrated pulp and paper mill that produces specialty paperboard packaging products, and its primary operations are classified under North American Industry Classification System 322121 (Paper Except Newsprint Mills). The facility utilizes multiple boilers to produce steam for energy generation and provide heat for the pulping and paper making processes. The power boilers include two natural gas-fired package boilers: No. 1 and No. 2 Natural Gas Package Boilers (Unit ID G11050 and G11051); two coal-fired boilers: Riley Coal (G11039) and Riley Bark Boiler (G11042); and one coal/biomass fired boiler: No. 4 Power Boiler (G11040). The facility also operates two recovery boilers. Through cogeneration, by utilization of steam-driven turbines, the facility produces most of the electricity and steam required to run internal operations. Product paper is produced from the pulp on four paper machines. For additional facility process description, please see North Carolina's June 24, 2020, draft source-specific SIP revision.

BRPP was determined to be a source subject to further characterization pursuant to EPA's SO 2 DRR because the source emitted more than 2,000 tpy of SO 2 in 2014. 6 In accordance with the DRR, through a letter dated June 30, 2016, 7 DAQ chose the monitoring pathway to characterize SO 2 air quality in the vicinity of BRPP. In the Round 3 designation recommendation to EPA, 8 North Carolina requested EPA designate the Beaverdam Township Area for the 2010 1-hour SO 2 NAAQS by the court-ordered December 31, 2020 (Round 4) deadline based on 3 years (2017-2019) of ambient air quality monitoring data at the Canton DRR site monitor (AQS ID: 37-087-0013).

Pursuant to the DRR, DAQ sited the Canton DRR site monitor near the area of maximum concentration ( i.e., approximately 150 feet west of BRPP's fence line) in accordance with EPA's draft monitoring technical assistant documents (TADs)  9 and regulatory monitoring requirements at 40 CFR part 58. The Canton DRR site monitor began operation on November 15, 2016, but did not begin reporting data until January 1, 2017.

Subsequent to the Canton DRR site monitor commencing operation, the monitor measured a number of exceedances of the 2010 1-hour SO 2 standard in 2017. In an effort to address the SO 2 exceedances, North Carolina and BRPP entered into a Special Order by Consent 2017-002 (SOC)  10 on October 9, 2017, to implement facility process modifications, upgrade existing control equipment, as well as to install new control equipment to comply with the Boiler Maximum Achievable Control Technology (MACT) standard  11 by May 20, 2019, that cumulatively resulted in control and reduction of facility-wide SO 2 emissions. The MACT standards control hazardous air pollutants (HAPs), and BRPP's planned facility improvements for HAPs also reduced SO 2 emissions. Specific to SO 2 , the SOC required BRPP to submit to DAQ a permit application and modeling analysis by March 1, 2018, to characterize the facility's emission sources and develop allowable SO 2 emission limitations based on modeled predictions of ambient SO 2 concentrations.

On September 12, 2019, DAQ issued a modification to BRPP's title V permit (Permit No. 08961T26 or T26) reflecting the requirements of the SOC with DAQ regarding development of SO 2 allowable emission limits supported by DAQ's modeled prediction of those limits resulting in attainment of the SO 2 standard. 12 Subsequent title V permit modifications resulted in the current title V permit—08961T29 or T29. 13 North Carolina is requesting EPA incorporate specific SO 2 emission limits and compliance parameters from permit T29 into the source-specific portion of the North Carolina SIP. DAQ established these specific SO 2 emission limits and compliance parameters pursuant to North Carolina's SIP-approved Rule 15A.NCAC.02D. 0501(c), Compliance with the National Ambient Air Quality Standards. As stated in Section 2.2.J of permit T29, pursuant to 15A NCAC 02D .0501(c), when controls more stringent than named in the applicable emission standards in Section .0500 are required to prevent violation of the ambient air quality standards or are required to create an offset, the permit shall contain a condition requiring these controls.

EPA is evaluating North Carolina's June 24, 2020, draft source-specific SIP revision on the basis of whether it strengthens North Carolina's SIP. As mentioned above, there are no source-specific SO 2 requirements for BRPP in North Carolina's SIP. The new SO 2 permit limits and associated operating restrictions, MRR, and testing compliance parameters in BRPP's title V operating permit number T29 are authorized under 15A NCAC 02D .0501(c), which expressly requires more stringent controls to prevent violations of ambient air standards. EPA preliminarily concurs that these requirements are in addition to and more stringent than generally applicable SO 2 control requirements in the SIP for BRPP and will therefore strengthen North Carolina's SIP. The adequacy of these SO 2 permit limits and compliance parameters for providing for attainment is not a prerequisite for approval of these requirements into the SIP. However, EPA is working with North Carolina in the context of the separate area designations action to analyze whether modeling of these new permitted emission limits, once made permanently federally enforceable, would demonstrate attainment of the NAAQS and provide a more accurate characterization of current air quality conditions in the Beaverdam Township Area at the time of final designation than would the 3-year design value of the air quality monitor for the period of 2017-2019. If EPA approves these SO 2 permit limits and associated compliance parameters into the SIP in a timely fashion, EPA could evaluate a modeling demonstration that these limits provide for attainment as part of the rulemaking on the 2010 1-hour SO 2 NAAQS designation for the Beaverdam Township Area in Haywood County, North Carolina. However, if EPA approves this SIP under CAA section 110, such approval would not prejudge the outcome of EPA's forthcoming designation of the Beaverdam Township Area, as that future determination is occurring as part of a separate national notice and comment rulemaking under CAA section 107. 14

North Carolina's June 24, 2020, draft source-specific SIP revision specifically requests that EPA incorporate into the SIP the maximum allowable SO 2 emissions limits for seven emissions sources, including operational and compliance requirements, from permit T29 because these units are the highest SO 2 emitting sources at the facility. These SO 2 emissions limits are listed in Table 1 below. Specifically, North Carolina's June 24, 2020, draft SIP revision requests that EPA incorporate specific permit conditions from section 2.2.J of permit T29 including portions of Table 2.2.J.1 and section 2.2.J.1.(c) through (i) which also include specific cross-reference permit conditions at section 2.2.D.1. These seven emission units are the No. 10 and 11 Recovery Furnaces (G08020 and G08021); No. 4 and 5 Lime Kilns (G09028 and G09029); and Riley Coal (G11039), Riley Bark (G11042) and No. 4 (G11040) Power Boilers.

BRPP implemented facility improvements and control measures to reduce SO 2 emissions and corresponding ambient SO 2 concentrations to comply with the 2010 1-hour SO 2 NAAQS. Specifically, in response to the SOC, BRPP implemented the construction, installation, and operation of multiple process improvements from March 28, 2015 to May 20, 2019. These improvements are discussed in Table 2 of North Carolina's June 24, 2020, draft SIP revision and summarized below.

On March 29, 2016, DAQ issued an air construction permit authorizing BRPP to proceed with facility-wide modifications for purposes of compliance with the Boiler MACT standards. On May 23, 2017, BRPP began operating two new natural gas-fired boilers, No.1 and No. 2 natural gas package boilers (G11050 and G11051). BRPP permanently shut down coal-fired boiler, Big Bill (G11037) on July 12, 2017, and Peter G (G11038) on November 30, 2017, to reduce SO 2 emissions. The two new natural gas package boilers replace these two coal-fired units. On November 17, 2017, BRPP installed natural gas burners on the No. 4 Power Boiler (G11040). BRPP commenced operation of new wet scrubbers on the Riley Coal (G11039) and the No. 4 Power Boilers on June 29, 2018, and August 1, 2018, respectively. On November 7, 2018, BRPP completed the conversion of auxiliary fuel for the recovery furnaces No. 10 and No. 11 (G08020 and G08021) from No. 6 fuel oil to ultra-low sulfur diesel (ULSD) fuel.

On November 12, 2019, DAQ issued permit T26, which established facility-wide enforceable SO 2 emission limits for 19 emission units at BRPP that emit SO 2 and associated operating restrictions, MRR and testing compliance parameters. Table 2.2.J.1 of permit T29 lists the maximum permitted SO 2 emission limits established at BRPP. These control measures implemented at BRPP between 2017 and 2019 resulted in the reduction of actual SO 2 emissions from 5,875 tons in 2017 to 405 tons in 2019, a 93 percent reduction (reduction of 5,470 tons). Between 2018-2019 the facility reduced emissions from 2,901 tons to 405 tons, respectively) or 86 percent (2,496 tons).

Below is a description of the seven major SO 2 -emitting units at BRPP with emissions limits that DAQ has requested EPA incorporate into the North Carolina SIP to ensure the modeled emission limits are permanently federally enforceable for each emission unit:

• No. 10 and No. 11 Recovery Furnace (G08020 and G08021)—These two emission units recover pulping chemicals from spent pulping liquor (black liquor). Each recovery furnace is subject to a pair of SO 2 permitted limits based on ULSD and black liquor solids (BLS) fuel usage. The ULSD is used specifically during startup and shutdown, and the BLS is used during normal operation. During start-up, fuel oil is burned for a period of time to warm up the furnace. The exhaust parameters during startup differ from that of normal operation ( i.e., the exhaust flow and temperature are lower when only startup fuel is being fired). Each recovery furnace is subject to two enforceable SO 2 emission limits for start-up and shutdown (0.54 pounds per hour (lb/hr)) firing only ULSD fuel oil (with a maximum sulfur content of 15 parts per million (ppm))(section 2.2.J.1.c.i.) and a separate enforceable emission limit of 28.0 lb/hr when firing black liquor solids. These units are not equipped with control devices and are required to conduct source testing annually under condition 2.2.J.1.d to determine compliance with the emission limits listed in Table 2.2.J.1. of title V permit T29 and are required to maintain records for start-up and shutdown operations and fuel oil supply.

• No. 4 Power, Riley Coal, and Riley Bark—These coal-fired boilers are subject to enforceable SO 2 emission limits of 82.22 lb/hr, 61.32 lb/hr and 68.00 lb/hr, respectively. These coal-fired boilers are operated to produce steam for energy generation and provide heat for the pulping and paper making processes. The Riley Coal and No. 4 Power Boilers are each equipped with a caustic wet scrubber, and the Riley Barker has a venturi-type wet scrubber with caustic addition. For the three boilers, the wet scrubber on each boiler is required to be operated continuously and is considered a part of the physical and operational design of the boilers. Each scrubber is subject to MRR, testing, and compliance certification requirements specified in T29 permit conditions 2.2.J.1.c.i.vii and 2.2.J.1.(d) through (i) which include Boiler MACT parametric monitoring requirements. 15 These three coal-fired units are not equipped with continuous emission monitoring system (CEMS) to continuously collect, record, and report emission data for compliance with an array of enforceable emission standards and other regulatory requirements. In lieu of CEMS, the permit requires BRPP to install, operate, and maintain a continuous monitoring system (CMS)  16 for the wet scrubbers parametric monitoring pursuant to the Boiler MACT monitoring requirements at 40 CFR 63.7525 (d) through (g) and § 63.7535. 17 BRPP is required to continuously monitor the minimum scrubbing liquid pH and recirculation liquid flowrate to verify compliance with the applicable SO 2 emissions for these three boilers. Minimum parametric values for the scrubbing liquid pH and recirculation liquid flowrate are established through performance testing and shown in Table 2.2 J.2 of permit T29 for the wet scrubbers (permit conditions 2.2.J.1.c.vii.A through E). The facility is required to determine the source-specific scrubber liquid pH and flow rate calculated as 3-hour block averages based on three 1-hour source test runs to determine continuous compliance with the SO 2 permit limit in Table 2.2 J.1 as required at condition 2.2.J.1.c.vii. Condition 2.2.J.1.c.vii.E. requires BRPP to maintain the parametric scrubbing flow rate and pH levels at or above the minimum levels confirmed or re-established by the most recent performance test performed pursuant to condition 2.2.J.1.d and approved by DAQ that demonstrates compliance with the corresponding emission limits. Maintaining the 3-hour block averages for the pH and scrubber liquid flow at or above the minimum values is expected to result in maintaining compliance with emission rate. For the Riley Coal, Riley Bark, and No. 4 Power Boiler scrubbers, Table 2.2 J.2 identifies the parameters that BRPP is required to monitor—the minimum pH and recirculation flow rate (gpm) and provides the values for pH and recirculation flow rate (gpm) from the most recent SO 2 performance testing, and the date of the latest testing for the three coal-fired boilers. Table 2.2 J.2 simply shows the values confirmed or re-established by the most recent performance testing that demonstrated compliance at the time of permit issuance as explained in condition 2.2.J.vii.E. For purposes of the source-specific SIP revision, condition 2.2.J.vii.E provides the enforceable provision for parametric monitoring—BRPP is required to meet the minimum values confirmed or re-established in the most recent performance testing. BRPP is required to conduct periodic performance testing of the wet and venturi scrubbers. If the currently applicable parametric values are revised in subsequent performance testing, 18 the newly established values are enforceable upon approval by DAQ. 19 Deviations from the applicable parameters must be reported to the DAQ. For the Riley Coal and No. 4 Power Boilers, testing is required on an annual basis or, once a test is conducted such that the results of the test are less than 80 percent of the SO 2 emission limit, BRPP will be required to stack test only once every five years as required at condition 2.2.J.1.d Table 2.2 .J.3 in T29 identifies which units are subject to performance testing as required at condition 2.2.J.1.d.

• No. 4 and No. 5 Lime Kilns—The No. 4 Lime Kiln (G09028) is subject to an enforceable SO 2 emissions limit of 6.28 lb/hr and is equipped with a wet scrubber. The No. 5 Lime Kiln (G09029) is subject to an enforceable SO 2 emissions limit of 10.47 lb/hr and equipped with a venturi-type wet scrubber. 20 These two emission units are part of the Kraft pulp mill chemical recovery cycle and, following startup, they calcine lime mud (CaCO 3 ) to produce lime product (CaO). During normal operation, the kilns emit very little SO 2 because the calcium in the lime mud acts as a natural scrubbant by absorbing sulfur. The wet scrubbers are primarily in place to control emissions of particulate matter (PM) and total reduced sulfur (TRS), as required at condition 2.1.O.1, but also control emissions of SO 2 during startup and can provide some control of SO 2 during normal operation. The lime kilns burn a combination of No. 6 fuel oil and natural gas during both startup and normal operation, with the majority of the heat input coming from natural gas. The kilns go through startup approximately once per month for Kiln No. 4 and every other month for Kiln No. 5. To ensure compliance with the hourly SO 2 emissions limit, BRPP is required to continuously operate the scrubbers and comply with the operating restrictions, testing, recordkeeping, and reporting requirements set forth in conditions 2.2.J.1.d through (i) including Table 2.2 J.3. In the case of the lime kilns, the parametric monitoring requirements for SO 2 in permit T29 refer to pre-existing air permit and regulatory requirements for proper scrubber operation and air emissions control in condition 2.2.D.1, which establish conditions for the Federal MACT Standard 40 CFR part 63 Subpart MM “ National Emission Standards for Hazardous Air Pollutants (NESHAP) for Chemical Recovery Combustion Sources.” As such, the facility is required to operate the scrubbers for PM control (which also results in SO 2 control) by regulations that are in addition to the SO 2 control requirements specified in condition 2.2.J of permit T29. These requirements, namely conditions 2.2.D.1(f) through (r) as they apply to lime kilns #4 and 5, are cross referenced in condition 2.2.J.1 of the permit as the basis to ensure compliance with the SO 2 emission limits in Table 2.2 J.1. Thus, BRPP must install, calibrate, maintain, and operate a continuous parameter monitoring system that can be used to determine and record the pressure drop across each scrubber and the scrubbing liquid flow rates. These parameters are continuously monitored, recorded, and reduced to 3-hour averages for comparison to the minimum operating limits established in accordance with condition 2.2.D.1.h and those in Table 2.2 D.2. Parameters must be maintained above the minimum established values. Deviations from the established parameters must be reported to DAQ. To verify compliance with the emission limitations in permit T29, BRPP is required to perform annual testing or, once a test is conducted such that the results of the test are less than 50 percent of the emission limit, the facility is required to stack test only once every five years pursuant to condition 2.2.J.1.d. This reduction in testing frequency for sources with control devices, monitored operating parameter limits, and margins of compliance are consistent with the federal rules applicable to the facility ( i.e., NSPS, MACT, compliance assurance monitoring, and title V) and EPA guidance. BRPP is in the process of upgrading its scrubbers for lime kilns 4 and 5. Thus, in the permit T29, Table 2.2 D-2 establishes operating parameter limits for operations prior to and after the upgrades. For lime kiln #4, recirculation liquid flow and differential pressure must meet the minimum operating limits established in Table 2.2 D-2 identified as applicable prior to the upgrade. Following the upgrade, BRPP will be required to meet the minimum values for these parameters recommended by the manufacturer as an interim measure and will be required to conduct testing to establish site-specific limits. Similarly, for lime kiln #5, the permit requires BRPP to meet minimum operating limits in Table 2.2 D-2 prior to the upgrade. Lime kiln #5 uses a venturi-type scrubber and is required to meet minimum limits for venturi liquid flow, quench liquid flow, and differential pressure. Again, following the upgrade, this scrubber is required to meet manufacturer's recommended minimums for these parameters as an interim measure and conduct testing to establish site-specific limits. NC DAQ interprets condition 2.2.J.1.c.iii to require BRPP to meet the operating limits in Table 2.2 D-2, including any operating limits established through testing under 2.2.D.1.h, in accordance with the monitoring exceedance provision 2.2.D.1.j., to ensure the SO 2 emission limitations in Table 2.2 J.1 will not be exceeded for these lime kilns. The scrubber-specific minimum monitoring parameters from performance tests approved by the DAQ will supersede the manufacturer's recommended limits without requiring a permit or SIP revision.

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 the incorporation by reference into North Carolina's SIP the conditions identified below from title V operating Permit No. 08961T29 issued by DAQ to BRPP with an effective date of June 2, 2020. These permit conditions relate to enforcement of and compliance with SO 2 emission limitations at BRPP for seven SO 2 emitting units. Specifically, DAQ has requested EPA incorporate into the North Carolina SIP condition 2.2.J.b and the lb/hr SO 2 emission limitations in Table 2.2 J.1 for the No. 10 and No. 11 Recovery Furnaces (G08020 and G08021), No. 4 and No. 5 Lime Kilns (G09028 and G09029) and Riley Bark, Riley Coal, and No. 4 Power Boilers (G11042, G11039 and G11040). North Carolina has also requested EPA incorporate into the SIP the following operating, MRR, and testing conditions to ensure compliance with SO 2 emission limitations identified in Table 2.2 J.1 of condition 2.2.J.1.b: (1) For the No. 10 and No. 11 Recovery Furnaces (G08020 and G08021)—condition 2.2.J.1.c.i; (2) for No. 4 and No. 5 Lime Kilns (G09028 and G09029)—condition 2.2.J.1.c.iii; condition 2.2 D.1.f.ii; Table 2.2.D-2; condition 2.2 D.1.h; condition 2.2 D.1.i.ii; condition 2.2 D.1.j.ii; conditions 2.2 D.1.l.ii, 2.2 D.1.l.iii, 2.2 D.1.l.iv, 2.2 D.1.l.v, 2.2 D.1.l.vii, and 2.2 D.1.l.viii; condition 2.2 D.1.m; condition 2.2 D.1.n; condition 2.2 D.1.o, and condition 2.2 D.1.p.iii; (3) for the Riley Bark, Riley Coal and No. 4 Power Boilers (G11042, G11039 and G11040)—condition 2.2.J.1.c.vii, including Table 2.2 J.2; (4) Testing—condition 2.2.J.1.d and Table.2.2 J.3, (5) condition 2.2.J.1.e; (6) Recordkeeping—conditions 2.2 J.1.g.i, 2.2 J.1.g.ii, and 2.2 J.1.g.iii; (7) Reporting—conditions 2.2.J.1.h and 2.2.J.1.i. EPA has made, and will continue to make, these materials 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 SO 2 emissions limits and associated operating restrictions, MRR, and testing compliance parameters from BRPP's title V operating permit T29 into the North Carolina SIP. EPA confirms that the SO 2 emissions limits and associated operating restrictions, MRR, and testing compliance parameters for BRPP are more stringent than requirements that are currently approved into the North Carolina SIP for BRPP. By incorporating these SO 2 permit limits and associated operating restrictions, MRR, and testing compliance parameters into the North Carolina SIP, these requirements will become permanently federally enforceable and strengthen the North Carolina SIP.

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 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.

This document proposes to correct an error in EPA's regulations for test procedures used in the Corporate Average Fuel Economy (CAFE) program finalized in a 2012 rulemaking. The correction clarifies the method for how flex-fuel vehicles are accounted for in manufacturer fuel economy calculations in model years 2020 and later. This correction allows the program to be implemented as originally intended in the 2012 rule.

We have published a direct final rule in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule; that document also includes draft regulations detailing all the amendments under consideration.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the direct final rule, or the relevant provisions of the rule, will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

This action affects companies that manufacture or sell passenger automobiles (passenger cars) and non-passenger automobiles (light trucks) as defined under NHTSA's CAFE regulations. 1 Regulated categories and entities include:

We encourage you to participate in this rulemaking by submitting comments and related materials. We will consider all comments and materials received during the comment period.

If you submit a comment, identify the agency name and the Docket ID for this rulemaking, indicate the specific section of this document to which each comment applies, and give the reason for each comment. All submissions will be posted, without change, to the Federal e-Rulemaking Portal at www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. For more about privacy and the docket, visit https://www.regulations.gov/document?D=DHS-2018-0029-0001.

Viewing comments and documents: For access to the docket to read background documents or comments received, go to the Federal e-Rulemaking Portal at http://www.regulations.gov.

Under the Public Assistance (PA) Program, authorized by the Robert T. Stafford Disaster Relief and Emergency Assistance Act  1 (Stafford Act), FEMA awards grants to eligible applicants to assist them in responding to and recovering from Presidentially-declared emergencies and major disasters. The recipient, as defined at 44 CFR 206.201(m), is the government to which a grant is awarded, and which is accountable for the use of the funds provided. Generally, the State for which the emergency or major disaster is declared is the recipient. The recipient can also be an Indian Tribal government. The applicant, as defined at 44 CFR 206.201(a), is a State agency, local government, or eligible private nonprofit organization submitting an application to the recipient for assistance under the recipient's grant.

The PA Program provides Federal funds for debris removal, emergency protective measures, and permanent restoration of infrastructure. When the President issues an emergency or major disaster declaration authorizing PA FEMA may accept applications from eligible applicants under the PA Program. To apply for a grant under the PA Program, the eligible applicant must submit a Request for PA to FEMA through the recipient. Upon award, the recipient notifies the applicant of the award, and the applicant becomes a subrecipient.

FEMA uses Project Worksheets (PWs) to administer the PA Program. A FEMA Project Specialist develops PWs for large projects, working with a recipient representative and the applicant. A PW is the primary form used to document the location, damage description and dimensions, scope of work, and cost estimate for a project. Although large projects are funded on documented actual costs, work typically is not complete at the time of project formulation, PW development, and approval. Therefore, FEMA obligates large project grants based on estimated costs and relies on financial reconciliation at project closeout for final costs.

The obligation process is the process by which FEMA makes funds available to the recipient. The funds reside in a Federal account until drawn down by the recipient and disbursed to the applicant, unless partially or otherwise deobligated for reasons including, but not limited to, discrepancies between estimated and actual costs, updated estimates, a determination that a prior eligibility determination was incorrect, additional funds received from other sources that could represent a prohibited duplication of benefits, or expiration of the period of performance.

Occasionally, an applicant or recipient may disagree with FEMA regarding a determination related to their request for Public Assistance. Such disagreements may include, for instance, whether an applicant or recipient, facility, item of work, or project is eligible for Public Assistance; whether approved costs are sufficient to complete the work; whether a requested time extension was properly denied; whether a portion of the cost claimed for the work is eligible; or whether the approved scope of work is correct. In such circumstances, the applicant or recipient may appeal FEMA's determination. 44 CFR 206.206.

Under the appeals procedures in 44 CFR 206.206, an eligible applicant, subrecipient, or recipient may appeal any determination made by FEMA related to an application for or the provision of Public Assistance. There are two levels of appeal. The first appeal is to the FEMA Regional Administrator. The second appeal is to the FEMA Assistant Administrator for Recovery at FEMA Headquarters.

The applicant must file an appeal with the recipient within 60 calendar days of the applicant's receipt of a notice from FEMA of the Federal determination that is being appealed. 44 CFR 206.206(c)(1). The applicant must provide documentation to support the position of the appeal. In this documentation, the applicant will specify the monetary amount in dispute and the provisions in Federal law, regulation, or policy with which the applicant believes FEMA's initial action was inconsistent. 44 CFR 206.206(a). The recipient reviews and evaluates the appeal documentation. The recipient then prepares a written recommendation on the merits of the appeal and forwards that recommendation to the FEMA Regional Administrator within 60 calendar days of the recipient's receipt of the appeal from the applicant. 44 CFR 206.206(c)(2). Recipients may make recipient-related appeals to the FEMA Administrator.

The FEMA Regional Administrator reviews the appeal and takes one of two actions: (1) Renders a decision on the appeal and informs the recipient of the decision; or (2) requests additional information. If the appeal is granted, the FEMA Regional Administrator takes appropriate action, such as approving additional funding or sending a Project Specialist to meet with the appellant to determine additional eligible funding. 44 CFR 206.206(c)(3).

If the FEMA Regional Administrator denies the appeal, the applicant or recipient may submit a second appeal. 2 The applicant must submit the second appeal to the recipient within 60 calendar days of receiving the notice of the FEMA Regional Administrator's decision on the first appeal. The recipient must forward the second appeal with a written recommendation to the FEMA Regional Administrator within 60 calendar days of receiving the second appeal. 44 CFR 206.206(c)(2). The FEMA Regional Administrator will forward the second appeal for action to the FEMA Assistant Administrator for Recovery as soon as practicable. Recipients may make recipient-related second appeals to the FEMA Assistant Administrator for Recovery.

The FEMA Assistant Administrator for Recovery at FEMA Headquarters reviews the second appeal and renders a decision or requests additional information from the applicant. In a case involving highly technical issues, FEMA may request an independent scientific or technical analysis by a group or person having expertise in the subject matter of the appeal. 44 CFR 206.206(d). Upon receipt of requested information and reports from the applicant, FEMA must render a decision on the second appeal within 90 calendar days. 44 CFR 206.206(c)(3). This decision constitutes the final administrative decision of FEMA. 44 CFR 206.206(e)(3).

Under 44 CFR 206.209, applicants may request arbitration to resolve disputed PA applications under major disaster declarations for Hurricanes Katrina and Rita, pursuant to the authority of the American Recovery and Reinvestment Act of 2009 (ARRA). 3 Pursuant to section 601 of the ARRA, FEMA promulgated 44 CFR 206.209 to establish arbitration procedures to resolve outstanding disputes regarding PA projects over $500,000. The ARRA arbitration regulations are only available to the States of Louisiana, Mississippi, Alabama, and Texas under the following declarations: DR-1603, DR-1604, DR-1605, DR-1606, and DR-1607.

The Sandy Recovery Improvement Act of 2013  4 (SRIA) authorized FEMA to conduct a Dispute Resolution Pilot Program (DRPP), which was in effect from August 16, 2013 to December 31, 2015. 78 FR 49950, Aug 16, 2013. FEMA promulgated regulations at 44 CFR 206.210 (since removed) to effectuate the pilot program. It included arbitration by an independent review panel to resolve disputes relating to PA projects, to facilitate an efficient recovery from major disasters. Applicants could choose to use for their second appeal either the DRPP or the review already offered under 44 CFR 206.206. Arbitration by an independent review panel was available only for disputes in an amount equal to or greater than $1,000,000 for projects with non-Federal cost share requirement (where, the subrecipient had a cost share requirement), and for applicants that had completed a first appeal pursuant to 44 CFR 206.206.

The arbitration decisions under this section were to be binding upon the parties to the dispute, as required by section 1105(b)(2) of SRIA. Under section 1105 of SRIA, the authority to accept a request for arbitration pursuant to the DRPP sunset on December 31, 2015, and FEMA has since removed these regulations. 5 FEMA did not receive any requests for arbitration pursuant to the DRPP.

On October 5, 2018, the President signed into law the Disaster Recovery Reform Act of 2018 (DRRA). 6 Section 1219 of DRRA, which amended Section 423(d) of the Stafford Act (42 U.S.C. 5189a), provides a right of arbitration to certain applicants of the PA Program that have a dispute concerning the eligibility for assistance or repayment of assistance.

The Supplier Performance Risk System (SPRS) is a DoD enterprise application that retrieves quality and delivery data from Government systems to calculate “on time” delivery scores and quality classifications. Contracting officers will use the overall risk assessment generated by the SPRS module to evaluate quotes and offers received under all solicitations for supplies and services, including solicitations using part 12 procedures for the acquisition of commercial items. The system generates three risk assessments using the SPRS Evaluation Criteria and calculations at https://www.sprs.csd.disa.mil/pdf/SPRS_DataEvaluationCriteria.pdf. These risk assessments are described as follows:

• Item Risk. SPRS collects data to generate the probability that a product or service, based on intended use, will introduce counterfeit or nonconforming material entering the DoD supply chain, which can result in significant personnel safety issues, mission degradation, or monetary loss. SPRS “flags” items identified by Government sources as “high risk” and provides suggested mitigations, or as “not high risk”.

• Price Risk. SPRS collects historical pricing data from Government sources and applies a common statistical method to calculate the average price paid for a product or services, generating a price range that contracting officers can use in the evaluation of fair and reasonable pricing. Price Risk determines whether “a proposed price is consistent with historical prices paid for that item and is depicted by high, low, or within range”.

• Supplier Risk. SPRS calculates a supplier risk score, for contracting officers to compare competing suppliers. This score includes three years of relevant supplier performance information from existing Government data sources.

The proposed rule amends the DFARS to: (1) Move coverage of the Supplier Performance Risk System (SPRS) from part 213, Simplified Acquisition Procedures, to a new subpart 204.7X, Supplier Performance Risk System; and (2) replace DFARS clause 252.213-7000, Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Past Performance Evaluations, with DFARS provision 252.204-70XX, Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Performance Evaluations, to enhance the use of SPRS in the evaluation of a supplier's performance through the introduction of SPRS system-generated item, price, and supplier risk assessments.

In the new subpart, at 204.7X01, definitions are added for item, price, and supplier risk. Section 204.7X02, Applicability, provides that the use of SPRS is required to be used to evaluate quotes and offers in response to all solicitations for supplies and services, including solicitations using FAR part 12 procedures for the acquisition of commercial items. Language is added at 204.7X03, Procedures, to provide guidance to the contracting officer on how SPRS risk assessments shall be considered during award decisions, how to respond to risk assessment ratings, and what mitigating strategies shall be considered for risk assessments prior to award. A prescription for use of the new solicitation provision at 252.204-70XX is added at 204.7X04.

The proposed rule amends the DFARS by requiring contracting officers to use the supplier risk assessments available in SPRS as a factor in determining responsibility at DFARS 209.105-1, as required by 204.7X03(c)(1). The supplier risk assessment reduces supply chain risk as it highlights for the contracting officer the probability that an award made to a supplier may subject the procurement to the risk of unsuccessful performance or to supply chain risk.

At DFARS 212.301(f), the newly proposed provision, 252.204-70XX, Notice to Prospective Suppliers on Use of the Supplier Performance Risk System in Performance Evaluations, is added to the list of clauses and provisions applicable to FAR part 12 acquisitions. DFARS provision 252.213-7000, which is superseded by 252.204-70XX, is removed from the list.

DFARS 213.106-2, Evaluation of quotations or offers, is amended to provide a cross-reference to subpart 204.7X, and expanded to require that SPRS data is used for evaluation of a supplier quote or offer for all solicitations for supplies and services, including solicitations using FAR part 12 procedures for the acquisition of commercial items. Previously, use of SPRS was limited to competitive acquisitions using simplified acquisition procedures that were valued at less than or equal to $1 million under the authority at FAR subpart 13.5. The language is amended to require the contracting officer to evaluate suppliers using all SPRS data, not just past performance data. The text is also amended to require that the basis for award will be based on an overall risk assessment, if applicable. A cross-reference is added to see 204.7X04 for use of the 252.204-70XX provision, while DFARS 213.106-2-70 is removed, since DFARS provision 252.213-7000 is being removed.

The new solicitation provision at DFARS 252.204-70XX, Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Performance Evaluations, provides the definitions of the SPRS risk assessments for item, price, and supplier risk; provides a notice that SPRS will be used in the evaluation of suppliers' performance and adds a link to the SPRS web page; addresses how the SPRS risk assessments will be used by the contracting officer to evaluate quotes or offers received in response to the solicitation; and provides links to the SPRS User's Guide and SPRS evaluation criteria.

This rule is applicable to all solicitations for supplies and services, including solicitations using FAR part 12 procedures for the acquisition of commercial items. The rule proposes to add DFARS provision 252.204-70XX, Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Performance Evaluations, to replace DFARS provision 252.213-7000, Notice to Prospective Suppliers on Use of Supplier Performance Risk System in Past Performance Evaluations. The new provision provides notice to potential offerors that the overall risk assessment generated by the SPRS module will be used to evaluate quotes or offers received in response to the solicitation.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

The DoD does not expect this rule to have an significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the proposed changes made to existing DFARS text and provision merely reflect existing DoD practice, procedures, and systems used by DoD, i.e., the Supplier Performance Risk System in Performance Evaluations (SPRS). However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

DoD is proposing to revise the Defense Federal Acquisition Regulation Supplement to incorporate the expanded capabilities of SPRS, made possible by recent technical enhancements. SPRS is a DoD enterprise application that retrieves quality and delivery information performance data obtained from Government reporting systems. The system provides three risk assessments for contracting officer use in evaluations: Item, price, and supplier risk assessments.

The objective of the proposed rule is to notify offerors that SPRS collects performance data from a variety of Government sources on awarded contracts, to develop item, price, and supplier risk assessments for contracting officer use during evaluation of quotations or offers. The proposed rule also requires contracting officers to use the supplier risk assessment as a factor in the evaluation of contractor responsibility. The legal basis for the rule is covered under 41 U.S.C 1707, Office of Federal Procurement Policy statute.

The Federal Procurement Data System indicates that in FY17-FY19, DoD awarded 198,038 contracts (both products and services), of which 123,217 were awarded to small businesses (approximately 62%). DoD does not expect small entities will be materially affected by this rule.

The rule does not impose any additional reporting, recordkeeping, and other compliance requirements.

This rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no known significant alternatives to the rule.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2019-D009), in correspondence.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 204, 209, 212, 213, and 252 are proposed to be amended as follows:

The addition reads as follows: