On June 15, 2018, the Animal and Plant Health Inspection Service (APHIS) published in the Federal Register (83 FR 27918-27922, Docket No. APHIS-2016-0099) a proposed rule  1 to authorize the importation of commercial fresh avocado from continental Ecuador into the continental United States.

The proposed rule was based on a pest risk assessment (PRA) that found four quarantine pests to be candidates for pest risk management. The quarantine pests were the fruit flies Anastrepha fraterculus (Wiedemann), Anastrepha serpentina (Wiedemann), Anastrepha striata (Schiner), and Ceratitis capitata (Wiedemann). All avocado varieties except the Hass variety are hosts for these quarantine pests. Consequently, APHIS proposed to allow the importation of avocados from Ecuador into the United States under a systems approach that included phytosanitary measures to safeguard against these pests for all varieties of avocado except the Hass variety.

During the public comment period, we received information from a commenter that led us to add the avocado seed pest Stenoma catenifer to a revised PRA. The revised PRA determined that Stenoma catenifer was a candidate for pest risk management for all varieties of avocado imported from continental Ecuador. In light of this change, we revised the risk management document (RMD) to include pest risk management measures for Stenoma catenifer for all avocado varieties. We are making the more recent version of the PRA available for public review and comment, as well as the revised version of the RMD that reflects this change.

Based on the findings of the revised PRA, we are proposing that commercial fresh avocado fruit may be imported into the continental United States from continental Ecuador subject to the conditions outlined in the June 2018 proposed rule, as well as additional conditions designed to safeguard against Stenoma catenifer. These additional conditions are:

• Avocados must be grown in pest free places of production for the avocado seed pest Stenoma catenifer that are established and maintained in accordance with international standards. APHIS must approve the survey protocol used by the National Plant Protection Organization (NPPO) of Ecuador to determine and maintain pest free status.

• If the avocados are grown in a municipality free of Stenoma catenifer, the municipality must be surveyed every 6 months (twice a year) for the pest. Representative areas of the municipality where there are avocado trees, including production sites and urban areas, must be sampled.

• If the avocados are grown in a municipality not completely free of Stenoma catenifer, the NPPO of Ecuador can certify individual places of production as pest free. The surveys for pest free places of production must include representative areas from all parts of each registered place of production and a buffer zone of 1 kilometer. The places of production and buffer zone must be surveyed monthly for Stenoma catenifer from 2 months before harvest until harvest is completed.

• If one or more Stenoma catenifer are detected during a survey or during any other monitoring or inspection activity, the place of production will be prohibited from exporting avocados to the continental United States until APHIS and the NPPO of Ecuador jointly agree that the risk has been mitigated.

• The NPPO of Ecuador must keep records of Stenoma catenifer detections for each place of production, and update the records each time the places of production are surveyed. The records must be maintained for at least 1 year and provided for APHIS' review, if requested.

These conditions are described in further detail in the revised RMD. The NPPO of Ecuador would also have to enter into an operational work plan with APHIS that details the daily procedures the NPPO will take to meet these and all conditions.

Comments on the proposed rule were required to be received on or before August 14, 2018. We are reopening the comment period on Docket No. APHIS-2016-0099 for an additional 30 days. This action will allow interested persons additional time to review the revised PRA and RMD, and prepare and submit comments.

Finally, we note that the proposed rule was issued prior to the October 15, 2018, effective date of a final rule  2 that revised the regulations in 7 CFR 319.56-4 by broadening an existing performance standard to provide for approval of all new fruits and vegetables for importation into the United States using a notice-based process. That final rule also specified that region- or commodity-specific phytosanitary requirements for fruits and vegetables would no longer be found in the regulations, but instead in APHIS' Fruits and Vegetables Import Requirements database (FAVIR). With those changes to the regulations, we will be unable to issue the final regulations as contemplated in our June 2018 proposed rule. Instead, following this reopened comment period, if we finalize this action, it will be through the issuance of a notification.

This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 985, as amended (7 CFR part 985), regulating the handling of spearmint oil produced in the Far West. Part 985 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of spearmint oil producers operating within the area of production, and a public member.

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. Under the Order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This proposed rule would establish quantities and allotment percentages for Scotch and Native spearmint oil for the 2021-2022 marketing year, which begins on June 1, 2021.

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

Pursuant to §§ 985.50, 985.51, and 985.52, the Order requires the Committee to meet each year to consider supply and demand of spearmint oil and to adopt a marketing policy for the ensuing marketing year. When such considerations indicate a need to establish or to maintain stable market conditions through volume regulation, the Committee recommends salable quantity limitations and producer allotments to regulate the quantity of Far West spearmint oil available to the market.

According to § 985.12, “salable quantity” is the total quantity of each class of oil (Scotch or Native) that handlers may purchase from, or handle on behalf of, producers during a given marketing year. The total industry allotment base is the aggregate of all allotment bases held individually by producers as prescribed under § 985.53(d)(1). The total allotment base is revised each year on June 1 to account for producer base being lost as a result of the “bona fide effort” production provision of § 985.53(e) and additional base made available pursuant to the provisions of § 985.153.

Each producer's prorated share of the salable quantity of each class of oil, or their “annual allotment” as defined in § 985.13, is calculated by using an allotment percentage. The allotment percentage is derived by dividing the salable quantity of each class of spearmint oil by the total industry allotment base for that same class of oil.

The Committee met on October 14, 2020, to consider its marketing policy for the 2021-2022 marketing year. At that meeting, the Committee determined that, based on the current market and supply conditions, volume regulation for both classes of oil would be necessary. With a 6-1 vote, the Committee recommended a salable quantity and allotment percentage for Scotch spearmint oil of 846,684 pounds and 38 percent. The member voting in opposition to the recommendation favored volume regulation but supported an unspecified lower salable quantity and allotment percent than what was recommended. The Committee voted six in favor, with one abstention, to recommend a salable quantity and allotment percentage for Native spearmint oil of 938,397 pounds and 37 percent. The member abstaining did not give a reason.

This proposed action would establish the amount of Scotch and Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2021-2022 marketing year, which begins on June 1, 2021. Salable quantities and allotment percentages have been placed into effect each season since the Order's inception in 1980.

The Committee recommended a Scotch spearmint oil salable quantity of 846,684 pounds and an allotment percentage of 38 percent for the 2021-2022 marketing year. The proposed 2021-2022 marketing year salable quantity of 846,684 pounds is 8,355 pounds more than the 2020-2021 marketing year salable quantity of 838,329 pounds. The allotment percentage, recommended at 38 percent for the 2021-2022 marketing year, is the same as the percentage in effect the previous year. The total allotment base for the coming marketing year is estimated to be 2,228,116 pounds. This figure represents a one-percent increase over the 2020-2021 marketing year total allotment base of 2,206,055 pounds. The salable quantity (846,684 pounds) is the product of total allotment base (2,228,116 pounds) times the allotment percentage (38 percent).

The Committee considered several factors in making its recommendation, including the current and projected future supply, estimated future demand, production costs, and producer prices. The Committee's recommendation also accounts for the established acreage of Scotch spearmint, consumer demand, existing carry-in, reserve pool volume, and increased production in competing markets.

According to the Committee, as costs of production have increased and spearmint oil prices have decreased, many producers have forgone new plantings of Scotch spearmint. This has resulted in a significant decline in production of Scotch spearmint oil in recent years. Production has decreased from 1,113,346 pounds produced in 2016 to an estimated 498,322 pounds of Scotch spearmint oil produced in 2020.

Industry reports indicate that trade demand for Far West Scotch spearmint oil has decreased over the past five years as international markets for spearmint-flavored products have slowed. Sales of Far West Scotch spearmint oil have averaged 740,216 pounds per year over the last five years but have averaged only 645,965 pounds over the last three years. In addition to declining spearmint oil demand, increasing production of Scotch spearmint oil in competing markets, most notably by Canadian producers, has put additional downward pressure on the Far West Scotch spearmint oil market.

Given the general decline in demand and anticipated market conditions for the coming year, the Committee estimates that Scotch spearmint oil trade demand for the 2021-2022 marketing year trade will be 623,000 pounds, which is 19,000 pounds higher than the 2020-2021 estimate, but still down from the three-year average of actual sales. Should the proposed volume regulation levels prove insufficient to adequately supply the market, the Committee has the authority to recommend intra-seasonal increases, as it has in previous marketing years.

The Committee calculated the minimum salable quantity of Scotch spearmint oil that would be required during the 2021-2022 marketing year (359,424 pounds) by subtracting the estimated salable carry-in (263,576 pounds) on June 1, 2021, from the estimated trade demand (623,000 pounds). This minimum salable quantity represents the estimated minimum amount of Scotch spearmint oil that would be needed to satisfy estimated trade demand for the coming year. To ensure that the market would be fully supplied, the Committee recommended a 2021-2022 marketing year salable quantity of 846,684 pounds. The recommended salable quantity, combined with an estimated 263,576 pounds of salable quantity carried in from the previous year, would yield a total available supply of 1,110,260 pounds of Scotch spearmint oil for the 2021-2022 marketing year. With the recommended salable quantity and current market environment, the Committee estimates that as much as 487,260 pounds of salable Scotch spearmint oil could be carried into the 2022-2023 marketing year.

Salable carry-in is the primary measure of excess spearmint oil supply under the Order, as it represents overproduction in prior years that is currently available to the market without restriction. Under volume regulation, spearmint oil that is designated as salable continues to be available to the market until it is sold and may be marketed at any time at the discretion of the owner. Salable quantities established under volume regulation over the last four seasons have exceeded sales, leading to a gradual build of Scotch spearmint oil salable carry-in.

The Committee estimates that there will be 263,576 pounds of salable carry-in of Scotch spearmint oil on June 1, 2021. If current market conditions are maintained and the Committee's projections are correct, salable carry-in would increase to 487,260 pounds at the beginning of the 2022-2023 marketing year. This level would be above the quantity that the Committee generally considers favorable (150,000 pounds). However, the Committee believes that, given the current economic conditions in the Scotch spearmint oil industry, some Scotch spearmint oil producers may not produce enough oil in the 2021-2022 marketing year to fill all of their annual allotment. The Committee estimates that as much as 245,352 pounds of 2020-2021 marketing year annual allotment may not be filled by producers. While the Committee has not projected unused base allotment for the 2021-2022 marketing year and did not incorporate this factor in its recommendation, it anticipates that the actual quantity of Scotch spearmint oil carried into the following marketing year will be significantly less than the quantity calculated above (487,260 pounds).

Spearmint oil held in reserve is oil that has been produced in excess of a producer's marketing year allotment and is not available to the market in the current marketing year without an increase in the salable quantity and allotment percentage. Oil held in the reserve pool is another indicator of excess supply. Scotch spearmint oil held in the reserve pool was 67,645 pounds as of May 31, 2020, down from 132,984 pounds as of May 31, 2019. However, the Scotch spearmint oil reserve is expected to rebound slightly to an estimated 83,608 pounds by the end of the 2020-2021 marketing year. This quantity of reserve pool oil should be an adequate buffer to supply the market, if necessary, should the industry experience an unexpected increase in demand.

The Committee recommended an allotment percentage of 38 percent for the 2021-2022 marketing year for Scotch spearmint oil. During its October 14, 2020, meeting, the Committee calculated an initial allotment percentage by dividing the minimum required salable quantity (359,424 pounds) by the total estimated allotment base (2,228,116 pounds), resulting in 16.1 percent. However, producers and handlers at the meeting indicated that the computed percentage (16.1 percent) might not adequately supply potential 2021-2022 Scotch spearmint oil market demand and may also result in a less than desirable carry-in for the subsequent marketing year. After deliberation, the Committee increased the recommended allotment percentage to 38 percent. The total estimated allotment base (2,228,116 pounds) for the 2021-2022 marketing year, multiplied by the recommended salable allotment percentage (38 percent), yields 846,684 pounds, which is the recommended salable quantity for the 2021-2022 marketing year.

The 2021-2022 marketing year computational data for the Committee's recommendations is detailed below.

(A) Estimated carry-in of Scotch spearmint oil on June 1, 2021: 263,576 pounds. This figure is the difference between the 2020-2021 marketing year total available supply of 867,576 pounds and the 2020-2021 marketing year estimated trade demand of 604,000 pounds. The estimated 2020-2021 marketing year trade demand was revised down from the original estimate of 750,000 pounds by the Committee at its October 14, 2020, meeting.

(B) Estimated trade demand of Scotch spearmint oil for the 2021-2022 marketing year: 623,000 pounds. This figure was established at the Committee meeting held on October 14, 2020.

(C) Salable quantity of Scotch spearmint oil required from the 2021-2022 marketing year production: 359,424 pounds. This figure is the difference between the estimated 2021-2022 marketing year trade demand (623,000 pounds) and the estimated carry-in on June 1, 2021 (263,576 pounds). This salable quantity represents the minimum amount of Scotch spearmint oil that would be needed to satisfy estimated demand for the coming year.

(D) Total estimated Scotch spearmint oil allotment base of for the 2021-2022 marketing year: 2,228,116 pounds. This figure represents a one-percent increase over the 2020-2021 total actual allotment base of 2,206,055 pounds, as prescribed by § 985.53. The one-percent increase equals 22,061 pounds. This total estimated allotment base is revised each year on June 1 in accordance with § 985.53(e).

(E) Computed Scotch spearmint oil allotment percentage for the 2021-2022 marketing year: 16.1 percent. This percentage is computed by dividing the minimum required salable quantity (359,424 pounds) by the total estimated allotment base (2,228,116 pounds).

(F) Recommended Scotch spearmint oil allotment percentage for the 2021-2022 marketing year: 38 percent. This is the Committee's recommendation and is based on the computed allotment percentage (16.1 percent) and input from producers and handlers at the October 14, 2020, meeting. The recommended 38 percent allotment percentage reflects the Committee's belief that the computed percentage (16.1 percent) may not adequately supply the anticipated 2021-2022 marketing year Scotch spearmint oil market demand.

(G) Recommended Scotch spearmint oil salable quantity for the 2021-2022 marketing year: 846,684 pounds. This figure is the product of the recommended salable allotment percentage (38 percent) and the total estimated allotment base (2,228,116 pounds) for the 2021-2022 marketing year.

(H) Estimated total available supply of Scotch spearmint oil for the 2021-2022 marketing year: 1,110,260 pounds. This figure is the sum of the 2021-2022 marketing year recommended salable quantity (846,684 pounds) and the estimated carry-in on June 1, 2021 (263,576 pounds).

For the reasons stated above, the Committee believes that the recommended salable quantity and allotment percentage would adequately satisfy trade demand, would result in a reasonable carry-in for the following year, and would contribute to the orderly marketing of Scotch spearmint oil.

The Committee recommended a Native spearmint oil salable quantity of 938,397 pounds and an allotment percentage of 37 percent for the 2021-2022 marketing year. These figures are, respectively, 292,089 pounds and 12 percentage points lower than the levels established for the 2020-2021 marketing year.

The Committee utilized handlers' estimated trade demand of Native spearmint oil for the coming year, historical and current Native spearmint oil production, inventory statistics, and international market data obtained from consultants for the spearmint oil industry to arrive at these recommendations.

The Committee anticipates that 2021 Native spearmint oil production will total 1,181,230 pounds, down substantially from the previous year's production of 1,493,686 pounds. Committee records show an estimated 7,957 acres of Native spearmint production in the Far West in 2020 compared to an estimated 9,013 acres of Native spearmint production in 2019.

Sales of Native spearmint oil have also been declining, falling from a high of 1,565,515 pounds in the 2017-2018 marketing year to 1,076,906 pounds over the 2019-2020 marketing year, the last full year of reported sales. The Committee estimates that trade demand for Native spearmint oil will be 1,059,167 pounds for the 2020-2021 marketing year, well below the 5-year sales average of 1,283,266 pounds.

The Committee expects that 694,137 pounds of salable Native spearmint oil from prior years will be carried into the 2021-2022 marketing year. This amount is up from the 522,818 pounds of salable oil carried into the 2020-2021 marketing year and well above the level that the Committee generally considers favorable.

Further, the Committee estimated that there will be 1,130,264 pounds of Native spearmint oil in the reserve pool at the beginning of the 2021-2022 marketing year. This figure is 49,256 pounds lower than the quantity of reserve pool oil held by producers on June 1, 2020, but is still higher than the level that the Committee believes is optimal. This modest decline in the reserve oil reverses the recent trend of gradual increases that the industry has experienced over the past several marketing years.

The Committee expects end users of Native spearmint oil to continue to rely on Far West production as their primary source of high-quality Native spearmint oil. Overseas production of Native spearmint has declined in recent years. As a result, U.S. exports of Native spearmint oil have been increasing since 2018. However, the increase in domestic production from other states outside the Far West region has more than offset the decline in foreign production of Native spearmint oil. For instance, production of Native spearmint oil in the U.S. Midwest region has spiked in recent years, rising from fewer than 2,000 acres in 2016 to approximately 5,500 acres in 2020. Additionally, the sharp increase in demand for Native spearmint experienced during the 2017-2018 marketing year has tapered off in recent years. These factors have contributed to declining trade demand for Far West Native spearmint oil and led to downward pressure on producer prices.

The Committee chose to be cautiously optimistic in the establishment of its trade demand estimate for the 2021-2022 marketing year to ensure that the market would be adequately supplied. At the October 14, 2020, meeting, the Committee estimated the 2021-2022 marketing year Native spearmint oil trade demand to be 1,125,000 pounds. This figure is based on input provided by producers at nine production area meetings held in early October 2020, as well as estimates provided by handlers and other meeting participants. This figure represents an increase of 65,833 pounds from the previous year's revised trade demand estimate. The average estimated trade demand for Native spearmint oil derived from the area producer meetings was 1,105,556 pounds, whereas the handlers' estimates ranged from 900,000 to 1,300,000 pounds. The average of Native spearmint oil sales over the last three years was 1,295,832 pounds. The quantity marketed over the most recent full marketing year, 2019-2020, was 1,076,906 pounds.

The estimated June 1, 2021, carry-in of 694,137 pounds of Native spearmint oil, plus the recommended 2021-2022 marketing year salable quantity of 938,397 pounds, would result in an estimated total available supply of 1,632,534 pounds of Native spearmint oil during the 2021-2022 marketing year. With the corresponding estimated trade demand of 1,125,000 pounds, the Committee projects that 507,534 pounds of oil will be carried into the 2022-2023 marketing year. This would result in a year-over-year decrease of 186,603 pounds. The Committee estimates that there will be 1,130,264 pounds of Native spearmint oil held in the reserve pool at the beginning of the 2021-2022 marketing year. Should the industry experience an unexpected increase in trade demand, oil in the Native spearmint oil reserve pool could be released through an intra-seasonal increase to satisfy that demand.

The Committee recommended a producer allotment percentage of 37 percent for the 2021-2022 marketing year. During its October 14, 2020, meeting, the Committee calculated an initial producer allotment percentage of 17 percent by dividing the minimum required salable quantity to satisfy estimated trade demand (430,863 pounds) by the total allotment base (2,536,208 pounds). However, producers and handlers at the meeting expressed that the computed percentage of 17 percent may not adequately supply the potential 2021-2022 Native spearmint oil market demand or result in adequate carry-in for the subsequent marketing year. After deliberation, the Committee increased the recommended allotment percentage to 37 percent. The total estimated allotment base (2,536,208 pounds) for the 2021-2022 marketing year multiplied by the recommended salable allotment percentage (37 percent) yields 938,397 pounds, the recommended salable quantity for the year.

The 2021-2022 marketing year computational data for the Committee's recommendations is further outlined below.

(A) Estimated carry-in of Native spearmint oil on June 1, 2021: 694,137 pounds. This figure is the difference between the revised 2020-2021 marketing year total available supply of 1,753,304 pounds and the revised 2020-2021 marketing year estimated trade demand of 1,059,167 pounds.

(B) Estimated trade demand of Native spearmint oil for the 2021-2022 marketing year: 1,125,000 pounds. This estimate was established by the Committee at the October 14, 2020, meeting.

(C) Salable quantity of Native spearmint oil required from the 2021-2022 marketing year production: 430,863 pounds. This figure is the difference between the estimated 2021-2022 marketing year estimated trade demand (1,125,000 pounds) and the estimated carry-in on June 1, 2021 (694,137 pounds). This is the minimum amount of Native spearmint oil that the Committee believes would be required to meet the anticipated 2021-2022 marketing year trade demand.

(D) Total estimated allotment base of Native spearmint oil for the 2021-2022 marketing year: 2,536,208 pounds. This figure represents a one-percent increase over the 2020-2021 total actual allotment base of 2,511,097 pounds as prescribed in § 985.53. The one-percent increase equals 25,111 pounds of oil. This estimate is revised each year on June 1, due to adjustments resulting from the bona fide effort production provisions of § 985.53(e).

(E) Computed Native spearmint oil allotment percentage for the 2021-2022 marketing year: 17.0 percent. This percentage is calculated by dividing the required salable quantity (430,863 pounds) by the total estimated allotment base (2,536,208 pounds) for the 2021-2022 marketing year.

(F) Recommended Native spearmint oil allotment percentage for the 2021-2022 marketing year: 37 percent. This is the Committee's recommendation based on the computed allotment percentage (17.0 percent) and input from producers and handlers at the October 14, 2020, meeting. The recommended 37 percent allotment percentage is based on the Committee's belief that the computed percentage (17.0 percent) may not adequately supply the potential market for Native spearmint oil in the 2021-2022 marketing year or allow for salable Native spearmint oil to be carried into the beginning of the 2022-2023 marketing year.

(G) Recommended Native spearmint oil 2021-2022 marketing year salable quantity: 938,397 pounds. This figure is the product of the recommended allotment percentage (37 percent) and the total estimated allotment base (2,536,208 pounds).

(H) Estimated available supply of Native spearmint oil for the 2021-2022 marketing year: 1,632,534 pounds. This figure is the sum of the 2021-2022 recommended salable quantity (938,397 pounds) and the estimated carry-in on June 1, 2021 (694,137 pounds). This amount could be increased, as needed, through an intra-seasonal increase in the salable quantity and allotment percentage.

The Committee's recommended Scotch and Native spearmint oil salable quantities and allotment percentages of 846,684 pounds and 38 percent, and 938,397 pounds and 37 percent, respectively, would match the available supply of each class of spearmint oil to the estimated demand of each, thus avoiding extreme fluctuations in inventories and prices. This proposed rule is similar to regulations issued in prior seasons.

The salable quantities in this proposed rule are not expected to cause a shortage of either class of spearmint oil. Any unanticipated or additional market demand for either class of spearmint oil which may develop during the marketing year could be satisfied by an intra-seasonal increase in the salable quantity and corresponding allotment percentage. The Order contains a provision in § 985.51 for intra-seasonal increases to allow the Committee the flexibility to respond quickly to changing market conditions.

Under volume regulation, producers who produce more than their annual allotments during the marketing year may transfer such excess spearmint oil to producers who have produced less than their annual allotment. In addition, on December 1 of each year, producers who have not transferred their excess spearmint oil to other producers must place their excess spearmint oil production into the reserve pool, to be released in the future, in accordance with market needs and under the Committee's direction.

In conjunction with the issuance of this proposed rule, USDA has reviewed the Committee's marketing policy statement for the 2021-2022 marketing year. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulation, meets the requirements of §§ 985.50 and 985.51.

The establishment of the proposed salable quantities and allotment percentages would allow for anticipated market needs. In determining anticipated market needs, the Committee considered historical sales, as well as changes and trends in production and demand. This proposal would also provide producers with information regarding the amount of spearmint oil that should be produced for the 2021-2022 season to meet anticipated market demand.

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

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

There are approximately 40 producers and 94 producers of Scotch and Native spearmint oil, respectively, in the regulated production area and approximately 8 spearmint oil handlers subject to regulation under the Order. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $30,000,000, and small agricultural producers are defined as those having annual receipts of less than $1,000,000 (13 CFR 121.201).

The Committee reported that recent producer prices for spearmint oil have ranged from $12.00 to $17.00 per pound. The National Agricultural Statistics Service (NASS) reported that the 2019 U.S. season average spearmint oil producer price per pound was $16.90. Spearmint oil utilization for the 2019-2020 marketing year, as reported by the Committee, was 598,706 pounds and 1,076,906 pounds for Scotch and Native spearmint oil, respectively, for a total of 1,675,612 pounds. Multiplying $16.90 per pound by 2019-2020 marketing year spearmint oil utilization of 1,675,612 pounds yields a crop value estimate of about $28.3 million.

Given the accounting requirements for the volume regulation provisions of the Order, the Committee maintains accurate records of each producer's production and sales. Using the $16.90 average spearmint oil price, and Committee production data for each producer, the Committee estimates that 37 of the 40 Scotch spearmint oil producers and 90 of the 94 Native spearmint oil producers could be classified as small entities under the SBA definition.

There is no third party or governmental entity that collects and reports spearmint oil prices received by spearmint oil handlers. However, the Committee estimates an average spearmint oil handling markup at approximately 20 percent of the price received by producers. Multiplying 1.20 by the 2018 producer price of $16.90 yields a handler free on board (f.o.b.) price per pound estimate of $20.28.

Multiplying this estimated handler f.o.b. price by the 2019-2020 marketing year total spearmint oil utilization of 1,675,612 pounds results in an estimated handler-level spearmint oil value of $33.98 million. Dividing this figure by the number of handlers (8) yields estimated average annual handler receipts of about $4.25 million, which is well below the SBA threshold for small agricultural service firms.

Furthermore, using confidential data on pounds handled by each handler, and the above mentioned estimated handler price per pound, the Committee reported that it is not likely that any of the eight handlers had 2019-2020 marketing year spearmint oil sales that exceeded the $30 million SBA threshold.

Therefore, in view of the foregoing, the majority of producers of spearmint oil may be classified as small entities, and all of the handlers of spearmint oil may be classified as small entities.

This proposed rule would establish the quantity of spearmint oil produced in the Far West, by class, which handlers may purchase from, or handle on behalf of, producers during the 2021-2022 marketing year. The Committee recommended this action to help maintain stability in the spearmint oil market by matching supply to estimated demand, thereby avoiding extreme fluctuations in supplies and prices. Establishing quantities that may be purchased or handled during the marketing year through volume regulation allows producers to coordinate their spearmint oil production with the expected market demand. Authority for this proposal is provided in §§ 985.50, 985.51, and 985.52.

The Committee estimated the total trade demand for the 2021-2022 marketing year for both classes of oil at 1,748,000 pounds. In addition, the Committee expects that the combined salable carry-in for both classes of spearmint oil will be 957,713 pounds. As such, the combined required salable quantity for the 2021-2022 marketing year is estimated to be 790,287 pounds (1,748,000 pounds trade demand less 957,713 pounds carry-in). Under volume regulation, total sales of spearmint oil by producers for the 2021-2022 marketing year would be held to 2,742,794 pounds (the recommended salable quantity for both classes of spearmint oil of 1,785,081 pounds plus 957,713 pounds of carry-in).

This total available supply of 2,742,794 pounds should be more than adequate to supply the 1,748,000 pounds of anticipated total trade demand for spearmint oil. In addition, as of May 31, 2020, the total reserve pool for both classes of spearmint oil stood at 1,247,165 pounds. That quantity is expected to remain relatively unchanged over the course of the 2021-2022 marketing year, with current Committee reserve pool estimates totaling 1,366,673 pounds. Should trade demand increase unexpectedly during the 2021-2022 marketing year, reserve pool spearmint oil could be released into the market to supply that increase in demand.

The recommended allotment percentages, upon which 2021-2022 marketing year annual allotments are based, are 38 percent for Scotch spearmint oil and 37 percent for Native spearmint oil. Without volume regulation, producers would not be held to these allotment levels, and could sell unrestricted quantities of spearmint oil.

The USDA econometric model used to evaluate the Far West spearmint oil market estimated that the season average producer price per pound (from both classes of spearmint oil) would decline about $1.70 per pound without volume regulation. The surplus situation for the spearmint oil market that would exist without volume regulation in the 2021-2022 marketing year also would likely dampen prospects for improved producer prices in future years because of the excessive buildup in stocks.

In addition, the econometric model estimated that spearmint oil prices would fluctuate with greater amplitude in the absence of volume regulation. The coefficient of variation, or CV (a standard measure of variability), of Far West spearmint oil producer prices for the period 1980-2019 (the years in which the Order has been in effect), is 25 percent, compared to 49 percent for the 20-year period (1960-1979) immediately prior to the establishment of the Order. Since higher CV values correspond to greater variability, this is an indicator of the price stabilizing impact of the Order.

The use of volume regulation allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume regulation is believed to have little or no effect on consumer prices of products containing spearmint oil and would not result in fewer retail sales of such products.

The Committee discussed alternatives to the recommendations contained in this rule for both classes of spearmint oil. The Committee rejected the idea of not regulating volume for either class of spearmint oil because of the severe, price-depressing effects that would likely occur without volume regulation. The Committee also discussed and considered salable quantities and allotment percentages that were above and below the levels that were ultimately recommended for both classes of spearmint oil. Ultimately, the action recommended by the Committee was to maintain the allotment percentage for Scotch spearmint oil (which would slightly increase the salable quantity) and to decrease both the salable quantity and allotment percentage for Native spearmint oil from the levels established for the 2020-2021 marketing year.

As noted earlier, the Committee's recommendation to establish salable quantities and allotment percentages for both classes of spearmint oil was made after careful consideration of all available information including: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) the prospective production of each class of oil; (4) the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity.

Based on its review, the Committee believes that the salable quantities and allotment percentages recommended would achieve the objectives sought. The Committee also believes that, should there be no volume regulation in effect for the upcoming marketing year, the Far West spearmint oil industry would return to the pronounced cyclical price patterns that occurred prior to the promulgation of the Order. As previously stated, annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the Order's inception. The salable quantities and allotment percentages proposed herein are expected to facilitate the goal of maintaining orderly marketing conditions for Far West spearmint oil for the 2021-2022 and future marketing years.

Costs to producers and handlers, large and small, resulting from this proposal are expected to be offset by the benefits derived from a more stable market and increased returns. The benefits of this rule are expected to be equally available to all producers and handlers regardless of their size.

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

This proposed rule would establish the salable quantities and allotment percentages for Scotch spearmint oil and Native spearmint oil produced in the Far West during the 2021-2022 marketing year. Accordingly, this proposal would not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil producers or handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

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

The Committee's meeting was widely publicized throughout the spearmint oil industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the October 14, 2020, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

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

A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

For the reasons set forth in the preamble, the Agriculture Marketing Services proposes to amend 7 CFR part 985 as follows:

DOE's test procedures for portable ACs are prescribed in the Code of Federal Regulations (“CFR”) at Title 10 of the CFR part 430, subpart B, appendix CC (“appendix CC”). The following sections discuss DOE's authority to establish and amend test procedures for portable ACs, as well as relevant background information regarding DOE's consideration of test procedures for this product.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. In addition to specifying a list of covered products, EPCA enables the Secretary of Energy to classify additional types of consumer products as covered products under EPCA. (42 U.S.C. 6292(a)(20)) In a final determination of coverage published in the Federal Register on April 18, 2016, DOE classified portable ACs as covered products under EPCA. 81 FR 22514.

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

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

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

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

EPCA also requires that, at least once every 7 years, DOE review test procedures for all type of covered products, including portable ACs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use and to not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(1)(A)) If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. (42 U.S.C. 6293(b)(2)) In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. Id. If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. (42 U.S.C. 6293(b)(1)(A)) DOE is publishing this RFI to collect data and information to inform its decision in satisfaction of the 7-year review requirement specified in EPCA.

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

On November 5, 2020, DOE published an early assessment review RFI in which it sought data and information pertinent to whether amended test procedures would (1) more accurately or fully comply with the requirement that the test procedure produces results that measure energy use during a representative average use cycle or period of use for the product without being unduly burdensome to conduct, or (2) reduce testing burden. 85 FR 70508 (“November 2020 RFI”). DOE received comments in response to the November 2020 RFI from the interested parties listed in Table I.1.

Based on DOE's review of the test procedure for portable ACs and the comments received, as discussed in the following sections, DOE has determined it is appropriate to continue the test procedure rulemaking after the early assessment process. See 10 CFR part 430 subpart C appendix A section 8(b).

In the following sections, DOE has identified a variety of issues on which it seeks input to determine whether, and if so how, an amended test procedure for portable ACs would (1) more accurately or fully comply with the requirements in EPCA that test procedures be reasonably designed to produce test results which reflect energy use during a representative average use cycle or period of use, without being unduly burdensome to conduct (42 U.S.C. 6293(b)(3)); or (2) reduce testing burden.

Additionally, DOE welcomes comments on any aspect of the existing test procedures for portable ACs that may not specifically be identified in this document.

In a coverage determination published on April 18, 2016, DOE established the definition of a “portable air conditioner” as a portable encased assembly, other than a packaged terminal air conditioner, room air conditioner, or dehumidifier, that delivers cooled, conditioned air to an enclosed space, and is powered by single-phase electric current. 81 FR 22514, 22519-22520; see also 10 CFR 430.2. The definition also states that a portable AC includes a source of refrigeration and may include additional means for air circulation and heating. Id.

In a final rule published on June 1, 2016, DOE established definitions for two portable AC configurations: “single-duct portable air conditioner” and “dual-duct portable air conditioner.” 81 FR 35241, 35245-35246 (“June 2016 Final Rule”). A “single-duct portable air conditioner” is a portable AC that draws all of the condenser inlet air from the conditioned space without the means of a duct, and discharges the condenser outlet air outside the conditioned space through a single duct attached to an adjustable window bracket. 10 CFR 430.2. A “dual-duct portable air conditioner” is a portable AC that draws some or all of the condenser inlet air from outside the conditioned space through a duct attached to an adjustable window bracket, may draw additional condenser inlet air from the conditioned space, and discharges the condenser outlet air outside the conditioned space by means of a separate duct attached to an adjustable window bracket. Id.

Issue 1: DOE seeks comment on whether the current definitions of “portable air condition,” “single-duct portable air conditioner,” and “dual-duct portable air conditioner” require amendment, and if so, how the terms should be defined.

Issue 2: DOE requests comment on whether the existing equipment definitions specified in 10 CFR 430.2 for portable ACs require amendments to distinguish further between single-duct and dual-duct units, or to address any unique configurations that are not clearly addressed in the existing definitions. If amendments are recommended, DOE seeks information on what identifying characteristics may be included in potential amended or new definitions.

Portable ACs are tested in accordance with appendix CC, which incorporates by reference American National Standard Institute (“ANSI”)/Association of Home Appliance Manufacturers (“AHAM”) PAC-1-2015 “Portable Air Conditioners” (“ANSI/AHAM PAC-1-2015”), ANSI/American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”) Standard 37-2009 “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment” (“ANSI/ASHRAE Standard 37-2009”), and IEC Standard 62301 “Household electrical appliances—Measurement of standby power” (Edition 2.0 2011-01) (“IEC Standard 62301”), with modifications. Regarding dual-duct portable ACs, the DOE test procedure specifies provisions in addition to ANSI/AHAM PAC-1-2015. Specifically, the DOE test procedure specifies an additional test condition for dual-duct portable ACs (83 degrees Fahrenheit (“°F”) dry-bulb and 67.5 °F wet-bulb outdoor temperature) and additionally accounts for duct heat transfer, infiltration air heat transfer, and off-cycle mode energy use. See Sections 4.1; 4.1.1; 4.1.; and 4.2 of appendix CC. ANSI/AHAM PAC-1-2015 does not have similar provisions. Appendix CC also includes instructions regarding tested configurations, duct setup, inlet test conditions, condensate removal, unit placement, duct temperature measurements, and control settings. See Sections 3.1.1; 3.1.1.1; 3.1.1.2; 3.1.1.3; 3.1.1.4; 3.1.1.6; and 3.1.2 of appendix CC.

Under the current test procedure, a unit's seasonally adjusted cooling capacity (“SACC”), in British thermal units per hour (“Btu/h”), is calculated as a weighted average of the adjusted cooling capacity measured at two representative operating conditions. The adjusted cooling capacity is the measured indoor room cooling capacity while operating in cooling mode under the specified test conditions, adjusted based on the measured and calculated duct and infiltration air heat transfer. See Sections 4.1; 4.1.1; 4.1.2; 5.1; and 5.2 of appendix CC. The combined energy efficiency ratio (“CEER”) represents the efficiency of the unit, in Btu per watt-hours (“Btu/Wh”), based on the adjusted cooling capacity at the two operating conditions; the annual energy consumption in cooling mode, off-cycle mode, and inactive or off mode; and the number of cooling mode hours per year; with weighting factors applied for the two operating conditions. See Sections 4.2; 4.3; 5.3; and 5.4 of appendix CC.

As discussed, appendix CC references ANSI/AHAM PAC-1-2015, an industry test procedure for portable ACs, with modifications. In the November 2020 RFI, DOE sought comment on the availability of industry-accepted consensus-based test procedures for measuring the energy use of portable ACs that could be adopted without modification and more accurately or fully comply with the requirement that the test procedure produces results that measure energy use during a representative average use cycle for the product, and not be unduly burdensome to conduct. 85 FR 70508, 70511.

AHAM stated its intent to revise ANSI/AHAM PAC-1-2015, incorporating the waivers that DOE had granted, or at the time was considering, under its existing test procedure. 4 AHAM urged DOE to adopt the updated ANSI/AHAM PAC-1 test procedure once finalized. AHAM further stated it will provide status updates to DOE as both the ANSI/AHAM PAC-1 revision and DOE test procedure assessment proceed, and welcomed DOE to participate in the ANSI/AHAM PAC-1 revision efforts. (AHAM, No. 2 at pp. 2-3)  5

Issue 3: DOE requests input on any other industry standards relevant to portable ACs that should be considered in assessing amendments to the existing DOE test procedure for portable ACs.

The Joint Commenters encouraged DOE to align the portable AC and room AC test procedures to allow consumers to be able to compare the efficiency ratings of the two products, which they stated can often be used for the same applications. The Joint Commenters stated that the current test procedures do not provide a fair comparison between portable ACs and room ACs, asserting that the efficiency ratings of portable ACs are inflated relative to those of room ACs due to the differences in test conditions between the two procedures. The Joint Commenters stated that future harmonized load-based test procedures for portable ACs and room ACs based on performance at multiple outdoor conditions would better represent how all units perform in the field. (Joint Commenters, No. 4 at pp. 1-2)

NEEA similarly urged DOE to align the test procedures for portable ACs and room ACs to ensure comparability of efficiency and capacity ratings across both products. According to NEEA, room ACs and portable ACs are similar products that are both likely to be used as supplemental cooling sources either for consumers that do not have central cooling systems or when those centralized systems are not sufficient to meet the cooling needs of a specific space. (NEEA, No. 5 at p. 1) According to NEEA, differences between the two test procedures lead to incomparability between the two AC types and may potentially mislead consumers with higher ratings for portable ACs. NEEA recommended that both products be rated using a seasonal metric at the same test conditions, and that DOE adopt load-based test procedure for both products. NEEA stated that using a load-based test is the best way to fully account for the effectiveness of controls, cycling effects, and variable speed performance of both portable ACs and room ACs, and would better reflect real world performance. (NEEA, No. 5 at pp. 1-2)

The California IOUs encouraged DOE to align the portable AC, room AC, and central air conditioner/heat pump (“central AC/HP”) test procedures to allow consumers to more readily compare performance across these categories. The California IOUs further claimed that room ACs and portable ACs provide largely the same consumer utility as central ACs/HPs of similar capacity, with the only significant differences being the method of installation and ease in relocation, respectively. (California IOUs, No. 3 at pp. 1, 3-4)

Both NEEA and the California IOUs, referenced DOE's statement in the June 2016 Final Rule in which DOE stated that comparative ratings between room ACs and portable ACs are desirable and that DOE would consider whether rating conditions representative of room AC usage should be adjusted when it conducts a rulemaking for its room AC test procedures. (NEEA, No. 5 at pp. 1-2; California IOUs, No. 3 at pp. 1, 3-4)

DOE recognizes that portable ACs, room ACs, and central ACs all provide cooling; however, there are significant differences in how these products are installed, used, and provide cooling. Central ACs are fixed appliances, installed year-round, built into homes, and controlled by a central thermostat to maintain a relatively constant temperature throughout the conditioned space. In contrast, room ACs and portable ACs are installed, often seasonally, in a single room; operate based on an internal thermostat when turned on, typically only during the cooling season; and may be readily turned off when the room is not occupied. Furthermore, room ACs and portable ACs differ from each other in that they have different installation means, and induce different amounts of outdoor air infiltration heat and other unwanted heat transfer to the conditioned space ( i.e., portable ACs are located entirely within the conditioned space along with the hot exhaust duct, and the window mounting bracket typically has little to no insulation; in contrast to room ACs, which often ship with insulated side-curtains or other insulating installation materials). Regarding capacity and efficiency comparisons, based on recent standards rulemaking analyses and market research, DOE expects that portable AC capacity ranges from 2,500 to 10,000 Btu/h and CEER ranges from 4 to 8 Btu/Wh, both of which are significantly lower than the current typical range of capacity and CEER for room ACs, ranging from 5,000 to 35,000 Btu/h and 9 to 15 Btu/Wh, respectively.

The test procedures for room ACs, portable ACs, and central ACs were developed based on the best available usage data and information regarding representative conditions at that time. In considering amendments to the DOE test procedure for portable ACs, DOE welcomes feedback and data regarding the representative operating conditions, setpoints, and annual operating hours and installation time for portable ACs.

Issue 4: DOE requests further information and usage data regarding setpoints, operating conditions, seasonal use, and installation time for portable ACs.

The current DOE test procedure for portable ACs provides a measure of power consumption and energy use under various operating modes (cooling mode, off-cycle mode, standby mode, inactive mode, and off mode) and duct configurations (single-duct and dual-duct). In the November 2020 RFI, DOE sought comment on whether existing test procedure requirements ( e.g., instrumentation, testing configurations/specifications, calculation methodologies) accurately measure energy use without adding undue burden to the test procedure. 85 FR 70508, 70510.

DOE received no comments on this topic in response to the November 2020 RFI. Throughout this RFI, DOE seeks further comment on specific topics relevant to instrumentation, testing configurations and specifications, and calculation methodologies that may improve the existing test to more accurately measure energy use without adding undue burden to the test procedure.

The current DOE test procedure for portable ACs measures energy use during a representative average period of use. The measured energy performance includes energy use associated with cooling mode and off-cycle mode during the cooling season, and inactive mode and off mode energy use for the entire year.

In cooling mode, a portable AC activates the main cooling function in response to a signal from the thermostat or temperature sensor, which includes activating the refrigeration system or activating the fan or blower without the use of the refrigeration system. Section 2.4 of appendix CC.

In off-cycle mode, a portable AC: (1) Has cycled off its main cooling or heating function via thermostat or temperature sensor signal; (2) may or may not operate its blower or fan; and (3) will reactivate the main function according to the thermostat or temperature sensor signal. Section 2.7 of appendix CC.

Inactive mode is a standby mode that facilitates the activation of an active mode or off-cycle mode via remote switch (including remote control), internal sensor, or timer, or that provides continuous status display. Section 2.6 of appendix CC.

In off mode, the portable AC is connected to a mains power source and is not providing any active, off-cycle, or standby mode function, and where the mode may persist for an indefinite time. An indicator that only shows the user that the portable AC is in the off position is included within the classification of an off mode. See Section 2.8 of appendix CC.

Issue 5: DOE seeks comment regarding whether any of the currently considered modes in the DOE test procedure should no longer be addressed, or whether any representative modes that are not currently considered should be addressed in future test procedure amendments.

Issue 6: DOE seeks comment regarding whether the performance and energy use for the operational modes discussed above are appropriately addressed and captured in the DOE test procedure.

To determine the energy use during a representative period of use, the test procedure assigns the following hours of operation for each mode: 750 hours for cooling mode, 880 hours for off-cycle mode, and 1,355 hours for inactive or off mode. Section 5.3 of appendix CC. In the absence of sufficient consumer usage data specific to portable ACs, DOE established these operating hours in the June 2016 Final Rule, derived from the most relevant data available representative of overall consumer use, which at that time were for room ACs. DOE adjusted the room AC usage data to reflect portable ACs usage; for example, inactive mode and off mode estimates outside of the cooling season were adjusted, given that portable ACs are more likely to be unplugged outside of the cooling season as compared to room ACs that are less portable. 6 81 FR 35241, 35258-35259.

In response to the November 2020 RFI, AHAM reiterated its prior opposition to reliance on room AC data during the previous test procedure rulemaking to determine annual operating hours for portable ACs, suggesting that while portable ACs and room ACs may be similar in some ways, usage of the products differs. AHAM recommended that DOE refrain from using room AC data to support rulemaking activity for portable ACs in the future, unless there is evidence that the room AC data are a sufficient surrogate for portable AC operating hours. (AHAM, No. 2 at p. 2) It is generally DOE's practice to rely on the most relevant and current data available at the time of the analysis to identify appropriate operating hours. At this time, DOE is unaware of any portable AC usage data sufficient to characterize representative consumer usage, and notes that no such data or data sources have been provided by commenters to date.

Issue 7: DOE requests data regarding annual operating hours for all representative modes of operation for portable ACs.

In addition to addressing different operating modes, the portable AC test procedure in appendix CC addresses two configurations of portable ACs: Dual-duct and single-duct. As described, dual-duct portable ACs draw some or all of their condenser inlet air from outside the conditioned space through a duct attached to an adjustable window bracket (and may draw additional condenser inlet air from the conditioned space) and discharge the condenser outlet air outside the conditioned space by means of a separate duct attached to an adjustable window bracket. 10 CFR 430.2. Dual-duct units use two parallel airflow paths. With the first airflow path, air from the conditioned space ( i.e., indoors) is drawn into the unit, passes over a cold heat exchanger ( i.e., the evaporator), and is discharged back into the room. With the second airflow path, air from outdoors (possibly with additional air from indoors) is drawn into the unit, passes over a hot heat exchanger ( i.e., the condenser), and is discharged back outdoors. In this type of system, the heat that is removed from the indoor airflow path is essentially transferred to the outdoor airflow path and discharged outdoors. The temperature of the air flowing across the condenser significantly affects a portable AC's cooling capacity. Because the air passing across the condenser is drawn from outdoors, and outdoor air temperatures vary during portable AC use, the cooling capacity of a dual-duct unit is significantly affected by changes in outdoor air temperatures. Given the impact of outdoor air temperature on overall cooling performance and efficiency, Appendix CC requires dual-duct units to be tested at two different “test conditions” in the test chamber that supplies the condenser inlet air, representing two different outdoor temperatures: 95 °F and 83 °F. See Section 4.1 of appendix CC. Under both test conditions, the test chamber in which the unit is installed is maintained at a temperature of 80 °F and the unit is operated at full load. Id.

Single-duct portable ACs draw all of their condenser inlet air from the conditioned space without the means of a duct, and discharge the condenser outlet air outside the conditioned space through a single duct attached to an adjustable window bracket. 10 CFR 430.2. Single-duct units also use two parallel airflow paths; however, in contrast to dual-duct units, the condenser airflow path draws air only from inside the conditioned space rather than from outside. This air is drawn into the unit through air grates in the unit's chassis, passes over the condenser, and is discharged to the outdoors through the single duct. Because the inlet air is drawn from indoors (as opposed to outdoors, as with dual-duct units), and because the indoor air temperature remains steady during operation, a single test condition is specified for single-duct portable ACs. Appendix CC specifies a temperature of 80 °F in the test chamber in which the unit is installed (corresponding to the specified indoor air temperature). Section 4.1 of appendix CC. As with the dual-duct unit tests, the single-duct unit is operated at full load throughout the duration of the test.

Appendix CC currently requires that portable ACs able to operate as both a single-duct and dual-duct portable AC, as distributed in commerce by the manufacturer, must be tested and rated for both duct configurations. Section 3.1.1 of appendix CC.

In response to the November 2020 RFI, NEEA recommended that DOE maintain the requirement that a portable AC able to operate in both duct configurations as distributed in commerce be tested and rated in both configurations. According to NEEA, the single-duct configuration typically results in infiltration air because condenser air is pulled from the room and rejected outside, resulting in a net airflow out of the space, which increases energy use and reduces capacity. NEEA recommended that if products can be operated in a single-duct configuration, they should continue to be tested in that configuration. (NEEA, No. 5 at pp. 3-4)

Issue 8: DOE requests feedback regarding single-duct and dual-duct portable AC test requirements and any other relevant considerations to ensure that the test procedures produce representative results for both configurations, including products that operate in both configurations, as distributed in commerce by the manufacturer.

In the November 2020 RFI, DOE sought comment on whether any modifications to the DOE test procedure could reduce the test burden and costs while still allowing for accurate determinations of energy use during a representative average use cycle. 85 FR 70508, 70510-70511.

AHAM stated its concern that changing the test procedure in any significant way would increase burden, as technicians would need to be retrained and retesting could be necessary. AHAM stated that any further modifications would unnecessarily complicate what it described as an already complex test procedure. (AHAM, No. 2 at p. 2)

Issue 9: DOE requests further comment on potential for adjustments to the DOE test procedure that may improve repeatability, reproducibility, or representativeness, and how such adjustments would impact test burden.

Issue 10: DOE requests comment on whether any aspects of the DOE test procedure could be adjusted to reduce test burden while not impacting the repeatability, reproducibility, or representativeness of the test procedure.

The portable AC test procedure accounts for the effects of heat transfer from two sources: (1) Infiltration of outdoor air into the conditioned space ( i.e., “infiltration air”) and (2) heat leakage through the duct surface to the conditioned space ( i.e., “duct heat transfer”). Heat transfer from infiltration air is calculated using the nominal test chamber and the condenser inlet air (outdoor) rating conditions specified for Test Configuration 3, Conditions A and B (the test configuration for dual-duct units). See Sections 4.1 and 4.1.2 of appendix CC. Duct heat transfer is accounted for from the duct surface to the conditioned space; duct heat transfer for each duct is determined from the average duct surface temperature as measured by four equally-spaced thermocouples adhered to the side along the length of the condenser exhaust duct for single-duct units, and the condenser inlet and exhaust ducts for dual-duct units. Section 4.1.1 of appendix CC. In the June 2016 Final Rule, DOE considered the effects of heat transfer through the outer chassis of the portable AC to the conditions space ( i.e., “case heat transfer”), but determined to not include provisions accounting for case heat transfer in the portable AC test procedure, on the basis that case heat transfer has a minimal impact on cooling capacity and that including measurement of it would substantively increase the test burden. 81 FR 35241, 35254-35255.

NEEA recommended that DOE continue to incorporate the energy impacts of infiltration air and duct heat transfer in the portable AC test procedure, stating that both can have significant effects on capacity and efficiency and therefore are currently appropriately accounted for in the test procedure. (NEEA, No. 5 at pp. 2-3)

Duct heat transfer is calculated using a convection heat transfer coefficient along with duct surface temperature measurements and the calculated duct surface area. See Section 4.1.1 of appendix CC. In the June 2016 Final Rule, DOE reviewed previously presented test data  7 and concluded that the most representative value of the convection heat transfer coefficient is 3 British thermal units per hour per square foot per degree Fahrenheit (“Btu/h-ft 2 -°F”). 81 FR 35241, 35253-35254. DOE is interested in any further available data regarding portable AC duct convection heat transfer coefficients that may supplement the previously considered data set.

Issue 11: DOE requests any available information or data on portable AC infiltration air, duct heat transfer, or case heat transfer that may improve the representativeness, repeatability, or reproducibility of the test procedure.

Issue 12: DOE requests input on any industry test procedures that measure case heat transfer, estimates of test burden required to measure it, and data quantifying its impact on cooling capacity and efficiency.

Issue 13: DOE requests input on any less burdensome approaches to address case heat transfer than previously considered in the June 2016 Final Rule.

Issue 14: DOE requests feedback on the impacts of case material and case design on case heat transfer, and whether certain materials or designs soon to be implemented in units on the market would result in significantly different case heat transfer than current designs.

Issue 15: DOE requests data and feedback on any additional available data regarding a duct convection heat transfer coefficient, and whether the current convection heat transfer coefficient of 3 Btu/h-ft 2 -°F remains representative for portable ACs in their typical installation and use environments.

Heating mode is an active mode in which a portable AC has activated the main heating function in response to the thermostat or temperature sensor signal, including activating a resistance heater, the refrigeration system with a reverse refrigerant flow valve, or the fan or blower without activation of the resistance heater or refrigeration system. In the June 2016 Final Rule, DOE determined not to establish a heating mode efficiency metric. DOE noted that although some portable ACs offer an “auto mode” that allows for both cooling and heating mode operation depending upon the ambient temperature, available data suggest that portable ACs are not used for heating purposes for a substantial amount of time. 81 FR 35241, 35257.

Issue 16: DOE seeks usage data on portable AC heating mode and whether it accounts for a significant portion of portable AC annual energy use.

Network connectivity implemented in portable ACs can enable functions such as providing real-time room temperature conditions or receiving commands via a remote user interface such as a smartphone. DOE has observed that network connectivity typically operates continuously in the background while the portable AC performs other functions. In response to the November 2020 RFI, the Joint Commenters stated that portable ACs with connected functionality are now widely available and encouraged DOE to incorporate a measurement of the standby power when a portable AC with network functions is connected to a network. (Joint Commenters, No. 4 at p. 2) DOE recognizes that portable ACs with network functions are now readily available on the market in the United States, and welcomes further feedback on the relative impact of such functionality on overall energy consumption and performance.

Issue 17: DOE requests further comment and data on the prevalence of network connectivity in portable ACs available on the market currently or in the near future.

Issue 18: DOE requests available data quantifying the power consumption and usage time associated with network functionality in portable ACs.

Issue 19: DOE requests information regarding the capabilities and attributes enabled by network connectivity ( e.g., energy savings, demand response, convenience features).

DOE considers air circulation mode as a consumer initiated active mode in which a portable AC has activated only the blower or fan and the compressor is off. In the June 2016 Final Rule, DOE determined it would not measure or allocate annual operating hours to air circulation mode due to lack of usage information for this consumer-initiated air circulation feature. 81 FR 35241, 35257. In response to the November 2020 RFI, NEEA and the California IOUs recommended that DOE incorporate into a revised test procedure the energy use in what they described as “fan-only mode,” in which the fan is operating but the compressor is not. They referenced a portable AC field metering study conducted by Lawrence Berkeley National Laboratory (“LBNL”) in 2014  8 which found that 39 percent of active mode time was spent in fan-only mode, with the remaining active mode time spent in cooling mode, during which both the compressor and fan are operating. NEEA and the California IOUs stated that this was consistent across residential and commercial applications. (NEEA, No. 5 at pp. 3-4; California IOUs, No. 3 at pp. 4-6) The California IOUs further stated that average power use for different units in fan-only mode ranged from 5 to 20 percent of the average power use in cooling mode. (California IOUs, No. 3 at pp. 4-6) Considering that, as reported, fan-only mode represents 39 percent of the portable AC operating time, and considering the variability in fan-only mode power consumption demonstrated in this study, NEEA and the California IOUs encouraged DOE to explore including fan-only mode energy use in the portable AC test procedure. (NEEA, No. 5 at pp. 3-4; California IOUs, No. 3 at pp. 4-6)

Based on the descriptions of “fan-only mode” in the comments, and a review of the field metering study referenced, DOE expects that the annual usage hours and energy consumption of fan operation referenced in comments could include operation in both off-cycle mode, which is currently addressed in appendix CC, and the user-initiated air circulation mode. DOE seeks further clarification and distinction from commenters regarding operating hours and energy consumption for the user-initiated air-circulation mode, which is not currently addressed in appendix CC.

Issue 20: DOE seeks additional information and data on the consumer-initiated air circulation mode and other consumer-initiated modes during which the fan operates without the compressor ( e.g., the characteristics of those operational mode(s), annual operation, prevalence in models as a consumer mode, effectiveness, etc. ).

Historically, portable ACs have been designed using a single-speed compressor, which operates at full cooling capacity while the compressor is on. To match the cooling load of the space, which in most cases is less than the full cooling power of the compressor, a single-speed compressor cycles on and off. This cycling behavior introduces inefficiencies due to the surge in power draw at the beginning of each “on” cycle, before the compressor reaches steady-state performance. These inefficiencies are referred to as cycling losses and are apparent only in single-speed portable ACs, not variable-speed ACs as variable-speed compressors run continuously, adjusting their speeds as required.

The California IOUs asserted that testing single-speed portable ACs without accounting for cycling losses is not representative of an average-use cycle, particularly when comparing to variable-speed units. The California IOUs stated that there is an increasing prevalence of variable-speed equipment in the marketplace, and recommended that DOE revise the test procedure to allow accurate comparison of performance for single-speed and variable-speed portable ACs by accounting for single-speed portable AC compressor cycling at part-load conditions. The California IOUs further stated that such a revision would also address the same issue underlying recent portable AC waivers (as discussed in section II.C of this RFI). The California IOUs noted that DOE's test procedure for central ACs accounts for single-speed efficiency losses at part-load conditions and further cited a 2014 report conducted by Burke et al. 9 in which operating times for cooling mode (compressor on), fan-only mode, and off/standby mode were monitored. The California IOUs specifically highlighted the prevalence of single-speed compressor cycling in this report. (California IOUs, No. 3 at pp. 2-3)

Cycling losses associated with single-speed compressors are not accounted for in the current test procedure. DOE recognizes that such losses are not present for variable-speed portable ACs. In a Decision and Order granting a waiver to LG Electronics USA, Inc. (“LG”) on June 2, 2020, DOE addressed the cycling of a single-speed compressor as part of a “performance adjustment factor” required for LG's variable-speed portable ACs. 85 FR 33643 (Case No. 2018-004, “LG Waiver”). As established in the LG Waiver, the performance adjustment factor represents the average performance improvement of the variable-speed model relative to a theoretical comparable single-duct single-speed model, resulting from the variable-speed unit avoiding cycling losses associated with the lower temperature test condition. 85 FR 33643, 33646. In a notice of interim waiver granted to GD Midea Air Conditioning Equipment Co. LTD. (“Midea”) on April 6, 2021, DOE similarly requires use of a performance adjustment factor for the specified Midea combined-duct dual-duct variable-speed portable ACs. 86 FR 17803 (Case No. 2020-006, “Midea Waiver”).

Issue 21: DOE requests further information and data on efficiency losses associated with single-speed compressor cycling at part-load conditions.

Issue 22: DOE requests comment on the incorporation of the current waiver approach to determine variable-speed portable AC efficiency, based on the performance improvement relative to a single-speed portable AC resulting from elimination of cycling losses.

The current test procedure prescribed by ANSI/AHAM PAC-1-2015 measures cooling capacity and EER based on an air enthalpy approach that measures the air flow rate, dry-bulb temperature, and water vapor content of air at the inlet and outlet of the portable AC when it is installed in a test chamber at specified indoor ambient conditions and the ducts are connected to a second chamber at specified outdoor ambient conditions. A load-based test either fixes or varies the amount of heat added to the indoor test room by the reconditioning equipment, while the indoor test room temperature is permitted to change and is controlled by the test unit according to its thermostat setting.

The California IOUs, Joint Commenters, and NEEA recommended that DOE shift to a load-based test to account for part-load portable AC performance. (California IOUs, No. 3 at p. 2; Joint Commenters, No. 4 at p. 1; NEEA, No. 5 at p. 2) The Joint Commenters stated that, while the test procedure waiver granted to LG provides a method for crediting the potential energy savings associated with variable-speed compressors, it does not reflect how variable-speed units actually operate in the field. California IOUs, the Joint Commenters, and NEEA stated that a load-based test would capture not only the benefits of variable-speed compressors, but also other important factors that affect efficiency performance, including cycling losses and control strategies for both single-speed and variable-speed units. (California IOUs, No. 3 at p. 2; Joint Commenters, No. 4 at p. 1; NEEA, No. 5 at p. 2) According to NEEA, a load-based test would fully account for the effectiveness of controls, cycling effects, and variable-speed performance of both portable ACs and room ACs, which would better reflect real world performance. NEEA recommended that DOE adopt load-based test procedure for both portable ACs and room ACs. (NEEA, No. 5 at p. 2)

The California IOUs stated that should DOE switch to a load-based test with multiple test conditions and a combined seasonal metric, reporting of full-load capacity and power consumption should still be required. According to the California IOUs, knowing power consumption and efficiency at full load is essential to both consumers and utilities in hot-dry climates. The California IOUs further asserted that due to the prevalence of peak-load pricing, full-load performance is often a better indication of consumer annual energy cost than a part-load metric. (California IOUs, No. 3 at p. 4)

DOE recognizes the challenges associated with implementing load-based testing in the portable AC test procedure. As discussed in the recent final rule for room AC test procedures, DOE expects that a load-based test would reduce repeatability and reproducibility due to limitations in current test chamber capabilities, namely the lack of specificity in industry standards regarding chamber dimensions and reconditioning equipment characteristics, which would negatively impact the representativeness of the results and potentially be unduly burdensome. 86 FR 16446, 16466 (March 29, 2021). DOE continues to seek comment and information on the feasibility and applicability of load-based testing for portable ACs.

Issue 23: DOE requests further comment and data on industry standards for portable ACs or other products that use load-based tests.

Issue 24: DOE requests comment on commercial laboratory capabilities regarding potential portable AC load-based testing.

Issue 25: DOE requests comment regarding the repeatability and reproducibility of any load-based testing for portable ACs.

NEEA stated that based on its review of a major retailer's website most portable ACs provide a dehumidification feature. Given the predominance of this feature, NEEA recommended that DOE further investigate its usage and consider including dehumidification mode in an updated test procedure. (NEEA, No. 5 at pp. 3-4)

Issue 26: DOE seeks usage data on dehumidification features available on portable ACs, including prevalence in units on the market, annual operating hours, and energy consumption associated with this mode.

NEEA commented that “spot coolers” are not currently covered by the portable AC test procedure. NEEA stated that these products do not provide net cooling, but rather move heat from one area to another in a space ( i.e., they reject condenser air to the cooled space). NEEA stated that some portable AC products may meet this description of a spot cooler, and recommended that DOE continue to monitor the market to ensure that market characterization of a product as a “spot cooler” is not utilized as a means to circumvent portable AC standards. (NEEA, No. 5 at pp. 3-4)

Issue 27: DOE seeks information regarding the availability of any portable ACs that provide cooling in a similar manner to single-duct and dual-duct portable ACs but do not meet either of the definitions for a single-duct or dual-duct portable AC at 10 CFR 430.2.

Any interested person may seek a waiver from the test procedure requirements for a particular basic model of a type of covered product when the basic model for which the petition for waiver is submitted contains one or more design characteristics that: (1) Prevent testing according to the prescribed test procedure, or (2) cause the prescribed test procedures to evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1).

DOE has granted one test procedure waiver and one test procedure interim waiver for the current portable AC test procedure. As discussed, DOE granted LG a test procedure waiver from specified portions of the DOE test procedure for determining the energy efficiency of listed portable AC basic models, under which LG is required to test and rate the listed basic models of its portable ACs in accordance with the alternate test procedure specified in the Decision and Order. 10 85 FR 33643, 33647 (June 2, 2020). LG asserted that the current DOE test procedure for single-duct portable ACs does not take into account the specific performance and efficiency benefits associated with the specified basic models, which are single-duct variable-speed portable ACs under part-load conditions. Id. In granting the LG Waiver, DOE determined that the alternate test procedure in the Decision and Order produces efficiency results for variable-speed portable ACs which are comparable with the results for single-speed units. Id. The alternate test procedure accomplishes this by adjusting the efficiency rating of the variable-speed portable AC by the amount the variable-speed unit would outperform a theoretical comparable single-speed unit in a representative period of use. Id.

On July 16, 2020, DOE received a petition for waiver and application for interim waiver from Midea, consistent with the approach used for variable-speed compressors in the waiver granted to LG, with modifications to account for dual-duct units incorporating Midea's combined-duct technology. 11 Midea stated the current test procedure prevents the testing of its combined-duct technology because the condenser inlet and outlet air streams are incorporated into the same structure. (Midea Petition, EERE-2020-BT-WAV-0023 No. 2 at pp. 4-5) Midea further stated that, since the airflow both into and out of the condenser must be measured simultaneously, modifications are needed to adapt Midea's combined-duct technology to DOE's test procedure and standard airflow measurement apparatuses. (Midea Petition, EERE-2020-BT-WAV-0023 No. 2 at p. 5) Midea stated the DOE test procedure does not take into account a specially designed adapter that is needed for measuring the airflows. ( Id. ) DOE granted Midea an interim waiver on April 6, 2021, under which Midea is required to test and rate the listed basic models of its portable ACs in accordance with the alternate test procedure specified in the interim waiver. This alternate test procedure adjusts the efficiency rating of Midea's variable-speed portable ACs in a manner similar to that of the alternate test procedure in the LG Waiver, with provisions to allow testing of the combined-duct technology. 86 FR 17803.

In response to the November 2020 RFI, AHAM stated that updates to the test procedure are necessary to address new technologies that cannot be adequately tested under the existing test procedure and have been addressed through waivers. AHAM stated that any changes should be limited to incorporating existing waivers into the test procedure. (AHAM, No. 2 at p. 2) The California IOUs noted that DOE has granted a waiver to this test procedure and that there is an outstanding waiver request open. The California IOUs encouraged DOE to move forward with a rulemaking to eliminate the need for continuation of the waiver. (California IOUs, No. 3 at p. 1)

The California IOUs stated that fixed-speed testing of variable-speed equipment may not be representative of field performance when the speed of the compressor during the test is not determined solely by the onboard controls. The California IOUs encouraged DOE to review its comments on the room AC test procedure notice of proposed rulemaking (“NOPR”)  12 and consider provisions to ensure that the measured performance for variable-speed portable ACs is representative of the performance expected with built-in controls. (California IOUs, No. 3 at p. 4)

Issue 28: DOE requests market data on the prevalence of variable-speed portable ACs on the market now and in the future, and seeks comment on any recommended amendments to improve the alternate test procedure granted to LG.

Issue 29: DOE requests comment on how the use of fixed speeds during testing represents expected field performance under built-in controls.

Issue 30: DOE requests information on new technologies and designs ( e.g., combined-duct configurations) to inform the test procedure development.

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

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

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

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

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

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

Include contact information each time you submit comments, data, documents, and other information to DOE. Faxes will not 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 to PortableAC2020TP0029@ee.doe.gov with 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. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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

DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov .

This document of the Department of Energy was signed on April 9, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

DOE proposes to maintain a previously approved incorporation by reference and incorporate by reference the following industry standards into the Code of Federal Regulations (CFR) at 10 CFR part 430:

American National Standards Institute (ANSI)/American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 103-2017, (ANSI/ASHRAE 103-2017), “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers,” approved July 3, 2017.

Copies of ANSI/ASHRAE 103-2017 can be obtained from the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc., 1791 Tullie Circle, NE, Atlanta, GA 30329, (800) 527-4723 or (404) 636-8400, or online at: http://www.ashrae.org.

ANSI Standard Z21.86-2016 (ANSI Z21.86-2016), “Vented Gas-Fired Space Heating Appliances,” Sixth Edition, approved December 21, 2016.

Copies of ANSI Z21.86-2016 can be obtained from the American National Standards Institute, 25 W 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or online at: http://www.ansi.org.

American Society for Testing and Materials International (ASTM) Standard D2156-09 (Reapproved 2018) (ASTM D2156-09 (2018)), “Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels,” reapproved October 1, 2018.

Copies of ASTM D2156-09 (2018) can be obtained from the American Society for Testing and Materials International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 or online at: www.astm.org.

International Electrotechnical Commission (IEC) 62301 (Second Edition), “Household electrical appliances-Measurement of standby power,” (Edition 2.0 2011-01).

Copies of IEC 62301 (Second Edition) can be obtained from the American National Standards Institute, 25 W 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or online at: http://webstore.ansi.org.

Underwriters Laboratories, Inc. (UL) Standard 729-2016, “Standard for Safety for Oil-Fired Floor Furnaces,” approved November 22, 2016.

UL Standard 730-2016, “Standard for Safety for Oil-Fired Wall Furnaces,” approved November 22, 2016.

UL Standard 896-2016, “Standard for Safety for Oil-Burning Stoves,” approved November 22, 2016.

Copies of UL 729-2016, UL 730-2016, and UL 896-2016 can be obtained from Underwriters Laboratories, Inc., 2600 NW Lake Rd., Camas, WA 98607-8542 or online at: www.ul.com.

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

Direct heating equipment is included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(9)) DOE defines “direct heating equipment” as vented home heating equipment and unvented home heating equipment. 10 CFR 430.2. (Hereafter in this notice of proposed rulemaking, the terms “vented heater” and “unvented heater” are used to describe the two types of DHE). DOE's energy conservation standards and test procedures for vented heaters are currently prescribed at 10 CFR 430.32(i) and 10 CFR part 430, subpart B, Appendix O, “Uniform Test Method for Measuring the Energy Consumption of Vented Home Heating Equipment” (Appendix O), respectively. DOE's test procedures for unvented heaters are prescribed at 10 CFR part 430, subpart B, Appendix G, “Uniform Test Method for Measuring the Energy Consumption of Unvented Home Heating Equipment” (Appendix G). DOE currently does not prescribe energy conservation standards for unvented heaters because, as the Department explained in an April 2010 final rule for DHE, DOE has previously determined that a standard would produce little energy savings (largely due to the fact that any heat losses are dissipated directly into the conditioned space) and because of limitations in the applicable DOE test procedure. 75 FR 20112, 20130 (April 16, 2010). The unvented heaters test procedure, Appendix G, includes neither a method for measuring energy efficiency nor a descriptor for representing the efficiency of unvented heaters. Instead, Appendix G provides a method to measure and calculate the rated output for all unvented heaters and annual energy consumption of primary electric unvented heaters. The following sections discuss DOE's authority to establish and amend test procedures for vented and unvented heaters, as well as relevant background information regarding DOE's consideration of and amendments to test procedures for these products.

The Energy Policy and Conservation Act, as amended (EPCA), 1 Public Law 94-163 (42 U.S.C. 6291-6317, as codified), among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. These products include DHE, the subject of this document. (42 U.S.C. 6292(a)(9))

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

The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of those consumer products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with relevant energy conservation standards promulgated under EPCA. (42 U.S.C. 6295(s)) EPCA defines the efficiency descriptor for DHE to be annual fuel utilization efficiency (AFUE). (42 U.S.C. 6291(22)(A))

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

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

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

If DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including the DHE that are the subject of this NOPR, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A)) If the Secretary determines, on his own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. (42 U.S.C. 6293(b)(2)) If DOE determines that test procedure revisions are not appropriate, DOE must publish in the Federal Register its determination not to amend the test procedures. (42 U.S.C. 6293(b)(1)(A)) DOE is publishing this NOPR in satisfaction of the 7-year-lookback review requirement specified in EPCA.

As mentioned previously, DOE's existing test procedures for unvented heaters and vented heaters appear at Appendix G and Appendix O, respectively. DOE originally established Appendix G in a final rule published in the Federal Register on May 10, 1978, which prescribed test procedures for primary electric heaters and a calculation of national and regional average annual energy consumption. 43 FR 20128, 20132-20146. DOE amended the test procedure for unvented heaters on March 28, 1984 (March 1984 final rule) to prescribe test procedures for fossil-fuel-fired unvented heaters and to add calculations of the rated output in British thermal units per hour (Btu/h) for electric heaters and unvented gas and oil heaters and an estimated operational cost per million Btu of output. 49 FR 12148, 12157-12158. DOE most recently updated Appendix G in a final rule published December 17, 2012 (December 2012 final rule) to establish procedures for measuring energy consumption in standby mode and off mode, pursuant to EPCA. 77 FR 74559, 74571-74572. However, in the December 2012 final rule, DOE did not establish calculations for annual energy consumption for supplementary heaters or unvented gas and oil heaters, or incorporate standby mode and off mode energy into the annual energy consumption calculations for primary electric heaters because it determined that a detailed annual energy consumption accounting was not appropriate for unvented heaters. Id. at 77 FR 74563.

DOE originally established Appendix O in a final rule published in the Federal Register on May 10, 1978. 43 FR 20147, 20182-20205. DOE amended the test procedure for vented heaters in the March 1984 final rule to include a simplified procedure for heaters with modulating controls, and to address manually controlled vented heaters, vented heaters equipped with thermal stack dampers, and floor furnaces. 49 FR 12148, 12169-12178 (March 28, 1984). DOE amended the test procedure for vented heaters again on May 12, 1997, to add calculations for electrical energy consumption, to clarify the pilot light energy measurement for manually-controlled vented heaters, and to update the provisions for determining the efficiency of manually-controlled heaters with variable input rates. 62 FR 26140, 26156, 26162-26164. In the December 2012 final rule, DOE established procedures for measuring power consumption in standby mode and off mode and for calculating the energy consumption associated with operation in standby mode and off mode. 77 FR 74559, 74561 (Dec. 17, 2012). In the most recent test procedure rulemaking for DHE, DOE added provisions for testing vented heaters that utilize condensing technology and incorporated by reference six industry test standards to replace the outdated test standards referred to in the then existing DOE test procedure. 80 FR 792 (Jan. 6, 2015) (January 2015 final rule). DOE determined at that time not to amend the test procedure for unvented heaters. Id. at 80 FR 793.

For unvented electric heaters that are the primary heating source for the home, Appendix G includes provisions for measuring electric power and calculating annual energy consumption in sections 2.1 and 3.1, respectively. For all unvented heaters, Appendix G includes provisions for determining the rated output, in section 3.3 for electric heaters and section 3.4 for natural gas, propane, or oil heaters. Appendix G does not contain provisions for determining energy efficiency, as unvented heaters generally are considered to be 100-percent efficient because any heat losses are lost to the conditioned living space in which the unit is installed. Accordingly, DOE has not established energy conservation standards for unvented heaters.

For vented heaters, Appendix O includes provisions for determining AFUE, which is the efficiency metric used for determining compliance with the energy conservation standards for vented home heating equipment found in 10 CFR 430.32(i)(2). Section 4.6 of Appendix O also specifies provisions for calculating the annual energy consumption of vented heaters. Manufacturers must use the test procedure at Appendix O to demonstrate compliance with the current energy conservation standards for vented heaters. Further, there are currently no industry consensus test methods to measure DHE energy efficiency under the AFUE metric for vented home heating equipment, so, therefore, the test procedure in Appendix O is used.

To better understand potential issues with the current test procedures since the last amendments, DOE published a request for information (RFI) on February 26, 2019 (February 2019 RFI). 84 FR 6088. The February 2019 RFI requested comment from interested parties on several aspects of the test procedure, which are discussed further in section III of this document. DOE received 7 comments  5 in response to the February 2019 RFI from the interested parties listed in Table I.1.

In this NOPR, DOE proposes the following changes to the test procedures for unvented and vented heaters (10 CFR part 430, subpart B, Appendices G and O, respectively) and several associated definitions in 10 CFR 430.2, as follows:

1. Update the definitions of “floor electric heater,” “primary heater,” “unvented gas heater,” “unvented home heating equipment,” “unvented oil heater,” “vented home heating equipment,” and “vented room heater”, and update the terms “primary heater” and “supplementary heater” to “primary electric heater” and “supplementary electric heater,” respectively;

2. Update references to several industry consensus standards to the most recent versions, except that the test procedure would maintain the current oil pressure measurement error value (which was omitted in the most recent update to ANSI/ASHRAE 103-2017), and maintain the current maximum post-purge period;

3. Provide explicit direction on the operational mode for testing vented heaters with multiple automatic operation modes;

4. Clarify the required input rate for the cyclic condensate collection tests;

5. Allow for use of manufacturer-specified gas inlet pressure range when the required input rating cannot be reached;

6. Explicitly state the regulator outlet pressure and specific gravity tolerances for the gas supply;

7. Reduce the number of thermocouples required for the thermocouple grid in models with small (2-inch diameter or less) flues from nine to five;

8. Clarify the wording of the cyclic condensate collection test in the calculation of the allowable variance in condensate mass measurements; and

9. Provide explicit direction on the methods to appropriately shield thermocouples from radiation.

Table II.1 summarizes DOE's proposed actions compared to the current test procedures, as well as the reason for each proposed change.

DOE has tentatively determined that the proposed amendments described in section III of this NOPR would not alter the measured efficiency of DHE, or require retesting or recertification solely as a result of DOE's adoption of the proposed amendments to the test procedures, if made final. Additionally, DOE has tentatively determined that the proposed amendments, if made final, would not increase the cost of testing. Discussion of DOE's proposed actions are addressed in detail in section III of this NOPR.

DOE defines “unvented home heating equipment” as a class of home heating equipment, not including furnaces, used for the purpose of furnishing heat to a space proximate to such heater directly from the heater and without duct connections and includes electric heaters and unvented gas and oil heaters. 10 CFR 430.2. In the February 2019 RFI, DOE requested comment on whether any definitions related to unvented heaters should be revised and if so, how. 84 FR 6088, 6090-6091 (Feb. 26, 2019). In particular, DOE noted that floor electric heaters are not currently included in the examples listed in the definition of “primary heater,” which is defined as a heating device that is the principal source of heat for a structure and includes baseboard electric heaters, ceiling electric heaters, and wall electric heaters. 10 CFR 430.2. DOE noted that floor electric heaters have similar output capacities as other types of heaters that are explicitly listed as primary heaters, and requested comment on whether the list of examples should include floor electric heaters. 84 FR 6088, 6091 (Feb. 26, 2019).

Regarding the definition of “unvented home heating equipment,” the CA IOUs suggested that unvented home heating equipment should be defined using similar language as “vented home heating equipment,” and the definition should say that unvented systems are designed to furnish “warm air” rather than “heat” so as to distinguish DHE from hydronic or steam distribution systems. Additionally, the CA IOUs stated that floor heaters should be included in the non-exhaustive list of examples under the “primary heater” definition. (CA IOUs, No. 8 at p. 1)  6 The Joint Advocates also stated that floor electric heaters should be included in the “primary heater” definition. (Joint Advocates, No. 6 at p. 1) NEEA provided conditional support for expanding the primary heater definition as long as the inclusion of electric heat in the definition of primary heater would not eliminate electric heat from other classes of equipment including heat pump technology, and would not have the effect of including gas heating technology in the same class of equipment as electric. (NEEA, No. 7 at p. 1)

After considering the comments, DOE agrees that the definition of “unvented home heating equipment” would benefit from using language consistent with the definition of “vented home heating equipment.” Consistent with the definition of “vented home heating equipment” that is proposed in this document (see section III.A.2), DOE is proposing to change “furnishing heat” to “furnishing heated air” in the definition of “unvented home heating equipment” at 10 CFR 430.2. Similarly, DOE also proposes to amend the definitions of “unvented gas heater” and “unvented oil heater” from using the phrase “furnishes warm air” to “furnishes heated air.” The term “warm” is subjective and does not indicate that any process was used to add heat to the air being furnished by the heater, whereas “heated” does indicate that thermal energy was added to the air.

Additionally, DOE is proposing to explicitly include floor electric heaters as one of the examples provided in the definition of a “primary heater.” To the extent that a floor electric heater is the principal source of heat for a structure, it is a primary heater. The proposed change would make such inclusion explicit in the definition of “primary heater” and would have no effect on the scope of coverage for floor electric heaters.

In response to NEEA's comment, DOE notes that including “floor electric heaters” as an example of an unvented electric heater type within the primary heater definition would not eliminate space heating fueled by electricity from other classes of equipment including heat pump technology, and would not have the effect of including gas heating technology in the same product class as electric. Space heating products that use heat pump technology are defined separately from DHE by EPCA. (42 U.S.C. 6292(a)(3) and (9)) Therefore, DOE cannot consider heat pump technology within the unvented electric heater product class. For these reasons, DOE proposes to include floor electric heaters in the definition for “primary heaters.” Further, to avoid confusion in regard to applicability of the “primary heater” and “supplementary heater” definitions, DOE proposes to amend the terms to “primary electric heater” and “supplementary electric heater” consistent with Appendix G.

DOE has also tentatively determined to add the phrase “a class of unvented home heating equipment” to the definitions of “electric heater,” “unvented gas heater,” and “unvented oil heater” to more clearly associate these definitions as being unvented home heating equipment.

DOE also proposes to clarify that unvented home heating equipment should be without exhaust venting, as the current definition does not state this explicitly.

No other comments were received regarding the definitions relevant to unvented heaters in response to the February 2019 RFI.

DOE requests comment on its proposed changes to the definitions for “electric heater,” “primary heater,” “unvented gas heater,” “unvented home heating equipment,” and “unvented oil heater” in 10 CFR 430.2, as well as on its proposed change in terminology from “primary heater” and “supplementary heater” to “primary electric heater” and “supplementary electric heater,” respectively.

In the February 2019 RFI, DOE also requested comment regarding whether changes to any definitions applicable to vented heaters in 10 CFR 430.2 are necessary. 84 FR 6088, 6091 (Feb. 26, 2019). In response, AHRI responded that no definitional changes are needed in 10 CFR 430.2 regarding vented heaters. (AHRI, No. 5 at p. 1) To align the definitions of unvented and vented heaters throughout 10 CFR 430.2, DOE proposes to change the phrasing of “warm” or “warmed” air to “heated” air in the definitions of “vented home heating equipment” and “vented room heaters.” As discussed in the preceding section, the term “warm” does not indicate that heat is added to the air being furnished by the heater, whereas the term “heated” does indicate that heat is added to the air by the heater. DOE also proposes to further align the definitions of “unvented home heating equipment” and “vented home heating equipment,” as follows. The definition for “unvented home heating equipment” uses the phrase, “to a space proximate to such heater directly from the heater,” while the definition for “vented home heating equipment” uses the phrase, “to the living space of a residence, directly from the device.” DOE has tentatively determined that the language from the unvented home heating equipment definition is more representative of DHE, so DOE proposes to modify the vented home heating equipment definition accordingly to be consistent. Finally, DOE proposes to clarify that vented home heating equipment should include exhaust venting, as the current definition does not state this explicitly.

DOE also sought comment in the February 2019 RFI regarding the definitions relevant to vented heaters in section 1.0 of Appendix O. 84 FR 6088, 6093 (Feb. 26, 2019). DOE particularly sought comment on whether the definition for “manually controlled vented heaters” should be changed to exclude heaters “without automatic means of control or operation,” rather than “without thermostats” (as in the current definition) to accommodate any means of automatic control rather than just thermostats. Id. In response, AHRI recommended against this change without added explanation. (AHRI, No. 5 at p. 3)

Subsequent to the February 2019 RFI, DOE further examined models on the market with automatic controls, and found that all products identified with automatic controls other than thermostats ( e.g., a timer control) also include thermostatic control mechanisms. Therefore, DOE has tentatively determined that changing the definition as discussed in the February 2019 RFI would not provide any additional clarification to the application of the definition and is not proposing to amend this definition.

DOE also requested comment generally on whether all other definitions provided in section 1.0 of Appendix O are all still appropriate, or if other updates are needed. 84 FR 6088, 6093 (Feb. 26, 2019). AHRI responded that the definitions in section 1.0 of Appendix O are appropriate and do not require changes. (AHRI, No. 5 at p. 3) The CA IOUs recommended the following definitional changes: Update the “barometric draft regulator or barometric damper” definition to distinguish between traditional and automatic; update the “flue gases” definition to “the combination of reaction products resulting from the combustion of a fuel with the oxygen in the air and inert gases, and any excess air passing through the flue;” update the definition for “induced draft” to clarify “mechanical means” and possibly distinguish between induced draft and forced draft, if appropriate; clarify the “infiltration parameter” definition, and specifically whether it is conceptual or a quantifiable parameter with units ( e.g., volume, mass); update the “reduced heat input rate” definition to include fully modulating units; and update the “vaporizing-type oil burner” definition to use “pot” instead of “bowl.” (CA IOUs, No. 8 at pp. 5-6)

After considering the comments from AHRI and the CA IOUs, DOE is not proposing changes to the definitions in section 1 of Appendix O. Regarding the changes to the definitions of “barometric draft regulator or barometric damper,” “flue gases,” “induced draft,” and “vaporizing-type oil burners” as suggested by the CA IOUs, DOE has tentatively concluded that these terms do not require further direction or clarification, and that there is no indication that they are being inappropriately applied or misunderstood. Regarding the suggested update to the definition of “infiltration parameter,” DOE notes that this value is used to adjust the multiplication factor to account for infiltration loss during burner on-cycle when conducting the ANSI/ASHRAE 103 test procedure and is a dimensionless parameter ( i.e., it has no associated unit of measurement). Lastly, DOE notes that a “step-modulating control” is defined in section 1.33 of Appendix O as a control that either cycles off and on at the low input if the heating load is light, or gradually increases the heat input to meet any higher heating load that cannot be met with the low firing rate. DOE has tentatively determined that units that would be described as “fully modulating” meet the definition of a step-modulating control. Thus, the suggested change to the definition of “reduced heat input rate” to include fully modulating units is not necessary, as fully modulating units are included under the “step-modulating control” definition, and the definition of “reduced heat input rate” already includes such units.

DOE requests comment on its proposed changes to the definitions for “vented home heating equipment” and “vented room heater” in 10 CFR 430.2. DOE also requests additional comment on the definitions for vented home heating equipment in section 1.0 of Appendix O, and on its tentative determination that no changes are necessary.

The unvented heater test procedure in Appendix G includes a reference to the International Electrotechnical Commission (IEC) 62301, “Household electrical appliances—Measurement of standby power,” (Second Edition). The vented heater test procedure in Appendix O references the following industry standards:

• ANSI/ASHRAE Standard 103-2007, “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers” (ANSI/ASHRAE 103-2007);

• ANSI Z21.86-2008, “Vented Gas-Fired Space Heating Appliances” (ANSI Z21.86-2008);

• ASTM D2156-09, “Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels” (ASTM D2156-09);

• IEC 62301 (Second Edition), “Household electrical appliances—Measurement of standby power” (IEC 62301);

• UL 729-2003, “Standard for Safety for Oil-Fired Floor Furnaces” (UL 729-2003);

• UL 730-2003, “Standard for Safety for Oil-Fired Wall Furnaces” (UL 730-2003); and

• UL 896-1993, “Standard for Safety for Oil-Burning Stoves” (UL 896-1993).

As described in the February 2019 RFI, all of the referenced industry standards, except for ASTM D2156-09  7 and IEC 62301 (Second Edition), have been superseded with a more recent version. 84 FR 6088, 6091 (Feb. 26, 2019). The changes in the most recent version of UL 729, UL 730, and UL 896 were to sections not referenced by the DOE test procedure, and the changes to the most recent version of ANSI Z21.86, while affecting sections referenced by the DOE test procedure, were non-substantive and unlikely to have any impact on the test burden or measured energy consumption under the DOE test procedure. Id. Therefore, DOE has tentatively determined to update references to the industry standards to their most recent versions for ASTM D2156-09, UL 729, UL 730, UL 896, and ANSI Z21.86.

In the February 2019 RFI, DOE described the substantive updates to ANSI/ASHRAE 103 (see section III.B.1 of this document for additional discussion of these changes) and requested comment on whether the changes are appropriate for adoption in the vented heater test procedure. DOE also requested comment on whether any of the updates to the referenced standards impact the test burden or measured consumption under the DOE test procedure. 84 FR 6088, 6091-6092 (Feb. 26, 2019).

NPGA responded generally in support of the updates to the referenced industry standards. (NPGA, No. 3 at p. 1) No other comments were received regarding the updated versions of the referenced industry test procedures. As discussed in section III.B.1 of this document, DOE is adopting ANSI/ASHRAE 103-2017 with certain modifications.

ANSI/ASHRAE 103-2007, currently referenced in Appendix O, has been superseded by ANSI/ASHRAE 103-2017. As described in the February 2019 RFI, there are several changes to sections incorporated by reference within the vented heater test procedure. 84 FR 6088, 6091 (Feb. 26, 2019). Many of the changes are minor clarifications, such as adding metric units or changing the order of a sentence without affecting its intent. However, other changes could have a substantive effect on the vented heater test procedure, if adopted by DOE. Id.

DOE noted that ANSI/ASHRAE 103-2017 removed the allowable error in the oil pressure measurement from section 6.3, and requested comment as to whether this change is appropriate for vented home heating equipment. 84 FR 6088, 6091-6092 (Feb. 26, 2019). In response, the CA IOUs recommended that the error value be retained for the vented heater test procedure, stating that their market research showed that manufacturers still produce oil-fired furnaces, and the error values are beneficial in maintaining consistency amongst these manufacturers. (CA IOUs, No. 8 at p. 2) DOE has tentatively determined that inclusion of the pressure measurement error values from ANSI/ASHRAE 103-2007 remains appropriate and proposes to retain their application by directly including them in Appendix O.

In section 8.6 of ANSI/ASHRAE 103-2017, titled “Jacket Loss Measurement,” figures 12 and 13 were replaced by a set of equations. Figure 12 shows graphically how to use the difference between surface temperature and the surrounding air temperature to determine a value for h c , the coefficient of convection for vertical and horizontal surfaces; and Figure 13 shows graphically how to use the surface temperature to determine a value of H ri , the coefficient of heat transfer by radiation. In the February 2019 RFI, DOE requested comment on whether this change is appropriate for the vented heater test procedure. 84 FR 6088, 6092 (Feb. 26, 2019). In response, the CA IOUs supported using the equations from ANSI/ASHRAE 103-2017 rather than the figures from ANSI/ASHRAE 103-2007, stating that the equations in ANSI/ASHRAE 103-2017 produce similar and more accurate results than the figures in ANSI/ASHRAE 103-2007. (CA IOUs, No. 8 at p. 2) The CA IOUs also suggested that DOE should encourage ANSI/ASHRAE to publish the data points used to create the 2007 graphs in order to compare those values to the values obtained through the equations. (CA IOUs, No. 8 at p. 3)

DOE has preliminarily determined that the calculations included in ASHRAE 103-2017 to determine jacket loss provide more accurate values as compared to the figures provided in the 2007 version, and the equations mitigate the possibility of human error in interpreting the figures. As a result, DOE is proposing to incorporate by reference the calculations provided in section 8.6 of ANSI/ASHRAE 103-2017.

In the February 2019 RFI, DOE also noted updates made to section 9.10, titled “Optional Test Procedures for Condensing Furnaces and Boilers That Have No Off-Period Flue Losses” in ANSI/ASHRAE 103-2017. 84 FR 6088, 6091-6092 (Feb. 26, 2019). Specifically, section 9.10 of ANSI/ASHRAE 103-2007 specifies that for condensing units designed with no measurable airflow through the combustion chamber and heat exchanger, the off-cycle flue gas draft factor (D F ) and the ratio of flue gas mass flow during the off-period to the flue gas mass flow during the on-period (D P ) may be set to 0.05 for units having a post-purge period of less than 5 seconds. In contrast, section 9.10 of ANSI/ASHRAE 103-2017 provides this specification for units having a post-purge period of less than or equal to 30 seconds. DOE sought comment on whether this change is appropriate for the vented heater test procedure. Id. In response, AHRI recommended that the post-purge time should not increase from less than or equal to 5 seconds to less than or equal to 30 seconds. (AHRI, No. 5 at p. 2)

After a thorough review of Appendix O, ANSI/ASHRAE 103-2007, ANSI/ASHRAE 103-2017, and stakeholder comments, DOE proposes to remove the mentions of sections 8.8.3 and 9.10 of ANSI/ASHRAE 103 within section 3.6.2.4.1 of Appendix O. Section 3.6.1 of Appendix O provides explicit instruction that the default draft factors can be used if the test method described in section 3.6.2 of Appendix O is met. The test method in section 3.6.2 of Appendix O does not address post-purge time and states that if the conditions of the test method are met that the default draft factors may be used. Section 8.8.3 of ANSI/ASHRAE 103 states that the default draft factors may be used for all units having no measurable airflow through the combustion chamber and heat exchanger when the burners are off. Therefore, all the information stated in section 8.8.3 of ANSI/ASHRAE 103 is already stated in sections 3.6.1 and 3.6.2 of Appendix O. Section 9.10 of ANSI/ASHRAE 103 applies to condensing units and includes the same requirements as section 8.8.3 of ANSI/ASHRAE 103 with the addition of the maximum post-purge time which was previously discussed. If the post-purge time is below the maximum allowed and there is no measurable airflow through the combustion chamber and heat exchanger when the burners are off, then section 9.10 of ANSI/ASHRAE 103 allows the testing agency to use the default draft factors and, at their discretion, omit the heat-up and cool-down tests. Appendix O does not include a heat-up test, and section 3.6 of Appendix O does not discuss a maximum post-purge time when establishing the cool-down test procedures for determining the draft factors or the test method to determine if the default draft factor may be used. Therefore, DOE has tentatively determined that the inclusion of a reference to section 9.10 of ANSI/ASHRAE 103 could cause confusion due to the maximum post-purge requirement which is not discussed within Appendix O.

DOE seeks comment on its proposal to incorporate by reference ANSI/ASHRAE 103-2017 with modifications. In particular, DOE is interested in receiving comment on its proposal to add the oil pressure measurement error value, which was omitted from ANSI/ASHRAE 103-2017, to Appendix O, and on its proposal to remove the mention of sections 8.8.3 and 9.10 within section 3.6.2.4.2 of Appendix O.

For electric heaters, section 2.1 of Appendix G specifies a requirement for measuring and recording the maximum electrical power consumed when heating, in terms of kilowatts, and section 3.3 specifies a requirement for calculating a rated output. For primary electric heaters only, section 3.1 of Appendix G specifies a calculation for the national average annual energy consumption based on the maximum electrical power, and section 3.2 specifies a calculation for the annual energy consumption by geographic region. The calculation of national average annual energy consumption in section 3.1 of Appendix G is based on several assumptions, including the national average annual heating load hours of 2080, an adjustment factor of 0.77, 8 and a typical oversizing factor for primary electric heaters of 1.2. 9 The calculation of regional annual energy consumption in section 3.2 of Appendix G is based on the same assumptions as the national value, except that regional heating load hours are provided by a Figure 1, depicting geographic regions the United States and the associated heating load hours for each region.

In the February 2019 RFI, DOE noted that Appendix G does not specify a method for calculating annual fuel energy consumption for unvented gas and oil heaters. 84 FR 6088, 6092 (Feb. 26, 2019). DOE sought comment on whether the calculations and assumptions for calculating national and regional annual energy consumption of primary electric heaters are still appropriate and whether calculations for the annual fuel energy consumption of gas, propane, and oil heaters should be added to the test procedure. Id.

AHRI stated that the assumptions for calculating the national and regional annual energy consumption are still appropriate, and the organization recommended against calculating annual fuel energy consumption for unvented gas and oil heaters because all heat is contained within the conditioned space, so they should be considered 100-percent efficient. (AHRI, No. 5 at p. 2) AHAM stated that it is not aware of any data necessitating changing the assumptions made for national and regional values and urged DOE not to change those values. (AHAM, No. 4 at p. 2) NPGA stated that if DOE pursues calculation of annual fuel energy consumption for gas and oil unvented heaters, it should do so using full-fuel-cycle (FFC) analysis. NPGA also asserted that DOE should apply FFC to electric heating equipment as well. (NPGA, No. 3 at p. 1-2) NEEA recommended against requiring annual fuel energy consumption to be displayed on marketing material due to concerns about reducing purchases of high-efficiency vented heaters and consumers purchasing products that do not fit their actual needs. NEEA stated that unvented heaters have higher efficiencies than vented heaters, because all the heated air and combustion gases are delivered to the consumer's heated space, and, as a result, such units will typically have lower energy consumption than vented heaters. NEEA also stated that a lower energy consumption value could lead to some consumers choosing an unvented heater over a vented heater, if the consumer does not recognize the difference in utility between the two types of heaters. According to NEEA, unvented heaters, in addition to providing heated air, also increase the moisture content and deliver combustion products to the occupied space, and while appropriate for some applications, the difference in utility may not be clear to the consumer. (NEEA, No. 7 at pp. 1-2) The Joint Advocates recommended that DOE require the annual fuel energy consumption calculations for gas and oil unvented heaters to ensure that any representations of annual energy use for these products would be based on a consistent calculation methodology. (Joint Advocates, No. 6 at p. 1)

After considering these comments, DOE is not proposing changes to the national and regional values used in the calculations of annual energy consumption in Appendix G for primary electric heaters, as DOE has tentatively determined that the existing calculations and assumptions are still appropriate. DOE also is not proposing to add calculations for annual fuel energy consumption of gas and oil unvented heaters. DOE has tentatively concluded that such calculations would be unlikely to provide consumers with valuable information, and as suggested by NEEA, an annual fuel energy use value for unvented gas and oil heaters could potentially confuse consumers if comparisons are made to the values for vented heaters without full understanding of the different applications and utilities of each product.

With regard to NPGA's recommendation to determine the annual energy consumption based on FFC, as DOE has noted for other products such as residential furnaces and boilers and cooking products (81 FR 2628, 2638-2639 (Jan. 15, 2016); 81 FR 91418, 91439 (Dec. 16, 2016)), DOE does not believe the test procedure is the appropriate vehicle for deriving an FFC energy use metric for DHE. As discussed in the Notice of Policy Amendment Regarding Full-Fuel Cycle Analyses, DOE uses the National Energy Modeling System (NEMS) as the basis for deriving the energy and emission multipliers used to conduct FFC analyses in support of energy conservation standards rulemakings. 77 FR 49701 (August 17, 2012). DOE also uses NEMS to derive factors to convert site electricity use or savings to primary energy consumption by the electric power sector. NEMS is updated annually in association with the preparation of the Energy Information Administration's (EIA's) Annual Energy Outlook. Based on its experience to date, DOE expects that the energy and emission multipliers used to conduct FFC analyses would change each year. Consequently, if DOE were to include an FFC energy descriptor as part of the DHE test procedures, DOE would need to update the test procedures annually, as opposed to every 7 years as is currently required by EPCA (see 42 U.S.C. 6293(b)(1)(A)), which would result in unnecessary regulatory burden. Additionally, a change in the NEMS-derived values would also result in all products on the market being required to recertify regardless of any other test procedure change that could affect efficiency.

In the December 2012 final rule that included DHE test procedures, DOE determined not to include standby mode and off mode energy use in the annual energy consumption calculations for unvented heaters because a detailed annual energy consumption accounting was not deemed appropriate for this product type ( i.e., because there is no annual accounting at all for supplemental heaters, and only a simplified assigned value for primary heaters). 77 FR 74559, 74561 (Dec. 17, 2012). In the August 30, 2010 NOPR that preceded the December 2012 final rule, DOE explained that the integration of standby mode and off mode energy was not necessary or appropriate for the following reasons:

In the February 2019 RFI, DOE requested comment on whether standby mode and off mode energy use should be included in the annual energy consumption for unvented heaters. 84 FR 6088, 6092 (Feb. 26, 2019). DOE also requested information on annual and/or regional heating season data, and operational mode hours that could potentially be used to incorporate standby mode and off mode energy consumption. Id.

AHRI recommended against incorporating standby mode and off mode energy use into annual energy consumption for unvented heaters, stating that standby mode energy use is just as effective in heating the space as active mode energy use and that off mode consumption is generally reduced by the user turning off the pilot during the non-heating seasons. (AHRI, No. 5 at p. 2) In contrast, the Joint Advocates stated that the annual energy consumption should include standby mode and off mode energy use. The Joint Advocates commented that this is a particular issue when determining the fuel energy consumption, because for units with a pilot light, the energy consumption of the pilot during the non-heating season could represent a significant energy use. The Joint Advocates also stated that including standby mode and off mode energy consumption for unvented heaters should be consistent with the calculation methodology for vented heaters. (Joint Advocates, No. 6 at p. 1)

In response to DOE's request for information on annual and/or regional heating season data and operational hours for each mode, AHRI stated that the requested data do not exist, as usage patterns, structural characteristics, etc., vary for every heating region. (AHRI, No. 5 at p. 2) NPGA supported use of EIA data for information on national and regional heating seasonal data. (NPGA, No. 3 at p. 2) The CA IOUs stated that current industry practice for primary heating equipment is to use heating degree days (HDD) as a proxy for annual heating hours. However, the CA IOUs commented that for supplemental heating equipment, HDD is not always directly linked to operating hours and recommended that DOE survey supplemental heating operating conditions and hours to better understand their operation. (CA IOUs, No. 8 at pp. 4-5)

DOE is not proposing to include standby mode and off mode energy consumption in the annual energy consumption calculation for unvented heaters. DOE tentatively continues to determine, as confirmed by AHRI, that the standby mode energy consumption of unvented heaters is as effective at heating the space as active mode energy, and, therefore, it is unnecessary to integrate. Regarding off mode energy consumption, DOE has tentatively concluded that some consumers could potentially leave the pilot light on during the non-heating season, thereby resulting in consumption of additional energy. However, in its review of the market, DOE found that all identified models with a pilot light included instructions from the manufacturer for turning the pilot light off during the non-heating seasons. DOE lacks data for the operational hours in off mode and the percentage of consumers that do not turn their pilot lights off during the non-heating seasons, thereby making it impossible to determine whether a problem actually exists or its magnitude. Based on the presence of manufacturer instructions and lack of data on representative use, DOE is not proposing to incorporate off mode energy use in the test procedure.

DOE requests comment on its tentative determination to not include standby mode and off mode energy consumption into the annual energy consumption for unvented heaters.

For vented heaters, Appendix O specifies provisions for determining the product's AFUE, which is the efficiency descriptor established by EPCA for these products. (42 U.S.C. 6291(22)(A))

Section 2.11 of the current test procedure specifies that for equipment that has both manual and automatic thermostat control modes, the unit must be tested according to the procedure for its automatic control mode ( i.e., single-stage, two-stage, or step-modulating). However, when a unit has multiple automatic operational modes, the test procedure does not explicitly specify what automatic operating mode must be used for testing.

In the February 2019 RFI, DOE requested comment on whether vented heaters having multiple automatic operation modes exist, and if so, whether further direction regarding the tested operating mode is necessary. 84 FR 6088, 6093 (Feb. 26, 2019). AHRI responded that DHE with multiple operating modes exist and recommended that DOE clarify that the least-efficient mode be used during AFUE tests for such models. (AHRI, No. 5 at p. 3)

As previously stated, EPCA requires test procedures prescribed or amended by DOE to be reasonably designed to produce test results which measure the energy efficiency of a covered product during a representative average use cycle or period of use and must not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) DOE does not have data on the frequency of use by a consumer of the least-efficient mode, and commenters did not provide any such data. It is not clear that the least-efficient mode, as recommended by AHRI, would necessarily be the most representative mode for testing models with multiple automatic operating modes. Through a review of manufacturer's product literature, DOE was unable to find vented heaters with multiple automatic operation modes and seeks further comment on which models are available with multiple automatic operating modes.

DOE is proposing to explicitly specify that models with multiple automatic operation modes be tested in the mode suggested by the manufacturer for normal operation or the default mode as defined in the manufacturer's installation and operations manual. If a default mode is not defined in the product literature, DOE proposes that tests be conducted in the mode that the product operates in as shipped from the manufacturer.

DOE requests comment on its proposal with regard to the automatic operational mode for testing models with multiple automatic operation modes. DOE requests data and information on the consumer use of different automatic operational modes when offered on a vented heater. DOE is interested in receiving comment on the characteristics of the mode recommended by manufacturers for normal operation, on how such mode is described in the manufacturer's installation and operations manual when provided, and on which models currently available on the market include multiple automatic operation modes.

Sections 2.3.1 and 2.3.3 of Appendix O require that for natural gas-fueled and propane gas-fueled vented heaters, the gas supply be maintained at a normal inlet test pressure immediately ahead of all controls at 7 to 10 inches water column and 11 to 13 inches water column, respectively. In addition, section 2.4.1 of Appendix O requires that the fuel flow rate be set to obtain a heat rate of within ±2 percent of the hourly Btu rating specified by the manufacturer, as measured after 15 minutes of operation. During exploratory testing performed for the development of this NOPR, one unit that was tested was unable to achieve the nameplate input rate within 2 percent while maintaining a natural gas supply pressure of 7 to 10 inches water column. The manufacturer's recommended gas inlet pressure for this model was 5 to 10.5 inches water column, and the nameplate input rating was achieved at a natural gas supply pressure of 5 inches water column.

To ensure models are tested at conditions representative of field conditions while still maintaining consistency and repeatability, DOE proposes additional direction to address situations in which the required fuel rate cannot be achieved under the conditions specified in the test procedure ( e.g., at 7-10 inches water column for natural gas). DOE is proposing that in such instances, it is allowable to use any gas supply pressure within the range specified by the manufacturer.

Sections 2.3.1 and 2.3.2 of Appendix O also require the regulator outlet pressure be maintained at “a normal test pressure approximately at that recommended by the manufacturer.” DOE proposes to clarify these statements to require that the regulator outlet pressure be maintained at the greater of ±10 percent of the manufacturer-specified manifold pressure or ±0.2 inches water column. This change would ensure consistency in setting the regulator outlet pressure and aligns the language within Appendix O with the DOE test procedures for other gas-fired heating products ( e.g., consumer water heaters and commercial water heaters).

Sections 2.3.1 and 2.3.2 of Appendix O also require that the specific gravity be approximately 0.65 or 1.53 for natural gas or propane gas, respectively. DOE proposes to require that the specific gravity be between 0.57 and 0.70 for natural gas and 1.522 and 1.574 for propane gas. These specific gravity ranges correspond to the values presented in Annex G of ANSI Z21.86-2016.

Finally, DOE proposes to remove the phrase “normal” from “normal inlet test pressure” in sections 2.3.1 and 2.3.2 of Appendix O and replace “normal hourly Btu input rating” in section 2.4.2 of Appendix O with “maximum hourly Btu input rating.” Section 2.4.1 of Appendix O requires that the burners for gas fueled vented heaters be adjusted to provide an input rate within ±2 percent of the maximum Btu rating specified by the manufacturer at the test pressures specified in section 2.3 of Appendix O. As the test pressures within section 2.3 of Appendix O are proposed to be explicitly stated, the use of the phrase “normal” is no longer necessary. The proposed change to replace “normal hourly Btu input rating” with “maximum hourly Btu input rating” in section 2.4.2 of Appendix O, which describes the burner adjustments for oil-fueled vented heaters, aligns the input rate language throughout section 2.4 of Appendix O.

DOE requests comment on its proposals to allow a manufacturer-specified value for gas supply pressure if test conditions are not achievable at a gas supply pressure of 7 to 10 inches water column for natural gas or 11-13 inches water column for propane gas, to require the regulator outlet pressure be within the greater of ±10 percent of the manufacturer-specified manifold pressure or ±0.2 inches water column, to require the specific gravity of natural gas be between 0.57 and 0.70 and for propane gas be between 1.522 and 1.574, to remove the phrase “normal” from sections 2.3.1 and 2.3.2 of Appendix O, and to replace “normal hourly Btu input rating” with “maximum hourly Btu input rating” within section 2.4.2 of Appendix O.

Section 2.6 of Appendix O requires installation of nine thermocouples in the vent for measuring flue gas temperature for both gas-fueled and oil-fueled vented heaters. As noted previously, DOE conducted testing to inform the development of this NOPR. For one of the units tested, the exhaust piping was 2 inches in diameter, and the nine thermocouples significantly restricted airflow in the vent, resulting in flue gas temperature readings and carbon monoxide levels above normal operating conditions. To ensure that measurements taken during testing of models with smaller flues ( i.e., 2 inches diameter or less) are representative of typical use, DOE proposes to allow fewer thermocouples to be used for such models when the use of nine thermocouples prevents the unit from operating within the allowable test conditions. Specifically, DOE is proposing to adopt a requirement to allow the test lab to use five thermocouples (which DOE notes is the same as the requirement in ASHRAE 103-2017, section 7.6 and figure 10) when the flue size is less than or equal to 2 inches diameter. Given that the cross-sectional flue area is smaller for models with small vent diameter, fewer thermocouples are needed to obtain accurate flue gas temperature measurements. Further, using fewer thermocouples would result in less flue restriction, and could more closely resemble operation in the field, thereby providing more representative flue gas readings.

DOE seeks comment on its proposal to allow the use of five thermocouples, rather than nine thermocouples, in vented heaters with a vent diameter of 2 inches or less.

Section 3.8.2 of Appendix O specifies the test procedure for collecting condensate under cyclic conditions for condensing vented heaters. During this test, three to six cycles of a 4 minute on-cycle followed by a 13 minute off-cycle are completed. The total mass of condensate and fuel energy input are then used in section 4.0, “Calculations.” The cyclic condensate collection test does not specify the input rate at which the burner should fire during the on-cycle times for units with modulating controls.

The cyclic condensate collection test was based on section 9.8 of ANSI/ASHRAE 103-2007, which specifies that regarding the input rate for units with modulating controls, the following applies: (a) For step-modulating units, the test is conducted at the reduced  10 input rate only, which is defined in section 3 of ANSI/ASHRAE 103-2007; or (b) for two-stage units, the test is conducted at both the maximum and reduced input rates unless the balance-point temperature (T C ) determined is equal to or less than the typical outdoor design temperature of 5 °F (−5°C), in which case test at the reduced input rate only. The required input rate is specified in all other tests within the vented heater test procedure. Therefore, DOE proposes to add input rate instructions similar to ANSI/ASHRAE 103-2007 to section 3.8.2 of Appendix O. This change would align the vented heater test procedure with ANSI/ASHRAE 103, on which Appendix O was heavily dependent for development.

DOE requests comment on its proposal to specify input rate instructions for the cyclic condensate collection test.

Section 3.8.2 of Appendix O states that if after three cycles “the sample standard deviation is within 20 percent of the mean value for three cycles,” the test can be ended, and the total mass collected in the three cycles can be used. Otherwise, three additional cycles of condensate collection are required, for a total of six cycles. DOE notes that the existing language for checking whether the variance of the condensate collected during the first three cycles is sufficiently small could be read to require that the standard deviation be “within 20 percent” of the mean value of the mass of condensate collected. Such a reading would not be logical because a small standard deviation is desirable for consistent results, and, therefore, the standard deviation value should not be compared directly to the mean and be required to be within 20 percent of the mean value. Rather, the phrase requires that the standard deviation be at or below “20 percent of the mean value” ( i.e., the sample standard deviation should be less than or equal to 20 percent of the mean). DOE proposes to revise this statement to state that the standard deviation must be less than or equal to 20 percent of the mean rather than “within 20 percent” of the mean. This proposed change would clarify the wording to avoid confusion that could result from the existing text.

DOE requests comment on its proposed rewording of the variance condition between cycles to clarify that the standard deviation must be less than or equal to 20 percent of the mean, for determining whether the cyclic condensate mass collection must be performed for three cycles or six cycles.

Section 3.8 of Appendix O contains provisions for testing vented heaters that utilize condensing technology. Condensing technology is a design strategy to increase the efficiency of a heating appliance by extracting additional thermal energy from the flue gases. The provisions for condensing vented heaters in Appendix O are based on those contained in ANSI/ASHRAE 103-2007, which are applicable to condensing furnaces and boilers. However, because the application of the condensing technology test provisions to vented heaters requires modifications not needed for furnaces and boilers, DOE includes the condensing provisions in Appendix O, rather than incorporating by reference the relevant provisions of ANSI/ASHRAE 103-2007.

In the February 2019 RFI, DOE requested comment on the test method for condensing vented heaters, specifically including information on the test burden and on ways to potentially reduce burden. 84 FR 6088, 6093 (Feb. 26, 2019). AHRI stated that the provisions for testing condensing equipment are appropriate and do not need to be updated. (AHRI, No. 5 at p. 3) DOE received no other comment on this issue.

Consequently, DOE is not proposing to change the existing provisions for testing condensing vented heaters in the Federal test procedure for DHE.

In section 4.1.10 of Appendix O, titled “Steady-state efficiency,” the balance point temperature  11 (T C ) can be determined either with an equation or using the values provided in Table 3 of Appendix O. The two options may not yield the exact same result because Table 3 provides a single balance point temperature value for a range of heat output ratios (R), while the equation provides a specific value for each heat output ratio. In other words, to use Table 3, first the heat output ratio is determined, then the corresponding range in Table 3 is selected to identify the balance point temperature for units with heat output ratios in the given range. To use the equation method, however, the heat output ratio is plugged into the equation, and balance point temperature is calculated. Similarly, values for the fraction of the heating load and average outdoor temperature at the reduced and maximum operating modes (variables X 1 , X 2 , T OA , and T OA *) are determined using either Table 3 or, for T OA and T OA *, Figure 1 of Appendix O (which provides a graph showing T OA , and T OA * variables for any balance point temperature between 16 °F and 62 °F) and, for X 1 and X 2 , Figure 2 of Appendix O (which provides a graph showing variables X 1 and X 2 for any balance point temperature between 0 °F and 62 °F). Table 3, Figure 1, and Figure 2 may yield different results because Table 3 provides discreet values for X 1 , X 2 , T OA , and T OA *, whereas Figure 1 and Figure 2 provide continuous graphical curves for determining the relevant variables.

For the February 2019 RFI, DOE reviewed test data to estimate the impact of the different methods for determining the aforementioned variables on the measured AFUE value. The different methods resulted in a difference on the order of hundredths of a percentage point of AFUE, which DOE tentatively concluded would not be likely to affect the measured AFUE in most cases when rounded to a whole number. 84 FR 6088, 6093 (Feb. 26, 2019). DOE requested comment on whether the differences in the balance point temperature (T C ) produced by the equation and as obtained from Table 3 can result in different values for the fraction of the heating load (X 1 and X 2 ) and average outdoor temperature at the reduced and maximum operating modes (T OA and T OA *), and if so, the extent of any such difference. DOE also requested comment on whether any differences in the values of X 1 , X 2 , T OA , and T OA* within Table 3 and Figures 1 and 2 could produce different results, especially in AFUE, and if so, the extent of such differences. Id.

DOE did not receive any comments in response to these issues. As discussed, based on DOE's analysis, any changes in AFUE resulting from the differences in the equation, table, and figures are minimal. Therefore, DOE is not proposing any changes to the test method related to these issues.

The test procedure for vented floor furnaces requires the measurement of jacket losses when determining the AFUE. Section 3.2, Appendix O. In the NOPR published in the Federal Register as part of the rulemaking for the January 2015 final rule, DOE proposed an optional use of a default jacket loss value of 1 percent for vented floor furnaces, as an alternative to performing a jacket loss test. 78 FR 63410, 63415 (Oct. 24, 2013). In the January 2015 final rule, DOE decided not to adopt the 1-percent default jacket loss value for vented floor furnaces after reviewing test data that revealed an average jacket loss of 3.05 percent. 80 FR 792, 794 (Jan. 6, 2015).

In the February 2019 RFI, DOE requested comment and test data on whether a higher default jacket loss value should be considered for vented floor furnaces. 84 FR 6088, 6093 (Feb. 26, 2019). The Joint Advocates urged DOE not to include a default jacket loss value for vented floor furnaces, stating that a default value would allow products to have a jacket loss higher than the default without incurring a penalty, and could lead to efficiency ratings that are not representative of actual energy use. (Joint Advocates, No. 6 at p. 2) NEEA expressed support for a default jacket loss value that is representative of the jacket loss performance of the worst 25 models on the market. NEEA also stated that it prefers that testing for jacket loss still be allowed or for a calculation method to be developed, in lieu of a default value, to encourage innovation in decreasing jacket losses. (NEEA, No. 7 at p. 2)

After carefully considering these comments and the available information, DOE is not proposing a default jacket loss value. DOE has tentatively concluded that a default jacket loss value for vented floor furnaces would provide less representative ratings than the current test method, which requires measurement of the jacket loss in floor furnaces.

Section 3.6.1 of Appendix O specifies that on units with no measurable airflow through the unit when not in heating mode (as determined by a smoke stick test defined in section 3.6.2 of Appendix O), both D F and D P may be set equal to 0.05. In the February 2019 RFI, DOE requested comment on whether models using condensing or induced draft technology are always capable of meeting the criteria required to use the default draft factors of 0.05. 84 FR 6088, 6093 (Feb. 26, 2019). DOE also sought comment on whether such models should automatically be considered to have no measurable airflow, and, thus, allowed to use the defined value of 0.05 for D F and D P without performing the smoke stick test. Id.

AHRI recommended against allowing condensing or induced draft DHE to be considered to have no measurable airflow and use constant values for D F and D P without confirmation testing. (AHRI, No. 5 at p. 3)

After carefully considering comment on this issue in response to the February 2019 RFI, DOE is not proposing use of the default D F and D P values for condensing and induced draft vented heaters without first performing the test in section 3.6.2 of Appendix O to confirm that there is no measurable airflow. DOE has tentatively concluded that the provisions in the current test procedure for ensuring there is no airflow through the unit when not in heating mode before allowing the default draft factors, are appropriate, particularly since the smoke stick test was not identified as overly burdensome by stakeholders or during DOE's testing. Further verification of no airflow ensures that representative draft factors are applied during testing.

Sections 2.6.1, 2.6.2, and 2.9 of Appendix O require that radiation shields be used to protect thermocouples that could receive direct radiation from the fire. However, no instruction is given on how to determine if a thermocouple could receive direct radiation from the fire, and if so, what type of radiation shielding would be required. DOE has tentatively proposed to require that all thermocouples be shielded from the fire if there is a direct line of sight between the fire and the thermocouple. Further, if radiation shielding is required, then a radiation shield meeting the material and minimum thickness requirements stated in section 8.14.1 of ANSI Z21.86-2016 shall be used.

DOE requests comment its proposed changes to the radiation shielding requirements within sections 2.6.1, 2.6.2, and 2.9 of Appendix O. In particular, DOE seeks information as to what methods are currently being used to determine whether a thermocouple would require a radiation shield and also what types of materials are currently used as radiation shields.

DHE provides space heating (heated air) directly to the consumer's living space without the use of duct connections. Also relevant to DHE may be the ability to provide “quiet” operation, non-heating air circulation, and space humidification, as well as the aesthetic appearance of the unit. In the February 2019 RFI, DOE requested comment on whether the test procedures impact the availability of such features on DHE. 84 FR 6088, 6094 (Feb. 26, 2019).

The CA IOUs stated that the current procedures do not have an effect on manufacturers' ability to produce quiet or aesthetically pleasing products. (CA IOUs, No. 8 at p. 6) However, the CA IOUs stated that the current test procedures potentially could impact non-heating air circulation and space humidification, and recommended testing under different ambient conditions and monitoring the resulting energy use or operational efficiency to determine the impact on non-heating air circulation. Regarding space humidification, the CA IOUs also stated that the test procedure would likely impact space humidification since it involves heating the space, which in turn will change the dry/latent heat composition. The CA IOUs noted that section 3.8 of Appendix O, which addresses the measurement of condensate for condensing vented heaters, requires that the space humidity not exceed 80 percent relative humidity, stated that the heating requirements of a humidified space are different from a dehumidified space, and recommended further testing to ascertain the effects of the test procedure on the availability of space humidification features. (CA IOUs, No. 8 at p. 6-7)

DOE is not proposing any changes to the test procedure related to the issues raised by the CA IOUs and has tentatively determined that the other proposed changes to Appendix O would not have an effect on the issues raised by the CA IOUs. DOE does not have any data or test results to indicate that the current test procedure negatively impacts non-heating air circulation and space humidification. Non-heating air circulation energy use is not captured by the test procedure; therefore, there is no impact on this potential feature. Relative humidity requirements are specified only for condensing vented heaters because the effect of the ambient relative humidity on the energy efficiency is most significant for condensing vented heaters. DOE is not aware of condensing vented heaters on the market that provide space humidification that would cause the ambient relative humidity to exceed 80 percent. DOE has tentatively determined that the relative humidity requirement for condensing vented heaters of 80 percent is not burdensome to maintain and is likely higher than the highest humidity that would be observed in a home, so, therefore, the test procedure should not affect the potential space humidification feature.

DOE seeks additional comment and data on whether the DHE test method affects DHE utility or performance, specifically including whether there are impacts on features such as air circulation and space humidification.

In response to the February 2019 RFI, Woodall suggested mandating electronically-commutated motors as replacements for permanent split-capacitor motors that are common in the DHE market as a means to reduce power consumption in both vented and unvented systems. (Woodall, No. 2 at p. 1)

A requirement as suggested by the commenter is outside the scope of DOE's authority for DHE as provided under EPCA. At 42 U.S.C. 6291(6), EPCA defines the term “energy conservation standard” to mean a performance standard that prescribes a minimum level of energy efficiency or a maximum quantity of energy use (or water use for certain specified covered products), as determined under the applicable DOE test procedure. That same definition does allow for adoption of a design requirement for certain enumerated covered products; however, DHE is not on that list. Thus, the statute does not permit DOE to adopt a standard requiring an electronically-commutated motor, as suggested by Woodall.

EPCA requires that test procedures proposed by DOE not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In this NOPR, DOE proposes to amend the existing test procedures for DHE (including both unvented and vented heaters) by updating definitions regarding unvented heaters, incorporating by reference the most recent versions of several industry standards, explicitly specifying the operational mode for testing units with multiple automatic operational modes, allowing the use of manufacturer-specified values for gas supply pressure in certain circumstances, reducing the number of thermocouples required for measuring the flue gas temperature in models with small flues, clarifying instructions for cyclic condensate mass measurements, and clarifying when radiation shielding is necessary. DOE has tentatively determined that these proposed amendments would not be unduly burdensome for manufacturers to conduct and would not change test burden for manufacturers.

DOE anticipates that the amendments proposed in this NOPR would not increase test costs.

Specifically, DOE is proposing to change certain definitions to unvented heaters. These definitional changes are for consistency, and such changes do not affect the applicability of the test procedures or classification of any unvented heaters. As a result, the definitional changes would not require additional testing or impact testing costs.

DOE is also proposing to update the industry consensus standards incorporated by reference to the most recent versions of those test methods. All of the updated industry consensus standards, except ANSI/ASHRAE 103-2017, do not contain any significant changes in the sections referenced in the DOE test procedures for DHE. For ASNI/ASHRAE 103, the 2017 version differs from the 2007 version currently referenced in the DOE test procedure in relation to the oil pressure measurement error allowance and the post-purge time for applying default draft factor values. DOE is proposing to adopt the updated standard with modification to retain the oil pressure measurement error allowance and maximum post-purge time for applying default draft factor values from the currently-referenced 2007 version of the standard. These two revisions were the only significant differences between the 2007 and 2017 versions that would potentially impact testing of vented heaters. Retention of these requirements should not result in any additional burden or costs, as manufacturers are already complying with those provisions under the current test procedure.

DOE is proposing to specify that models with multiple automatic operational modes should be tested in the default mode (or similarly-named mode identified for normal operation). If a default mode is not defined in the product literature, the model would be tested in the mode that the equipment operates in as shipped from the manufacturer. As discussed, DOE did not identify any models currently on the market that are capable of multiple automatic operation modes. Thus, DOE tentatively concludes that, if adopted, this change would not require additional testing nor would it impact testing costs.

DOE is proposing to explicitly state the required input rate for the cyclic condensate collection test in section 3.8.2. The proposed input rate instruction is identical to the instruction in section 9.8 of ANSI/ASHRAE 103-2007, which is the industry test procedure on which the cyclic condensate collection test in section 3.8.2 is based. DOE notes this instruction is also included in the most recent version of ANSI/ASHRAE 103-2017. DOE tentatively concludes that because the input rate is not specified in DOE's current test procedure, but is explicitly stated in the industry test method, manufacturers are already testing as instructed by the industry test method. Therefore, this change would not require additional testing, nor would it impact testing costs.

DOE is proposing to allow for use of manufacturer-specified gas inlet pressure ranges when the required input rating ( i.e., the nameplate input rating ±2 percent) cannot be achieved at 7-10 inches water column, as currently required in Appendix O. Aside from the tested unit that presented this issue, DOE is unaware of this issue more broadly occurring in manufacturer testing. Were this issue to occur, a valid test as prescribed by the test procedure could not be performed, and a manufacturer would need to seek a waiver from the test procedure under 10 CFR 430.27. DOE has not received any such waivers. As such, this proposal would not require retesting of units on the market and would not be expected to impact test burden.

DOE is proposing a tolerance on the regulator outlet temperature to be within the greater of ±10 percent of the manufacturer-specified manifold pressure or ±0.2 inches water column. This tolerance is consistent with other DOE test procedures and would not be expected to require retesting of units on the market or to impact test burden.

DOE is proposing that the specific gravity of natural gas be between 0.57 and 0.70 and of propane gas be between 1.522 and 1.574. These ranges include the previously required values and align with the industry's required specific value ranges stated in Annex G of ANSI Z21.86-2016. As such, these proposed changes would not require retesting of units on the market and would not be expected to impact test burden.

DOE also proposes to allow the testing agency to determine whether to use nine or five thermocouples when testing models with small (2-inch or less diameter) flues. DOE has tentatively determined that the results of testing with five thermocouples instead of nine would be comparable. In models where the currently required nine thermocouples restrict the flow to the point of causing the unit to operate outside of the allowable test and/or operational conditions (such as the maximum outlet air temperature), a test meeting all the required test conditions cannot be completed. Therefore, for impacted models, this change would allow testing to the required test conditions to be conducted, which are designed to produce results representative of a typical average use cycle. DOE has tentatively determined that performing a test with five thermocouples instead of nine will impose no additional testing costs.

DOE also proposes to clarify the calculation for the allowable variance of the condensate mass measurements during the cyclic condensate test when determining whether to conduct three cycles or six. The proposed wording would not change the intent of the test or the test requirements, nor would it have an impact on test cost.

Finally, DOE proposes to clarify when radiation shielding is necessary to install and, when shielding is necessary, that appropriate shielding materials are used. Radiation shielding requirements are already included in the current test procedure, and the proposed changes would not change the intent of the test or the test requirements, nor would it have an impact on test cost.

DOE has tentatively determined that, should any of these proposed amendments be finalized, manufacturers would be able to rely on data generated under the current test procedure and that retesting should not be necessary.

As discussed, Appendices G and O incorporate by reference certain provisions of numerous industry standards. Both appendices incorporate by reference IEC 62301 (Edition 2.0, 2011-01), which provides methods for measuring electrical standby mode and off mode power consumption. Appendix O also incorporates by reference ANSI/ASHRAE 103, which is a test method for determining the annual fuel utilization efficiency of residential central furnaces and boilers; ANSI Z21.86, which is a standard for construction and safety performance of vented gas space heating appliance; ASTM D-2156, which is a standard for determining smoke density; and UL 729, UL 730, and UL 896, which are standards pertaining to the installation of oil-fired vented heaters. DOE notes that the only industry standard referenced in Appendix G is IEC 62301.

DOE requests comment on the benefits and burdens of the proposed updates and additions to industry standards referenced in the test procedures for DHE.

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

The Office of Management and Budget (OMB) has determined that this test procedure proposed rulemaking does not constitute a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in OMB.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis (IRFA) 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.

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. The size standards and codes are established by the 2017 North American Industry Classification System (NAICS). DHE manufacturers are classified under NAICS code 333414, “Heating Equipment (except Warm Air Furnaces) Manufacturing.” The SBA sets a threshold of 500 employees or fewer for an entity to be considered as a small business. DOE used available public information to identify potential small manufacturers of the covered product. DOE accessed the Compliance System Management System's (CCMS) Compliance Certification Database and the AHRI's certified product directory to create a list of companies that import or otherwise manufacture DHE covered by this proposal. Using these sources, DOE identified a total of five manufacturers of DHE. Of these manufacturers, four are potential small businesses. However, due to the nature of DOE's proposed rule, which generally updates the incorporations by reference to the latest version of applicable industry consensus standards (which saw no substantive changes to the relevant provisions) and makes a number of clarifications and minor modifications designed to reduce burden, the Department has tentatively determined that this proposed rule, if finalized, would not impose a significant burden on small manufacturers who produce this specific type of product.

More specifically, in this document, DOE proposes the following changes to the test procedure for unvented and vented heaters, as well as several associated changes to definitions at 10 CFR 430.2. First, to ensure consistent use and application of the test procedure, DOE proposes updates: To the definitions of “floor electric heater,” “primary heater,” “unvented gas heater,” “unvented home heating equipment,” “unvented oil heater,” “vented home heating equipment,” and “vented room heater”; to update the terms “primary heater” and “supplementary heater” to “primary electric heater” and “supplementary electric heater,” respectively; to add the current oil pressure measurement error value to the test procedure; to explicitly state the regulator outlet pressure and specific gravity tolerances for the gas supply; and, to clarify the wording of the cyclic condensate collection test in the calculation of the allowable variance in condensate mass measurements. Second, to align with the most recent industry consensus standards, DOE proposes: To update the references to the industry consensus standards to the most recent versions; to clarify the required input rate for the cyclic condensate collection tests; and, to explicitly state the methods to appropriately shield thermocouples from radiation. Third, to ensure the representativeness of the test procedure, DOE proposes: To explicitly state the operational mode for testing vented heaters with multiple automatic operation modes; to allow for use of manufacturer-specified gas inlet pressure range when the required input rating cannot be reached; and, to reduce the number of thermocouples required for the thermocouple grid in models with small (2-inch diameter or less) flues from nine to five.

All proposed changes are either clarifications to ensure consistent use and application (which does not affect the results of the test procedure or how the test procedure is run) or amendments which ensure the representativeness of the test procedure as compared to products installed in the field. These amendments are all in line with the most recent industry consensus standards.

As stated, DOE has reviewed this proposed rule to amend the test procedures for DHE under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003, and the Department has initially determined that if finalized as proposed, this rulemaking would not have any cost impact. Therefore, DOE initially concludes that the impacts of the test procedure amendments proposed in this NOPR would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of an IRFA is not warranted. Accordingly, 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).

Manufacturers of DHE must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including DHE. ( See generally 10 CFR part 429.) The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

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

DOE is analyzing this proposed regulation in accordance with the National Environmental Policy Act of 1969 (NEPA) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. 10 CFR part 1021, subpart D, appendix A5. DOE anticipates that this rulemaking qualifies for categorical exclusion A5 because it is an interpretive rulemaking that does not change the environmental effect of the rule and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. DOE will complete its NEPA review before issuing the final rule.

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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, 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 the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed 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. 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.

The proposed regulatory action to amend the test procedure for measuring the energy efficiency of DHE is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

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

The proposed amendments to the Federal test procedure for DHE are primarily in response to modifications to certain sections of the applicable industry consensus standards ( i.e., ASNI/ASHRAE 103-2017, ANSI Z21.86-2016, ASTM D2156-09 (2018), IEC 62301 (edition 2.0, 2011-01), UL 729-2016, UL 730-2016, and UL 897-2016). DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA ( i.e., whether they were developed in a manner that fully provides for public participation, comment, and review.) DOE will consult with both the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to prescribing a final rule.

In this NOPR, DOE proposes to incorporate by reference the following test standards:

(1) The test standard published by ANSI/ASHRAE, titled “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers,” ANSI/ASHRAE 103-2017. ANSI/ASHRAE 103-2017 is an industry-accepted test procedure for determining the annual fuel utilization efficiency of consumer furnaces and boilers. Specifically, the test procedure amendments proposed by this NOPR reference sections of that industry consensus standard regarding test set-up for oil-fueled DHE (including instrumentation and measurement descriptions for oil burner adjustments), and instructions on calculating jacket losses in vented floor heaters and calculations for draft factors. Copies of ANSI/ASHRAE 103-2017 can be obtained from ASHRAE, 1791 Tullie Circle NE, Atlanta, GA 30329, (800) 527-4723 or (404) 636-8400, or online at: http://www.ashrae.org.

(2) The test standard published by ANSI, titled “Vented Gas-fired Space Heating Appliances,” ANSI Z21.86-2016. ANSI Z21.86 is an industry-accepted test procedure for vented gas-fired space heating appliances. Specifically, the test procedure amendments proposed by this NOPR reference sections of that industry consensus standard regarding the set-up specifications for vented wall DHE, instructions for gas usage other than natural gas or propane, instructions for measuring discharge temperatures of forced air, vented, wall DHE, and descriptions of thermocouple installation in gas-fueled, vented DHEs. Copies of ANSI Z21.86-2016 can be obtained from ANSI, 25 W 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or online at: http://www.ansi.org.

(3) The test standard published by ASTM, titled “Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels,” ASTM D2156-09 (2018). ASTM D2156 is an industry-accepted test procedure for measuring smoke density in flue gases from burning distillate fuels. Specifically, the test procedure amendments proposed by this NOPR reference sections of that industry consensus standard regarding providing smoke density levels which are measured during for the steady-state test. Copies of ASTM D2156-09 (2018) can be obtained from ASTM, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 or online at: www.astm.org.

(4) The test standard published by IEC, titled “Household electrical appliances-Measurement of standby power,” IEC 62301 (Edition 2.0, 2011-01). IEC 62301 is an industry-accepted test procedure for the measurement of standby power modes in household electrical appliances. Specifically, the test procedure amendments proposed by this NOPR reference sections of that industry consensus standard regarding measurment of electrical standby mode and off mode power consumption. Copies of IEC 62301 (Second Edition) can be obtained from the American National Standards Institute, 25 W 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or online at: http://webstore.ansi.org.

(5)-(7) The test standards published by UL: “Standard for Safety for Oil-fired Floor Furnaces,” “Standard for Safety for Oil-fired Wall Furnaces,” and “Standard for Safety for Oil-burning Stoves,” UL 729-2016, UL 730-2016, and UL 896-2016, respectively. UL 729, UL 730, UL 896 are industry-accepted test procedures for oil-fired floor furnaces, oil-fired wall furnaces, and oil-burning stoves respectively. Specifically, the test procedure amendments proposed by this NOPR reference sections of those industry consensus standards regarding vented floor and wall DHE test installation and instructions for flue and thermocouple installation for oil fueled, vented floor DHEs. Copies of UL 729-2016, UL 730-2016, and UL 896-2016 can be obtained from UL at 2600 NW Lake Rd., Camas, WA 98607-8542 or online at: www.ul.com.

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: http://www1.eere.energy.gov/buildings/appliance_standards/product.aspx/productid/41. Participants are responsible for ensuring their systems are compatible with the webinar software.

Any person who has an interest in the topics addressed in this proposed rulemaking, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Such persons may submit requests to speak by email to the Appliance and Equipment Standards Program, ApplianceStandardsQuestions@ee.doe.gov. Persons who wish to speak should include with their request a computer file in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format that briefly describes the nature of their interest in this rulemaking and the topics they wish to discuss. Such persons should also provide a daytime telephone number where they can be reached.

Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.

DOE will designate a DOE official to preside at the webinar and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the webinar. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the webinar and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.

The webinar will be conducted in an informal, conference style. DOE will present summaries of comments received before the webinar, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.

At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the webinar will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar.

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

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 document.

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

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

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

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

Submitting comments via email. Comments and documents submitted via email also will be posted to http://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in 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. No telefacsimiles (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. Pursuant 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 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. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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

Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:

(1) DOE requests comment on its proposed changes to the definitions for “electric heater,” “primary heater,” “unvented gas heater,” “unvented home heating equipment,” and “unvented oil heater” in 10 CFR 430.2, as well as on its proposed change in terminology from “primary heater” and “supplementary heater” to “primary electric heater” and “supplementary electric heater,” respectively.

(2) DOE requests comment on its proposed changes to the definitions for “vented home heating equipment” and “vented room heater” in 10 CFR 430.2. DOE also requests additional comment on the definitions for vented home heating equipment in section 1.0 of Appendix O, and on its tentative determination that no changes are necessary.

(3) DOE seeks comment on its proposal to incorporate by reference ANSI/ASHRAE 103-2017 with modifications. In particular, DOE is interested in receiving comment on its proposal to add the oil pressure measurement error value, which was omitted from ANSI/ASHRAE 103-2017, to Appendix O, and on its proposal to remove the mention of sections 8.8.3 and 9.10 within section 3.6.2.4.2 of Appendix O.

(4) DOE requests comment on its tentative determination to not include standby mode and off mode energy consumption into the annual energy consumption for unvented heaters.

(5) DOE requests comment on its proposal with regard to the automatic operational mode for testing models with multiple automatic operation modes. DOE requests data and information on the consumer use of different automatic operational modes when offered on a vented heater. DOE is interested in receiving comment on the characteristics of the mode recommended by manufacturers for normal operation, on how such mode is described in the manufacturer's installation and operations manual when provided, and on which models currently available on the market include multiple automatic operation modes.

(6) DOE requests comment on its proposals to allow a manufacturer-specified value for gas supply pressure if test conditions are not achievable at a gas supply pressure of 7 to 10 inches water column for natural gas or 11-13 inches water column for propane gas, to require the regulator outlet pressure be within the greater of ± 10 percent of the manufacturer-specified manifold pressure or ± 0.2 inches water column, to require the specific gravity of natural gas be between 0.57 and 0.70 and for propane gas be between 1.522 and 1.574, to remove the phrase “normal” from sections 2.3.1 and 2.3.2 of Appendix O, and to replace “normal hourly Btu input rating” with “maximum hourly Btu input rating” within section 2.4.2 of Appendix O.

(7) DOE seeks comment on its proposal to allow the use of five thermocouples, rather than nine thermocouples, in vented heaters with a vent diameter of 2 inches or less.

(8) DOE requests comment on its proposal to specify input rate instructions for the cyclic condensate collection test.

(9) DOE requests comment on its proposed rewording of the variance condition between cycles to clarify that the standard deviation must be less than or equal to 20 percent of the mean, for determining whether the cyclic condensate mass collection must be performed for three cycles or six cycles.

(10) DOE requests comment its proposed changes to the radiation shielding requirements within sections 2.6.1, 2.6.2, and 2.9 of Appendix O. In particular, DOE seeks information as to what methods are currently being used to determine whether a thermocouple would require a radiation shield and also what types of materials are currently used as radiation shields.

(11) DOE seeks additional comment and data on whether the DHE test method affects DHE utility or performance, specifically including whether there are impacts on features such as air circulation and space humidification.

(12) DOE requests comment on the benefits and burdens of the proposed updates and additions to industry standards referenced in the test procedures for DHE.

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

This document of the Department of Energy was signed on April 2, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE is proposing to amend part 430 of Chapter II of Title 10, Code of Federal Regulations as set forth below:

The revisions and additions read as follows:

The additions and revisions read as follows:

Commercial and industrial pumps (collectively, “pumps”) are among the industrial equipment for which DOE is authorized to establish and amend test procedures and energy conservation standards. (42 U.S.C. 6311(1)(A)) DOE's test procedures for pumps are prescribed in title 10 of the Code of Federal Regulations (“CFR”), subpart Y of part 431. Relevant to this document, DOE has established a test procedure for pumps at 10 CFR 431.464 and appendix A to subpart Y of part 431 (“Appendix A”). The following sections discuss DOE's authority to establish and amend test procedures for pumps, as well as relevant background information regarding DOE's consideration of test procedures for this equipment.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C of EPCA, 2 added by the National Energy Conservation Policy Act, Public Law 95-619 (Nov. 9, 1978), Title IV, § 441(a) (42 U.S.C. 6311-6317 as codified), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve industrial equipment energy efficiency. The equipment addressed under these provisions include pumps, the subject of this RFI. (42 U.S.C. 6311(1)(A))

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

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

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

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

EPCA also requires that, at least once every 7 years, DOE review test procedures for all types of covered equipment, including pumps, to determine whether amended test procedures would more accurately or fully comply with the requirements that the test procedures be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle and to not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(1)) In addition, if the Secretary determines that a test procedure amendment is warranted, the Secretary must publish proposed test procedures in the Federal Register , and afford interested persons an opportunity (of not less than 45 days' duration) to present oral and written data, views, and arguments on the proposed test procedures. (42 U.S.C. 6314(b)). If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this RFI to collect data and information to inform its decision in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6314(a)(1))

DOE's test procedure for determining pump energy efficiency was established in a final rule published on January 25, 2016. 81 FR 4086 (“January 2016 Final Rule”). 3 The January 2016 Final Rule established definitions for the terms “pump,” “driver,”  4 and “controls,”  5 and described several categories and configurations of pumps. The pumps test procedure currently incorporates by reference the Hydraulic Institute (“HI”) Standard 40.6-2014, “Methods for Rotodynamic Pump Efficiency Testing” (“HI 40.6-2014”), along with several modifications to that testing method related to measuring the hydraulic power, shaft power, and electric input power of pumps, inclusive of electric motors and any continuous or non-continuous controls. 6

On September 28, 2020, DOE published an early assessment review RFI in which it sought data and information pertinent to whether amended test procedures would (1) more accurately or fully comply with the requirement that the test procedure produces results that measure energy use during a representative average use cycle for the equipment without being unduly burdensome to conduct, or (2) reduce testing burden. 85 FR 60734 (“September 2020 Early Assessment RFI”). DOE received comments in response to the September 2020 Early Assessment RFI from the interested parties listed in Table I.1. A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 7

Based on DOE's review of the test procedure for pumps and the comments received, DOE has determined it is appropriate to continue the test procedure rulemaking after the early assessment process. See 10 CFR 431.4; 10 CFR part 430 subpart C appendix A section 8(b). Specific comments are discussed in the sections that follow.

In the following sections, DOE has identified a variety of issues on which it seeks input to determine whether, and if so how, an amended test procedure for pumps would (1) more accurately or fully comply with the requirements in EPCA that test procedures be reasonably designed to produce test results which reflect energy use during a representative average use cycle, without being unduly burdensome to conduct, or (2) reduce testing burden. (42 U.S.C. 6314(a)(2))

Further, DOE issued an Early Assessment RFI (85 FR 60734) to seek more general information on whether its test procedures are reasonably designed, as required by EPCA, to produce results that measure the energy use or efficiency of equipment during a representative average use cycle or period of use. See also 84 FR 9721 (March 18, 2019) (RFI seeking public comment on the measurement of average use cycles or periods of use in DOE's test procedures). DOE seeks comment on this issue as it pertains to the test procedure for pumps.

As stated previously, DOE received multiple comments to the 2020 Early Assessment RFI. These comments are summarized in this RFI and DOE asks for additional information and comment on these issues. In addition, DOE notes that since publication of the January 2016 Final Rule, as well as the subsequent energy conservation standards final rule, 8 it has received inquiries from stakeholders related to implementation of and compliance with the regulatory requirements for pumps. This RFI discusses these issues and notes the additional information that would be needed if DOE decided to propose amending its current test procedure.

This RFI covers pumps and relevant components of pumps, such as the “bare pump”, “mechanical equipment”, “driver”, and “control”, all of which are defined at 10 CFR 431.462.

Some manufacturers distribute kits of unassembled components that customers (including end users or distributors) may purchase and assemble into finished equipment that meets the definition of a pump or a bare pump (see additional discussion in section II.D.2 of this RFI). Manufacturers may also otherwise distribute various pump parts together in commerce.

Issue 1: DOE requests comment on the definitions of “pump” and its components and whether any of the terms should be amended, and if so, how the terms should be amended. In particular, DOE requests comment on whether the terms are sufficient to identify which equipment is subject to the test procedure and whether any test procedure amendments are required to ensure that all such equipment can be appropriately tested in accordance with the test procedure.

The following sections address in detail various elements related to the scope of the test procedure. DOE seeks input regarding these elements to help determine what specific changes, if any, might be needed to improve the current test procedure's ability to determine pump energy efficiency in a manner consistent with the requirements set out in 42 U.S.C. 6314.

The current DOE test procedure for pumps applies only to certain rotodynamic pumps  9 that are defined as “clean water pumps”. 10 CFR 431.462. Specifically, it applies to five categories of clean water pumps with specific characteristics. 10 CFR 431.464(a)(1). Pumps are further delineated into equipment classes based on nominal speed of rotation and operating mode ( i.e., constant load or variable load). 10 CFR 431.465.

The five categories of clean water pumps to which the test procedure applies are: End suction close-coupled (“ESCC”); end suction frame mounted/own bearings (“ESFM”); in-line (“IL”); radially split, multi-stage, vertical, in-line diffuser casing (“RSV”); and submersible turbine (“ST”) pumps. 10 CFR 431.464(a)(1)(i). DOE defines each of these five categories in 10 CFR 431.462.

Issue 2: DOE requests comment on whether DOE's five pump categories sufficiently represent the market and technology available for clean water pumps; whether these categories are sufficiently defined in order to ensure that the categories are mutually exclusive; or whether any of these categories or descriptions should be amended.

Definitions relevant to the pump categories listed above and applicable to this test procedure include “close-coupled pump,” “end suction pump,” “mechanically-coupled pump,” and “single axis flow pump,” See 10 CFR 431.462 (defining each of these terms).

Determining the applicability of the pump categories relies in part on the defined terms “close-coupled pump” and “mechanically-coupled pump” DOE defines a close-coupled pump as a pump having a motor shaft that also acts as the impeller shaft, while a mechanically-coupled pump is one that has its own impeller shaft and bearings separate from the motor shaft. ( Id. ) DOE is aware that certain pumps may have their own shaft, but with no bearings to support that shaft. Additionally, DOE notes that while its close-coupled pump definition describes a pump in which the motor shaft also serves as the pump shaft, the definition does not provide any detail on how the motor and pump shaft may be connected. DOE has observed that some manufacturers describe close-coupled pumps as using an adapter to mount the impeller directly to the motor shaft. The coupling type is the only differentiator between end suction close-coupled pumps, which are “close-coupled pumps”, and end suction frame mounted/own bearings pumps, which are “mechanically-coupled pumps”. In the January 2016 Final Rule, DOE noted that it intended for the equipment category definitions for ESFM and ESCC pumps to be mutually exclusive, to ensure that pumps that are close-coupled to the motor and have a single impeller and motor shaft would be part of the ESCC equipment category while all other end suction pumps that are mechanically-coupled to the motor and for which the bare pump and motor have separate shafts would be part of the ESFM equipment category. 81 FR 4096.

Issue 3: DOE requests comment on the definitions of “close-coupled pump” and “mechanically-coupled pump” and whether the terms should be revised to achieve the differentiation described above—and if so, how. DOE also requests comment on whether the terms themselves are specific enough to ensure that end suction close-coupled pumps and end suction frame mounted/own bearings pumps remain mutually exclusive. Specifically, DOE seeks information on whether there are pumps being sold in commerce that may not meet the “close-coupled” or “mechanically-coupled” definitions but would otherwise meet the definition for an “end suction” pump.

Determining the applicability of the pump categories also relies in part on the defined terms “single axis flow pump” and “end suction pump.” IL pumps are defined as single axis flow pumps, and ESCC pumps are defined as end suction pumps. The definition of single axis flow pump does not explicitly state whether the axis is defined by the suction opening to the volute  10 or the suction opening at the perimeter of the pump. A close-coupled pump can be designed with a tangential discharge volute ( i.e., a design in which the suction and discharge openings do not share a common axis).

Issue 4: DOE requests comment on how manufacturers are currently categorizing close-coupled pumps with tangential discharge volutes relative to the five pump categories defined at 10 CFR 431.464.

Issue 5: DOE requests comment on whether it should provide additional detail in the definitions of single-axis flow pumps and/or end suction pumps regarding tangential discharge volute configurations, or whether the existing definitions are sufficient to determine individual pump classifications.

The applicable scope for the test procedure is limited to the five pump categories discussed previously, with flow rate, maximum head, design temperature range, motor type, bowl diameter, and speed additionally specified in 10 CFR 431.464(a)(1)(ii).

The applicable scope for the test procedure also excludes fire pumps, self-priming pumps, prime-assist pumps, magnet driven pumps, pumps for nuclear facilities, and pumps meeting certain military specifications. 10 CFR 431.464(a)(1)(iii).

In response to the September 2020 Early Assessment RFI, NEEA commented that while the test procedure scope covers a large portion of the U.S. commercial and industrial pump market, pumps with similar characteristics may be subject to the DOE test procedure and standards while some are not. NEEA stated that this may create market confusion and inconsistency in ratings (NEEA, No. 8 at p. 8). NEEA specifically highlighted small vertical inline pumps (“SVIL”) below 1 horsepower as recommended by DOE's Circulator Working Group, 11 pumps operating with motors at speeds different than 1800 rpm or 3600 rpm, and submersible turbine pumps with a bowl diameter greater than 6 inches as examples of pumps that DOE should consider including as part of an expanded scope. ( Id. )

Issue 6: DOE seeks comment on the percentage of manufacturer pump models that fall within the scope of the current test procedure and those models that fall outside the scope of the procedure. DOE also seeks information regarding how manufacturers address this situation when communicating performance in catalogs and other related literature.

Issue 7: DOE requests shipment and market performance data for SVIL pumps below 1 horsepower (“hp”); pumps operating with motors at speeds different than 1800 rpm or 3600 rpm ( e.g., non-induction motors with a range of speed of rotation starting above 4,320 revolutions per minute, as further discussed in section II.C.3); submersible turbine pumps with a bowl diameter greater than 6 inches; and other pumps that are currently excluded from scope based on the pump characteristics provided at 10 CFR 431.464(a)(1)(ii) ( e.g., pumps designed to operate with greater than 4 pole induction motors) that should be considered for inclusion in the test procedure scope.

NEEA also supported the Circulator Working Group recommendation to adopt test procedures for Circulator Pumps (NEEA, No. 8 at p. 8). DOE notes that it may consider the testing of circulator pumps in a separate rulemaking. DOE also notes that the Circulator Working Group characterized SVIL pumps as potential substitutes for circulator pumps and recommended using the pumps test procedure to measure the performance of SVIL pumps, with necessary modifications made as determined by DOE (EERE-2016-BT-STD-0004-0058, recommendation #1B).

HI and the American Petroleum Institute (“API”) publish standards that include design criteria for different pump configurations. Section 2.1.3.4 of ANSI/HI  12 Standard 2.1-2.2, “Rotodynamic Vertical Pumps of Radial, Mixed, and Axial Flow Types for Nomenclature and Definitions,” describes vertically separate discharge sump pumps, a category of pump that includes line shaft (“VS4”) pumps and cantilever (“VS5”) pumps. Section 9.3 of API Standard 610, “Centrifugal Pumps for Petroleum, Petrochemical, and Natural Gas Industries”  13 also provides a description of VS4 and VS5 pumps. Both VS4 and VS5 pumps are vertically suspended, volute pumps with a single casing and with a discharge column that is separate from the shaft column. The line shaft of a VS4 pump is supported by one or more bearings throughout the center column, while the line shaft of a VS5 pump is cantilevered and has no support bearing within the shaft column. The pump equipment categories defined by DOE do not explicitly reference VS4 or VS5 pumps, and some pumps may simultaneously fit the DOE definition of an ESFM pump and the API definition of a VS4 or VS5 pump. However, the scope of the current DOE test procedure includes only clean water pumps (see 10 CFR 431.464(a)(i)) and most VS4 and VS5 pumps are not designed for clean water. To the extent that a VS4 or VS5 pump is a “clean water pump” that meets the definition of ESFM and the other applicable criteria, it would be within the scope of equipment subject to DOE's Appendix A test procedure.

Issue 9: DOE requests comment on whether the test procedure should be amended to explicitly address line shaft pumps and cantilever pumps such as VS4 and VS5 pumps as described in the HI and API standards, and if so, how the definition should be amended.

Section 1.2.9.2 of ANSI/HI Standard 1.1-1.2, “Rotodynamic Centrifugal Pumps for Nomenclature and Definitions” and section 9.2 of API Standard 610 describe between-bearing (“BB”) pumps with bearings on both ends of the rotating assembly. “BB1” pumps are axially-split, one- or two-stage pumps that are mounted to a baseplate and driven by a motor via a flexible coupling. BB1 pumps are not explicitly excluded from the scope of coverage and the definition of IL pumps could be understood to include BB1 pumps. However, BB1 pumps are not typically designed for clean water (the scope of the current DOE test procedure includes only clean water pumps) and have horsepower ratings greater than the 200 hp limit of pumps currently within the scope of the DOE test procedure.

In addition, BB1 pumps do not have an “overhung impeller.” An “overhung impeller” generally is an impeller that is mounted on the end of a shaft and that is cantilevered or “overhung” from the bearing supports. Although not included in the definition of “in-line pump,” IL pumps that are single-stage generally have an overhung impeller.

Issue 10: DOE requests comment on whether any pumps that meet the description of BB1 pumps (as described in the HI and API standards) are designed for clean water use and are rated below 200 hp.

Issue 11: DOE requests comment on whether pumps that meet the description of BB1 pumps (as described in the HI and API standards) may be tested according to the DOE test procedure for pumps, or if special instructions or accommodations would be needed to test BB1 pumps.

DOE specifies the constant load pump energy index (“PEI CL ”) as the test metric for pumps sold without continuous or non-continuous controls, and the variable load pump energy index (“PEI VL ”) as the test metric for pumps sold with continuous or non-continuous controls. 10 CFR 431.465. As noted, a “continuous control” is a control that adjusts the speed of the pump driver continuously over the driver operating speed range in response to incremental changes in the required pump flow, head, or power output. 10 CFR 431.462. A “non-continuous control” is a control that adjusts the speed of a driver to one of a discrete number of non-continuous preset operating speeds, and does not respond to incremental reductions in the required pump flow, head, or power output. Id.

Generally, the PEI metric is a ratio of the pump energy rating (“PER”) of the tested pump to the PER of a minimally compliant pump (“PER STD ”). The pump energy rating for constant load pumps (“PER CL ”) represents an average of driver power input at 75%, 100%, and 110% of flow at the best efficiency point (“BEP”), 14 in which the flows are achieved by varying the operating head to follow the pump performance curve. The pump energy rating for variable load pumps (“PER VL ”) represents an average of driver power input at 25, 50, 75, and 100 percent of flow at BEP, in which the flows are achieved by speed reduction to follow a specified system curve. As noted, BEP is defined as the pump hydraulic power operating point (consisting of both flow and head conditions) that results in the maximum efficiency. 10 CFR 431.462

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

DOE sought comment in the September 2020 Early Assessment RFI on whether another consensus-based test procedure could be adopted, with or without modification, and meet the criteria in EPCA related to representativeness and test burden (85 FR 60736-60737). HI noted that it was not aware of any consensus-based test procedures that could be adopted (HI, No. 6, p. 3). NEEA stated that it was not aware of any test procedure that would improve on the DOE test procedure and that they found DOE's test procedure to be the only one that satisfies the criteria in EPCA related to representativeness and test burden (NEEA, No. 8, p. 6).

DOE's test procedure for pumps generally incorporates HI 40.6-2014. 10 CFR 431.463. Since publication of the January 2016 Final Rule, the Hydraulics Institute updated HI 40.6-2014 with the publication of HI Standard 40.6-2016, “Methods for Rotodynamic Pump Efficiency Testing” (“HI 40.6-2016”), The 2016 update aligned the definitions and procedures described in HI Standard 40.6-2014 with the DOE test procedure for pumps published in the January 2016 Final Rule. HI 40.6-2016 revisions to HI 40.6-2014 are summarized below, with the referenced sections noted in parentheses:

• Clarified that the standard covers efficiency testing of rotodynamic pumps that are included in DOE regulations for energy conservation. (Section 40.6.1 “Scope”)

• Updated the calculation of bare pump efficiency to match the current DOE test procedure requirements for plotting test data to determine the BEP rate of flow. (Section 40.6.6.3 “Performance curve”)

• Updated the description and requirements of the pressure tap configuration for measurement sections at inlet and outlet of the pump. (Section A.3.1.3 “Pressure taps”)

• Expanded the requirements for measurement of driver power input with power quality and measurement requirements that meet the requirements of the current DOE test procedure. (Section C.4.3 “Electric power measurements,” and section C.4.3.1 “Additional requirements for measurement of driver power input to the motor and controls”)

• Added an informative appendix with examples regarding the determination of systematic uncertainty of the devices for measurement of required quantities on test. (Appendix G “Determination, application, and calculation of instrument (systematic) uncertainty (informative)”)

DOE is aware that HI plans to publish another updated version of HI 40.6, “Methods for Rotodynamic Pump Efficiency Testing” (“HI 40.6-2021”). HI 40.6-2021 contains the following modifications to HI 40.6-2014, in addition to the HI 40.6-2016 changes listed previously:

• References ANSI/HI 14.1-14.2 “Rotodynamic Pumps for Nomenclature and Definitions” (“ANSI/HI 14.1-14.2”) which supersedes ANSI/HI 1.1-1.2-2014 “American National Standard for Rotodynamic Centrifugal Pumps for Nomenclature and Definitions” and ANSI/HI 2.1-2.2-2014 “Rotodynamic Vertical Pumps of Radial, Mixed and Axial Flow Types for Nomenclature and Definitions”. (Section 40.6.4.1 “Vertically suspended pumps”; Section 40.6.4.3 “All other pump types”)

• Includes a new appendix (Appendix E) for the testing of circulator pumps. (Appendix E “Testing Circulator Pumps”)

In the September 2020 Early Assessment RFI, DOE asked stakeholders to comment on the potential effect of incorporating HI 40.6-2016 by reference as the DOE test procedure for pumps. 85 FR 60734, 60737. Specifically, DOE requested information on whether the updates in HI 40.6-2016 impact the measured values, and if so, to what extent. Id. DOE also requested information on the impact of the updates in HI 40.6-2016 to the test burden and the representativeness of the test results. Id.

In response, Grundfos, NEEA, and HI urged DOE to incorporate by reference HI 40.6-2021 rather than HI 40.6-2016 (Grundfos, No. 7, p. 2; NEEA, No. 8, p. 6; HI, No. 6, p. 1). HI stated that HI 40.6-2016 included updates to match DOE's test procedure and did not impact measured values, burden or representativeness (HI, No. 6 at p. 3). Both HI and NEEA stated that HI 40.6-2021 further includes editorial revisions and adds circulator pump testing, that also would not impact measured values, burden, or representativeness. (HI, No. 6 at p. 3; NEEA, No. 8, p. 6) Grundfos agreed that HI 40.6-2021 does not affect overall implementation of the standard, but stated that if DOE decides not to incorporate HI 40.6-2021 by reference, then it should at least incorporate HI 40.6-2016 by reference (Grundfos, No. 7, p. 2). More generally, NEMA indicated that it would be unduly burdensome to require manufacturers to switch from using the current HI testing standard to a different method of testing and evaluation in light of the relatively short time that the current method has been in place. (NEMA, No. 4, p. 2).

Issue 12: DOE requests comments on whether it should adopt HI 40.6-2016 or HI 40.6-2021 as the DOE test procedure for pumps, and requests that stakeholders provide specific information as to why one version of HI 40.6 should be incorporated by reference over the other. DOE also seeks information on whether the incorporation by reference of HI 40.6-2016 or HI 40.6-2021 would impact measured values, and if so, by how much. Additionally, the current DOE test procedure currently incorporates by reference ANSI/HI 2.1-2.2-2014 which was replaced by ANSI/HI 14.1-14.2. DOE seeks comment on ANSI/HI 14.1-14.2, referenced by HI 40.6-2021, including whether, and if so how, it would affect the scope of DOE's test procedures and energy consumption standards for commercial and industrial pumps.

In the September 2020 Early Assessment RFI, DOE noted that while its test procedure for pumps incorporates by reference HI 40.6-2014, DOE also includes additional provisions related to measuring the hydraulic power, shaft power, and electric input power of pumps, inclusive of electric motors and any continuous or non-continuous controls. 85 FR 60734, 60737. Since publication of the January 2016 Final Rule, the International Electrotechnical Commission (“IEC”) published standard IEC 61800-9-2:2017 “Adjustable speed electrical power drive systems—Part 9-2: Ecodesign for power drive systems, motor starters, power electronics and their driven applications—Energy efficiency indicators for power drive systems and motor starters,” (“IEC 61800-9-2:2017”) which addresses test methods and reference losses for “power drive systems” ( i.e., motors and their associated controllers). Specifically, Annex A of IEC 61800-9-2:2017 describes reference losses for complete drive modules ( i.e. controls) and power drive systems at different operating points comparable to the approach already presented in section VII.E.1.2 of Appendix A of that testing standard. DOE requested comments on whether it should consider substituting the model in Annex A of IEC 61800-9-2:2017 for the current calculations in section VII of Appendix A, or whether any considerations for updates should be postponed until the second edition of IEC 61800-9-2 is published. Id. A second edition of this standard is expected to be published in March 2022 to further address the test method and reference losses. 15

In response to DOE's request for comment, the majority of commenters urged DOE to maintain the current test approach in section VII.E.1.2 of Appendix A. (Grundfos, No. 7, p. 2; NEEA, No. 8, p. 7; CA IOUs, No. 5, p. 4; HI, No. 6, p. 3; NEMA, No. 4, p. 2). Grundfos, NEEA, the Hydraulic Institute, and NEMA all asserted that substituting IEC 61800-9-2 for the current approach would add burden without achieving additional energy savings (Grundfos, No. 7, p. 2; NEEA, No. 8, p. 7;; HI, No. 6, p. 3; NEMA, No. 4, p. 2). However, NEMA stated that it is an active participant in efforts to revise IEC 61800-9-2 and that consideration of this standard may be warranted for future test procedure development for equipment classes not yet covered by DOE regulation (NEMA, No. 4, p. 2). The PRC requested that DOE consider incorporating IEC 61800-9-2 as a consensus-based standard to facilitate international trade (PRC, No. 3, p. 2). The CA IOUs stated that substituting IEC 61800-9-2 for the current approach would overstate motor losses. (CA IOUs, No. 5, p. 4)

Since publication of the January 2016 Final Rule, the Air Movement and Control Association (“AMCA”) published AMCA 207-17 “Fan System Efficiency and Fan System Input Power Calculation” (“AMCA 207-17”). 16 AMCA 207-17 provides default values and equations to calculate the performance of various motors and control combinations, including currently regulated motors and control combinations ( i.e., variable frequency drives (“VFD”), variable-speed drives, inverter drives). See AMCA 207-17 section 4.1.3.1, “Regulated polyphase induction motors controlled by a VFD”.

In response to the September 2020 Early Assessment RFI, the CA IOUs suggested that DOE reconsider the combined VFD and motor loss equations created for section VII, “Calculation-Based Approach for Pumps Sold With Motors and Controls,” of Appendix A in favor of the methods in AMCA 207-17. (CA IOUs, No. 5, pp. 1-4). Specifically, the CA IOUs stated that the efficiency of a motor/control combination determined using the calculations in section VII of Appendix A showed more variation as a function of horsepower than values predicted by AMCA 207-17. (CA IOUs, No. 5, p. 2). The CA IOUs also stated that the full-load efficiency of the motor and control combination calculated using section VII of Appendix A led to lower efficiency values than those predicted by AMCA 207-17. (CA IOUs, No. 5, p. 3). The CA IOUs further commented that updating the calculations in section VII of Appendix A with relevant equations from AMCA 2017-17 should not require any repeat testing, but the change would impact the PEI calculation and might impact pump compliance with the pump energy conservation standards. (CA IOUs, No. 5, p. 4).

DOE notes that the calculations in section VII of Appendix A were developed during the 2015 Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”) negotiations and were voted on by the members of the working group, including the CA IOUs (Docket EERE-2013-BT-NOC-0039-0092). As noted by the CA IOUs, the equations in section VII of Appendix A were considered the best available method of calculation at the time (CA IOUs, No. 5, p. 2).

Issue 13: DOE requests comment on the applicability of the VFD/motor efficiencies in AMCA 207-17 to pumps, and whether DOE should consider replacing the calculations in section VII of Appendix A with those in AMCA 207-17. DOE also requests comment on whether adoption of the AMCA 207-17 approach would be representative for pumps. Additionally, DOE requests comment on whether such a change would impact PEI ratings (and if so, how), manufacturer testing burden, or manufacturer pump designs.

In response to DOE's September 2020 Early Assessment RFI, the PRC recommended that DOE incorporate by reference ISO/ASME 14414 “Pumps System Energy Assessment” (“ISO/ASME 14414”) in order to facilitate international trade (PRC, No. 3, p. 3). DOE understands that ISO/ASME 14414 (the most recent version of which was published in January 2019) provides a method for evaluating pump system energy consumption, including the effects of heat, noise and vibration on over-sizing of pump system components ( i.e., pumps, process components, and control valves), and provides methods for identifying and documenting opportunities for improvement in energy use. 17 Consequently, ISO/ASME 14414's scope appears to go beyond determining the representative energy use of individual bare pumps or pumps sold with motors and/or controls.

Issue 14: DOE requests comment on whether DOE should consider incorporating any aspect of ISO/ASME 14414 into its test procedure for pumps—and if so, which aspects and why.

DOE's test procedure for pumps includes calculation-based and testing-based options that apply based on pump configuration (including style of motor and control) as distributed in commerce. See Appendix A, Table 1. The calculation-based options rely on a bare pump test and are described in sections III, V, and VII of Appendix A. The testing-based options rely on a “wire-to-water” test and are prescribed in sections IV and VI of Appendix A. The calculation-based options may reduce test burden by allowing a manufacturer to test a sample of bare pumps and use that data to rate multiple pump configurations using calculation-based methods. Although testing-based methods require wire-to-water testing of individual pump configurations, they may allow manufacturers to more accurately represent pump, motor, or control performance if so desired. DOE's definition of a “basic model” for pumps provides additional options for reducing test burden within the parameters of Table 1 (see section II.D.1 of this RFI).

In the September 2020 Early Assessment RFI, DOE noted that its calculations of testing costs assumed that the majority of pump basic models would be certified based on the bare pump configuration and that subsequent ratings for the same bare pump sold with any number of applicable motors and continuous controls could be generated using the calculation-based approach. DOE also sought comment on whether any modifications to the test procedure could reduce test burden while still allowing for accurate determinations of energy use during a representative average use cycle. 85 FR 60734, 60736.

In response, HI stated that, based on a survey of HI members, industry testing costs significantly exceeded DOE's estimates, and that wire-to-water testing represented 20 percent of total industry testing (HI, No. 6, p. 2). Grundfos commented that approximately 45 percent of its testing was wire-to-water testing—specifically, for pumps sold with motors that can only operate when driven by an inverter ( i.e., inverter-only motors) (Grundfos, No. 7, p. 2). HI, Grundfos, NEEA, and NEMA stated that in order to reduce test burden, DOE should work with stakeholders to develop a calculation method for pumps sold with inverter-only motors (HI, No. 6 at p. 1-2; Grundfos No. 7 at p. 1; NEEA, No. 8 at pp. 5-6; NEMA, No. 4 at p. 2). The potential for development of a calculation-based method for pumps sold with inverter-only motors is further discussed in section II.C.3 of this RFI.

Grundfos, HI and NEEA further recommended that DOE make no additional changes to the test procedure that would require re-testing. HI commented that such changes would add industry burden and result in no additional energy savings, while NEEA added that the current test procedure provides a sufficiently accurate indicator of energy consumption (Grundfos, No. 7, p. 2; HI, No. 6 at p. 2; NEEA, No. 8 at p. 1).

Issue 15: In order to further assess opportunity for reducing burden, DOE requests additional information on how manufacturers are implementing Table 1 of Appendix A (aside from inverter-only motors). Specifically, DOE seeks comment on the extent to which pumps sold with multiple motor and control configurations are tested multiple times using testing-based methods; the extent to which pumps sold with single-phase motors are being rated as bare pumps (using a calculation-based approach) rather than by a testing-based approach; and the extent to which pumps sold with motors (other than inverter-only motors) are being tested with a calculation-based approach as opposed to a testing-based approach.

Issue 16: DOE requests comment on whether any revisions to Table 1 of Appendix A could be considered to maintain or improve the information derived from the test procedure while reducing burden with no impact on the PEI rating for currently regulated pumps.

This section addresses how DOE could consider amending the test procedure for pumps sold with inverter-only motors to reduce test burden.

Inverter-only motors are currently not subject to DOE's electric motor energy conservation standards, and as such, based on Table 1, currently require wire-to-water testing. As discussed in section II.C.2 of this RFI, commenters requested that DOE work with stakeholders to develop a calculation-based method for pumps sold with inverter-only motors. In addition, based on Table 1, pumps sold with inverter-only motors but without controls must use a testing-based approach resulting in a PEI CL rating, rather than a PEI VL rating. HI and Grundfos commented that a calculation method for pumps sold with inverter-only motors and without controls should allow for a PEI VL rating in order to appropriately represent energy use to the consumer (HI, No. 6 at p. 2; Grundfos, No. 7 at p.1). HI and NEEA, noted that a calculation-based method resulting in a PEI VL rating for inverter-only motors would help encourage the expanded use of this more efficient equipment. (HI, No. 6 at p. 2; NEEA, No. 8, p. 5).

In consideration of developing such a method, DOE is contemplating constructing a table (or tables)  18 similar to Table 2—“Default Nominal Full Load Submersible Motor Efficiency by Motor Horsepower and Pole,” as well as a table (or tables) similar to Table 4—“Motor and Control Part Load Loss Factor Equation Coefficients for Section VII.E.1.2.2 of Appendix A.” This strategy was suggested by NEEA, HI, and NEMA (NEEA, No. 8, p. 6; HI, No. 6, p. 2; NEMA, No. 4, p. 2). More generally, Grundfos recommended that DOE work with stakeholders to establish a calculation-based method for pumps with inverter-only motors. (Grundfos, No. 7, p. 1)

Issue 17: DOE requests information and feedback on the categories of motors for which DOE should consider allowing the use of a calculation-based method. Specifically, DOE requests information on the categories of inverter-only motors ( e.g., electronically commutated motors, permanent magnet alternative current motors (“PMACs”), or other AC induction motors) that should evaluate using a calculation-based method.

Issue 18: DOE requests feedback and comments on the general approach for including default values and equations to represent inverter-only motor performance. DOE requests data and information to support the development of default values for inverter-only motors (similar to the values developed for submersible motors in Table 2 of Appendix A) as well as equations that would represent the part-load efficiency or losses of these motors (similar to the equations developed for certain motor and drive combinations in Table 4 of Appendix A). To the extent DOE should consider a different approach, DOE requests information on the methodology it should consider and supporting data.

Issue 19: DOE requests information on the percentage of pumps sold with inverter-only motors without controls (and thus would be impacted by a change in rating from PEICL to PEIVL).

As previously discussed, in response to the September 2020 Early Assessment RFI, Grundfos, HI, and NEEA commented that the current test procedure produces results that sufficiently measure energy use during a representative average use cycle and recommended that DOE make no substantial changes to the current test approach (Grundfos, No. 7, p. 2; HI, No. 6, p. 2; NEEA, No. 8, pp. 1-2). However, the following sections discuss two specific topics raised by stakeholders that may impact the representative average use cycle.

The current test procedure requires that constant load PER be determined using 75%, 100% and 110% of BEP flow, with each value multiplied by 0.33 and the results summed to determine PER CL (See Appendix A, sections III.E, IV.E, V.E). Similarly, for variable load pumps, energy ratings are determined at 25%, 50%, 75%, and 100% of BEP flow with each point weighted by 0.25 and summed to obtain a value for PER VL (See Appendix A, sections VI.E, VII.E).

In response to the September 2020 Early Assessment RFI, NEEA referenced its pumps database that was developed through the Regional Technical Forum  19 and suggested that DOE use the database to evaluate the impact of pump load profile on estimated energy savings (NEEA, No. 8, p. 3). In its comments, NEEA provided constant speed load profile data for pumps at 25%, 50%, 75%, 100%, 110% and greater than 110% of BEP flow, which indicate that real-world operating hours may be different than those assumed in the DOE test procedure (NEEA, No. 8, pp. 3-4). NEEA observed that while the data may be representative of load profiles in commercial application, they stated that modifying the load profile for either constant or variable load pumps would likely increase burden while having little impact on final PEI values. (NEEA, No. 8, pp. 4-5). NEEA recommended that DOE maintain the current load profiles in the test procedure (NEEA, No. 8, p. 5).

Issue 20: DOE seeks additional comment on the load profile distribution for constant and variable load pumps and the effect of the distribution on PEI value.

The scope of the test procedure is limited to pumps designed to operate with either a 2- or 4-pole induction motor or a non-induction motor with a speed of rotation operating range between 2,880 and 4,320 rpm and/or 1,440 and 2,160 rpm. 10 CFR 431.464(a)(1)(ii). Section I.C.1 of Appendix A specifies selection of nominal speed of rotation of either 1,800 or 3,600 rpm, depending on the number of poles of the motor or the operating range of non-induction motors.

In response to the 2020 Early Assessment RFI, the CA IOUs recommended that DOE evaluate whether rating pumps at nominal speeds higher than 3600 rpm, when paired with a variable-speed drive, would provide consumer value and be cost effective. (CA IOUs, No. 5 at p. 4) The CA IOUs stated that incorporating a higher nominal speed(s) in the test procedure would require retesting and urged DOE to consider if ratings for pumps at higher nominal speeds might be determined by calculation rather than wire-to-water testing. Id. NEEA also commented that the energy use of pumps capable of operating with motors at speeds higher than 3600 rpm, such as high-speed permanent magnet motors, may not be appropriately represented by the current DOE test procedure (NEEA, No. 8, p. 8-9).

DOE notes that pumps with speeds higher than 3600 rpm have historically made up a small percentage of the market, and DOE has had limited access to shipment and efficiency data for this equipment (See Docket No. EERE-2013-BT-NOC-0039-0060, at p. 4, which provides a summary of the fourth negotiated rulemaking working group meeting for commercial and industrial pumps held on March 26-27, 2014).

Issue 21: DOE requests comment on whether the nominal motor speeds of 1800 rpm and 3600 rpm used in the current DOE test procedure appropriately represent the operation and energy use of pumps that are capable of higher speeds. If these motor speeds are not representative, DOE requests comment on which speeds would be representative and whether a testing-based or calculation-based approach would provide more representative energy use values and the expected cost burden of each. Additionally, DOE requests test data at speeds other than the nominal speeds specified in the current test procedure in order to determine if a calculation-based method is appropriate.

The DOE test procedure includes provisions for calculations and rounding in Section I.D.3 of Appendix A. Generally, all measured data must be normalized such that it represents performance at nominal speed of rotation in accordance with HI 40.6-2014, and all calculations must be carried out using raw measured values without rounding. See Appendix A, section I.D.3. PER is rounded to three significant digits and PEI is rounded to the hundredths place. Id. Explicit rounding directions are not provided for other parameters.

In addition, 10 CFR 429.59(a) includes requirements for determining the represented value of PEI based on a tested sample. DOE's certification requirements include reporting of other parameters that are derived from the test procedure, including pump total head in feet at BEP and nominal speed; volume per unit time ( i.e., flow rate) in gallons per minute at BEP and nominal speed; and calculated driver power input at each load point i.e., corrected to nominal speed in horsepower. 10 CFR 429.59(b)(2).

DOE is considering whether to propose that these values be represented by the mean of the value for each tested unit in the sample, or whether there is a more appropriate approach. DOE is also considering specifying rounding requirements for these values in the test procedure (for a given tested unit) and/or in the requirements for determination of represented values (for a sample of tested units).

Issue 22: DOE requests comment on whether the test procedure should specify rounding requirements for parameters other than PER and PEI; and if so, what those rounding requirements should be.

Issue 23: DOE requests comment on whether it should specify an approach for determining represented values for parameters other than PEI, and if so, what approach should be established and why.

DOE's certification regulations for pumps at 10 CFR 429.59 require that manufacturers determine the represented value for each basic model through testing in accordance with the sampling provisions specified in that section. As applied to pumps, DOE defines the term “basic model” in 10 CFR 431.462.

Pump manufacturers may elect to group similar individual pump models within the same equipment class into the same basic model to reduce testing burden, provided all representations regarding the energy use of pumps within that basic model are identical and based on the most consumptive unit. 81 FR 4086, 4093. Accordingly, manufacturers may pair a given bare pump with several different motors (or motor and controls) and can include all combinations under the same basic model if the certification of energy use and all representations made by the manufacturer are based on the most consumptive bare pump/motor (or motor and controls) combination for each basic model and all individual models are in the same equipment class. Id.

In addition, clauses (1) and (2) of the basic model definition align the scope of the “basic model” definition for pumps with the requirements that testing be conducted at a certain number of stages for RSV and ST pumps and at full impeller diameter). 20 10 CFR 431.462. Clause (3) of the definition addresses basic models inclusive of pump models for which the bare pump differs in number of stages or impeller diameter. ( Id. ) Specifically, variation in motor sizing ( i.e., variation in the horsepower rating of the paired motor as a result of different impeller trims or stages within a basic model) is not a basis for requiring units to be rated as unique basic models. However, variation in motor sizing may also be associated with variation in motor efficiency, which is a performance characteristic; typically, larger motors are more efficient than smaller motors.

In order to group pumps sold with motors into a single basic model, clause (3)(i) provides that for basic models inclusive of pump models for which the bare pump differs in number of stages or impeller diameter, each motor offered in a pump included in that basic model must have a full-load efficiency at the Federal minimum for NEMA Design B electric motors (10 CFR 431.25) or the same number of bands above the Federal minimum for each respective motor horsepower as described in Table 3 of Appendix A. ( Id. ) Clause (3)(ii) provides a similar allowance for submersible turbine pumps, where, in order to group pumps sold with motors into a single basic model, each motor offered in a pump included in that basic model must have a full load motor efficiency at the default nominal full load submersible motor efficiency shown in Table 2 of Appendix A, or the same number of bands above the default nominal full load submersible motor efficiency for each respective motor horsepower as described in Table 3 of Appendix A. ( Id. )

Issue 24: DOE requests comment on how manufacturers are currently making use of the basic model grouping provisions when rating their pumps, and whether any general clarifications or modifications are needed.

DOE has received several inquiries related to application of the basic model definition to pumps sold with VFDs of varying phase, voltage, and/or efficiency; pumps sold with inverter-only motors such as PMAC motors; and pumps sold with both single-phase and polyphase motors.

For pumps sold with motors, when determining how to group models within a basic model, manufacturers must consider clause (3), which currently allows grouping of models based on the number of bands above “nominal full load motor efficiency rated at the Federal minimum (see the current table for NEMA Design B electric motors at § 431.25)”, or for submersible turbine pumps, based on the number of bands above the default nominal full load submersible motor efficiency. DOE may consider inclusion of explicit language that applies this clause to pumps sold with specific kinds of motors, or to pumps sold with VFDs. For example, inverter-only motors may have a rated efficiency ( i.e., nameplate efficiency) that exceeds the Federal minimum for NEMA Design B electric motors (10 CFR 431.25) (based on hp, poles, and enclosure construction of that motor), as might certain single-phase motors subject to the energy efficiency standards in 10 CFR 431.446 and tested in accordance with 10 CFR 431.444. 21 In addition, as discussed in section II.C.3. of this RFI, stakeholders have recommended that DOE develop default nominal full load efficiency values for inverter-only motors, which could also provide a baseline for grouping pumps sold with those motors. (NEEA, No. 8, p. 6; Grundfos, No. 7, p. 1; HI, No. 6, p. 2; NEMA, No. 4, p. 2).

DOE notes that for motors not currently subject to the DOE test procedure for electric motors, it is not clear how manufacturers would determine the full-load efficiency of a given motor, or specifically, determine the number of bands above the Federal minimum or above the default efficiency. For inverter-only motors, DOE notes that IEC recently published an industry test procedure that provides test methods for measuring the efficiency of these motors: IEC 60034-2-3:2020, “Rotating electrical machines—Part 2-3: Specific test methods for determining losses and efficiency of converter-fed AC motors” (“IEC 60034”) and IEC 61800-9-2:2017 (discussed in section II.C.1.b of this RFI).

Issue 25: DOE requests comment on whether to amend clause (3) in the basic model definition for pumps to provide additional detail regarding pumps sold with inverter-only motors, single-phase motors, or other non-NEMA Design B electric motors.

Issue 26: DOE requests comment on which motor categories not currently subject to DOE's test procedure and standards are commonly combined with pumps, as well as their relative efficiency compared to regulated NEMA Design B electric motors, and which corresponding industry test procedure (if any) should be used to establish their “rated” efficiency.

Issue 27: DOE requests comment on how VFDs are typically paired with pumps and motors; for example, whether motors of various sizes are paired with the same VFD. DOE further requests comment on whether a pump manufacturer would know which VFD commonly paired with its pumps would result in the most consumptive rating.

DOE notes that in order to group pumps sold with both single-phase motors and pumps sold with polyphase motors into a single basic model, manufacturers would need to utilize a testing-based approach on the most consumptive configuration, as pumps sold with polyphase motors cannot be rated as bare pumps, and pumps sold with single-phase motors cannot be rated using a calculation-based approach (see Table 1 to Appendix A).

Issue 28: DOE requests comment on whether the allowed grouping under the same basic model for pumps sold with both single phase and polyphase motors requires more explicit direction in 10 CFR part 431.

The test procedure for pumps provides the basis for the labeling requirement at 10 CFR 431.466. The following specific information must be included on the nameplate and in marketing materials: PEI CL or PEI VL , as applicable; bare pump model number; and if transferred directly to an end user, the impeller diameter. 10 CFR 431.466(a)(1)(i). The representations included on the nameplate and in marketing materials must be based on testing of the pump in accordance with Appendix A and the representation must fairly disclose the results of such testing. ( See 42 U.S.C. 6314(d))

DOE is aware of certain situations in which the test procedure and labeling requirements do not explicitly address how the results of testing are to be included on the nameplate or in marketing materials. One example is a bare pump distributed as a pump kit that could be assembled as either an ESCC or ESFM pump. As required by Appendix A, this pump kit would be tested as a bare pump, if distributed without a motor (see Table 1 to Appendix A). As part of the DOE test procedure, PER STD is calculated based on the category and nominal speed of rotation of the tested pump. Appendix A, Sections I.C.1 and II.B. In this case, the pump kit would be “tested” twice, once using a calculation based on ESCC and once based on ESFM, and must be labeled with the most consumptive PEI relevant to the kit. Another example is that pumps distributed with motors (and rated as such in accordance with Table 1 to Appendix A) may be more appropriately labeled with the manufacturer's individual model number than with a bare pump model number.

An additional example would be a pump distributed in commerce with multiple stages—including different sized impellers in different stages. As required by Appendix A, this pump would be tested at full impeller diameter ( i.e., the maximum diameter impeller with which a given pump basic model is distributed in commerce). Appendix A, Section I.C. In this case manufacturers may include on the nameplate the largest impeller diameter only, as well as sufficient identifying information in the individual model number to identify inclusion of reduced impeller sizes.

Issue 29: DOE requests comment on whether the test procedure should explicitly specify how to determine the information required to be marked on a label in accordance with 10 CFR 431.466, and if so, how.

Issue 30: DOE requests comment on whether the term “full impeller diameter” should be modified to explicitly address pumps with multiple stages and varying impeller diameters, and if so, how.

In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of the existing test procedures for pumps.

Issue 31: DOE requests comment on whether the existing test procedures limit a manufacturer's ability to provide additional features to consumers on pumps. DOE particularly seeks information on how the test procedures could be amended to reduce the cost of new or additional features and make it more likely that such features are included on pumps, while still meeting the requirements of EPCA.

Issue 32: DOE requests comments on any potential amendments to the existing test procedures that would address impacts on manufacturers, including small businesses.

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

Issue 33: DOE seeks, as part of this RFI, comments, data and information on the issues presented in the September 2018 RFI as they may be applicable to pumps.

DOE invites all interested parties to submit in writing by the date under the DATES heading comments and information on matters addressed in this RFI and on other matters relevant to DOE's early assessment of whether more stringent energy conservation standards are not warranted for commercial and industrial pumps.

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

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

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

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

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

Include contact information each time you submit comments, data, documents, and other information to DOE. Faxes will not 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 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. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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

DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on April 9, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0303; Project Identifier MCAI-2020-01367-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Kathleen Arrigotti, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218; email kathleen.arrigotti@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0211, dated October 5, 2020 (EASA AD 2020-0211); and EASA AD 2021-0026, dated January 20, 2021 (EASA AD 2021-0026) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes. EASA AD 2021-0026 refers to Airbus A350 Airworthiness Limitations Section (ALS) Part 4, Variation 5.1, dated July 22, 2020. Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after July 22, 2020, must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

The FAA issued AD 2019-20-01, Amendment 39-19754 (84 FR 55495, October 17, 2019) (AD 2019-20-01), to require, among other things, repetitive greasing of certain thrust reverser actuators (TRAs). For those TRAs identified as batch 02 in EASA AD 2018-0234R2, dated September 17, 2019 (which is required by AD 2019-20-01), the repetitive greasing task has since been incorporated into Airbus A350 Airworthiness Limitations Section (ALS), Part 4, Systems Equipment Maintenance Requirements (SEMR), Revision 05 Issue 02, dated June 25, 2020, which is specified in EASA 2020-0211. Accomplishing the actions in this proposed AD would therefore terminate the repetitive greasing of batch 02 TRAs required by paragraph (g) of AD 2019-20-01.

This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is proposing this AD to address hazardous or catastrophic airplane system failures. See the MCAI for additional background information.

EASA AD 2020-0211 and EASA AD 2021-0026 describe new or more restrictive airworthiness limitations for airplane systems and safe life limits. These documents are distinct because they apply to different airplane configurations. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2020-0211 and EASA AD 2021-0026 described previously, as incorporated by reference. Any differences with EASA AD 2020-0211 or EASA AD 2021-0026 are identified as exceptions in the regulatory text of this AD.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (k)(1) of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0211 and EASA AD 2021-0026 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2020-0211 and EASA AD 2021-0026 in their entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA ADs does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD.

Service information specified in EASA AD 2020-0211 and EASA AD 2021-0026 that is required for compliance with EASA AD 2020-0211 or EASA AD 2021-0026 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0303 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in the AMOCs paragraph under “Other FAA Provisions.” This new format includes a “New Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

The FAA estimates that this proposed AD affects 15 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2019-0293; Product Identifier 2017-SW-052-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to David Hatfield, Aviation Safety Engineer, Aircraft Systems Section, Technical Innovation Policy Branch, FAA, 10101 Hill wood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email david.hatfield@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0147, dated August 10, 2017 (EASA AD 2017-0147), to correct an unsafe condition for Airbus Helicopters Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, EC135T3, EC635P2+, EC635P3, EC635T1, EC635T2+, and EC635T3 helicopters. EASA advises that several cases of insufficient clearance between a certain T/R bearing connection and the helicopter structure were detected during inspections of helicopters on the production line. EASA states that this condition, if not corrected and in the case of an unglued bearing, could lead to blockage of the pedal controlling the T/R thrust and loss of the T/R control. EASA further advises that this could result in a forced landing with damage to the helicopter and injury to the occupants.

Accordingly, EASA AD 2017-0147 requires modifying the T/R control installation by adding a Teflon washer, which reduces the degree of freedom in case of a drifting bearing at the affected connection. EASA AD 2017-0147 also requires a functional test for clearance, and depending on the results, either accomplishing additional corrective actions or contacting Airbus Helicopters for instructions.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is issuing this NPRM after determining that an unsafe condition described previously is likely to exist or develop on other helicopters of the same type designs.

The FAA reviewed Airbus Helicopters Alert Service Bulletin EC135-67A-031, Revision 0, dated March 30, 2017 (ASB EC135-67A-031), for Airbus Helicopters Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, EC135T3, EC635P2+, EC635P3, EC635T1, EC635T2+, and EC635T3 helicopters. For serial numbers (S/N) up to 1254 inclusive, except S/N 1235, this service information specifies retrofitting a Teflon washer on the T/R controls, performing a functional test of the modified T/R control installation to inspect for clearance, and making any necessary adjustments. This service information advises that S/N 1255 and up will have the Teflon washer installed in production.

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

This proposed AD would apply to Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC125T2+, and EC135T3 helicopters with a S/N up to 1254 inclusive (except for S/N 1235) and would require modifying the T/R control within 360 hours time-in-service (TIS) by installing a Teflon washer and performing a functional test in accordance with specified portions of ASB EC135-67A-031. Based on the results of the functional test, this proposed AD would require making repairs in accordance with FAA-approved procedures.

The EASA AD sets compliance times at 12 months, while this proposed AD would require compliance within 360 hours TIS. The EASA AD applies to Airbus Helicopters Model 635 T1, 635 T2+, 635 T3, 635 P2+, 635 P3 helicopters, and this proposed AD would not because those models do not have an FAA type certificate. The EASA AD requires contacting Airbus Helicopters for approved repair procedures, while this proposed AD would require a repair using FAA-approved procedures. The EASA AD requires revising the “aircraft maintenance program,” whereas this AD does not because not all U.S. operators are required to have a maintenance program.

The FAA estimates that this AD, if adopted as proposed, would affect 331 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Modifying the T/R control installation and conducting a functional test would take about 3 work-hours and parts would cost about $25 for an estimated cost of $280 per helicopter and $92,680 for the U.S. fleet.

If required, adjusting the clearance would take about 1 work-hour for an estimated cost of $85 per helicopter.

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

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

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

For the reasons discussed, I certify this proposed regulation:

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

2. Will not affect intrastate aviation in Alaska, and

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0298; Project Identifier MCAI-2020-01549-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Siddeeq Bacchus, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7362; fax 516-794-5531; email 9-avs-nyaco-cos@faa.gov . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

TCCA, which is the aviation authority for Canada, has issued TCCA AD CF-2020-48, dated November 19, 2020 (TCCA AD CF-2020-48) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus Canada Limited Partnership Model BD-500-1A10 airplanes.

This proposed AD was prompted by a report that an incorrect low-pressure distribution supply duct may be installed in the forward cargo compartment. The FAA is proposing this AD to address incorrect low-pressure supply ducts, which can lead to a decrease in the pressure above the passenger cabin floor, which could allow smoke penetration into the passenger cabin in the case of a fire or smoke event below the floor. See the MCAI for additional background information.

TCCA AD CF-2020-48 describes procedures for inspecting the part number of the low-pressure distribution supply duct and replacing the duct with a duct having the correct part number. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in TCCA AD CF-2020-48, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and the European Union Aviation Safety Agency (EASA) to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, TCCA AD CF-2020-48 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with TCCA AD CF-2020-48 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information specified in TCCA AD CF-2020-48 that is required for compliance with TCCA AD CF-2020-48 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0298 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 2 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0273; Project Identifier AD-2021-00050-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mehdi Lamnyi, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA received a report from the manufacturer of an in-service loss of engine thrust control on a GE90-115B model turbofan engine on October 27, 2019, that resulted in uncommanded high thrust. Analysis by the manufacturer found accumulated thermal cycles of the MN4 integrated circuit in the EEC, through normal operation, causes the solder ball joints to wear out and eventually fail over time. Since the GE90 and the GEnx model turbofan engines share the same EEC hardware and experience similar thermal and vibratory environments, the manufacturer determined that GEnx model turbofan engines are susceptible to the same type of failure. This condition, if not addressed, could result in loss of engine thrust control and reduced control of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed GE GEnx-1B Service Bulletin (SB) 73-0097 R01, dated January 29, 2021, and R00, dated December 17, 2020; and GE GEnx-2B SB 73-0090 R01, dated January 28, 2021, and R00, dated December 17, 2020. This service information specifies procedures for replacing the EEC MN4 microprocessor on GEnx-1B and GEnx-2B model turbofan engines, as applicable. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require revising the existing operator's FAA- approved MEL by incorporating into the MEL the dispatch restrictions listed in paragraph (g) of this AD. This proposed AD would also require initial and repetitive replacement of the EEC MN4 microprocessor using an approved overhaul procedure.

The FAA considers that this proposed AD would be an interim action. If final action is later identified, the FAA might consider additional rulemaking.

The FAA estimates that this AD, if adopted as proposed, would affect 308 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0269; Project Identifier MCAI-2020-01417-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Thomas Niczky, Aerospace Engineer, Avionics and Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7347; fax 516-794-5531; email 9-avs-nyaco-cos@faa.gov . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

TCCA, which is the aviation authority for Canada, has issued TCCA AD CF-2020-41, issued October 15, 2020 (TCCA AD CF-2020-41) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes.

This proposed AD was prompted by reports of IFESs; investigations are ongoing to determine the root cause. Investigation results indicated that an IFES could be caused by high altitude climbs at higher thrust settings on engines with certain thrust ratings. The FAA is proposing this AD to provide the flightcrew with information and procedures for operation above 29,000 feet to prevent uncontained failure of an engine during an IFES, which could result in structural damage and reduced structural integrity of the airplane. See the MCAI for additional background information.

TCCA AD CF-2020-41 specifies procedures for amending the applicable AFM to incorporate a new limitation and revise the normal procedures to limit the engine N1 setting for flights above 29,000 feet.

Airbus Canada Limited Partnership has issued Supplement 21—Operation Above 29000 Feet, of Airbus A220-100 Airplane Flight Manual, Publication BD500-3AB48-22200-00, Issue 016, dated October 16, 2020. This supplement specifies limitations, information, and procedures for operation above 29,000 feet.

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

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

This proposed AD would require accomplishing the actions specified in TCCA AD CF-2020-41 described previously, as incorporated by reference, except as specified under “Differences Between this Proposed AD and the MCAI” in this NPRM, and except for any differences identified as exceptions in the regulatory text of this AD.

The MCAI requires a borescope inspection for signs of damage of the 1st stage axial low-pressure compressor (LPC) rotor of each engine, and allows for the optional installation of health management unit reports to monitor N1 exceedances. This proposed AD does not include either provision.

The MCAI also requires amending the AFM by “incorporating the Supplement 21 Operation above 29000 feet from AFM Revision 15-A dated 10 September 2020.” Since the MCAI was issued, Supplement 21 was revised. This proposed AD would require the incorporation of Supplement 21—Operation Above 29000 Feet, of Airbus A220-100 Airplane Flight Manual, Publication BD500-3AB48-22200-00, Issue 016, dated October 16, 2020.

The MCAI requires operators to “inform all flight crews” of revisions to the AFM, and thereafter to “operate the aeroplane accordingly.” However, this proposed AD would not specifically require those actions as those actions are already required by FAA regulations.

FAA regulations require operators furnish to pilots any changes to the AFM (ex: 14 CFR 121.137, and to ensure the pilots are familiar with the AFM (ex: 14 CFR 91.505). As with any other training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review.

FAA regulations also require pilots to follow the procedures in the existing AFM including all updates. 14 CFR 91.9 requires that no person may operate a civil aircraft without complying with the operating limitations specified in the AFM. Therefore, including a requirement in this proposed AD to operate the airplane according to the revised AFM would be redundant and unnecessary. Further, compliance with such a requirement in an AD would be impracticable to demonstrate or track on an ongoing basis; therefore, a requirement to operate the airplane in such a manner would be unenforceable.

These differences have been coordinated with TCCA.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, TCCA AD CF-2020-41 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with TCCA AD CF-2020-41 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information specified in TCCA AD CF-2020-41 that is required for compliance with TCCA AD CF-2020-41 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0269 after the FAA final rule is published.

The FAA considers this proposed AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this proposed AD affects 42 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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 E airspace extending upward from 700 feet above the surface at Scott City Municipal Airport, KS, to support instrument flight rule operations at this 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. Commenters 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-2021-0159/Airspace Docket No. 21-ACE-6.” 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 Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface within a 6.5-mile (decreased from 6.9-mile) radius of Scott City Municipal Airport, Scott City, KS; and updating geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is the result of an airspace review due to the decommissioning of the Scott City NDB which provided navigation information for the instrument procedures at this airport.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, 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:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003).

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

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

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

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

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

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

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

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

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

TTB received a petition from Terry Dereniuk, on behalf of the Growers of Upper Lake Valley, proposing the establishment of the “Upper Lake Valley” AVA. The proposed Upper Lake Valley AVA is located within Lake County, California, and lies within the established North Coast AVA (27 CFR 9.30) and partially within the established Clear Lake AVA (27 CFR 9.99). The proposed AVA contains approximately 17,360 acres and has 16 commercially-producing vineyards covering a total of approximately 300 acres. At the time the petition was submitted, at least one additional vineyard was planned within the proposed AVA.

Although most of the proposed Upper Lake Valley AVA is located within the existing Clear Lake AVA, a small portion of the northwest corner of the proposed AVA would, if established, extend beyond the boundary of the Clear Lake AVA. To address the overlap of the two AVAs and account for viticultural similarities between the proposed Upper Lake Valley AVA and the larger Clear Lake AVA, the petition also proposes to expand the boundary of the Clear Lake AVA so that the entire proposed Upper Lake Valley AVA would be included within the Clear Lake AVA.

According to the petition, the distinguishing features of the proposed Upper Lake Valley AVA include its hydrogeology, soils, and climate. Although the petition included information on the geology of the proposed AVA and the surrounding regions, TTB determined that geology is such an integral part of hydrogeology and the characteristics of the aquifers the waters therein that it should not be considered a distinguishing feature separate from hydrogeology. Unless otherwise noted, all information and data pertaining to the proposed AVA contained in this document are from the petition for the proposed Upper Lake Valley AVA and its supporting exhibits.

The proposed Upper Lake Valley AVA is located along the northern shore of Clear Lake and incorporates the town of Upper Lake, California. The petitioners proposed the name “Upper Lake Valley” to reflect the proposed AVA's topography of alluvial valley floors and the surrounding hillsides. The petition included evidence that the name has been used to describe the region of the proposed AVA since the late 1800's. For example, an 1881 book about the history of Lake County makes several references to “Upper Lake Valley.”  1 The book contains a list of geographical features in Lake County, including an entry for “Upper Lake Valley,” which is located “around the head of Clear Lake, and is eight miles long and from one to five miles wide.”  2 In another reference, the book notes that an 1842 land grant included “a part of Upper Lake Valley.”  3 A third reference in the book states that a series of valleys, including Bachelor Valley, “all center around the head of Clear Lake, and form what is known as Upper Lake Valley.”  4 TTB notes that Bachelor Valley is located within the proposed Upper Lake Valley AVA.

The petition also included examples of the current use of the name “Upper Lake Valley” to describe the region of the proposed AVA. For example, the Lake County Groundwater Management Plan  5 makes multiple references to the Upper Lake Valley groundwater basin and includes a map  6 which shows the basin covering the region of the proposed AVA. The Lake County Winegrape Commission's web page notes, “Mountain valleys around Clear Lake, including Big Valley District, Upper Lake Valley, Clover Valley, Bachelor Valley, and Scotts Valley, are level with deep alluvial deposits.”  7 A real estate website  8 and a website for finding city sales tax rates  9 both include listings for “Upper Lake/Upper Lake Valley.” Finally, a recent newspaper article about the history of growing green beans in the region of the proposed AVA states that a prominent bean farmer's “acreage was located in the Upper Lake valley [sic].”  10

The proposed Upper Lake Valley AVA encompasses a series of valleys, along with their surrounding hillsides, that run in a north-northeasterly direction from the shores of Clear Lake. The northern boundary is generally concurrent with the northern boundary of the established Clear Lake AVA and separates the proposed AVA from the higher, rugged elevations of the Mendocino National Forest. The eastern boundary follows the 1,600-foot elevation contour and also separates the proposed AVA from the Mendocino National Forest. The southern boundary follows the northern shore of Clear Lake. A portion of the western boundary follows a series of roads and the 1,600-foot elevation contour to separate the proposed AVA from the higher terrain of the Mayacamas Mountains. The remainder of the western boundary is a straight line between points that is concurrent with the established Clear Lake AVA boundary and also separates the proposed AVA from the Mayacamas Mountains.

The distinguishing features of the proposed Upper Lake Valley AVA are its hydrogeology, soils, and climate.

According to the petition, the proposed Upper Lake Valley AVA has four identified water-bearing formations: Quaternary alluvium; Pleistocene terrace deposits; Pleistocene lake and floodplain deposits; and Plio- pleistocene cache creek. These formations make up the Upper Lake Groundwater Basin, which covers the majority of the proposed AVA. The Quaternary alluvium and Pleistocene terrace, lake, and floodplain deposits are the primary sources of groundwater within the proposed AVA. The petition states that groundwater levels within the Upper Lake Groundwater Basin are generally within 10 feet of the surface and fluctuate between 5 and 15 feet lower in the fall. Lowering of water levels during dry months is not excessive and is balanced by rapid recovery of water level elevations during the wet months.

According to a bulletin from the California Department of Water Resources, the predominant groundwater types in the Upper Lake Groundwater Basin are magnesium bicarbonate and calcium carbonate water. 11 The bulletin also shows high iron, manganese, and calcium levels in the groundwater, as well as high electrical conductivity. Boron was detected in some wells used in the bulletin's analysis, but high boron levels are not associated with the groundwater in the proposed Upper Lake Valley AVA. The bulletin's analysis showed a total dissolved solids average of 500 mg/L.

The petition states that water for irrigation is critical for wine grape production within the proposed AVA. The water quality in the proposed Upper Lake Valley AVA is suitable for irrigation and has few impediments. The high levels of calcium are desirable, since low levels of calcium may cause deficiencies in vine growth. Low levels of boron in the groundwater are also desirable for irrigation purposes, as levels of 2 mg/L and above are toxic to most plants. The low levels of dissolved solids are also beneficial, since total dissolved solids levels above 2,000 mg/L are very likely to cause vine growth problems. However, the high iron and manganese levels in the water of the proposed AVA can cause irrigation equipment to clog.

The Gravelly Valley Groundwater Basin lies to the north of the proposed Upper Lake Valley AVA, within the Mendocino National Forest. The petition states that no additional information was available about this basin. To the east of the proposed AVA lies the High Valley Groundwater Basin, which is formed by rocks of the Jurassic-Cretaceous Franciscan Formation and Quaternary Holocene volcanics. The groundwater is characterized as magnesium bicarbonate with high levels of ammonia, phosphorous, chloride, iron, boron, and manganese. During the spring, the High Valley Groundwater Basin water level is 10 to 30 feet below the surface, with the summer drawdown 5 to 10 feet below the spring level. Spring groundwater levels have fluctuated widely over the years, with incidences of slow recovery after periods of drought.

Additionally, Clear Lake is to the immediate south of the proposed AVA, while the Big Valley Groundwater Basin is farther south. The prominent groundwater formations in this basin are Quaternary Alluvium and Upper Pliocene to Lower Pliocene Volcanic Ash Deposit. California Groundwater Bulletin 118 notes that boron is an impairment in the water in some parts of the Big Valley Groundwater Basin. 12 Groundwater levels in the northern portion of the Big Valley Basin are usually 5 feet below the surface and decrease 10 to 50 feet during the summer. In the uplands of the basin, the depth to water in the spring is much deeper, ranging from 70 to 90 feet below the surface and dropping an additional 30 to 40 feet over the summer. To the west of the proposed AVA is the Scotts Valley Groundwater Basin, which consists of rocks from the Jurassic-Cretaceous Franciscan Formation. California Groundwater Bulletin 118 lists iron, manganese, and boron as impairments of groundwater in this basin. 13 Depth to water in the spring is 10 feet below the surface on the average, with spring to summer drawdown ranging from 30 to 60 feet below spring levels depending on location across the Scotts Valley Groundwater Basin.

According to the petition, many different soil series make up the soils of the proposed Upper Lake Valley AVA. However, three general soil map units broadly characterize the area: Millsholm-Skyhigh-Bressa; Still-Lupoyoma; and Tulelake-Fluvaquentic-Haplawuolls. Soils from these three units make up over 56 percent of the total area of the proposed AVA. Millsholm-Skyhigh-Bressa soils are formed from sandstone and shale and are primarily loams and clay loams. These soils are moderately deep, moderately-well to well-drained, and have slopes that range from moderately sloping to steep. Soils from the Still-Lupoyoma general map unit occur on the nearly-level valley floors and consist of loams and silt loams. These soils are very deep, with rooting depths of 60 inches or more, and are moderately-well to well-drained. Soils from the Tulelake-Fluvaquentic-Haplawuolls map unit occur in marshy and reclaimed areas around Clear Lake and Tule Lake. Soils of this unit are very deep silty clay loams with poor to very poor drainage.

The petition states that soil composition, depth, and drainage are key components of vine and fruit development. According to the petition, most of the vineyards in the proposed Upper Lake Valley AVA are planted on Still-Luopyoma soils due to the gentle slopes, which create less of an erosion hazard and provide good drainage. These soils are also deep, which allows the roots to extend farther than in shallow soils. Grapevines are “deep-rooted plants that fully explore the soil to 6 to 10 feet or more if root penetration is not obstructed by hardpan, impervious clay substratum, toxic concentrations of salts, or a free water table.”  14 The petition states that soils of the Tulelake-Fluvaquentic-Haplawuolls map unit, which are also very deep, may also be suitable for viticulture where poor drainage can be mitigated. Although soils of the Millsholm-Skyhigh-Bressa map unit are more shallow than soils of the other two map units, the petition states that shallow soils can also be desirable for viticulture because “[t]he quality of fruit is better, although yields are usually lower, on soils * * * limited in depth by hardpan, rocks, or clay substrata.”  15 However, because these soils are found on steeper slopes, there is a risk of erosion.

To the north of the proposed Upper Lake Valley AVA, within the Mendocino National Forest, the soils belong to the Maymen-Etsel and the Sanhedrin-Speaker-Kekawaka soil map units. These soils are not very prevalent in the proposed AVA and are described as shallow soils with outcroppings of large stones, including greywackes and sandstone. To the east of the proposed AVA, the most common soil map units are the Maymen-Etsel, Sobrante-Guenoc-Hambright, and the Sanhedrin-Speaker-Kekawaka units, which are also not common within the proposed AVA and occur mostly on very steep slopes. South of the proposed AVA, within the Big Valley District AVA (27 CFR 9.232), the soils belong to the Cole-Clear Lake Variant-Clear Lake general soil map unit. To the west of the proposed AVA, the soils are from the Millsholm-Skyhigh-Bressa soil map unit and then transition to the Maymen-Etsel soil map unit in the higher elevations of the Mayacamas Mountains.

The petition for the proposed Upper Lake Valley AVA included information on the climate of the region, including rainfall, frost-free days, wind, and growing degree days.

Rainfall. According to the petition, rainfall amounts in Lake County vary greatly due to the rapid changes in topography between the higher elevations of the Mayacamas Mountains in the western portion of the county and the lower elevations of Bachelor, Middle Creek, and Clover Creek Valleys, where the proposed AVA is located. The table below shows the average annual rainfall amounts for the weather station in Upper Lake, California, which is within the proposed AVA, for the years 2011 through 2016. The data was collected by the Western Weather Group  16 on behalf of the Lake County Winegrape Commission. Data was unavailable for 2013.

The average annual rainfall amount for the available years was 33.96. The petition states that, although rainfall data was not available from the weather station for 2013, the average rainfall amounts for the available years is comparable to the average rainfall recorded by the Western Region Climate Center  17 for the period of January 1, 1893, through November 12, 2006, which is 34.09 inches.

The petition also included annual predicted rainfall amounts for the Upper Lake Groundwater Basin, where the proposed AVA is located, and the surrounding groundwater basins. The data shows that annual predicted rainfall amounts for the Upper Lake Groundwater Basin are higher than the predicted amounts for each of the surrounding basins, except for the basin to the north of the proposed AVA.

The petition states that the high annual rainfall amounts in the proposed Upper Lake Valley AVA recharge the Upper Lake Groundwater Basin, which is used for irrigation. The rainfall amounts are also sufficient during the growing season to provide hydration for grapevines. The petition states that grapes require an average of 8 to 11 acre inches of water per year in order to successfully produce and ripen fruit. 19

Frost-free days. According to the petition, the growing season, which is broadly defined as the number of days between the last frost event in the spring and the first frost event in the fall, is an important indicator for successful wine grape cultivation. The following table shows the median, maximum, and minimum number of frost-free days recorded at the Upper Lake climate station from 2011 through 2016, 20 as well as from the seven established AVAs in Lake County, which were derived from the 1971-2000 climate normals. 21 Data was not provided for the region to the north of the proposed AVA.

The data in the table indicates that the proposed Upper Lake Valley AVA has substantially shorter median, maximum, and minimum frost-free periods than the established AVAs to the east, southeast, and west, and a longer frost-free period than the established AVAs to the south, except for the Red Hills Lake County AVA (27 CFR 9.169). The proposed AVA has a frost-free period similar in length to that of the Clear Lake AVA, which encompasses the proposed AVA and also includes the Big Valley District-Lake County (27 CFR 9.232), Kelsey Bench-Lake County (27 CFR 9.233), High Valley (27 CFR 9.189), and Red Hills Lake County AVAs.

The petition states that the length of the frost-free period for a region impacts viticulture. Spring frosts that occur after bud break can cause tender shoots and forming grape clusters to burn and die, resulting in crop loss and lower yields. Early fall frosts impact the ability of sugar levels in the grapes to reach a desirable Brix level.

Wind. The petition states that the winds in the proposed Upper Lake Valley AVA are influenced by the mountains that lie to the west, north, and east, and by Clear Lake to the south. Winds within the proposed AVA are predominantly from the south-southeast or north during the daytime and from the north during the night. Wind speeds within the proposed AVA are lower than within many other parts of Lake County, but the winds are frequent during both the day and night. Winds are calm (below 1 mile per hour) only 2.23 percent of the time during daytime hours and 3.04 percent of the time during nighttime hours. 22 The highest daytime wind speeds range from 11 to 20 miles per hour but only occurred 1.25 percent of the time. Wind speeds between 1 and 5 miles per hour accounted for 82.88 of the daytime wind speeds. Nighttime wind speeds were also mostly between 1 and 5 miles per hour, accounting for 88.86 of the nighttime wind speeds. Wind speeds above 20 miles per hour were not recorded within the proposed AVA.

The petition included wind speed information from the Kelsey Bench-Lake County, Red Hills Lake County, and Guenoc Valley AVAs (27 CFR 9.26) for comparison. That information is presented in the table below and was collected from the same time period as the wind speed data from the proposed AVA. TTB notes that none of the surrounding region had wind speeds above 30 miles per hour.

Although the predominant daytime and nighttime wind speeds in the proposed AVA and the surrounding regions were between 1 and 5 miles per hour, the proposed Upper Lake Valley had the greatest percent of wind speeds within that range. The proposed AVA also had the smallest percentage of calm winds, defined as wind speeds of less than 1 mile per hour. The proposed AVA also did not record any wind speeds over 20 miles per hour, whereas the Kelsey Bench-Lake County AVA recorded daytime wind speeds over 20 miles per hour and the Guenoc Valley AVA recorded both daytime and nighttime wind speeds over 20 miles per hour.

The petition states that air movement keeps the fruit and canopies cool and dry. In this way, the air movement plays a key role by preventing mildew and other pests in the vineyard and translates to a lesser need for application of pesticides.

Heat summation. The petition provided information on the heat summation values of the proposed Upper Lake Valley AVA and the surrounding regions. Heat summation is calculated as the sum of the mean monthly temperature above 50 degrees Fahrenheit (F) during the growing season from April 1 to October 31 and is expressed as growing degree days (GDDs). A baseline of 50 degrees F is used because there is almost no shoot growth below this temperature. 23 The following table is derived from information in the petition and shows the median, maximum, and minimum GDD accumulations for the proposed Upper Lake Valley AVA and the surrounding regions. 24 GDD information was not provided for the region to the north of the proposed AVA.

According to the data in the table, the proposed Upper Lake Valley AVA has a lower median GDD accumulation than each of the surrounding regions for which data was provided. The maximum GDD accumulation for the proposed AVA is lower than each of the regions except for the Big Valley District-Lake County AVA to the south and the Benmore Valley AVA to the west. The minimum GDD accumulation for the proposed AVA is also lower than each of the surrounding regions except for the larger Clear Lake AVA, which encompasses the proposed AVA as well as the Big Valley District-Lake County, Kelsey Bench-Big Valley, and Red Hills Lake County AVAs and most of the High Valley AVA.

The petition states that GDD accumulations are an important factor in predicting a site's suitability for growing specific grape varieties. Varietals that require warmer climates in order to ripen will do better in regions with higher GDD accumulations. The petition states that the moderate climate of the proposed AVA makes it suitable for growing a variety of grapes, including Sauvignon Blanc.

In summary, the hydrogeology, soils, and climate of the proposed Upper Lake Valley AVA distinguish it from the surrounding regions. The following table summarizes the distinguishing features of the proposed AVA and compares them to the features of the surrounding regions.

T.D. ATF-174, which published in the Federal Register on May 8, 1984 (49 FR 19466), established the Clear Lake AVA. T.D. ATF-174 cited elevation, climate, and watershed as distinguishing features of the Clear Lake AVA. Elevations for vineyards ranged from 1,300 to 1,800 feet. The Clear Lake AVA has a growing season of 223 days and an average annual rainfall amount of about 37 inches. The AVA is also located within the Clear Lake watershed, which is said to affect the climate patterns of the AVA.

The proposed Upper Lake Valley AVA is located in the northern portion of the Clear Lake AVA and shares some of the same general features. For instance, vineyards in the proposed AVA are planted at elevations between 1,330 and 1,450 feet, which is within the range of vineyard elevations for the Clear Lake AVA. The proposed AVA is also within the Clear Lake watershed, and Clear Lake has a moderating effect on the proposed AVA's climate. However, the proposed Upper Lake Valley AVA petition describes the Clear Lake AVA as having many different microclimates, including the proposed Upper Lake Valley AVA. As a microclimate within the Clear Lake AVA, the proposed AVA has unique characteristics, which may warrant its establishment as a new AVA. For example, the proposed AVA has a shorter median growing season and receives more rainfall annually than the Clear Lake AVA overall. The proposed AVA also has a median heat summation of 3,158 GDDs, while the Clear Lake AVA has a higher overall median heat summation of 3,267 GDDs.

As previously noted, the petition to establish the proposed Upper Lake Valley AVA also requested an expansion of the established Clear Lake AVA. The proposed Upper Lake Valley AVA is located in the northern portion of the Clear Lake AVA. Most of the proposed Upper Lake Valley AVA, if established, would be located within the current boundary of the Clear Lake AVA. However, unless the boundary of the Clear Lake AVA is modified, a small portion of the proposed Upper Lake Valley AVA, along Scotts Creek, would be outside the Clear Lake AVA.

Currently, the Clear Lake AVA boundary in the vicinity of the proposed AVA and the proposed expansion area follows a straight line drawn from the summit of Griner Peak, south of the proposed AVA, to the summit of Hells Peak, north of the proposed AVA. The portion of the proposed Upper Lake Valley AVA that would be outside the Clear Lake AVA (the “proposed expansion area”) follows Scotts Creek west of Tule Lake and contains one vineyard. If the proposed modification of the Clear Lake AVA boundary is finalized, the entire proposed Upper Lake Valley AVA would be situated within the Clear Lake AVA.

The petition states that the name “Clear Lake” is associated with the proposed expansion area. T.D. ATF-174 noted that Scotts Valley is a prominent growing area within the Clear Lake AVA. The southern portion of Scotts Valley, as well as the portion of Scotts Creek east of Tule Lake, are both currently within the Clear Lake AVA. The proposed expansion area contains the northern portion of Scotts Valley and the portion of Scotts Creek west of Tule Lake. The expansion petition states that because Scotts Valley, and by extension Scotts Creek which runs through the valley, was specifically mentioned in the original Clear Lake AVA petition as a region within the area known as “Clear Lake,” the proposed expansion area also meets this criteria to be known as “Clear Lake.”

T.D. ATF-174 defined elevation, watershed, and climate as the distinguishing features of the Clear Lake AVA. The expansion petition asserts that the proposed expansion area shares these characteristics of the Clear Lake AVA. First, elevations within the Clear Lake AVA range from 1,300 to over 4,000 feet, according to T.D. ATF-174. At the time the AVA was established, most of the vineyards were planted on flat or gently rolling land with elevations between 1,300 and 1,800 feet. The proposed expansion petition states that elevations within the proposed expansion area are similar to those of the Clear Lake AVA. The vineyard within the proposed expansion area is located at approximately 1,360 feet, well within the range of elevations of other vineyards found in the Clear Lake AVA.

T.D. ATF-174 stated that the Clear Lake watershed is an important feature of the Clear Lake AVA because of its effect on the climate within the AVA. The proposed expansion petition included a map of the Clear Lake watershed, which shows that the entirety of Scotts Creek, including the portion within the proposed expansion area, is within the Clear Lake watershed. The map is included as Figure 5 in the petition addendum and is included in the public docket.

Finally, T.D. ATF-174 described the climate of the Clear Lake AVA. Annual rainfall within the established AVA was approximately 37 inches, and the region had a frost-free period of approximately 223 days. Within the Clear Lake AVA, growing degree accumulations placed the northern portion in the Winkler Region II and the southern portion in Winkler Region III, including the portion of Scotts Valley currently within the AVA. According to the proposed expansion petition, the average annual rainfall within the proposed expansion area from 2012 through 2017 was 33.61 inches. Although this is lower than the average annual rainfall amount for the Clear Lake AVA described in T.D. ATF-174, it is within the range of the 2012-2017 rainfall amounts for other locations within the Clear Lake AVA which were included in the expansion petition. Those average amounts ranged from a high of 36.37 at Upper Lake to a low of 23.68 at Kelseyville. Within the proposed expansion area, growing degree accumulations for the period from 2013 to 2016 ranged from 2,985 to 3,364, which places the region in Winkler Regions II and III, similar to the Clear Lake AVA as described in T.D. ATF-174.

TTB notes that the expansion petition included data on the frost-free period of the proposed expansion area and other regions within the Clear Lake AVA. However, the data suggested that the frost-free period in the proposed expansion area is shorter than that of the Clear Lake AVA. Therefore, based on the data, TTB cannot determine that the frost-free period within the proposed expansion area is the same as within the Clear Lake AVA.

The North Coast AVA was established by T.D. ATF-145, published in the Federal Register on September 21, 1983 (48 FR 42973). It includes all or portions of Napa, Sonoma, Mendocino, Lake, Marin, and Solano Counties in California. T.D. ATF-145 describes the topography of the North Coast AVA as “valleys between the coast ranges running parallel to the Pacific Ocean shore and the lower slopes of these ranges.” GDD accumulations for the North Coast AVA range from Region I to Region III. 25 Average rainfall in the North Coast AVA varies widely, ranging from 24.8 inches in one location in the AVA to 62.2 inches in another part of the AVA.

The proposed Upper Lake Valley AVA shares some of the same general characteristics as the North Coast AVA. The proposed AVA is comprised of valleys between mountainous areas and the lower slopes of the mountains. The GDD accumulations for the proposed AVA classify it as a low Region III. However, the proposed AVA is much more uniform in its climatic features, namely temperature, soils, and topography than the diverse, multicounty North Coast AVA. In this regard, TTB notes that T.D. ATF-145 specifically states that “approval of this viticultural area does not preclude approval of additional areas, either wholly contained with the North Coast, or partially overlapping the North Coast,” and that “smaller viticultural areas tend to be more uniform in their geographical and climatic characteristics, while very large areas such as the North Coast tend to exhibit generally similar characteristics, in this case the influence of maritime air off of the Pacific Ocean and San Pablo Bay.” Thus, the proposal to establish the Upper Lake Valley AVA is consistent with what was envisioned when the North Coast AVA was established.

TTB concludes that the petition to establish the 17,360-acre Upper Lake Valley AVA and to concurrently modify the boundary of the established Clear Lake AVA merits consideration and public comment, as invited in this notice of proposed rulemaking.

TTB is proposing the establishment of the new AVA and the modification of the existing AVA as one action. Accordingly, if TTB establishes the proposed Upper Lake Valley AVA, then the proposed boundary modification of the Clear Lake would be approved concurrently. If TTB does not establish the proposed Upper Lake Valley AVA, then the present Clear Lake AVA boundary would not be modified.

See the narrative description of the boundary of the petitioned-for AVA and the proposed expansion of the Clear Lake AVA in the proposed regulatory text published at the end of this proposed rule.

The petitioner provided the required maps, and they are listed below in the proposed regulatory text. You may also view the proposed Upper Lake Valley AVA boundary and the proposed expansion of the Clear Lake AVA boundary on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/wine/ava-map-explorer.

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

If TTB establishes this proposed AVA, its name, “Upper Lake Valley,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using the name “Upper Lake Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the AVA name as an appellation of origin if this proposed rule is adopted as a final rule.

The approval of the proposed Upper Lake Valley AVA would not affect any existing AVA, and any bottlers using “Clear Lake” or “North Coast” as an appellation of origin or in a brand name for wines made from grapes grown within the Clear Lake or North Coast AVAs would not be affected by the establishment of this new AVA. The establishment of the proposed Upper Lake Valley AVA would allow vintners to use “Upper Lake Valley,” “Clear Lake,” and “North Coast” as appellations of origin for wines made from grapes grown within the proposed Upper Lake Valley AVA if the wines meet the eligibility requirements for the appellation. Additionally, vintners would be allowed to use “Upper Lake Valley,” “Clear Lake,” and “North Coast” as appellations of origin for wines made from grapes grown within the proposed Clear Lake AVA expansion area if the wines meet the eligibility requirements for the appellation.

TTB invites comments from interested members of the public on whether it should establish the proposed AVA and concurrently modify the boundary of the established Clear Lake AVA. TTB is interested in receiving comments on the sufficiency and accuracy of the name, boundary, soils, climate, hydrogeology, and other required information submitted in support of the petition. In addition, given the proposed Upper Lake Valley AVA's location within the existing Clear Lake and North Coast AVAs, TTB is interested in comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the existing established AVAs. TTB is also interested in comments on whether the geographic features of the proposed AVA are so distinguishable from the surrounding Clear Lake or North Coast AVA that the proposed Upper Lake Valley AVA should no longer be part of that AVA. Please provide any available specific information in support of your comments.

TTB also invites comments on the proposed expansion of the existing Clear Lake AVA. TTB is specifically interested in receiving comments on the similarity of the proposed expansion area to the established Clear Lake AVA, as well as the differences between the proposed expansion area and the areas outside the Clear Lake AVA. Comments should address the boundaries, elevation, climate, watershed, and any other pertinent information that supports or opposes the proposed Clear Lake AVA boundary expansion.

Because of the potential impact of the establishment of the proposed Upper Lake Valley AVA on wine labels that include the term “Upper Lake Valley” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed AVA name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the AVA.

You may submit comments on this notice by using one of the following methods:

• Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this notice within Docket No. TTB-2021-0001 on “ Regulations.gov, ” the Federal e-rulemaking portal, at https://www.regulations.gov . A direct link to that docket is available under Notice No. 200 on the TTB website at https://www.ttb.gov/wine/wine-rulemaking.shtml . Supplemental files may be attached to comments submitted via Regulations.gov .

• U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 200, and also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity via Regulations.gov , please use the “organization” version of the comment form and include the entity's name, as well as your name and position title in the comment. If you comment via postal mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

TTB will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments received about this proposal within Docket No. TTB-2021-0001 on the Federal e-rulemaking portal, Regulations.gov, at https://www.regulations.gov . A direct link to that docket is available on the TTB website at https://www.ttb.gov/wine/wine_rulemaking.shtml under Notice No. 200. You may also reach the relevant docket through the Regulations.gov search page at https://www.regulations.gov .

If provided, posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that the Bureau considers unsuitable for posting.

You may also obtain copies of this proposed rule, all related petitions, maps and other supporting materials, and any electronic or mailed comments that TTB receives about this proposal at 20 cents per 8.5- x 11-inch page. Please note that TTB is unable to provide copies of USGS maps or any similarly-sized documents that may be included as part of the AVA petition. Contact TTB's Regulations and Rulings Division by email using the web form at https://www.ttb.gov/contact-rrd, or by telephone at 202-453-1039, ext. 175, to request copies of comments or other materials.

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

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

Karen A. Thornton of the Regulations and Rulings Division drafted this notice of proposed rulemaking.

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

The additions read as follows:

This is a summary of the Commission's Order in WT Docket No. 20-443; DA 21-370, adopted and released March 29, 2021. The full text of this document, 1 visit FCC's website at https://docs.fcc.gov/public/attachments/FCC-21-13A1.pdf or via the FCC's Electronic Comment Filing System (ECFS) website at http://www.fcc.gov/ecfs. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) Alternative formats are available for people with disabilities (braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. On January 15, 2021, the Commission released a NPRM seeking input on the feasibility of allowing flexible-use services in the 12.2-12.7 GHz band (12 GHz band) while protecting incumbents from harmful interference. 2 The NPRM set deadlines for filing comments and reply comments of April 7, 2021, and May 7, 2021, respectively.

2. On March 19, 2021, the Computer & Communications Industry Association (CCIA), INCOMPAS, Open Technology Institute at New America, and Public Knowledge (“Movants”) filed a motion for a 30-day extension of the these filing deadlines, such that comments would be due May 7, 2021, and reply comments would be due June 7, 2021. 3 The Movants state that the NPRM solicits comment on important factual, legal, technical and policy issues that require thorough analyses from engineers, lawyers, and consultants and will take time to substantively address. 4 Movants further assert that no party will be prejudiced by granting the Motion and that authorizing additional time potentially will allow all interested parties to (1) more fully develop their responses to the Commission's NPRM, leading to a better record; and (2) more fully explore the applicability to the 12 GHz band of sharing solutions developed for use in other frequency bands. 5 The Movants aver that good cause exists for granting the Motion and that doing so would be consistent with past precedent. 6 Parties filing responses to this Motion (Respondents) either support or do not object to a 30-day extension and no opposition has been filed. 7

3. The Commission grants the Motion for Extension of Time. As set forth in § 1.46 of the Commission's rules, 8 the Commission does not routinely grant extensions of time for filing comments in rulemaking proceedings. In this case, however, The Commission finds good cause for granting an extension of the comment and reply comment periods for reasons identified by the Movants and the Respondents. Specifically, the Commission concludes that extension of the comment and reply deadlines to May 7, 2021, and June 7, 2021, respectively, is warranted to provide commenters with additional time to prepare comments and reply comments that fully respond to the complex economic, engineering, and policy issues raised in the NPRM.

4. Accordingly, it is ordered that, pursuant to § 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and 0.131, 0.331, and 1.46 of the Commission's rules, 47 CFR 0.131, 0.331, and 1.46, the Motion for Extension of Time filed by CCIA, INCOMPAS, Open Technology Institute at New America, Public Knowledge is granted.

5. It is further ordered that the deadlines to file comments and reply comments in this proceeding are granted to May 7, 2021, and June 7, 2021, respectively.

Communications equipment, Radio, Reporting and recordkeeping requirements.