Background and Proposed Action

AMS proposed revisions to the assessment collection procedures that would require market agencies to collect the full assessment on sales of live lambs, including the first-handler assessment portion, for remittance to the Lamb Promotion, Research, and Information Board. The proposed assessment collection change would only apply to lambs sold through market agencies ( e.g., commission merchant, auction market, livestock market). Other modes of sale, such as traditional markets ( e.g., first handler purchases from a producer or feeder, independent of a market agency, direct sales) would continue to have assessments remitted through the pass-through collection process.

This document notifies the public of the reopening of the comment period from May 7, 2021 to July 6, 2021. Comments previously submitted during the initial 60-day comment period [October 5, 2020, through December 4, 2020] and the subsequent 30-day reopened comment period [February 22, 2021, through March 24, 2021] need not be resubmitted, as these comments are already incorporated into the public record and will be considered in the final rule.

AMS received 11 comments from stakeholders during the initial sixty-day comment period. These comments represent the perspectives of various organizations and individuals within the stakeholder community and provided AMS additional context for decision making.

AMS reopened the comment period to encourage additional input on a topic identified by one commenter during the initial comment period.

The commenter requested that AMS consider allowing flexibility in the remittance of collected assessments by lower-volume or seasonal market agencies. The commenter suggested that requiring smaller market agencies to remit assessments every month, regardless of their sales volume, could be burdensome for those entities with very small volumes. The commenter asked AMS to consider additional flexibility for small market agencies by allowing them to remit accumulated assessments on a quarterly or annual basis. The proposed rule would require that remittances occur by the 15th day of the month following the month in which lambs were purchased for slaughter or export, regardless of sales volume for that month. The commenter suggested such flexibilities for small market agencies could be based on the average head of lamb sold annually, allowing markets below a specific threshold to remit on a quarterly or annual basis.

AMS is again reopening the comment period to encourage additional input on a topic identified by two commenters during the 30-day reopening comment period from February 22, 2021, to March 24, 2021. The two commenters requested additional time to gather and analyze more data to address the questions asked by AMS in the reopened 30-day comment period; hence the purpose of this notice.

In the previous comment period, AMS sought additional information from stakeholders to consider this type of flexibility. AMS is again seeking comments on the following questions:

1. What level or threshold should AMS consider as a low-volume market agency that might be eligible for additional flexibility?

2. Approximately how many market agencies would fit into such a category?

3. How would this type of flexibility reduce regulatory burden for those market agencies?

AMS seeks input on other appropriate thresholds—such as monthly or quarterly sales volume—to identify market agencies that might be eligible for regulatory flexibility regarding assessment remittance under the amended regulations. Any comments should be supported by data that is clearly quantified and explained.

Please refer to Docket ID NRC-2018-0300 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2018-0300.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov.

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

Please include Docket ID NRC-2018-0300 in your comment submission.

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

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

The National Environmental Policy Act of 1969 (NEPA) requires Federal agencies to undertake an assessment of the environmental effects of their proposed actions prior to deciding whether to approve or disapprove the proposed action. There are three types of NEPA analyses: An environmental impact statement (EIS), an environmental assessment (EA), or a categorical exclusion. An EA is a concise document that provides sufficient evidence and analysis for determining whether to prepare an EIS or make a finding of no significant impact (FONSI). If an EA supports a FONSI, the environmental review process is complete. If the EA reveals that the proposed action may have a significant effect on the human environment, the Federal agency then prepares an EIS. An EIS documents an agency's evaluation of the environmental impacts of a major Federal action significantly affecting the quality of the human environment.

A categorical exclusion, by contrast, falls into the category of actions that do not have a significant effect on the human environment, as defined by a Federal agency in its procedures implementing NEPA. If the Federal agency finds that actions in a given category have repeatedly been shown to have no significant effect on the human environment, either individually or cumulatively, then the agency may establish a categorical exclusion for that category of action. Once it has established a categorical exclusion, the agency is not required to prepare an EA or EIS for any action that falls within the scope of the categorical exclusion, unless the agency finds, for any particular action, that there are special ( e.g., unique, unusual, or controversial) circumstances that would preclude use of the categorical exclusion.

The regulations in § 51.22 of title 10 of the Code of Federal Regulations (10 CFR), “Criterion for categorical exclusion; identification of licensing and regulatory actions eligible for categorical exclusion or otherwise not requiring environmental review,” specify actions that the NRC has determined not to have significant environmental impacts. On September 24, 2003, the Council on Environmental Quality (CEQ) National Environmental Policy Act Task Force published a report, “Modernizing NEPA Implementation” (Task Force Report), that recommended Federal agencies examine their categorical exclusion regulations to identify potential revisions that would eliminate unnecessary and costly EAs. The Task Force Report recommends the use of information from past actions to establish the basis for the no significant effects. It also provides that criteria for identifying new categorical exclusions should include: (1) Repetitive actions that do not individually or cumulatively have significant effects on the human environment; (2) actions that generally require limited environmental review; and (3) actions that are noncontroversial. The NRC last amended § 51.22(c) in 2010 (April 10, 2010; 75 FR 20248). On December 6, 2010, CEQ issued final guidance on categorical exclusions (75 FR 75628). Consistent with CEQ guidance, the NRC periodically reviews existing categorical exclusions to ensure their continued appropriate use and usefulness.

Recently the NRC reviewed its environmental programs and organization to identify potential opportunities to continue to meet its NEPA obligations in different ways that would enhance the process, save time, and reduce resources. One of the opportunities identified was the possibility of creating new or revised categorical exclusions. By identifying those actions that do not have the potential to significantly affect the environment, the NRC will ensure that it is focused on those actions with possibly new or significant environmental impacts. Further, the review for categorical exclusions ensures the NRC's environmental review program is more aligned with CEQ's best practices.

Categorical exclusions streamline the NEPA process, saving time, effort, and resources by eliminating the preparation of EAs for NRC regulatory actions that have no significant effect on the human environment. Through internal discussions, the NRC has identified potential new categorical exclusions, areas where the scope of existing categories could be clarified, and where ambiguity in the criteria has created inconsistencies between existing excluded categories. In addition, the NRC is evaluating existing categorical exclusions to determine if any are no longer necessary or have proven to no longer meet the criteria for categorical exclusion. Amending § 51.22(c) would increase efficiencies and consistency in the implementation of categorical exclusions and ensure applicable NRC regulatory actions are completed in a more efficient, effective, and timely manner. Through this advance notice of proposed rulemaking, the NRC requests public input on potential revisions to § 51.22(c).

The NRC is seeking stakeholder input on areas under consideration for potential change. The NRC asks that commenters provide the bases for their comments ( i.e., the underlying rationale for the position stated in the comment) to enable the agency to have a complete understanding of the comments.

The NRC is considering revisions to categorical exclusions on the following basis, unless otherwise specified in the next section:

1. The NRC has identified recurring actions that may be eligible for categorical exclusion because these actions do not result in environmental impacts and that are considered noncontroversial.

2. Other potential candidates for categorical exclusion include those where, after completing multiple EAs, the NRC has always concluded there are no findings of significant impacts and is not aware of any reason that future EAs would reach a different result.

• Reorganization of the list of categorical exclusions to eliminate redundancy and add clarity.

• Revisions to eliminate distinctions in categorical exclusions between license amendments, exemptions, rulemaking, and other forms of NRC actions, to ensure that categorical exclusions are based on the activities that would be authorized rather than the administrative and legal differences between the different forms of NRC approvals. For example, the NRC might revise a categorical exclusion from “Issuance of an amendment to a permit or license issued under this chapter which. . .” to “An action under this chapter that. . .”

• Revisions to consolidate categorical exclusions for exemptions into one category, for example, by moving the criterion for exemptions related to installation or use of a facility component located within the restricted area.

• Revisions to categorically exclude license terminations that are administrative acts that do not have the potential to affect the environment such as termination of licensees for which no construction or pre-construction activities have occurred or where all decommissioning activities have been completed and approved and license termination is a final administrative step.

• Revisions to categorically exclude the NRC's concurrence, under the Atomic Energy Act of 1954, as amended (AEA), § 274c., on termination by an Agreement State of licenses for AEA § 11e.(2) byproduct material where all decommissioning activities have been completed and approved and NRC's concurrence is a final administrative step.

• Revisions to categorically exclude issuance of exemptions to low-level waste disposal sites for the storage and disposal of special nuclear material regulated by Agreement States.

• Revisions to remove or clarify no significant hazards considerations criteria in existing categorical exclusions because these criteria are related to a process for some license amendments for reactor licenses (from § 50.92, “Issuance of amendment”), not environmental reviews, and are not relevant to materials licenses ( e.g., 10 CFR part 30, “Rules of General Applicability to Domestic Licensing of Byproduct Material,” or part 40, “Domestic Licensing of Source Material,” licenses).

• Revisions to categorically exclude actions authorizing licensees to delay implementation of certain new NRC requirements, for example, where the new requirements were previously found to not result in an environmental impact.

• Revisions to categorically exclude approval of relief and alternative requests under 10 CFR 50.55a, “Codes and standards.”

• Revisions to categorically exclude issuance of new, amended, revised, and renewed certificates of compliance for cask designs used for spent fuel storage and transportation (issued as amendments to 10 CFR 72.214, “List of approved spent fuel storage casks”).

• Revisions to categorically exclude approval of decommissioning funding plans submitted under 10 CFR parts 30, 40, 70, “Domestic Licensing of Special Nuclear Material,” or 72, “Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater than Class C Waste.”

• Revisions to categorically exclude approvals of certain long-term surveillance plans of decommissioned uranium mills. However, long-term surveillance plans that include groundwater monitoring might not be included in the categorical exclusion.

• Revisions to categorically exclude authorizations to revise emergency plans for administrative changes such as reduction in staffing.

• Revisions to categorically exclude approvals for alternative waste disposal procedures for reactor and material licenses in accordance with § 20.2002, “Method for obtaining approval of proposed disposal procedures.”

• Revisions to categorically exclude NRC actions during decommissioning that do not authorize changes to physical structures such as changes to administrative, organizational, or procedural requirements; and therefore, do not include activities that have environmental impacts.

• Revisions to include references to the definition of construction in §  51.4, “Definitions,” after the phrase “significant construction impacts” to clarify this term where it is used in various categorical exclusions.

Question (1) Are there licensing and regulatory actions that do not or have not resulted in environmental impacts that the NRC should consider as a categorical exclusion?

Question (2) Are there any categorical exclusions that are listed in 10 CFR 51.22(c) that the NRC should consider modifying or clarifying? For example, are there categorical exclusions that licensees, applicants, or members of the public have found confusing?

Question (3) Are there any current categorical exclusions (§ 51.22(c)) that the NRC should consider removing? For example, are there categorical exclusions that are no longer in use, or are there activities listed that have been shown to have an environmental impact?

Question (4) Are there aspects of NRC authorized changes to previously approved programs, such as emergency plans, cybersecurity programs, quality assurance programs, radiation protection programs, or materials control and accounting programs that the NRC should consider categorically excluding?

Question (5) Is there anything else that the NRC should consider regarding its regulations for categorical exclusions?

The NRC will conduct a public meeting to discuss the potential rulemaking and answer questions. The NRC will publish a notice of the location, time, and agenda of the meeting on the NRC's public meeting website at least ten calendar days before the meeting. Interested members from the public should monitor the NRC's public meeting website for information about the public meeting at: https://www.nrc.gov/public-involve/public-meetings/index.cfm. In addition, the meeting information will be posted on https://www.regulations.gov/ under Docket ID NRC-2018-0300.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885). The NRC requests comment on this document with respect to the clarity and effectiveness of the language used.

The NRC does not intend to provide a detailed response to individual comments submitted on this advance notice of proposed rulemaking; however, the NRC will evaluate all public input in the development of a proposed rule. If the NRC determines a need for supporting guidance, the NRC will issue the draft guidance for public comment. The NRC will provide another opportunity for public comment for any subsequent proposed rule developed before it is finalized.

Pumps are included in the list of “covered equipment” for which DOE is authorized to establish test procedures and energy conservation standards. (42 U.S.C. 6311(1)(A)) Circulator and small vertical in-line (“SVIL”) pumps, which are the subject of this notification, are categories of pumps. Currently, circulator pumps and SVIL pumps are not subject to DOE test procedures or energy conservation standards. The following sections discuss DOE's authority to establish test procedures and energy conservation standards for circulator pumps and SVIL pumps and relevant background information regarding DOE's consideration of establishing Federal regulations for these equipment types.

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  2 of EPCA, added by Public Law 95-619, Title IV, section 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 energy efficiency. This equipment includes pumps, the subject of this document. (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 which reflect 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))

Before prescribing any final test procedures, 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))

In proposing new standards, DOE must evaluate that proposal against the criteria of 42 U.S.C. 6295(o), as described in section I.C, and follow the rulemaking procedures set out in 42 U.S.C. 6295(p). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)) DOE is publishing this RFI consistent with its obligations in EPCA.

As stated, “pumps” are listed as a type of industrial equipment covered by EPCA, although EPCA does not define the term “pump.” (42 U.S.C. 6311(1)(A)) In a final rule published January 25, 2016, DOE established definitions applicable to pumps and test procedures for certain pumps. 81 FR 4086 (“January 2016 TP final rule”). “Pump” is defined as equipment designed to move liquids (which may include entrained gases, free solids, and totally dissolved solids) by physical or mechanical action and includes a bare pump and, if included by the manufacturer at the time of sale, mechanical equipment, driver, and controls. 10 CFR 431.462. This definition includes circulator pumps and SVIL pumps, but such pumps are not currently subject to the established Federal test procedure or energy conservation standards.

The established test procedure for pumps is applicable to certain categories of clean water pumps, 3 specifically those that are end suction close-coupled; end suction frame mounted/own bearings; in-line (“IL”); radially split, multi-stage, vertical, in-line diffuser casing; and submersible turbine (“ST”) pumps with the following characteristics:

• Flow rate of 25 gallons per minute (“gpm”) or greater (at best efficiency point (“BEP”) and full impeller diameter);

• 459 feet of head maximum (at BEP and full impeller diameter and the number of stages specified for testing);

• Design temperature range from 14 to 248 °F;

• Designed to operate with either (1) a 2- or 4-pole induction motor, or (2) a non-induction motor with a speed of rotation operating range that includes speeds of rotation between 2,880 and 4,320 revolutions per minute (“rpm”) and/or 1,440 and 2,160 rpm, and in either case, the driver and impeller must rotate at the same speed;

• 6-inch or smaller bowl diameter for ST pumps; and

• For ESCC and ESFM pumps, a specific speed less than or equal to 5,000 when calculated using U.S. customary units.

• Except for: Fire pumps, self-priming pumps, prime-assist pumps, magnet driven pumps, pumps designed to be used in a nuclear facility subject to 10 CFR part 50, “Domestic Licensing of Production and Utilization Facilities”; and pumps meeting the design and construction requirements set forth in any relevant military specifications. 4

The pump categories subject to the current test procedures are referred to as “general pumps” in this document. As stated, circulator pumps and SVIL pumps are not general pumps.

DOE also published a final rule establishing energy conservation standards applicable to certain classes of general pumps. 81 FR 4368 (Jan. 26, 2016) (“January 2016 ECS final rule”); see also, 10 CFR 431.465.

The January 2016 TP final rule and the January 2016 ECS final rule implemented the recommendations of the Commercial and Industrial Pump Working Group (“CIPWG”) established through the ASRAC to negotiate standards and a test procedure for general pumps. (Docket No. EERE-2013-BT-NOC-0039) The CIPWG concluded its negotiations on June 19, 2014, with a consensus vote to approve a term sheet containing recommendations to DOE on appropriate standard levels for general pumps, as well as recommendations addressing issues related to the metric and test procedure for general pumps (“CIPWG recommendations”). (Docket No. EERE-2013-BT-NOC-0039, No. 92) Subsequently, ASRAC voted unanimously to approve the CIPWG recommendations during a July 7, 2014 webinar. The term sheet containing the CIPWG recommendations is available in the CIPWG's docket. The CIPWG recommendations included initiation of a separate rulemaking for circulator pumps. (Docket No. EERE-2013-BT-NOC-0039, No. 92, Recommendation #5A at p. 2)

On February 3, 2016, DOE published a Notice of Intent to Establish the Circulator Pumps Working Group to Negotiate a Notice of Proposed Rulemaking (“NOPR”) for Energy Conservation Standards for Circulator Pumps to negotiate, if possible, Federal standards and a test procedure for circulator pumps and to announce the first public meeting. 81 FR 5658. The members of the Circulator Pumps Working Group (“CPWG”) were selected to ensure a broad and balanced array of interested parties and expertise, including representatives from efficiency advocacy organizations and manufacturers. Additionally, one member from ASRAC and one DOE representative were part of the CPWG. Table I.1 lists the members of the CPWG and their affiliations.

The CPWG commenced negotiations at an open meeting on March 29, 2016, and held six additional meetings to discuss scope, metrics, and the test procedure. The CPWG concluded its negotiations for test procedure items on September 7, 2016, with a consensus vote to approve a term sheet containing recommendations to DOE on scope, metric, and the basis of the test procedure (“September 2016 CPWG Recommendations”). The term sheet containing these recommendations is available in the CPWG docket. (Docket No. EERE-2016-BT-STD-0004, No. 58)

The CPWG continued to meet to address potential energy conservation standards for circulator pumps. Those meetings began on November 3-4, 2016 and concluded on December 1, 2016, with approval of a second term sheet (“December 2016 CPWG Recommendations”) containing CPWG recommendations related to energy conservation standards, applicable test procedure, labeling and certification requirements for circulator pumps. (Docket No. EERE-2016-BT-STD-0004, No. 98) ASRAC subsequently voted unanimously to approve the September and December 2016 CPWG Recommendations (collectively, the “2016 Term Sheets”) during a December meeting. (Docket No. EERE-2013-BT-NOC-0005, No. 91 at p. 2)  5

In a letter dated June 9, 2017, HI expressed its support for the process that DOE initiated regarding circulator pumps and encouraged the publishing of a NOPR and a final rule by the end of 2017. (Docket No. EERE-2016-BT-STD-0004, HI, No.103 at p. 1) In response to an early assessment review RFI published September 28, 2020 regarding the existing test procedures for certain pumps (85 FR 60734, “September 2020 Early Assessment RFI), HI commented that it continues to support the recommendations from the CPWG. (Docket No. EERE-2020-BT-TP-0032, HI, No. 6 at p. 1) In addition, NEEA commented that the CPWG recommended adopting test procedures for circulator pumps, which DOE should do in the pumps or a separate rulemaking. (Docket No. EERE-2020-BT-TP-0032, NEEA, No. 8 at p. 8)

DOE must follow specific statutory criteria for prescribing new or amended standards for covered equipment. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(A)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy, or is not technologically feasible or economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(3)(B))

To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.2 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in the development of the technical analyses on which DOE will ultimately rely to determine whether (and if so, how) to establish the standards for circulator pumps and SVIL pumps.

In the following sections, DOE has identified a variety of issues on which it seeks input to assist in its evaluation of potential test procedures for circulator pumps and SVIL pumps, to ensure that any such test procedures would comply with the requirements in EPCA that they be reasonably designed to produce test results which reflect energy use during a representative average use cycle, without being unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))

In the January 2016 TP final rule, DOE adopted a definition for pump, as well as definitions for pump categories and other pump component- and configuration-related definitions. 10 CFR 431.462. Although circulator pumps are a style of pump, DOE did not define circulator pump. 81 FR 4086, 4094 (Jan. 25, 2016). In addition, although DOE established a definition for inline pumps, the definition requires the pump to have a shaft input power greater than 1 hp and therefore excludes the SVIL pumps considered in this RFI because SVIL pumps have a shaft input power less than 1 hp. 6

The September 2016 CPWG recommendations addressed the scope of a circulator pumps rulemaking. Specifically, the CPWG recommended that the scope of the circulator pumps test procedure and energy conservation standards cover clean water pumps (as defined at 10 CFR 431.462) distributed in commerce with or without a volute  7 and that are one of the following categories: Wet rotor circulator pumps, dry rotor close-coupled circulator pumps, and dry rotor mechanically-coupled circulator pumps. The CPWG also recommended that the scope exclude submersible pumps and header pumps. (Docket No. EERE-2016-BT-STD-0004, No. 58, Recommendations #1A, 2A and 2B at p. 1-2) The CPWG also recommended the following definitions relevant to scope:

DOE notes that the orientation of the motor is used to differentiate IL pumps from other pumps. As noted, the definition of IL pump excludes pumps that are distributed in commerce with a horizontal motor. 10 CFR 431.462. DOE currently defines a “horizontal motor” as a motor that requires the motor shaft to be in a horizontal position to function as designed, as specified in the manufacturer literature. Id.

The definition of horizontal motor recommended by the CPWG includes “under typical operating conditions” to qualify “function as designed.” The CPWG stated that this qualifier was added to address the potential that a motor would not be covered as a horizontal motor if a manufacturer were to advertise its circulator as being able to be installed in a non-horizontal orientation under certain conditions, such as high operating pressure ( i.e., conditions other than typical conditions). (Docket No. EERE-2016-BT-STD-0004, No. 64 at pp. 75-83) The CPWG stated that the requirement to consider motor installation in the context of typical operating conditions, as specified in the manufacturer literature, would address this potential. (Docket No. EERE-2016-BT-STD-0004, No. 66 at pp. 55-57)

The definition for submersible pump is consistent with that already applicable to pumps in 10 CFR 431.462. The recommended definition for header pump is discussed in section II.A of this document.

DOE requests comment on the CPWG's recommended definitions for wet rotor circulator pump; dry rotor, two-piece circulator pump; dry rotor, three-piece circulator pump; and horizontal motor. Specifically, DOE requests comment regarding whether changes in the market since the CPWG's recommendation would affect the recommended definitions and scope.

In addition to the circulator pump categories discussed in II.A of this document, circulator pumps can also be differentiated based on the configuration in which they are sold. Certain specific instances of this are discussed in sections II.A.1.a and II.A.1.b of this document.

Some circulator pumps are distributed in commerce as a complete assembly with a motor, impeller, and volute, while other circulator pumps are distributed in commerce with a motor and impeller, but without a volute (herein referred to as “circulators-less-volute”). Some circulators-less-volute are solely intended to be installed in other equipment, such as a boiler, using a cast piece in the other piece of equipment as the volute, while others can be installed as a replacement for a failed circulator pump in an existing system or to be newly installed with a paired volute in the field. (Docket No. EERE-2016-BT-STD-0004, No. 47 at pp. 371-372; Docket No. EERE-2016-BT-STD-0004, No. 70 at p. 98)

In reviewing the definition of a pump, the CPWG stated that circulator pumps distributed in commerce without volutes fall under the definition of pump as defined in the January 2016 TP final rule. (Docket No. EERE-2016-BT-STD-0004, No. 70 at pp. 89-91) Further, the CPWG asserted that, if a circulator-less-volute was not subject to any adopted test procedure and standards, this could present a loophole since a circulator-less-volute and matching volute could easily be purchased and installed instead of a compliant circulator pump with a volute. (Docket No. EERE-2016-BT-STD-0004, No. 74 at pp. 383-403)

However, the CPWG discussed that a circulator-less-volute (header pump) that is solely intended to be installed in other equipment, uses the other equipment as the volute, and does not have a matching volute that is separately distributed in commerce would not pose the same loophole risk and, furthermore, would be very difficult to test. Specifically, the CPWG discussed how circulator manufacturers would not have access to or design authority for the volute design. In addition, the circulator could not be tested as a standalone circulator because the volute would be unable to be removed from the other equipment, and there would be no paired volute distributed in commerce with which the header pump could be tested. Therefore, such equipment would potentially require extensive and burdensome equipment to test appropriately. (Docket No. EERE-2016-BT-STD-0004, No. 74 at pp. 413-416)

The CPWG recommended excluding circulator pumps that are distributed in commerce exclusively to be incorporated into other OEM equipment, such as boilers or pool heaters. (Docket No. EERE-2016-BT-STD-0004, No. 74 at pp. 415-416) The CPWG suggested referring to these circulator-less-volute pumps that are intended solely for installation in another piece of equipment and do not have a paired volute that is distributed in commerce as “header pumps.” (Docket No. EERE-2016-BT-STD-0004, No. 74 at pp. 384-386). Specifically, in the September 2016 CPWG recommendations, the CPWG recommended to differentiate header pumps from other circulator-less-volute pumps by defining header pump as a pump that consists of a circulator-less-volute intended to be installed in an OEM piece of equipment that serves as the volute, and to exclude them from the recommended circulator test procedure and standards. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendations #2B at p. 2)

DOE requests comment regarding whether the market changes in the intervening years since the CPWG's recommendation of a definition for “header pump” warrant modification of that recommended definition.

On-demand circulator pumps are designed to maintain hot water supply within a temperature range by activating in response to a signal, such as user presence. The CPWG recommended that the following definition for “on-demand circulator pumps” be incorporated as necessary:

“On-demand circulator pump” means a circulator pump that is distributed in commerce with an integral control that:

In addition, the on-demand circulator pump must not be capable of operating without the control without physically destructive modification of the unit, such as any modification that would violate the product's standards listing.

DOE requests comment regarding the CPWG-recommended definition of “on-demand circulator pump” and whether it is appropriate to retain on-demand circulator pumps within the scope of future analysis.

During the course of the negotiations, the CPWG also discussed and provided recommendations related to SVIL pumps. As noted, SVIL pumps are similar to IL pumps, but have a shaft input power lower than pumps included in the scope of the general pumps test procedure. Specifically, SVIL pumps are described as IL style pumps with a shaft input power of less than 1 hp at BEP at full impeller diameter and are distinguished from dry-rotor circulator pumps by having a motor that does not have to be configured in a horizontal position. The CPWG found that SVIL pumps could serve similar functions as some dry rotor circulator pumps. (Docket No. EERE-2016-BT-STD-0004, No. 66 at p. 11, 52) Additionally, the CPWG stated that because they serve similar functions to some dry rotor circulator pumps, SVIL pumps pose a substitution risk and recommended that SVIL pumps be addressed as part the circulator pumps rulemaking. (Docket No. EERE-2016-BT-STD-0004, No. 66 at p. 27-30) Specifically, the CPWG recommended that SVIL pumps be evaluated on the PEI CL or PEI VL metric, similar to commercial and industrial pumps (“CIP”), 8 and use the CIP test procedure to measure performance, with any additional modifications necessary as determined by DOE. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendations #1B at pp. 1-2) Potential test procedures and metric for SVIL pumps are discussed further in section II.D.

In order to distinguish SVIL pumps from dry rotor circulator pumps, the CPWG recommended the following definition for SVIL pumps:

DOE seeks comment and feedback on the scope and definitions recommended by the CPWG, including whether anything has changed in the market since the conclusion of the CPWG that would impact the recommended scope and definitions for SVIL pumps.

DOE seeks feedback and information regarding whether it may be appropriate to include SVIL pumps in the circulator pumps rulemaking, in the commercial and industrial pumps rulemaking, or in a separate rulemaking.

DOE seeks comment regarding any other topics related to scope and definitions for circulator pumps and SVIL pumps.

The CPWG focused on defining a performance-based metric that was similar to the pump energy index (“PEI”) metric established in the January 2016 TP final rule. (Docket No. EERE-2016-BT-STD-0004, No. 64 at pp. 246-247) The CPWG recommended using the PEI CIRC metric, which would be defined as the pump energy rating (“PER”) for the rated circulator pump model (“PER CIRC ”), divided by the PER for a circulator that is minimally compliant with energy conservation standards serving the same hydraulic load (“PER CIRC,STD ”). (Docket No. EERE-2016-BT-STD-0004, No. 58, Recommendation #5 at p. 4)

The equation for PEI CIRC is shown in the equation (1):

PER CIRC would be determined as the weighted average input power to the circulator motor or controls, if available, of a given circulator over a number of specified load points. Due to differences in the various control varieties available with circulator pumps, the CPWG recommended that each circulator pump control variety have unique weights and load points that are used in determining PER CIRC . (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendations #6A and #6B at pp. 4-6) The test points, weights, and test methods necessary for calculating PER CIRC for pressure controls, temperature controls, manual speed controls, external input signal controls, and circulator pumps with no control ( i.e., without external input signal, manual, pressure, or temperature control)  9 are described in II.C.1 of this document.

PER CIRC,STD would be determined similarly for all circulator pumps, regardless of control variety. PER CIRC,STD would represent the weighted average input power to a minimally compliant circulator pump serving the same hydraulic load. As such, PER CIRC,STD would essentially define the minimally compliant circulator pump performance, such that the energy conservation standard level would always be defined as 1.00, and lower PEI CIRC values would represent better performance. The CPWG discussed the derivation of PER CIRC,STD at length during the CPWG negotiations and, ultimately, recommended a standard level that is nominally equivalent to a single-speed circulator equipped with an electrically commutated motor. (Docket No. EERE-2016-BT-STD-0004, No. 102 at pp. 53-56; Docket No. EERE-2016-BT-STD-0004, No. 98 Recommendations #1 and 2A-D at pp. 1-4)

The CPWG specified a method for determining PER CIRC,STD equivalent to the test method recommended for circulator pumps with no controls, with additional procedures necessary to determine the minimally compliant overall efficiency at the various test points based on the hydraulic performance of the rated circulator pump. (Docket No. EERE-2016-BT-STD-0004, No. 98 Recommendations #2A-D at pp. 1-4) However, because PER CIRC,STD would represent the energy conservation standard level, DOE would, in a potential future circulator pump ECS rulemaking, discuss in detail the derivation of PER CIRC,STD for the recommended standard level, as well as all of the efficiency levels presented to the CPWG, including assessment of the technical feasibility and economic justification for any adopted levels. (Docket No. EERE-2016-BT-STD-0004)

DOE requests comment on the CPWG recommendation to adopt PEI CIRC as the metric to characterize the energy use of certain circulator pumps and on the recommended equation for PEI CIRC, including whether anything in the technology or market has changed since publication of the 2016 Term Sheets that would lead to this metric no longer being appropriate.

There is no current industry test procedure for circulator pumps. The September 2016 CPWG Term Sheet contained extensive recommendations related to development of a test procedure for circulator pumps. (Docket No. EERE-2016-BT-STD-0004, No. 58, Recommendations #6-12 at p. 4-9)

Many circulator pumps are sold with a variable speed drive and controls ( i.e., logic or user interface) with various control strategies that reduce the required power input at a given flow rate to save energy. The ability of a circulator pump to operate at different speeds and the control logic of each control variety will impact the energy use for that circulator pump model in the field. To reflect this variation in energy consumption, the CPWG recommended that DOE establish different test methods for each control variety in the circulator pump test procedure in order to best represent the different energy use patterns exhibited by each control variety. (Docket No. EERE-2016-BT-STD-0004, No. 58, Recommendation #9 at p. 7)

The CPWG recommended definitions for the following control varieties for circulator pumps: manual speed control, pressure control, temperature control, and external input signal control. The definitions of these pump control varieties recommended by the CPWG are as follows:

The CPWG did not recommend a definition for adaptive pressure controls, although it did recommend a separate test procedure for them, because, as discussed by the CPWG, adaptive pressure controls are able to adjust the slope of the control curve to fit the system needs through an ongoing learning process inherent in the software. (Docket No. EERE-2016-BT-STD-0004, No. 72 at pp. 45-46) The test procedure for circulator pumps with adaptive pressure controls is discussed further in section II.C.1.c.

DOE requests comment on the recommended definitions for manual speed control, pressure control, adaptive pressure control, temperature control, and external input signal control. Additionally, DOE requests comment on a possible definition for adaptive pressure control.

DOE requests comment on whether any additional control variety is now currently on the market and if it should be considered in this rulemaking.

All recommended test methods for circulator control varieties, which involve variable speed control of the circulator pump, specify test points with respect to a representative system curve. That is, for circulator pumps with manual speed controls, pressure controls, temperature controls, or external input signal controls, a reference system curve is implemented to be representative of the speed reduction that is possible in a typical system to provide representative results. For circulator pumps with no controls, no reference system is required as measurements are taken at various test points along a pump curve at maximum speed only.

Such a reference system curve describes the relationship between the head and the flow at each test point in a typical system. Additionally, a reference system curve that is representative of a typical system in which circulator pumps are installed may also allow for the differentiation of control varieties to be reflected in the resulting ratings. The CPWG recommended that DOE incorporate the same reference system curve that is used in the January 2016 TP final rule. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendations #8 at pp. 6-7) This curve is a quadratic reference system curve, which intersects the BEP and has a static offset of 20 percent of BEP head, as shown in equation (2):

DOE requests comment on whether the CPWG-recommended reference system curve shape, including the static offset, is reasonable for circulator pumps.

Pressure controls are a variety of circulator pump controls in which the variable speed drive is automatically adjusted based on the pressure in the system. For example, such controls are common in multi-zone hydronic heating applications in which the flow and speed are adjusted in response to zones opening or closing. The CPWG recommended that for all circulator pumps distributed in commerce with pressure controls, the PER CIRC should be calculated as the weighted average input power at 25, 50, 75, and 100 percent of BEP flow, with unique weights shown in equation (3):

The CPWG recommended testing circulator pumps with pressure controls using automatic speed adjustment based on the factory selected control setting, manual speed adjustment, or simulated pressure signal to trace a factory selected control curve setting that will achieve the test point flow rates with a head at or above the reference system curve. The CPWG also recommended that if a circulator pump with pressure controls is tested with automatic speed adjustment, that the pump can be manually adjusted to achieve 100 percent BEP flow and head point at maximum speed. Finally, for circulator pumps with adaptive pressure controls, the CPWG recommended that testing be conducted at the minimum thresholds for head based on manufacturer literature and through manual speed adjustment to achieve the test point flow rates with head values at or above the reference curve. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendation #9 at p. 7)

DOE requests comment on the recommended test methods, test points, and weights for circulator pumps with pressure controls, including circulator pumps with adaptive pressure controls. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

Temperature controls are controls that automatically adjust the speed of the variable speed drive in the pump continuously over the operating speed range to respond to a change in temperature of the operating fluid in the system. Typically, temperature controls are designed to achieve a fixed temperature differential between the supply and return lines and adjust the flow rate through the system by adjusting the speed to achieve the specified temperature differential. Similar to pressure controls, temperature controls are also designed primarily for hydronic heating applications. However, temperature controls may be installed in single- or multi-zone systems and will optimize the circulator pump's operating speed to provide the necessary flow rate based on the heat load in each zone. As there are no minimum head requirements inherent to the circulator pump control, temperature controls may have potential to use less energy than pressure-based controls to serve a given load.

The CPWG recommended that for circulator pumps distributed in commerce with temperature controls, that PER CIRC should be calculated the same way and with the same weights as for pressure controls, as shown in Equation 3. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendations #6A at pp. 4-5 and #7 at p. 6) The CPWG also recommended that circulator pumps with temperature controls be tested based on manual speed adjustment or with a simulated temperature signal to activate the temperature-based control to achieve the test point flow rates with a head at or above the reference curve. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendation #9 at p. 7)

DOE requests comment on the recommended test methods, test points, and weights for circulator pumps with temperature controls. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

Manual speed controls are controls in which the speed of the pump is adjusted manually, typically to one of several pre-set speeds, by a dial or a control panel to fit the demand of the system within which it is installed. The CPWG discussed how circulator pumps installed with manual speed controls are typically only adjusted one time upon installation, if at all, and will operate at that set speed as if it were a single-speed circulator pump. That is, many manual speed control circulator pumps operate at full speed, while a portion of them may be set to a medium or low speed to suit the needs of the systems. (Docket No. EERE-2016-BT-STD-0004, No. 65 at pp. 131-133) Therefore, the CPWG recommended to test circulator pumps with manual speed controls both: (1) Along the maximum speed circulator pump curve to achieve the test point flow rates for the maximum speed input power values, and (2) based on manual speed adjustment to the lowest speed setting that will achieve a head at or above the reference curve at the test point flow rate for the reduced speed input power values. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendation #9 at p. 7)

To accomplish a single rating representative of the “average” energy use of a manual speed circulator, the CPWG recommended that for circulator pumps distributed in commerce with manual speed controls, the PER CIRC should be calculated as the weighted average of P in,max (the weighted average input power at specific load points across the maximum speed curve) and P in,reduced (the weighted average input power at specific load points at reduced speed), but recommended separate load points and speed factors, as shown in equations (4), (5), and (6):

DOE requests comment on the CPWG-recommended test method and the unique test points, weights, and speed factors for circulator pumps distributed in commerce with manual speed controls. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

The final control variety considered by the CPWG was external input signal controls. External input signal controls are controls in which the device that responds to the stimulus, or the primary control logic, is external to the circulator pump. Unlike pressure and temperature controls, the logic that defines how the circulator pump operating speed is selected in response to some measured variable ( e.g., temperature, pressure, or boiler fire rate) is not part of the circulator, as distributed in commerce. Instead, it is part of another control system, such as a building management system or a boiler control system. (Docket No. EERE-2016-BT-STD-0004, No. 72 at pp. 76-84)

For circulator pumps that have only an external input signal control, the CPWG recommended testing along the reference control curve to achieve the test point flow rates with a head at or above the reference system curve with the same weights as temperature and pressure controls. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendations #9 at pp. 7-8).

The CPWG recommended that, to ensure the rating would be representative of the performance of such pumps, the external input signal control must be the only control mode on the pump, and the pump must not be able to operate without an external input signal. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendations #9 at pp. 7-8)

The CPWG asserted that if external input signal control is one of multiple options available on a circulator pump, or the pump is able to operate without an external input signal, it is less likely that the external input signal control option would be utilized in the field. (Docket No. EERE-2016-BT-STD-0004, No. 72 at pp. 217-218). Therefore, to prevent the possibility of artificially improving the PEI CIRC rating through the addition of an external input signal control mode, the CPWG recommended testing circulator pumps with external input signal controls similar to manual speed controls. (Docket No. EERE-2016-BT-STD-0004, No. 47 at p. 480) The CPWG recommended testing a circulator pump sold with external input signal controls and another control variety with a simulated signal both: (1) Along the maximum speed circulator pump curve to achieve the test point flow rates for the maximum speed input power values, and (2) with speed adjustment using a simulated signal to the lowest speed setting that will achieve a head at or above the reference curve at the test point flow rates for the reduced speed input power values. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendation #9 at pp. 7-8)

As such, the CPWG recommended that for circulator pumps distributed in commerce with external input signal controls and at least one other control variety, the PER CIRC should be calculated as the weighted average of P in,max (the weighted average input power at specific load points across the maximum speed curve) and P in,reduced (the weighted average input power at specific load points at reduced speed), similar to circulator pumps with manual speed control, but with a different speed factor, as shown in equations (7), (8), and (9):

The CPWG recommended the speed factors of 0.30 at maximum speed and 0.70 at reduced speed in order to produce a rating on an equivalent basis as that of a circulator pump with a typical differential pressure control. (Docket No. EERE-2016-BT-STD-0004, No. 58 at p. 6). In addition, these speed factors would represent the likelihood that a circulator pump with an external input signal control is selected to operate with that external input signal control, and whether the signal it receives results in the circulator pump reducing speed.

DOE requests comment on the CPWG-recommended test method for circulator pumps distributed in commerce with only external input signal controls, as well as for those distributed in commerce with external input signal controls in addition to other control varieties. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

For circulator pumps with no controls, the CPWG recommended testing the pump along the maximum speed circulator pump curve to achieve the test point flow rates of 25, 50, 75, and 100 percent of BEP flow. (Docket No. EERE-2016-BT-STD-0004, No. 58 Recommendation #9 at p. 7) The CPWG also recommended that for circulator pumps distributed in commerce with no controls, PER CIRC should be calculated with the unique weights and test points as shown in equation (10):

The CPWG recommended the 0.25 weights at each test point ( i.e., 25, 50, 75, and 100 percent of the flow at BEP) in order to account for the variety of systems and operating points a single-speed circulator may encounter. (Docket No. EERE-2016-BT-STD-0004, No. 70 at pp. 172-173)

DOE requests comment on the CPWG-recommended test methods, test points, and weights for circulator pumps with no controls.

As part of the September 2016 CPWG recommendations, the CPWG recommended that all test points be tested on a wire-to-water basis, in accordance with HI 40.6-2014, with minor modifications. The CPWG also recommended that if an updated version of HI 40.6 is published prior to publication of the test procedure final rule, DOE should review and incorporate the updated version. (Docket No. EERE-2016-BT-STD-0004, No. 58, Recommendation #10 at p. 8-9)

In 2016, HI published an updated industry standard, HI 40.6-2016, “Methods for Rotodynamic Pump Efficiency Testing” (“HI 40.6-2016”). This update aligned the definitions and procedures described in HI Standard 40.6 with the DOE test procedure for pumps published in the January 2016 TP final rule. Appendix A to subpart Y to 10 CFR part 431. In the September 2020 Early Assessment RFI for pumps, DOE requested comment on the potential effect of incorporating HI 40.6-2016 by reference as the DOE test procedure for pumps. 85 FR 60734, 60737. Grundfos, NEEA, and HI commented that HI expects to publish another standard update in 2021 (“HI 40.6-2021”) and urged DOE to incorporate by reference HI 40.6-2021 rather than HI 40.6-2016 (Grundfos, Docket No. EERE-2020-BT-TP-0032, No. 07 at p. 2; NEEA, Docket No. EERE-2020-BT-TP-0032, No. 08 at p. 6; HI, Docket No. EERE-2020-BT-TP-0032, No. 06 at pp. 1, 3). HI specified that HI 40.6-2016 included updates to match DOE's test procedure for pumps, and that HI 40.6-2021 will further include editorial revisions and added circulator pump testing, and also would not impact measured values, burden, or representativeness. (HI, Docket No. EERE-2020-BT-TP-0032, No.06 at p. 3)

At the time of this RFI publication, HI 40.6-2021 was not yet available. DOE expects to review and consider this updated industry standard when available.

DOE seeks comment and feedback on whether HI 40.6-2016 or HI 40.6-2021 is an appropriate test method for conducting wire-to-water testing of circulator pumps, as recommended by the CPWG. In addition, DOE seeks comment on whether the modifications in HI 40.6-2016 and/or HI 40.6-2021 adequately capture the CPWG recommended modifications in Recommendation #10.

Additionally, CPWG recommended several specifications for the circulator pump test procedure that are not included in either HI 40.6-2014 or HI 40.6-2016, including test arrangements for twin-head circulator pumps and circulators-less-volute:

DOE seeks comment on whether the recommendations for twin-head circulator pumps and circulators-less-volute have been adequately addressed in HI 40.6-2021.

The CPWG recommended evaluating SVIL pumps using the constant load pump energy index (PEI CL ) or variable load pump energy index (PEI VL ) metric, similar to general pumps, and using the general pump test procedure to measure performance, with any additional modifications necessary as determined by DOE. (Docket No. EERE-2016-BT-STD-0004, No. 98 Recommendations #1B at pp. 1-2) In the January 2016 TP final rule, DOE adopted a metric of PEI CL for pumps distributed in commerce as bare pumps or as bare pumps with a motor ( i.e., pumps sold without continuous or non-continuous controls) and a metric of PEI VL for pumps sold with either continuous or non-continuous controls. 81 FR 4086, 4150-4152 (Jan. 25, 2016)

DOE identified the size and characteristics of the motor with which the SVIL pumps are rated as the primary difference between SVIL and IL pumps that affects the application of the DOE general pumps test procedure. Specifically, the general pumps test procedure establishes that testing-based methods are applicable to all pump configurations, while calculation-based methods are applicable only to (1) pumps sold with neither a motor nor controls ( i.e., a bare pump), (2) pumps sold with motors that are subject to DOE's energy conservation standards for electric motors, as defined pursuant to 10 CFR 431.25(g), (with or without continuous controls), and (3) pumps sold with submersible motors (with or without continuous controls). This is because the calculation-based test methods presume motor efficiency and motor or motor and drive loss values based on the performance characteristics of motors that are subject to DOE's current energy conservation standards for electric motors at 10 CFR 431.25. Table 1 to appendix A to subpart Y of 10 CFR part 431.

SVIL pumps are often distributed in commerce with motors that are either subject to DOE's electric motor regulations at 10 CFR 431.25 or DOE's small electric motor regulations at 10 CFR 431.466. Therefore, the calculation-based test methods may need to be modified to reference DOE's electric motor regulations at 10 CFR 431.25 or DOE's small electric motor regulations at 10 CFR 431.446, as applicable.

DOE also notes that the general pumps test procedure includes the requirement that all pumps sold with single-phase motors be rated as bare pumps. Table 1 to appendix A to subpart Y of 10 CFR part 431. SVIL pumps sold with single-phase motors could instead be rated to reflect the performance of that single-phase motor, either through the testing or calculation-based methods.

In addition, the general pumps test procedure relies on nominal motor losses to calculate the PER STD and PER CL for the calculation-based method and nominal motor and drive losses to calculate PER VL . Both the motor and combined motor and drive loss curves were developed for the general pumps test procedure based on data from the National Electrical Manufacturers Association (NEMA) and from manufacturers of motors and drives, as well as data from DOE's own testing, for motors and drives from 1 to 250 hp gathered during the general pumps test procedure rulemaking. Since these losses were based on data for motors and drives from 1 to 250 hp, the nominal motor losses derived for the general pumps test procedure may not be appropriate for SVIL pumps. DOE researched typical losses for motors and combined motor and drive assemblies for motors that were less than 1 hp. Based on the information DOE received, the part load loss curves, or the variation in efficiency as a function of load, does not vary significantly between 1 hp motors and drives and motors and drives that are less than 1 hp.

DOE requests comment on the recommendation to test SVIL pumps with the test methods in the general pumps test procedure and additional provisions to account for the differences in size and characteristics of SVIL pump motors. In particular, DOE requests comment on the potential extension of the nominal full load motor efficiency values to reference DOE's small electric motor regulations, including certain single-phase motors, and the need for an exception for SVIL pumps so that those sold with single-phase motors do not have to be rated as bare pumps.

DOE also requests comment on the prevalence of SVIL pumps sold with single-phase versus three-phase motors, and the prevalence of SVIL pumps sold with motors not covered by DOE's small electric motors and electric motors energy conservation standards for either single- or three-phase motors.

DOE also requests comment on whether the equations used to establish the part load motor and drive losses in the general pumps test procedure are appropriate for SVIL pumps under one horsepower. If inappropriate, DOE requests data supporting the generation of alternative loss curves.

DOE is publishing this RFI to collect data and information to inform its decision, consistent with its obligations under EPCA, as to whether the Department should proceed with an energy conservation standards rulemaking. In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether standards for circulator pumps and SVIL pumps may be warranted.

DOE seeks comment on whether establishing a standard for circulator pumps and SVIL pumps would be cost-effective, economically justified, technologically feasible, or would result in a significant savings of energy.

For circulator pumps, the CPWG reached agreement on the methodology, data sources, and assumptions required to conduct the analyses and reach consensus on a recommended standard level. Therefore, DOE is requesting comment only on specific inputs to the analyses that may need to be updated due to technological or market changes since the CPWG proceedings. However, because the CPWG did not analyze SVIL pumps, DOE is requesting comment on several of the associated inputs to the analyses.

The market and technology assessment that DOE routinely conducts when analyzing the impacts of a potential new or amended energy conservation standard provides information about the circulator pumps and SVIL pumps industry that will be used in DOE's analysis throughout the rulemaking process. DOE uses qualitative and quantitative information to characterize the structure of the industry and market. DOE identifies manufacturers, estimates market shares and trends, addresses regulatory and non-regulatory initiatives intended to improve energy efficiency or reduce energy consumption, and explores the potential for efficiency improvements in the design and manufacturing of circulator pumps. DOE also reviews product literature, industry publications, and company websites. Additionally, DOE considers conducting interviews with manufacturers to improve its assessment of the market and available technologies for circulator pumps.

When evaluating and establishing energy conservation standards, DOE may divide covered equipment into equipment classes by the type of energy used, or by capacity or other performance-related features that justify a different standard. (42 U.S.C. 6316(a); 42 U.S.C. 6295(q)) In making a determination whether capacity or another performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE deems appropriate. ( Id. )

For circulator pumps, there are no current energy conservation standards and, thus, no equipment classes. However, the 2016 Term Sheets contained a recommendation related to establishing equipment classes for circulator pumps. Specifically, “Recommendation #1” of the December 2016 CPWG Recommendations suggests grouping all circulator pumps into a single equipment class, though with numerical energy conservation standard values that vary as a function of hydraulic output power. (Docket No. EERE-2016-BT-STD-0004, No. 98 Recommendation at p.1)

DOE requests comment regarding the CPWG recommendation to include all circulator pumps within a single equipment class, especially regarding interim market changes since the recommendation that may warrant changes to that recommendation. DOE additionally seeks comment regarding whether the same recommendations should apply to SVIL pumps.

In analyzing the feasibility of potential new energy conservation standards, DOE uses information about existing and past technology options and prototype designs to help identify technologies that manufacturers could use to meet and/or exceed a given set of energy conservation standards under consideration. In consultation with interested parties, DOE intends to develop a list of technologies to consider in its analysis. An initial list of those options appears in Table III.1 of this document. Each technology option is then described separately in the sections.

The performance characteristics of a pump, such as flow, head, and efficiency, are influenced by the pump's hydraulic design. For purposes of DOE's analysis, “hydraulic design” is a broad term used to describe the system design of the wetted components of a pump. Although hydraulic design focuses on the specific hydraulic characteristics of the impeller and the volute/casing, it also includes design choices related to bearings, seals, and other ancillary components.

Impeller and volute/casing geometries, clearances, and associated components can be redesigned to a higher efficiency (at the same flow and head) using a combination of historical best practices and modern computer-aided design (CAD) and analysis methods. The wide availability of modern CAD packages and techniques now enables pump designers to more quickly reach designs with improved vane shapes, flow paths, and cutwater designs, all of which work to improve the efficiency of the pump. In confidential interviews, manufacturers indicated that the potential for additional efficiency improvements from improved hydraulic design were fairly small.

Different varieties (or constructions) of a motor have different achievable efficiencies. Two general motor constructions are present in the circulator pump market: Induction motors, and electronically commutated motors (ECMs). Induction motors can have one of two configurations: Single-phase and three-phase. Single-phase induction motors may be further categorized to include split phase, capacitor-start induction-run (CSIR), capacitor-start capacitor-run (CSCR), and permanent split capacitor (PSC) motors.

The majority of circulator pumps currently available on the market use induction motors. The efficiency of an induction motor can be increased by redesigning the motor to reduce slip losses between the rotor and stator components, as well as reducing mechanical losses at seals and bearings. ECMs are generally more efficient than induction motors because their construction minimizes slip losses between the rotor and stator components. Unlike induction motors, ECMs require an electronic drive to function. This electronic drive consumes electricity, and variations in drive losses and mechanical designs lead to a range of ECM efficiencies.

The performance standard for circulator pumps is based upon wire-to-water efficiency, which is defined as the hydraulic output power of a circulator divided by its line input power. Wire-to-water efficiency is commonly expressed as a percentage. The achievable wire-to-water efficiency of circulator pumps is influenced by both hydraulic efficiency and motor efficiency. DOE assessed the range of attainable wire-to-water efficiencies for circulator pumps with induction motors, and circulator pumps with ECMs, over a range of hydraulic power outputs. Because circulator pump efficiency is measured on a wire-to-water basis, it is difficult to fully separate differences due to motor efficiency from those due to hydraulic efficiency. In redesigning a pump model to attain greater efficiency levels, manufacturers would likely consider both hydraulic efficiency and motor efficiency. However, manufacturers indicated in interviews that the energy savings potential of improving hydraulic efficiency is small compared to that of improving motor efficiency. Higher motor capacities are generally required for higher hydraulic power outputs, and as motor capacity increases, the attainable efficiency of the motor at full load also increases. Higher horsepower motors also operate close to their peak efficiency for a wider range of loading conditions. 10

Circulator pumps manufacturers manufacture motors in-house or purchase complete or partial motors from motor manufacturers and/or distributors. As a result, manufacturers may select an entirely different motor, or redesign an existing motor in order to improve a pump's motor efficiency.

Circulator pumps with the variable speed capability can reduce their energy consumption by reducing pump speed to match load requirements. As discussed in Section II.B, the PER CIRC metric is a weighted average of input powers at each test point relative to BEP flow. The circulator pumps test procedure agreed to by the CPWG allows: PER CIRC values for multi- and variable-speed circulator pumps to be calculated as the weighted average of input powers at full speed BEP flow, and reduced speed at flow points less than BEP and PER CIRC for single-speed pumps to be calculated based only on input power at full speed. Due to pump affinity laws, variable-speed circulator pumps will achieve reduced power consumption at flow points less than BEP by reducing their rotational speed to more closely match required system head. As such, the PER CIRC metric grants benefits on circulator pumps capable of variable speed operation.

Specifically, the pump affinity laws describe the relationship of pump operating speed, flow rate, head, and hydraulic power as shown in Equations (11), (12), and (13).

This means that a pump operating at half speed will provide one half of the pump's full-speed flow and one eighth of the pump's full-speed power. 11 However, pump affinity laws do not account for changes in hydraulic and motor efficiency that may occur as a pump's rotational speed is reduced. Typically, hydraulic efficiency and motor efficiency will be reduced at lower operating speeds. Consequently, at reduced speeds, power consumption is not reduced as drastically as hydraulic output power. Even so, the efficiency losses at low-speed operation are typically outweighed by the exponential reduction in hydraulic output power at low-speed operation; this results in a lower input power at low speed operation at flow points lower than BEP.

Circulator speed controls may be discrete or continuous, as well as manual or automatic. Circulator pumps with discrete speed controls vary the pump's rotational speed in a step-wise manner. Discrete controls are found mostly on circulator pumps with induction motors, and have several speed settings that are can be used to allow contractors greater installation flexibility with a single circulator model. For these circulator pumps, the pump's speed is set manually with a dial or buttons by the installer or user and operate at a constant speed once the installation is complete.

Circulator pumps equipped with automatic speed controls can adjust the circulator's rotational speed based on a signal from differential pressure or temperature sensors, or an external input signal from a boiler. The variable frequency drives required for ECMs makes them fairly amenable to the addition of variable speed control logic. Currently, the vast majority of circulator pumps with automatic continuously variable speed controls also have ECM motors. However, some circulator models with induction motors also come equipped with automatic continuous variable speed controls. Automatic controls can reduce energy consumption either by allowing circulator speed to dynamically respond to changes in system conditions or simply by reducing speed to a single value optimal for the specific application. Automatic controls can be broadly categorized into two groups: Pressure-based controls, and temperature-based controls.

Pressure-based controls vary the circulator speed based on changes in the system pressure. These pressure changes are typically induced by a thermostatically controlled zone valve that monitors the space temperature in different zones and calls for heat ( i.e., opens the valve) when the space/zone temperature is below the set-point, similar to a thermostat. In this type of control, a pressure sensor internal to the circulator determines the amount of pressure in the system and adjusts the circulator speed to achieve the desired system pressure.

Temperature-based controls monitor the supply and return temperature to the circulator and modulate the circulator speed to maintain a fixed temperature drop across the system. Circulator pumps with temperature-based controls are able to serve the heat loads of a conditioned space at a lower speed, and therefore lower input power, than those with differential pressure controls. This is because they can account for the differential temperature between the space and supplied hot water, delivering a constant BTU/hr load to the space when less heat is needed even in a given zone or zones.

DOE seeks information on the technologies listed in Table III.1 regarding their applicability to the current market and how these technologies may impact the efficiency of circulator pumps as measured according to the DOE test procedure. Specifically, DOE seeks information on the range of efficiencies or performance characteristics that are currently available for each technology option.

DOE seeks information on the technologies listed in Table III.1 regarding their market adoption, costs, and any concerns with incorporating them into products ( e.g., impacts on consumer utility, potential safety concerns, manufacturing/production/implementation issues, etc.).

DOE seeks comment on other technology options that it should consider for inclusion in its analysis and if these technologies may impact product features or consumer utility.

The purpose of the screening analysis is to evaluate the technologies that improve equipment efficiency to determine which technologies will be eliminated from further consideration and which will be passed to the engineering analysis for further consideration.

DOE determines whether to eliminate certain technology options from further consideration based on the following criteria:

Technology options identified in the technology assessment are evaluated against these criteria using DOE analyses and inputs from interested parties ( e.g., manufacturers, trade organizations, and energy efficiency advocates). Technologies that pass through the screening analysis are referred to as “design options” in the engineering analysis. Technology options that fail to meet one or more of the five criteria are eliminated from consideration.

DOE requests feedback on what impact, if any, the five screening criteria described in this section would have on each of the technology options listed in Table III.1 with respect to circulator pumps. Similarly, DOE seeks information regarding how these same criteria would affect any other technology options not already identified in this document with respect to their potential use in circulator pumps.

The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of circulator pumps. There are two elements to consider in the engineering analysis: The selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency equipment, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each equipment class, DOE estimates the baseline cost, as well as the incremental cost for the equipment at efficiency levels above the baseline. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the life-cycle cost (“LCC”) and payback period (“PBP”) analyses and the NIA).

DOE typically uses one of two approaches to develop energy efficiency levels for the engineering analysis: (1) Relying on observed efficiency levels in the market ( i.e., the efficiency-level approach), or (2) determining the incremental efficiency improvements associated with incorporating specific design options to a baseline model ( i.e., the design-option approach). Using the efficiency-level approach, the efficiency levels established for the analysis are determined based on the market distribution of existing products (in other words, based on the range of efficiencies and efficiency level “clusters” that already exist on the market). Using the design option approach, the efficiency levels established for the analysis are determined through detailed engineering calculations and/or computer simulations of the efficiency improvements from implementing specific design options that have been identified in the technology assessment. DOE may also rely on a combination of these two approaches. For example, the efficiency-level approach (based on actual products on the market) may be extended using the design option approach to interpolate to define “gap fill” levels (to bridge large gaps between other identified efficiency levels) and/or to extrapolate to the max-tech level (particularly in cases where the max-tech level exceeds the maximum efficiency level currently available on the market).

Although DOE has not developed a formal engineering analysis, DOE supported the CPWG by providing some engineering-like analysis based on the efficiency-level approach. The analysis was presented over a series of working sessions, transcripts and accompanying material for which is available in the rulemaking docket. (Docket No. EERE-2016-BT-STD-0004)

For each established equipment class, DOE selects a baseline model as a reference point against which any changes resulting from new or amended energy conservation standards can be measured. The baseline model in each equipment class represents the characteristics of common or typical products in that class. Typically, a baseline model is one that meets the current minimum energy conservation standards and provides basic consumer utility.

DOE requests feedback on appropriate baseline efficiency levels for DOE to apply to each equipment class in evaluating whether to establish energy conservation standards for these products.

DOE requests feedback on the appropriate baseline efficiency levels for any newly analyzed equipment classes that are not currently in place or for the contemplated combined equipment classes, as discussed in section III.A.1 of this document. For newly analyzed equipment classes, DOE requests energy use data to characterize the baseline efficiency level.

As part of DOE's analysis, the maximum available efficiency level is the highest efficiency unit currently available on the market. DOE also defines a max-tech efficiency level to represent the theoretical maximum possible efficiency if all available design options are incorporated in a model. In applying these design options, DOE would only include those that are compatible with each other that when combined would represent the theoretical maximum possible efficiency. In many cases, the max-tech efficiency level is not commercially available because it is not economically feasible.

DOE seeks input on whether the maximum available efficiency levels are appropriate and technologically feasible for potential consideration as possible energy conservation standards for circulator pumps—and if not, why not.

DOE also requests feedback on which maximum efficiencies are representative of those for the other circulator pumps not included within the scope of the Term Sheets. If the range of possible efficiencies is different for such other equipment, what alternative approaches should DOE consider using for those equipment classes and why?

DOE seeks feedback on what design options would be incorporated at a max-tech efficiency level, and the efficiencies associated with those levels. As part of this request, DOE also seeks information as to whether there are limitations on the use of certain combinations of design options.

The cost analysis portion of the engineering analysis is conducted using one or a combination of cost approaches. The selection of cost approach depends on a suite of factors, including availability and reliability of public information, characteristics of the regulated product, and the availability and timeliness of purchasing the equipment on the market. The cost approaches are summarized as follows:

• Physical teardowns: Under this approach, DOE physically dismantles a commercially available product, component-by-component, to develop a detailed bill of materials for the product.

• Catalog teardowns: In lieu of physically deconstructing a product, DOE identifies each component using parts diagrams (available from manufacturer websites or appliance repair websites, for example) to develop the bill of materials for the product.

• Price surveys: If neither a physical nor catalog teardown is feasible (for example, for tightly integrated products such as fluorescent lamps, which are infeasible to disassemble and for which parts diagrams are unavailable) or cost-prohibitive and otherwise impractical ( e.g., large commercial boilers), DOE conducts price surveys using publicly available pricing data published on major online retailer websites and/or by soliciting prices from distributors and other commercial channels.

The bill of materials provides the basis for the manufacturer production cost (“MPC”) estimates. DOE then applies a manufacturer markup to convert the MPC to manufacturer selling price (“MSP”). The manufacturer markup accounts for costs such as overhead and profit. The resulting bill of materials provides the basis for the manufacturer production cost (“MPC”) estimates.

As described at the beginning of this section, the main outputs of the engineering analysis are cost-efficiency relationships that describe the estimated increases in manufacturer production cost associated with higher-efficiency products for the analyzed equipment classes.

DOE requests feedback on whether, and if so how, manufacturers would incorporate the technology options listed in Table III.1 to increase energy efficiency in circulator pumps beyond the baseline. This includes information in which manufacturers would incorporate the different technologies to incrementally improve the efficiencies of products. DOE also requests feedback on whether the increased energy efficiency would lead to other design changes that would not occur otherwise. DOE is also interested in information regarding any potential impact of design options on a manufacturer's ability to incorporate additional functions or attributes in response to consumer demand.

DOE also seeks input on the increase in MPC associated with incorporating each particular design option. DOE also requests information on the investments necessary to incorporate specific design options, including, but not limited to, costs related to new or modified tooling (if any), materials, engineering and development efforts to implement each design option, and manufacturing/production impacts.

DOE requests comment on whether certain design options may not be applicable to (or incompatible with) specific equipment classes.

To account for manufacturers' non-production costs and profit margin, DOE applies a non-production cost multiplier (the manufacturer markup) to the MPC. The resulting manufacturer selling price (“MSP”) is the price at which the manufacturer distributes a unit into commerce.

DOE requests feedback on what manufacturer markups are appropriate for non-built-in and built-in products, respectively.

DOE derives customer prices by applying a multiplier called a “markup” to the MSP. In deriving markups, DOE determines the major distribution channels for product sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline products (“baseline markups”) and higher-efficiency products (“incremental markups”). The identified distribution channels ( i.e., how the products are distributed from the manufacturer to the consumer), and estimated relative sales volumes through each channel are used in generating end-user price inputs for the LCC and PBP analyses and the national impact analysis (“NIA”).

During the CPWG meetings, the CPWG identified distribution channels for circulator pumps and estimated their respective shares of shipments by sector (residential and commercial), based on manufacturer feedback (Docket No. EERE-2016-BT-STD-0004, No. 49 at p. 51), as shown in Table III.2:

DOE requests information on whether there have been market changes since the CPWG that would affect the distribution channels and the percentage of circulator pump shipments in each channel and sector, as shown in Table III.2, and if so, how such market changes would affect the circulator pump distribution channels. DOE also requests information on whether the same distribution channels and associated breakdowns across sectors apply for SVIL pumps, and if not, DOE requests relevant data on the SVIL distribution channels and their market shares.

As part of the rulemaking process, DOE conducts an energy use analysis to identify how products are used by consumers, and thereby determine the energy savings potential of energy efficiency improvements. DOE will base the energy consumption of circulator pumps and SVIL pumps on the rated annual energy consumption as determined by the DOE test procedure. Along similar lines, the energy use analysis is meant to represent typical energy consumption in the field.

To estimate the energy use of products in field operating conditions, DOE typically develops consumer samples that are representative of installation and operating characteristics of how such products are used in the field, as well as distributions of annual energy use by application and market segment. According to manufacturer feedback, there are two main applications for circulator pumps: Hydronic heating and hot water recirculation. DOE estimated the market share of these two applications based on manufacturer-provided circulator pump shipments data for 2015, as well as the market distribution of circulator pumps in the residential and commercial sectors based on the horsepower ratings of the shipments data and industry expert input.

To develop consumer samples, the CPWG relied on the Energy Information Administration's (EIA) 2009 residential energy consumption survey (RECS) and the 2012 commercial buildings energy consumption survey (CBECS), for the residential and commercial sectors, respectively. (Docket No. EERE-2016-BT-STD-0004, No. 46 at p. 158) In a potential energy conservation standards rulemaking for circulator pumps and SVIL pumps, DOE may utilize the most current versions of the RECS and CBECS consumer samples, currently the 2015 RECS and the upcoming 2018 CBECS.

DOE requests data and information on whether the breakdowns of circulator pumps by sector and application have changed since the CPWG proceedings, and if so, how. DOE also requests information on the market applications of SVIL pumps and how those are broken down by sector.

As discussed in section II.A.1.b of this document, the CPWG recommended a definition for “on-demand circulator pumps”. (Docket No. EERE-2016-BT-STD-0004, No. 98 Non-Binding Recommendation #1 at pp. 4-5) In order to consider analyzing on-demand circulator pumps, DOE requires information to characterize their market size. The CPWG reported that on-demand circulator pumps comprise 5 percent of the hot water recirculation market. (Docket No. EERE-2016-BT-STD-0004, No. 46 at p. 168)

DOE requests feedback on whether there have been market changes since the CPWG meetings that would warrant a different estimate of the fraction of circulator pumps sold with on-demand controls, and if so, what that fraction is.

To develop annual energy use estimates, the CPWG reviewed the operating hours of circulator pumps by sector (residential and commercial) and application (hydronic heating and hot water recirculation). For hydronic heating applications in the residential sector, operating hours per year (“HPY”) were estimated based on two field metering studies: A 2015 Vermont study and a 2012-2013 metering study in Ithaca, NY. 12 Based on these metering studies, the CPWG suggested establishing a relationship between residential sector heating degree days (“HDDs”) and circulator pump HPY to develop operating hour estimates for the hydronic heating application. For the residential sector, this scaling factor was 0.33 HPY/HDD. (Docket No. EERE-2016-BT-STD-0004, No. 100 at pp. 54, 108). For the commercial sector, the CPWG recommended a scaling factor of 0.45 HPY/HDD. (Docket No. EERE-2016-BT-STD-0004, No. 100 at pp. 122-123). These scaling factors were used to develop distributions of circulator pump operating hours across the consumer samples. The weighted average HPY for the hydronic heating application were estimated at approximately 1,970 and 2,200 for the residential and commercial sector, respectively.

For circulator pumps used in hot water recirculation applications, the CPWG agreed to HPY estimates based on their associated control types (Docket No. EERE-2016-BT-STD-0004, No. 60 at p. 74), as shown in Table III.3.

DOE requests information on any updated or recent data sources, such as circulator pump field metering studies, to inform and validate the circulator pump operating hours in the residential and commercial sectors and across all applications. DOE also requests comment on whether there have been any technology or market changes since the term sheet to warrant a different approach on the circulator pump operating hours.

DOE requests input on the operating hours for SVIL pumps by sector and application, and specifically, whether a similar approach should be followed for SVIL pumps, as the one used to estimate operating hours for circulator pumps.

DOE conducts the LCC and PBP analyses to evaluate the economic effects of potential energy conservation standards for circulator pumps and SVIL pumps on individual customers. For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimated baseline level. The LCC is the total customer expense over the life of the equipment, consisting of purchase, installation, and operating costs (expenses for energy use, maintenance, and repair). Inputs to the calculation of total installed cost include the cost of the equipment—which includes the MSP, distribution channel markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs, equipment lifetimes, discount rates, and the year that compliance with new and amended standards is required.

DOE measures savings of potential standards relative to a “no-new-standards” case that reflects conditions without new and/or amended standards, and uses efficiency market shares to characterize the “no-new-standards” case equipment mix. By accounting for consumers who already purchase more efficient equipment, DOE avoids overstating the potential benefits from potential standards. For circulator pumps, the CPWG reviewed the market efficiency distribution for circulator pumps by efficiency level, circulator variety ( e.g., CP1, CP2, CP3), horsepower rating, and application. The data used to develop the no-new-standards case were confidential manufacturer shipments data from 2015. Table III.4 shows the no-new-standards efficiency distribution in 2015, as agreed by the CPWG. (Docket No. EERE-2016-BT-STD-0004, No. 99 at pp. 206-208). Note that due to confidentiality concerns, the actual market shares are not shown, and instead market availability is depicted by 'X'.

DOE requests feedback and data on whether any changes in the circulator pump market since 2015 have affected the market efficiency distribution of circulator pumps, and if so, how. DOE also requests information on the current efficiency distribution of SVIL pumps.

DOE requests data and information on the installation costs of SVIL pumps, and whether those vary by motor type, control type, or any other factor affecting their efficiency. DOE also requests input on SVIL repair and maintenance costs and frequencies, and SVIL lifetimes, including average and maximum service lifetimes.

DOE develops shipments forecasts of equipment to calculate the national impacts of potential amended energy conservation standards on energy consumption, net present value (“NPV”), and future manufacturer cash flows. DOE shipments projections are typically based on available historical data broken out by equipment class, capacity, and efficiency. Current sales estimates allow for a more accurate model that captures recent trends in the market.

For circulator pumps, DOE utilized manufacturer-provided confidential historical shipments data up to the year 2015 to estimate future circulator pump shipments, which were broken down by circulator pump variety (CP1, CP2, CP3), horsepower rating, and circulator pump housing material.

DOE requests circulator pump annual sales data ( i.e., number of shipments) from 2016 to 2020 broken out by circulator pump category, horsepower rating, and circulator pump housing material. If disaggregated fractions of annual sales are not available, DOE requests more aggregated fractions of annual sales. DOE also requests annual historical shipments data for SVILs for the past 10 years, if possible disaggregated by horsepower rating, motor type, housing material, or any other differentiating factor used in the industry.

To project future shipments, DOE typically uses new housing starts projections and floorspace projections from the Annual Energy Outlook (AEO) as market drivers for the residential and commercial sectors, respectively. In addition to the aforementioned drivers, for hydronic heating applications in the residential sector, the CPWG also agreed to utilize Department of Commerce historical data (from 1973 to 2015), which showed a declining saturation for new construction. Based on these inputs and resulting projections, the CPWG agreed that circulator pump shipments would remain constant at approximately 1.8 million units per year throughout the analysis period (2022-2051). (Docket No. EERE-2016-BT-STD-0004, No. 100 at pp. 19-21).

To project future shipments of circulator pumps, DOE plans to utilize the market drivers and saturation trends agreed by the CPWG and to update the data sources with the most current ones, if available.

DOE requests information on any market changes since 2015 that would justify using market drivers and saturation trends that are different than those recommended by the CPWG. DOE also requests input on the market drivers and saturation trends that would help project shipments for SVIL pumps.

The purpose of the manufacturer impact analysis (“MIA”) is to estimate the financial impact of amended energy conservation standards on manufacturers of circulator pumps, and to evaluate the potential impact of such standards on direct employment and manufacturing capacity. The MIA includes both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (“GRIM”), an industry cash-flow model adapted for each product in this analysis, with the key output of industry net present value (“INPV”). The qualitative part of the MIA addresses the potential impacts of energy conservation standards on manufacturing capacity and industry competition, as well as factors such as product characteristics, impacts on particular subgroups of firms, and important market and product trends.

As part of the MIA, DOE intends to analyze impacts of amended energy conservation standards on subgroups of manufacturers of covered equipment, including small business manufacturers. DOE uses the Small Business Administration's (“SBA”) small business size standards to determine whether manufacturers qualify as small businesses, which are listed by the applicable North American Industry Classification System (“NAICS”) code. 13 Manufacturing of circulator pumps is classified under NAICS 333914, “Measuring, Dispensing, and Other Pumping Equipment Manufacturing,” and the SBA sets a threshold of 750 employees or less for a domestic entity to be considered as a small business. This employee threshold includes all employees in a business' parent company and any other subsidiaries.

One aspect of assessing manufacturer burden involves examining the cumulative impact of multiple DOE standards and the product-specific regulatory actions of other Federal agencies that affect the manufacturers of a covered product or equipment. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.

To the extent feasible, DOE seeks the names and contact information of any domestic or foreign-based manufacturers that distribute circulator pumps or SVILs in the United States.

DOE identified small businesses as a subgroup of manufacturers that could be disproportionally impacted by amended energy conservation standards. DOE requests the names and contact information of small business manufacturers, as defined by the SBA's size threshold, of circulator pumps or SVILs that manufacture products in the United States. In addition, DOE requests comment on any other manufacturer subgroups that could be disproportionally impacted by amended energy conservation standards. DOE requests feedback on any potential approaches that could be considered to address impacts on manufacturers, including small businesses.

DOE requests information regarding the cumulative regulatory burden impacts on manufacturers of circulator pumps and SVILs associated with (1) other DOE standards applying to different products that these manufacturers may also make and (2) product-specific regulatory actions of other Federal agencies. DOE also requests comment on its methodology for computing cumulative regulatory burden and whether there are any flexibilities it can consider that would reduce this burden while remaining consistent with the requirements of EPCA.

The CPWG analyzed four ELs (ELs 1 through 4) as potential standard levels for circulator pumps. 14 The CPWG recommended standard level #2 as the proposed standard level, with a compliance date of four years following the publication of a circulator pumps final rule. (Docket No. EERE-2016-BT-STD-0004, No. 98 Recommendation #1 at p. 1).

DOE requests comment on whether there have been any market or technology changes since publication of the 2016 Term Sheets that would make the CPWG's EL 2 recommendation no longer valid.

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 test procedures and energy conservation standards for circulator pumps and small vertical in-line pumps. These comments and information will aid in the development of test procedure and energy conservation standards NOPRs for circulator pumps and small vertical in-line pumps if DOE determines that amended test procedures may be appropriate for this equipment.

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 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.

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 the CPWG's recommended definitions for wet rotor circulator pump; dry rotor, two-piece circulator pump; dry rotor, three-piece circulator pump; and horizontal motor. Specifically, DOE requests comment regarding whether changes in the market since the CPWG's recommendation would affect the recommended definitions and scope.

(2) DOE requests comment regarding whether the market changes in the intervening years since the CPWG's recommendation of a definition for “header pump” warrant modification of that recommended definition.

(3) DOE requests comment regarding the CPWG-recommended definition of “on-demand circulator pump” and whether it is appropriate to retain on-demand circulator pumps within the scope of future analysis.

(4) DOE seeks comment and feedback on the scope and definitions recommended by the CPWG, including whether anything has changed in the market since the conclusion of the CPWG that would impact the recommended scope and definitions for SVIL pumps.

(5) DOE seeks feedback and information regarding whether it may be appropriate to include SVIL pumps in the circulator pumps rulemaking, in the commercial and industrial pumps rulemaking, or in a separate rulemaking.

(6) DOE seeks comment regarding any other topics related to scope and definitions for circulator pumps and SVIL pumps.

(7) DOE requests comment on the CPWG recommendation to adopt PEI CIRC as the metric to characterize the energy use of certain circulator pumps and on the recommended equation for PEI CIRC , including whether anything in the technology or market has changed since publication of the 2016 Term Sheets that would lead to this metric no longer being appropriate.

(8) DOE requests comment on the recommended definitions for manual speed control, pressure control, adaptive pressure control, temperature control, and external input signal control. Additionally, DOE requests comment on a possible definition for adaptive pressure control.

(9) DOE requests comment on whether any additional control variety is now currently on the market and if it should be considered in this rulemaking.

(10) DOE requests comment on whether the CPWG-recommended reference system curve shape, including the static offset, is reasonable for circulator pumps.

(11) DOE requests comment on the recommended test methods, test points, and weights for circulator pumps with pressure controls, including circulator pumps with adaptive pressure controls. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

(12) DOE requests comment on the recommended test methods, test points, and weights for circulator pumps with temperature controls. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

(13) DOE requests comment on the CPWG-recommended test method and the unique test points, weights, and speed factors for circulator pumps distributed in commerce with manual speed controls. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

(14) DOE requests comment on the CPWG-recommended test method for circulator pumps distributed in commerce with only external input signal controls, as well as for those distributed in commerce with external input signal controls in addition to other control varieties. Specifically, DOE requests comment on whether the technology or market for such controls has changed sufficiently since the term sheet to warrant a different approach.

(15) DOE requests comment on the CPWG-recommended test methods, test points, and weights for circulator pumps with no controls.

(16) DOE seeks comment and feedback on whether HI 40.6-2016 or HI 40.6-2021 is an appropriate test method for conducting wire-to-water testing of circulator pumps, as recommended by the CPWG. In addition, DOE seeks comment on whether the modifications in HI 40.6-2016 and/or HI 40.6-2021 adequately capture the CPWG recommended modifications in Recommendation #10.

(17) DOE seeks comment on whether the recommendations for twin-head circulator pumps and circulators-less-volute have been adequately addressed in HI 40.6-2021.

(18) DOE requests comment on the recommendation to test SVIL pumps with the test methods in the general pumps test procedure and additional provisions to account for the differences in size and characteristics of SVIL pump motors. In particular, DOE requests comment on the potential extension of the nominal full load motor efficiency values to reference DOE's small electric motor regulations, including certain single-phase motors, and the need for an exception for SVIL pumps so that those sold with single-phase motors do not have to be rated as bare pumps.

(19) DOE also requests comment on the prevalence of SVIL pumps sold with single-phase versus three-phase motors, and the prevalence of SVIL pumps sold with motors not covered by DOE's small electric motors and electric motors energy conservation standards for either single- or three-phase motors.

(20) DOE also requests comment on whether the equations used to establish the part load motor and drive losses in the general pumps test procedure are appropriate for SVIL pumps under one horsepower. If inappropriate, DOE requests data supporting the generation of alternative loss curves.

(21) DOE seeks comment on whether establishing a standard for circulator pumps and SVIL pumps would be cost-effective, economically justified, technologically feasible, or would result in a significant savings of energy.

(22) DOE requests comment regarding the CPWG recommendation to include all circulator pumps within a single equipment class, especially regarding interim market changes since the recommendation that may warrant changes to that recommendation. DOE additionally seeks comment regarding whether the same recommendations should apply to SVIL pumps.

(23) DOE seeks information on the technologies listed in Table III.1 regarding their applicability to the current market and how these technologies may impact the efficiency of circulator pumps as measured according to the DOE test procedure. Specifically, DOE seeks information on the range of efficiencies or performance characteristics that are currently available for each technology option.

(24) DOE seeks information on the technologies listed in Table III.1 regarding their market adoption, costs, and any concerns with incorporating them into products ( e.g., impacts on consumer utility, potential safety concerns, manufacturing/production/implementation issues, etc.).

(25) DOE seeks comment on other technology options that it should consider for inclusion in its analysis and if these technologies may impact product features or consumer utility.

(26) DOE requests feedback on what impact, if any, the five screening criteria described in this section would have on each of the technology options listed in Table III.1 with respect to circulator pumps. Similarly, DOE seeks information regarding how these same criteria would affect any other technology options not already identified in this document with respect to their potential use in circulator pumps.

(27) DOE requests feedback on appropriate baseline efficiency levels for DOE to apply to each equipment class in evaluating whether to establish energy conservation standards for these products.

(28) DOE requests feedback on the appropriate baseline efficiency levels for any newly analyzed equipment classes that are not currently in place or for the contemplated combined equipment classes, as discussed in section III.A.1 of this document. For newly analyzed equipment classes, DOE requests energy use data to characterize the baseline efficiency level.

(29) DOE seeks input on whether the maximum available efficiency levels are appropriate and technologically feasible for potential consideration as possible energy conservation standards for circulator pumps—and if not, why not.

(30) DOE also requests feedback on which maximum efficiencies are representative of those for the other circulator pumps not included within the scope of the Term Sheets. If the range of possible efficiencies is different for such other equipment, what alternative approaches should DOE consider using for those equipment classes and why?

(31) DOE seeks feedback on what design options would be incorporated at a max-tech efficiency level, and the efficiencies associated with those levels. As part of this request, DOE also seeks information as to whether there are limitations on the use of certain combinations of design options.

(32) DOE requests feedback on whether, and if so how, manufacturers would incorporate the technology options listed in Table III.1 to increase energy efficiency in circulator pumps beyond the baseline. This includes information in which manufacturers would incorporate the different technologies to incrementally improve the efficiencies of products. DOE also requests feedback on whether the increased energy efficiency would lead to other design changes that would not occur otherwise. DOE is also interested in information regarding any potential impact of design options on a manufacturer's ability to incorporate additional functions or attributes in response to consumer demand.

(33) DOE also seeks input on the increase in MPC associated with incorporating each particular design option. DOE also requests information on the investments necessary to incorporate specific design options, including, but not limited to, costs related to new or modified tooling (if any), materials, engineering and development efforts to implement each design option, and manufacturing/production impacts.

(34) DOE requests comment on whether certain design options may not be applicable to (or incompatible with) specific equipment classes.

(35) DOE requests feedback on what manufacturer markups are appropriate for non-built-in and built-in products, respectively.

(36) DOE requests information on whether there have been market changes since the CPWG that would affect the distribution channels and the percentage of circulator pump shipments in each channel and sector, as shown in Table III.2, and if so, how such market changes would affect the circulator pump distribution channels. DOE also requests information on whether the same distribution channels and associated breakdowns across sectors apply for SVIL pumps, and if not, DOE requests relevant data on the SVIL distribution channels and their market shares.

(37) DOE requests data and information on whether the breakdowns of circulator pumps by sector and application have changed since the CPWG proceedings, and if so, how. DOE also requests information on the market applications of SVIL pumps and how those are broken down by sector.

(38) DOE requests feedback on whether there have been market changes since the CPWG meetings that would warrant a different estimate of the fraction of circulator pumps sold with on-demand controls, and if so, what that fraction is.

(39) DOE requests information on any updated or recent data sources, such as circulator pump field metering studies, to inform and validate the circulator pump operating hours in the residential and commercial sectors and across all applications. DOE also requests comment on whether there have been any technology or market changes since the term sheet to warrant a different approach on the circulator pump operating hours.

(40) DOE requests input on the operating hours for SVIL pumps by sector and application, and specifically, whether a similar approach should be followed for SVIL pumps, as the one used to estimate operating hours for circulator pumps.

(41) DOE requests feedback and data on whether any changes in the circulator pump market since 2015 have affected the market efficiency distribution of circulator pumps, and if so, how. DOE also requests information on the current efficiency distribution of SVIL pumps.

(42) DOE requests data and information on the installation costs of SVIL pumps, and whether those vary by motor type, control type, or any other factor affecting their efficiency. DOE also requests input on SVIL repair and maintenance costs and frequencies, and SVIL lifetimes, including average and maximum service lifetimes.

(43) DOE requests circulator pump annual sales data ( i.e., number of shipments) from 2016 to 2020 broken out by circulator category, horsepower rating, and circulator housing material. If disaggregated fractions of annual sales are not available, DOE requests more aggregated fractions of annual sales. DOE also requests annual historical shipments data for SVILs for the past 10 years, if possible disaggregated by horsepower rating, motor type, housing material, or any other differentiating factor used in the industry.

(44) DOE requests information on any market changes since 2015 that would justify using market drivers and saturation trends that are different than those recommended by the CPWG. DOE also requests input on the market drivers and saturation trends that would help project shipments for SVIL pumps.

(45) To the extent feasible, DOE seeks the names and contact information of any domestic or foreign-based manufacturers that distribute circulator pumps or SVILs in the United States.

(46) DOE identified small businesses as a subgroup of manufacturers that could be disproportionally impacted by amended energy conservation standards. DOE requests the names and contact information of small business manufacturers, as defined by the SBA's size threshold, of circulator pumps or SVILs that manufacture products in the United States. In addition, DOE requests comment on any other manufacturer subgroups that could be disproportionally impacted by amended energy conservation standards. DOE requests feedback on any potential approaches that could be considered to address impacts on manufacturers, including small businesses.

(47) DOE requests comment on whether there have been any market or technology changes since publication of the 2016 Term Sheets that would make the CPWG's EL 2 recommendation no longer valid.

This document of the Department of Energy was signed on April 27, 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 has established an early assessment review process to conduct a more focused analysis to evaluate, based on statutory criteria, whether a new or amended energy conservation standard is warranted. Based on the information received in response to the RFI and DOE's own analysis, DOE will determine whether to proceed with a rulemaking for a new or amended energy conservation standard. If DOE makes an initial determination that a new or amended energy conservation standard would satisfy the applicable statutory criteria or DOE's analysis is inconclusive, DOE would undertake the preliminary stages of a rulemaking to issue a new or amended energy conservation standard. If DOE makes an initial determination based upon available evidence that a new or amended energy conservation standard would not meet the applicable statutory criteria, DOE would engage in notice and comment rulemaking before issuing a final determination that new or amended energy conservation standards are not warranted.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 among other things, 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. These products include ceiling fans, the subject of this document. (42 U.S.C. 6291(49); 42 U.S.C. 6293(b)(16)(A)(i) and (B); and 42 U.S.C. 6295(ff))

Under EPCA, DOE's energy conservation program 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. 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(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy, or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3))

EPCA also requires that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE evaluate the energy conservation standards for each type of covered product, including those at issue here, and publish either a notification of determination that the standards do not need to be amended, or a NOPR that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) DOE is publishing this RFI in accordance with the 6-year lookback requirement.

In a final rule published on October 18, 2005, DOE codified design standards prescribed by EPCA for ceiling fans. 70 FR 60407, 60413. These standards are set forth in DOE's regulations at title 10 of the Code of Federal Regulations (“CFR”) section 430.32(s), and require all ceiling fans manufactured on or after January 1, 2007, to have (1) fan speed controls separate from any lighting controls; (2) adjustable speed controls (either more than one speed or variable speed); and (3) the capability for reverse action (other than fans sold for industrial or outdoor application or where safety would be an issue)). (42 U.S.C. 6295(ff)(1)(A))

In a final rule published January 19, 2017, DOE established energy conservation standards for ceiling fans, which are expressed as the minimum allowable efficiency in terms of cubic feet per minute per watt (“CFM/W”), as a function of ceiling fan diameter in inches. These standards were to apply to all covered ceiling manufactured in, or imported into, the United States on and after January 21, 2020. 82 FR 6826, 6827 (“January 2017 Final Rule”).

The Energy Act of 2020 (Pub. L. 116-260), which was signed into law on December 27, 2020, amended performance standards for large-diameter ceiling fans. 3 (42 U.S.C. 6295(ff)(6)(C)(i), as codified) Pursuant to the Energy Act of 2020, large-diameter ceiling fans are subject to standards in terms of the Ceiling Fan Efficiency Index (“CFEI”) metric, with one standard based on operation of the fan at high speed and a second standard based on operation of the fan at 40 percent speed or the nearest speed that is not less than 40 percent speed. (42 U.S.C. 6295(ff)(6)(C)(i), as codified)

The current energy conservation standards are located in 10 CFR 430.32(s). The currently applicable DOE test procedures for ceiling fans appear at 10 CFR part 430, subpart B, appendix U, Uniform Test Method for Measuring the Energy Consumption of Ceiling Fans (“Appendix U”). Sampling and certification requirements for ceiling fans are set forth at 10 CFR 429.32.

DOE is publishing this RFI to collect data and information during the early assessment review to inform its decision, consistent with its obligations under EPCA, as to whether the Department should proceed with an energy conservation standards rulemaking. Below DOE has identified certain topics for which information and data are requested to assist in the evaluation of the potential for amended energy conservation standards. DOE also welcomes comments on other issues relevant to its early assessment that may not specifically be identified in this document.

EPCA defines a “ceiling fan” as “a nonportable device that is suspended from a ceiling for circulating air via the rotation of fan blades.” (42 U.S.C. 6291(49)) DOE has established seven product classes for ceiling fans: Highly decorative, belt-driven, very small-diameter, hugger, standard, high-speed small-diameter, and large-diameter fans. 82 FR 6826, 6836 Belt-driven and highly decorative ceiling fans are not presently subject to performance standards. 10 CFR 430.32(s)(2)(ii)(C) and (E). DOE also has not established performance standards for centrifugal ceiling fans, oscillating ceiling fans, or ceiling fans whose blades' plane of rotation cannot be within 45 degrees of horizontal fans. 10 CFR 430.32(s)(2)(ii)(A), (B), and (D). The five product classes subject to performance standards are delineated by fan diameter, blade thickness, and blade-to-ceiling distance. Those product classes are: High-speed small-diameter (“HSSD”), hugger, large-diameter (“LDCF”), standard, and very-small-diameter (“VSD”) as defined in 10 CFR part 430, subpart B, appendix U.

Issue 1: DOE requests comment and data that would allow DOE to evaluate whether energy conservation standards would be technically feasible and economically justified for belt-driven ceiling fans. Specifically, DOE requests comment on the number of models of belt-driven ceiling fans available, the number of shipments, and the technology options that might be incorporated to improve energy efficiency.

Issue 2: DOE seeks information regarding any other new product classes it should consider for inclusion in its analysis. DOE also requests relevant data detailing the corresponding impacts on energy use that would justify separate product classes ( i.e., explanation for why the presence of these performance-related features would increase or decrease energy consumption).

In the January 2017 Final Rule, DOE established an energy conservation standard for ceiling fans that is expected to result in 2.01 quadrillion British thermal units (“quads”) of full fuel cycle (FFC) energy savings over a 30-year period. 82 FR 6826, 6828. Additionally, in the January 2017 Final Rule, DOE estimated that an energy conservation standard established at an energy use level equivalent to that achieved using the maximum available technology (“max-tech”) relative to the selected energy use level would have resulted in 1.73 additional quads of FFC energy savings. 4 82 FR 6826, 6874.

While DOE's request for information is not limited to the following issues, DOE is particularly interested in comment, information, and data on the following topics to inform whether potential amended energy conservation standards would result in a significant savings of energy.

As part of the rulemaking process, DOE conducts an energy use analysis to identify how products are used by consumers, and thereby determine the energy savings potential of energy efficiency improvements. DOE bases the energy consumption of ceiling fans on their rated power usage as determined by the DOE test procedure and as provided from the engineering analysis. The energy use analysis is meant to represent typical energy consumption in the field.

For the January 2017 Final Rule, DOE combined the ceiling fan power ratings from the engineering analysis with estimates of the distribution of annual operating hours in field operating conditions. DOE assumed that all standard, hugger, and VSD ceiling fans with brushless direct current (“DC”) motors and 7 percent of those fans with alternating current (“AC”) motors (which were estimated to have a remote control) have standby power consumption. For such ceiling fans, DOE assumed a power usage of 0.7 watts and that all hours of the year not in active mode were in standby mode. 82 FR 6826, 6846.

For HSSD and large-diameter ceiling fans, DOE assumed 12 hours per day, on average, of active mode operation. DOE assumed that HSSD ceiling fans spend approximately 10 percent of the time at high and 10 percent at low speeds, with the remaining 80 percent of the time spent at medium speed. 82 FR 6826, 6847. For LDCFs, DOE assumed an equal proportion of time spent at each of the speeds tested according to the DOE test procedure for ceiling fans. 81 FR 48619, 48632-48633. As with standard, hugger, and VSD ceiling fans, DOE estimated hours of operation in standby mode for HSSD and LDCFs as the number of hours not spent in active mode. DOE assumed HSSD ceiling fans with DC motors had standby power consumption of 0.7 watts. For LDCFs, DOE assumed a standby power consumption of 7 watts, regardless of motor type. 82 FR 6826, 6847. For details on the energy use analysis, see chapter 7 of the January 2017 Final Rule Technical Support Document (“2017 CF ECS TSD”). 5

Issue 3: DOE requests comment and data on the assumptions used in the January 2017 Final Rule regarding the daily operating hours and the proportion of time spent at each speed setting for ceiling fans, specifically HSSD and LDCFs.

Issue 4: DOE requests data and feedback on the fraction of standard, hugger, and VSD ceiling fans with remote controls, and therefore standby power consumption.

Issue 5: DOE requests comment on whether any of the smart technologies available on the market would impact the efficiency of ceiling fans as measured by DOE's test procedure at 10 CFR part 430, subpart B, appendix U. Specifically, DOE seeks comment on whether smart technologies improve the efficiency of ceiling fans or impact the number of operating hours in each mode. DOE additionally requests data regarding the comparative energy use of fans with and without smart technology.

DOE develops shipments forecasts of ceiling fans to calculate the national impacts of potential amended energy conservation standards on energy consumption, net present value (“NPV”), and future manufacturer cash flows. DOE shipments projections are based on available historical data broken out by product class and efficiency. Current sales estimates allow for a more accurate model that captures recent trends in the market.

For the January 2017 Final Rule, DOE relied on various sources for estimating historical shipments data for ceiling fans. For standard, hugger, and VSD ceiling fans, DOE used data from Appliance magazine's Statistical Review from 1991-2006, data from ENERGY STAR Annual Reports from 2003-2013, and data purchased from NPD Research group from 2007-2011. DOE disaggregated shipments between standard, hugger, and VSD product classes based on the relative fraction of model counts found online and in-store and feedback from manufacturers. DOE was unable to find historical shipments data for HSSD and LDCFs; therefore, DOE primarily relied on manufacturer feedback and available model counts online to estimate shipments. 82 FR 6826, 6853. For details on the shipments methodology used in the previous rulemaking, see chapter 9 of the 2017 CF ECS TSD. Table II.1 shows estimated annual shipments by product class from 2016 to 2020.

Issue 6: DOE requests historical ceiling fan shipments data for each product class listed in section II.A and seeks feedback on how the annual shipments estimates shown in Table II.1 compare to the actual shipments in those years. If disaggregated shipments data are not available at the product class level, DOE requests shipments data at any broader available category ( e.g., residential vs. commercial and industrial sectors).

During the January 2017 Final Rule, DOE considered a number of technologies for reducing ceiling fan energy consumption. 82 FR 6826, 6837-6838. DOE is interested in understanding any technology improvements relative to ceiling fans since the previous energy standards rulemaking. Additionally, DOE is interested in any changes to the technologies it evaluated in preparation for the January 2017 Final Rule that may affect whether DOE could propose a “no-new-standards” determination, such as an insignificant increase in the range of efficiencies and performance characteristics of these technology options. DOE also seeks comment on whether there are any other technology options that DOE should consider in its analysis.

While DOE's request for information is not limited to the following issues, DOE is particularly interested in comment, information, and data on the following.

In analyzing the feasibility of potential new or amended energy conservation standards, DOE uses information about existing and past technology options and prototype designs to help identify technologies that manufacturers could use to meet and/or exceed a given set of energy conservation standards under consideration. A complete list of the options considered in the January 2017 Final Rule appears in Table II.2. Table II.3 lists additional technology options that DOE may consider in a future ceiling fan energy conservation standards rulemaking that were not considered in the January 2017 Final Rule.

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-2021-0156; Project Identifier AD-2020-01594-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 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 Jeff Johnson, Aviation Safety Engineer, Atlanta ACO Branch, FAA, 1701 Columbia Ave., College Park, GA 30337. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

During flight testing of a Gulfstream Model GVII-G500 airplane, when the aircraft was configuring for a steep approach test point, the crew received a flap failure message. After landing, inspection revealed that the left-hand flap track `B' yoke had become disconnected due to structural failure. Gulfstream's investigation to determine the root cause of the failure revealed that the flap yoke fittings for certain serial-numbered Gulfstream Model GVII-G500 airplanes have design features that cause decreased fatigue life. The unsafe design features include insufficient shaft diameter, a small fillet radius detail at the top of the shaft, and a rough surface finish allowance, which collectively attribute to a potential yoke fitting failure. These design features ultimately cause higher stress concentrations leading to premature and fast-fracture overload of the flap actuator yoke at the junction of the fitting shaft and yoke clevis.

This condition, if not addressed, could result in failure of the flap yoke fitting during flap transition, which could cause the flaps to stop moving. This, combined with additional failures in the flap actuator force limiter or flap yoke actuator disconnect, could result in asymmetric flap positions, leading to a loss of airplane control.

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 Gulfstream GVII-G500 Aircraft Service Change No. 032, Initial Issue, dated November 20, 2020 (Gulfstream ASC No. 032). This service information specifies procedures for replacing the flap inboard and outboard yoke fitting assemblies and upper bushings. 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 .

The FAA also reviewed Gulfstream GVII-500 Customer Bulletin No. 045, Initial Issue, dated November 20, 2020. This service information specifies the compliance time and additional information for Gulfstream ASC No. 032. The FAA also reviewed Gulfstream Aerospace GVII-G500 Aircraft Maintenance Manual (AMM) Document Number GAC-AC-GVII-G500-AMM-0001, Revision 7, dated December 15, 2020. This document contains revised airworthiness limitations, maintenance checks, and inspections.

This proposed AD would require replacing the flap inboard and outboard yoke fitting assemblies and updating chapter 5 of your existing AMM to incorporate a 20,000 flight cycle life limit.

Gulfstream ASC No. 032 contains actions labeled “Required for Compliance” (RC), and the language in the ASC and in paragraph (h)(3) of this AD indicates that operators must comply with all actions labeled RC for compliance with this AD. However, this AD does not require all of the steps in Gulfstream ASC No. 032 that are labeled as RC. Operators only need to comply with the RC steps specified in paragraph (g) of this AD.

The FAA estimates that this AD, if adopted as proposed, would affect 85 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-2021-0343; Project Identifier MCAI-2021-00013-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.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0004, dated January 6, 2021 (EASA AD 2021-0004) (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.

This proposed AD was prompted by a report that during an inspection of the flight deck escape hatches it was found that they were difficult to open from the inside, and several hatches were found impossible to open from the outside. Subsequent investigation revealed corrosion on the flight deck escape hatch mechanism due to condensation penetrating inside the mechanism. It has been determined that the flight deck escape hatch will always remain accessible from the inside but might not be operable from the outside. The FAA is proposing this AD to address possible inaccessibility of the flight deck escape hatch, which could impede flightcrew evacuation during an emergency. See the MCAI for additional background information.

EASA AD 2021-0004 describes procedures for replacing all affected flight deck escape hatches with serviceable flight deck escape hatches.

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

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

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0004 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2021-0004 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0004 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2021-0004 that is required for compliance with EASA AD 2021-0004 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0343 after the FAA final rule is published.

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:

According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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-2021-0332; Project Identifier AD-2020-01414-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 Greg Rutar, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3529; email: Greg.Rutar@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 FAA has received reports that shimming requirements were not met during the assembly of certain areas of the front spar pickle fork and front spar outer chord structural joints, which can result in reduced fatigue thresholds of the affected structural joints. The existing inspection program does not adequately detect this fatigue cracking. The affected locations are common to the front spar pickle fork, between stringer S-22 and stringer S-25, and the front spar body chord, between stringer S-25 and buttock line (BL) 0′, on the left and right sides. Not meeting the shimming requirements during assembly of the station (STA) 873 front spar pickle fork and front spar body chord structure joints results in excessive pull-up forces, fastener shanking, excessive burr heights in metallic members, and metallic chips (foreign object debris) in fastened interfaces, which all degrade fatigue performance of any affected structural joints.

Undetected fatigue cracking could weaken primary structure so it cannot sustain limit load, which could result in reduced structural integrity of the airplane.

The FAA reviewed Boeing Alert Requirements Bulletin B787-81205-SB530075-00 RB, Issue 001, dated September 8, 2020. The service information describes procedures for repetitive high frequency eddy current (HFEC) inspections for cracking around all the fasteners common to the front spar pickle fork outer chord surface between stringer S-22 and stringer S-24 at STA 873 on the left and right sides, and along the entire forward edge of the front spar pickle fork outer chord covered by the body chord splice angle between stringer S-24 and stringer S-25 at STA 873 on the left and right sides, and repair of any cracking found. The service information also describes procedures for repetitive ultrasonic (UT) inspections for cracking of the front spar pickle fork outer chord along the upper, lower and aft edges of the end fittings at stringer S-23 at STA 873, on the left and right sides, and repair of any cracking found.

The FAA also reviewed Boeing Alert Requirements Bulletin B787-81205-SB530076-00 RB, Issue 001, dated September 8, 2020. The service information describes procedures for repetitive HFEC inspections for cracking along the entire forward edge of the front spar body chord in the area covered by the body chord splice angle at stringer S-25 on the left and right sides, and the splice fitting at BL 0′, STA 873, and repair of any cracking found. The service information also describes procedures for repetitive detailed inspections of the front spar body chord horizontal flange surface between stringer S-26 to stringer S-40 at STA 873 on the left and right sides and repair of any cracking found. The service information also describes procedures for repetitive UT inspections for cracking of the of the front spar body chord horizontal flange along the upper and lower edges of the end fittings at stringer S-27, at STA 873 on the left and right sides, and repair of any cracking found.

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.

The FAA is proposing this AD because the agency 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 accomplishment of the actions identified in Boeing Alert Requirements Bulletins B787-81205-SB530075-00 RB and B787-81205-SB530076-00 RB, both Issue 001, both dated September 8, 2020, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

For information on the procedures and compliance times, see this service information at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0332.

The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (AD ARC), to enhance the AD system. One enhancement is a process for annotating which steps in the service information are “required for compliance” (RC) with an AD. Boeing has implemented this RC concept into Boeing service bulletins.

In an effort to further improve the quality of ADs and AD-related Boeing service information, a joint process improvement initiative was worked between the FAA and Boeing. The initiative resulted in the development of a new process in which the service information more clearly identifies the actions needed to address the unsafe condition in the “Accomplishment Instructions.” The new process results in a Boeing Requirements Bulletin, which contains only the actions needed to address the unsafe condition ( i.e., only the RC actions).

The FAA estimates that this proposed AD affects 79 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in 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-2021-0347; Project Identifier AD-2020-01610-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 Stephen Elwin, 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 that occurred on October 27, 2019, resulting in uncommanded high thrust. Analysis by the manufacturer found accumulated thermal cycles of the MN4 integrated circuit in the FADEC, through normal operation, causes the solder ball joints to wear out and eventually fail over time. The FAA published AD 2020-20-17 (85 FR 63443, dated October 8, 2020) to prohibit dispatch of an airplane if certain status messages are displayed on the engine indicating and crew alerting system and if certain conditions are present per the manufacturer's service information. As a terminating action, AD 2020-20-17 also requires revision of the existing FAA-approved minimum equipment list (MEL) by incorporating into the MEL the dispatch restrictions listed in this AD. Since that AD, the manufacturer published GE GE90-100 Service Bulletin (S/B) 73-0118 R00, dated November 6, 2020, and Revision 01, dated April 27, 2021, to replace the FADEC MN4 microprocessor and solder. 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 GE90-100 S/B 73-0118, Revision 01, dated April 27, 2021. This S/B specifies procedures for replacing the FADEC MN4 microprocessor. 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 initial and repetitive replacement of the FADEC 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 will consider further rulemaking.

The FAA estimates that this AD, if adopted as proposed, would affect 311 engines installed on airplanes of U.S. registry.

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

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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-2021-0175; Project Identifier 2001-SW-33-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 proposal.

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 SNPRM 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 SNPRM, 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 SNPRM. Submissions containing CBI should be sent to Blaine Williams, Aerospace Engineer, Cabin Safety & Environmental Systems Section, Los Angeles ACO Branch, Compliance & Airworthiness Division, 3960 Paramount Blvd., Lakewood, CA 90712; telephone 562-627-5371; email blaine.williams@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The DGAC, which was the Technical Agent for France, issued DGAC AD 2001-061-053(A), dated February 21, 2001 (DGAC AD 2001-061-053(A)) for certain Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters; and DGAC AD 2001-283-025(A), dated July 11, 2001 (DGAC AD 2001-283-025(A)) for all Model SA-366G1 helicopters (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for those helicopters.

The FAA issued a SNPRM to amend 14 CFR part 39 by adding an AD that would apply to all Eurocopter France Model SA-365N, SA-365N1, AS-365N2, AS 365 N3, and SA-366G1 helicopters. The FAA preceded the SNPRM with an NPRM that published in the Federal Register on December 18, 2002 (67 FR 77444). The NPRM proposed to require inspecting the frame for the correct edge distance of the four attachment holes of the stretcher support and for a crack, and repairing the frame, if necessary. The NPRM was prompted by a quality control check that revealed some stretcher attachment holes were improperly located on the frame where there was insufficient edge distance.

The first SNPRM published in the Federal Register on March 11, 2004 (69 FR 11556). The first SNPRM retained the proposed requirements of the NPRM and added recurring inspections and references to an engineering report that lists approved U.S. alternative fasteners and materials that may be used in any required repairs. Additionally, the first SNPRM stated that the FAA determined that it is unnecessary to require installation of a reinforcing angle and instead will require a 550-hour repetitive inspection for those helicopters that have an edge distance on the frame of less than 5 millimeters (mm), are not cracked, and have not been repaired.

Since the FAA issued the first SNPRM, a significant amount of time elapsed requiring the FAA to reopen the comment period to allow the public a chance to comment on the proposed actions.

Additionally, since the FAA issued the first SNPRM, Eurocopter France has changed its name to Airbus Helicopters. The FAA has revised references to the manufacturer's name specified throughout this SNPRM to identify the manufacturer's name as published in the most recent type certificate data sheet for the affected models and updates the contact information to obtain service documentation. This SNPRM also updates the estimated cost information.

Furthermore, since the FAA issued the first SNPRM, EASA has become the Technical Agent for the Member States of the European Union, which includes France. EASA is now the State of Design Authority for the affected helicopter models.

The FAA's Aircraft Certification Service has also changed its organizational structure. The new structure replaces product directorates with functional divisions. The FAA revised some of the office titles and nomenclature throughout this proposed AD to reflect the new organizational changes. Additional information about the new structure can be found in the Notice published on July 25, 2017 (82 FR 34564).

The preamble of the first SNPRM stated that it was unnecessary to require the installation of a reinforcing angle but that action was included as a requirement in the body of the first SNPRM. This second SNPRM retains that installation requirement, which corresponds with the requirements of the DGAC ADs and addresses the identified unsafe condition.

For transparency and as part of the FAA's on-going docket management consolidation efforts, the FAA is transferring the docket for this SNPRM to the Federal Docket Management System (FDMS). The new Docket Number (No.) is FAA-2021-0175. The old Docket No., which is 2001-SW-33-AD, became the Project Identifier.

DGAC AD 2001-061-053(A) and DGAC AD 2001-283-025(A) describe procedures for measuring the edge distance of the webs at the four attachment holes of the stretcher support on the left and right sides of the 9-degree frame, and additional actions depending on the findings. The additional actions include repetitively inspecting the frame for cracking, repair if necessary, and installation of a reinforcement plate (reinforcing angle) on the frame. These documents are distinct since they refer to different helicopter models.

American Eurocopter Engineering Report No. AEC/03R-E-005, “Addendum ASB 53.00.42 and 53.00.43 AS365”, dated January 29, 2003, specifies U.S. and European rivet equivalent part numbers, U.S. rivet part numbers with acceptable substitute materials with greater strength properties, and 5 rivet, 6 rivet, and pin Hi-lok alternatives.

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.

The FAA gave the public the opportunity to participate in developing this proposed AD. The FAA received no comments on the first SNPRM or on the determination of the cost to the public.

These products have been approved by the aviation authority of another country, and are approved for operation in the United States. Pursuant to the 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 after evaluating all the relevant information and determining the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

Certain changes described above expand the scope of the SNPRM. As a result, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

This proposed AD would require accomplishing the actions specified in DGAC AD 2001-061-053(A) and DGAC AD 2001-283-025(A), described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this Proposed AD and the MCAI.”

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. As mentioned previously, when the SNPRM was published the DGAC was the Technical Agent for France. Since that time EASA has become the Technical Agent for the Member States of the European Union, which includes France. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, DGAC AD 2001-061-053(A) and DGAC AD 2001-283-025(A) will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with DGAC AD 2001-061-053(A) and DGAC AD 2001-283-025(A) 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 DGAC ADs does not mean that operators need comply only with that section. Service information specified in DGAC AD 2001-061-053(A) and DGAC AD 2001-283-025(A) that is required for compliance with DGAC AD 2001-061-053(A) and DGAC AD 2001-283-025(A) will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0175 after the FAA final rule is published.

The FAA has determined that acceptable U.S. alternatives to the fasteners and materials needed to perform repairs or modifications are listed in American Eurocopter Engineering Report No. AEC/03R-E-005 “Addendum ASB 53.00.42 and 53.00.043 AS365”, dated January 29, 2003.

Where DGAC AD 2001-061-053(A) exempts helicopters that were delivered after January 31, 2001, from the applicability, this proposed AD does not exempt those helicopters.

The FAA estimates that this proposed AD affects 31 helicopters of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of helicopters that might need these on-condition actions:

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-2010-0865; Project Identifier 2010-SW-061-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 again revise 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 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 SNPRM 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 SNPRM, 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 SNPRM. Submissions containing CBI should be sent to Kathleen Arrigotti, Program Manager, Large Aircraft Section, International Validation Branch, Compliance & Airworthiness Division, FAA, 2200 South 216th St., Des Moines, WA 98198; phone 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 FAA issued an NPRM to amend 14 CFR part 39 by adding an AD that would apply to certain Bell Helicopter Textron Canada Limited (now Bell Textron Canada Limited) Model 206A, 206B, 206L, 206L-1, 206L-3, and 206L-4 helicopters. The NPRM published in the Federal Register on August 30, 2010 (75 FR 52914). In the NPRM, the FAA proposed to require determining if an affected part is installed (by doing a maintenance records check or inspection), and if an affected part is found, replacement with a non-affected part. The NPRM was prompted by a report that a certain disc assembly, sold as an alternate part, does not conform to the approved configuration.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, issued Canadian AD CF-2010-07, dated February 24, 2010 (Canadian AD CF-2010-07), to correct an unsafe condition for certain Bell Helicopter Textron Canada Limited (now Bell Textron Canada Limited) Model 206A, 206B, 206L, 206L-1, 206L-3, and 206L-4 helicopters. TCCA advises that a certain tail rotor disc assembly, sold through Bell Helicopter Spares beginning March 2009, as an alternate, does not conform to the approved configuration. TCCA stated operating a helicopter with the affected tail rotor disc assembly could result in loss of control of the helicopter.

Accordingly, the Canadian AD requires determining if an affected part is installed, and if an affected part is found, replacement with a non-affected part.

Since the NPRM was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD (in the SNPRM), as listed in the following table:

The FAA also has removed the table following paragraph (c) of the proposed AD (in the NPRM), which identified the model and serial numbers; instead, the model and serial numbers are included in paragraphs (c)(1) through (6) of this proposed AD (in the SNPRM).

In addition, the text “no further action is required” is removed from paragraph (g)(3) of this proposed AD (in the SNPRM) as the parts installation prohibition specified in paragraph (h) of this proposed AD (in the SNPRM) also applies to helicopters accomplishing the action in paragraph (g)(3) of this proposed AD (in the SNPRM).

These changes do not affect the intent of the actions in the proposed AD (in the NPRM). However, since a significant amount of time has elapsed since the NPRM, the FAA is reopening the comment period to allow the public a chance to comment on the proposed actions.

The FAA received no comments on the NPRM or on the determination of the cost.

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, TCCA, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA is proposing this AD after determining the unsafe condition described previously is likely to exist or develop in other helicopters of the same type design. Certain changes described above expand the scope of the NPRM. As a result, it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

The FAA reviewed the following service information. This service information specifies procedures to determine if an affected part is installed, and if an affected part is found, replacement with a non-affected part. These documents are distinct since they apply to different helicopter models.

• Bell Helicopter Alert Service Bulletin 206-09-123, Revision A, dated June 10, 2009.

• Bell Helicopter Alert Service Bulletin 206L-09-157, Revision A, dated June 10, 2009.

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 require accomplishing the actions specified in the service information already described.

The FAA estimates that this proposed AD affects 1,493 helicopters 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, 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'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 and establish Class E airspace in Bar Harbor, ME, to support IFR operations in the area.

Interested persons are invited to comment on 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 (Docket No. FAA-2021-0295 and Airspace Docket No. 21-ANE-2) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for the address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-0295; Airspace Docket No. 21-ANE-2.” 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 document may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. 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 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 between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

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 proposes an amendment to 14 CFR part 71 to amend Class E surface airspace for Hancock County-Bar Harbor Airport by increasing the radius from 4.2 miles to 5.5 miles, and eliminating the extensions off the 204° and 024° bearings respectively. The Class E airspace extending up from 700 feet above the surface for Hancock County-Bar Harbor would be amended by increasing the radius from 7.4 miles to 8.0 miles, and adding an extension 3.7 miles each side of the Hancock County-Bar Harbor Airport 025° bearing extending from the 8.0-mile radius to 11.4 miles northeast of the airport. In addition the geographical coordinates of Hancock County-Bar Harbor Airport would be updated. This action would also establish Class E airspace extending upward from 700 feet above the surface for Bar Harbor Heliport.

Class E airspace designations are published in Paragraphs 6002 and 6005, respectively, 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 proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will 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.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

In a notice published in the Federal Register on April 18, 2017 (82 FR 18268), FDA announced that we had filed a food additive petition (FAP 2299), submitted by Canadian Oilseed Processors Association, 404-167 Lombard Ave., Winnipeg MB R3B 0T6, Canada. The petition proposed to amend part 573 of title 21 of the Code of Federal Regulations (CFR), Food Additives Permitted in Feed and Drinking Water of Animals (21 CFR part 573), to provide for the safe use of spent bleaching clay as a flow agent in canola meal for all livestock and poultry species. Additionally, the submission proposed that the existing regulations be amended to provide for the safe use of silicon dioxide (21 CFR 573.940) and diatomaceous earth (21 CFR 573.340) for use as components of spent beaching clay. The Canadian Oilseed Processors Association has now withdrawn the petition without prejudice to a future filing (21 CFR 571.7).

On May 7, 2020, PADEP submitted revisions to its SIP to address case-by-case NO X and/or VOC RACT for 93 major facilities. On February 9, 2021, PADEP supplemented its May 7, 2020 submittal with additional materials for nine facilities in Allegheny County. These SIP revisions are intended to address the NO X and/or VOC RACT requirements under sections 182 and 184 of the CAA for the 1997 and/or 2008 8-hour ozone NAAQS. Table 1 of this document lists the facilities included in PADEP's submittals that EPA is proposing to approve in this action. EPA views each facility as a separable SIP revision and may take separate final action on one or more facilities. In this rulemaking action, EPA is only proposing to approve case-by-case RACT determinations for ten of the 93 facilities submitted to EPA by PADEP. These ten facilities are located in Allegheny County and were submitted on behalf of the Allegheny County Health Department (ACHD).

For additional background information on Pennsylvania's “presumptive” RACT II SIP see 84 FR 20274 (May 9, 2019) and on Pennsylvania's source-specific or “case-by-case” RACT determinations see the appropriate technical support document (TSD) which is available online at https://www.regulations.gov, Docket No. EPA-R03-OAR-2020-0575.

Ground level ozone is not emitted directly into the air but is created by chemical reaction between NO X and VOC in the presence of sunlight. Emissions from industrial facilities, electric utilities, motor vehicle exhaust, gasoline vapors, and chemical solvents are some of the major sources of NO X and VOC. Breathing ozone can trigger a variety of health problems, particularly for children, the elderly, and people of all ages who have lung diseases such as asthma. Ground level ozone can also have harmful effects on sensitive vegetation and ecosystems.

On July 18, 1997, EPA promulgated a standard for ground level ozone based on 8-hour average concentrations. 62 FR 38856. The 8-hour averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. EPA has designated two moderate nonattainment areas in Pennsylvania under the 1997 8-hour ozone NAAQS, namely Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE (the Philadelphia Area) and Pittsburgh-Beaver Valley (the Pittsburgh Area). See 40 CFR 81.339.

On March 12, 2008, EPA strengthened the 8-hour ozone standards, by revising its level to 0.075 ppm averaged over an 8-hour period (2008 8-hour ozone NAAQS). On May 21, 2012, EPA designated five marginal nonattainment areas in Pennsylvania for the 2008 8-hour ozone NAAQS: Allentown-Bethlehem-Easton, Lancaster, Reading, the Philadelphia Area, and the Pittsburgh Area. 77 FR 30088; see also 40 CFR 81.339.

On March 6, 2015, EPA announced its revocation of the 1997 8-hour ozone NAAQS for all purposes and for all areas in the country, effective on April 6, 2015. 80 FR 12264. EPA has determined that certain nonattainment planning requirements continue to be in effect under the revoked standard for nonattainment areas under the 1997 8-hour ozone NAAQS, including RACT.

On June 10, 2013, EPA determined that the Allegheny County 1997 8-hour ozone NAAQS RACT demonstration satisfied all applicable RACT requirements under the CAA for Allegheny County for the 1997 8-hour ozone NAAQS. 78 FR 34584.

The CAA regulates emissions of NO X and VOC to prevent photochemical reactions that result in ozone formation. RACT is an important strategy for reducing NO X and VOC emissions from major stationary sources within areas not meeting the ozone NAAQS. Areas designated nonattainment for the ozone NAAQS are subject to the general nonattainment planning requirements of CAA section 172. Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM) for demonstrating attainment of all NAAQS, including emissions reductions from existing sources through the adoption of RACT. Further, section 182(b)(2) of the CAA sets forth additional RACT requirements for ozone nonattainment areas classified as moderate or higher. Section 182(b)(2) of the CAA sets forth requirements regarding RACT for the ozone NAAQS for VOC sources. Section 182(f) subjects major stationary sources of NO X to the same RACT requirements applicable to major stationary sources of VOC. 1

Section 184(b)(1)(B) of the CAA applies the RACT requirements in section 182(b)(2) to nonattainment areas classified as marginal and to attainment areas located within ozone transport regions established pursuant to section 184 of the CAA. Section 184(a) of the CAA established by law the current Ozone Transport Region (OTR) comprised of 12 eastern states, including Pennsylvania. This requirement is referred to as OTR RACT. As noted previously, a “major source” is defined based on the source's PTE of NO X , VOC, or both pollutants, and the applicable thresholds differ based on the classification of the nonattainment area in which the source is located. See sections 182(c)-(f) and 302 of the CAA.

Since the 1970's, EPA has consistently defined “RACT” as the lowest emission limit that a particular source is capable of meeting by the application of the control technology that is reasonably available considering technological and economic feasibility. 2

EPA has provided more substantive RACT requirements through implementation rules for each ozone NAAQS as well as through guidance. In 2004 and 2005, EPA promulgated an implementation rule for the 1997 8-hour ozone NAAQS in two phases (“Phase 1 of the 1997 Ozone Implementation Rule” and “Phase 2 of the 1997 Ozone Implementation Rule”). 69 FR 23951 (April 30, 2004) and 70 FR 71612 (November 29, 2005), respectively. Particularly, the Phase 2 Ozone Implementation Rule addressed RACT statutory requirements under the 1997 8-hour ozone NAAQS. See 70 FR 71652 (November 29, 2005).

On March 6, 2015, EPA issued its final rule for implementing the 2008 8-hour ozone NAAQS (“the 2008 Ozone SIP Requirements Rule”). 80 FR 12264. At the same time, EPA revoked the 1997 8-hour ozone NAAQS, effective on April 6, 2015. 3 The 2008 Ozone SIP Requirements Rule provided comprehensive requirements to transition from the revoked 1997 8-hour ozone NAAQS to the 2008 8-hour ozone NAAQS, as codified in 40 CFR part 51, subpart AA, following revocation. Consistent with previous policy, EPA determined that areas designated nonattainment for both the 1997 and 2008 8-hour ozone NAAQS at the time of revocation, must retain implementation of certain nonattainment area requirements ( i.e., anti-backsliding requirements) for the 1997 8-hour ozone NAAQS as specified under section 182 of the CAA, including RACT. See 40 CFR 51.1100(o). An area remains subject to the anti-backsliding requirements for a revoked NAAQS until EPA approves a redesignation to attainment for the area for the 2008 8-hour ozone NAAQS. There are no effects on applicable requirements for areas within the OTR, as a result of the revocation of the 1997 8-hour ozone NAAQS. Thus, Pennsylvania, as a state within the OTR, remains subject to RACT requirements for both the 1997 8-hour ozone NAAQS and the 2008 8-hour ozone NAAQS.

In addressing RACT, the 2008 Ozone SIP Requirements Rule is consistent with existing policy and Phase 2 of the 1997 Ozone Implementation Rule. In the 2008 Ozone SIP Requirements Rule, EPA requires RACT measures to be implemented by January 1, 2017 for areas classified as moderate nonattainment or above and all areas of the OTR. EPA also provided in the 2008 Ozone SIP Requirements Rule that RACT SIPs must contain adopted RACT regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations stating that there are no sources in the nonattainment area covered by a specific control technique guidelines (CTG) source category. In the preamble to the 2008 Ozone SIP Requirements Rule, EPA clarified that states must provide notice and opportunity for public comment on their RACT SIP submissions, even when submitting a certification that the existing provisions remain RACT or a negative declaration. States must submit appropriate supporting information for their RACT submissions, in accordance with the Phase 2 of the 1997 Ozone Implementation Rule. Adequate documentation must support that states have considered control technology that is economically and technologically feasible in determining RACT, based on information that is current as of the time of development of the RACT SIP.

In addition, in the 2008 Ozone SIP Requirements Rule, EPA clarified that states can use weighted average NO X emissions rates from sources in the nonattainment area for meeting the major NO X RACT requirement under the CAA, as consistent with existing policy. 4 EPA also recognized that states may conclude in some cases that sources already addressed by RACT determinations for the 1979 1-hour and/or 1997 8-hour ozone NAAQS may not need to implement additional controls to meet the 2008 8-hour ozone NAAQS RACT requirement. See 80 FR 12278-12279 (March 6, 2015).

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

EPA is proposing to approve VOC RACT SIP revisions submitted by Illinois on January 10, 2019 and supplemented on April 30, 2020. EPA is also proposing to approve the Stepan Co. construction permit submitted by Illinois on March 29, 2021 as a revision to the Illinois SIP, making the throughput limits federally enforceable. These revisions satisfy the moderate VOC RACT requirements of section 182(b)(2) of the CAA for the Illinois portion under the 2008 8-hour ozone standard.

VOCs contribute to the production of ground-level ozone, or smog, which harms human health and the environment. Sections 172(c)(1) and 182(b)(2) of the CAA require states to implement RACT in ozone nonattainment areas classified as moderate (and higher). Specifically, these areas are required to implement RACT for all major VOC sources and for all sources covered by a Control Techniques Guideline (CTG). A CTG is a document issued by EPA which establishes a “presumptive norm” for RACT for a specific VOC source category. States must submit rules, or negative declarations when no such sources exist for CTG source categories.

EPA's SIP Requirements Rule for the 2008 ozone NAAQS indicates that states may meet RACT through the establishment of new or more stringent requirements that meet RACT control levels, through a certification that previously adopted RACT controls in their SIPs approved by EPA for a prior ozone NAAQS also represent adequate RACT control levels for attainment of the 2008 ozone NAAQS, or with a combination of these two approaches. See 80 FR 12,264, 12,278-79 (Mar. 6, 2015). As stated above, a state may submit a negative declaration in instances where there are no CTG sources.

On June 11, 2012, EPA designated the Chicago-Naperville, IL-IN-WI nonattainment area as a marginal nonattainment area for the 2008 ozone NAAQS (77 FR 34221). The Illinois portion includes Cook, DuPage, Kane, Lake, McHenry, and Will Counties and parts of Grundy and Kendall Counties. On May 4, 2016, pursuant to section 181(b)(2) of the CAA, EPA determined that the Chicago-Naperville, IL-IN-WI nonattainment area failed to attain the 2008 ozone NAAQS by the July 20, 2015, marginal area attainment deadline and thus reclassified the area from marginal to moderate nonattainment (81 FR 26697). In that action, EPA established January 1, 2017, as the due date for the state to submit all moderate area nonattainment plan SIP requirements applicable to newly reclassified areas. On August 23, 2019, pursuant to section 181(b)(2) of the CAA, EPA determined that the Chicago-Naperville, IL-IN-WI nonattainment area failed to attain the 2008 ozone NAAQS by the July 20, 2018, moderate area attainment deadline and thus reclassified the area from moderate to serious nonattainment (84 FR 44238). In that action, EPA established August 3, 2020 and March 23, 2021 as the due dates for serious area nonattainment plan SIP submissions for newly reclassified areas. This action only addresses the moderate VOC RACT SIP submissions.

Illinois previously addressed RACT requirements for the Illinois portion under the 1979 and 1997 ozone standards (45 FR 11472, 52 FR 45333, 59 FR 46562, and 77 FR 16940). Illinois' VOC RACT rules for the Illinois portion are contained in 35 Ill. Adm. Code Part 218 (Part 218). Illinois has evaluated the regulations previously approved by EPA and determined that these rules continue to satisfy RACT requirements under the 2008 ozone NAAQS.

The rules in Part 218 include rules addressing CTG categories adopted by EPA through 2018 for which there are existing sources in the Illinois portion. Negative declarations for other CTG categories are detailed below.

Major non-CTG VOC sources, which are subject to RACT, are stationary sources that have the potential to emit (PTE) at least 100 tons per year (TPY) of VOCs in moderate ozone nonattainment areas and are not subject to the applicability criteria in the CTGs. Many major non-CTG VOC sources located in the ozone nonattainment area that are not subject to specific RACT rules are subject to generic RACT rules. Thus, Illinois has met the obligation to implement RACT for many major non-CTG VOC sources in the Illinois portion with SIP-approved regulations under Part 218 subparts PP, QQ, RR, and TT.

Illinois has previously submitted several negative declarations for CTG categories for which there were no applicable sources found in Illinois that meet the applicability criteria for those CTGs. In those cases, it was unnecessary to adopt new state rules and submit SIP revisions to address those CTG categories. Illinois has determined that these negative declarations are still valid and appropriate for the CTGs for the Shipbuilding and Ship Repair Industry, Natural Gas/Gasoline Processing Plants, Aerospace Manufacturing and Rework Facilities, High-Density Polyethylene/Polypropylene Manufacturing, Vegetable Oil Processing, and Oil and Natural Gas Industry.

On November 11, 1996, Illinois submitted to EPA a negative declaration letter for the Ship Building and Ship Repair Industry. This CTG applies to sources with potential emissions greater than or equal to 25 tons of VOC per year for this category. Illinois determined that there were no such sources in the Illinois portion of the nonattainment area.

Illinois reviewed its most recent inventory to determine if any sources fall under this category. Illinois found four sources that required further review. All four of these sources are barge cleaning sources with VOC emissions limitations under 25 TPY. Therefore, the negative declaration is still valid and appropriate for this CTG category.

On November 14, 1985, Illinois submitted to EPA a negative declaration letter for the Natural Gas/Gasoline Processing Plant industry. Illinois determined that there were no sources of any size in this source category in the Illinois portion.

Illinois reviewed its most recent inventory to determine if any sources fall under this category. There were 35 sources that required further review. One source (SIC 1321) does have emission units that fall under the CTG. This source was built after Illinois' negative declaration for this CTG category and is subject to the control requirements in the New Source Performance Standard (NSPS) 40 CFR 60 subpart KKK Standards of Performance for Equipment Leaks of VOC from Onshore Natural Gas Processing Plants. The NSPS standards and control requirements are equivalent to or more stringent than the CTG requirements.

The other 34 sources (SIC 4922, 4923, and 4924) are natural gas pipelines that are used to transport gas across Illinois to nearby states. None of these sources have emission units that fall under this CTG category. Therefore, the negative declaration/RACT certification is still valid and appropriate for the CTG category.

On October 11, 1996, Illinois submitted to EPA a negative declaration letter for the Aerospace Manufacturing and Rework Operations CTG. This CTG applies to sources in this category with potential emissions greater than or equal to 25 tons of VOC per year. Illinois determined that there were no such sources in the Illinois portion.

Illinois reviewed its most recent inventory to determine if any sources fall under this category. Illinois found 11 sources under SIC codes 3728, 4512, 4581, and 9711. None of these sources have emission units that fall under this CTG category. Therefore, the negative declaration is still valid and appropriate for the CTG category.

The Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins CTG covers the manufacture of those three materials. Illinois previously submitted a negative declaration to EPA that applied to two of those materials, Polyethylene and Polypropylene, and certified that there were no sources manufacturing those materials in the Illinois portion. The third material, Polystyrene, is regulated by State RACT rules in Part 218 subpart BB: Polystyrene Plants.

Illinois reviewed its most recent inventory and confirmed that no sources fall under the four SIC codes (2821, 2822, 2823, and 2824) for this CTG category for the manufacture of polyethylene and polypropylene. There are two sources out of 11 under SIC 2821 that manufacture polystyrene resin and are subject to Part 218 subpart BB Polystyrene Plants, the current RACT rule in Illinois. Therefore, the negative declaration/RACT certification is still valid and appropriate for the CTG category.

Illinois determined there were no such sources in the Illinois portion. Illinois reviewed its most recent inventory to determine if any sources fall under this category and found one source that required further review. This source is subject to the control requirements in the NESHAP 40 CFR 63 subpart GGGG for Solvent Extraction for Vegetable Oil Production.

The NESHAP standards for control are equivalent to or more stringent than the outdated former CTG. Thus, the negative declaration/RACT certification is still valid and appropriate.

On December 5, 2018 Illinois submitted to EPA a negative declaration for the Oil and Natural Gas Industry, which is the subject of the October 20, 2016 CTG. Illinois reviewed the Chicago-Naperville, IL-IN-WI nonattainment area emission inventory and performed assessments for sources and units that might require additional regulation pursuant to the Oil and Gas CTG. Illinois found no oil or gas producing wells, and found no sources or units affected by this CTG in the Illinois portion for which a SIP revision is necessary to achieve RACT level control. Most of the sources identified in the oil and gas industry in the Illinois portion are involved exclusively in the processing, transmission and distribution of oil and gas. Sources and units that were found to be potentially affected by the Oil and Gas CTG were found to be exempt and are already controlled by Federal and/or State regulations that include requirements more stringent than the CTG RACT requirements. Thus, the negative declaration/RACT certification is valid.

EPA issued a draft CTG for the industrial wastewater category in September 1992. However, because this CTG was never finalized, industrial wastewater sources are considered to be non-CTG VOC sources. Industrial wastewater is a category that is not covered by the Illinois non-CTG VOC RACT rules.

On December 23, 1999, Illinois submitted to EPA a negative declaration letter for the Illinois portion covering industrial wastewater sources. At that time, Illinois determined that all sources in the Illinois portion to which the draft CTG would be applicable were covered by other regulations that were as stringent or more stringent than the draft CTG. Those sources were two refineries and one chemical plant that were subject to Federal regulations covering waste operations.

Illinois reviewed its most recent inventory to determine if any sources fall under the industrial wastewater category, including: Organic chemicals, plastics, and synthetic fibers; pharmaceuticals; pesticides manufacturing; petroleum refining; pulp, paper, and paperboard mills; and hazardous waste treatment, storage, and disposal facilities. Illinois found 54 sources that required further review. Illinois examined each unit at these sources and the operating permits of those sources to determine whether a source was a significant source of wastewater or if the draft CTG was potentially applicable to a source or unit. Of those 54 sources, it was determined that the draft CTG would be applicable to only six sources. It was found that all subject sources were covered under the NESHAP 40 CFR 63 subpart G, the NESHAP 40 CFR 63 subpart FFFF, or by Part 218 subpart C, all of which are equivalent or more stringent than the draft CTG.

EPA requested additional information for twelve industrial wastewater sources that were identified as potentially being subject to non-CTG VOC RACT based on historical emissions. On April 30, 2020, Illinois submitted supplementary information demonstrating that either the existing levels of control represent RACT (RACT equivalence) or that the sources' potential to emit VOC are below the 100 TPY non-CTG VOC moderate area major source threshold and thus the sources are not subject to non-CTG VOC RACT.

The twelve sources that the EPA evaluated include the following refineries and chemical plants: Ester Solutions, Hexion Inc., INEOS Joliet, INEOS Styrolution America LLC, Polynt Composites USA, Akzo Nobel, AbbVie, LyondellBasell, Exxon Mobil Oil Corp., Citgo Petroleum, Koppers Inc., and Stepan Co.

Ester in Bedford Park, IL, Hexion in Bedford Park, IL, INEOS Styrolution America LLC in Channahon, IL, and Polynt in Carpentersville, IL are not subject to RACT because the PTE VOC from each of these sources is less than 100 TPY.

The second INEOS source, INEOS Joliet, is also located in Channahon, IL. The supporting documentation provided by INEOS Joliet indicates that some of the wastewater streams are hard piped to two emission points. These two emission points are a storage tank vent and an anaerobic flare, each of which has a federally enforceable permitted limit of 0.44 TPY. The remaining wastewater streams at this source are directed through open sewers to the wastewater treatment system. After considering the federally enforceable permitted limit, EPA calculated the total PTE VOC to be 41.1 TPY, which is below the 100 TPY non-CTG threshold.

Akzo Nobel is located in Morris, IL and has two wastewater emission units. One unit is classified as an insignificant activity (less than 0.1 pounds per hour and less than 0.44 TPY) and the other unit is required by a SIP-approved rule to route its VOC emissions to an afterburner that achieves at least 85 percent control. After considering this federally enforceable control, the total PTE VOC from wastewater at Akzo Nobel was determined to be less than 1 TPY.

AbbVie in North Chicago, IL demonstrated RACT equivalence. Most of its wastewater is taken off site for treatment. The remaining VOC-containing wastewater streams are well controlled at the on-site wastewater treatment plant. The requirements to conduct pretreatment are federally enforceable through its Discharge Control Document, which was issued by the publicly owned treatment works as required by its National Pollutant Discharge Elimination System permit issued by Illinois EPA. A comparison of controlled and uncontrolled emissions demonstrated approximately 98 percent control of VOC from their wastewater operations. EPA concluded that AbbVie is well controlled and that this level of control represents RACT.

LyondellBasell is subject to the Miscellaneous Organic Chemical Manufacturing NESHAP and Benzene Waste Operations NESHAP (BWON). After considering these applicable NESHAPs, the EPA calculated the total PTE VOC to be 20.38 TPY, which is below the 100 TPY non-CTG threshold.

Both Exxon Mobil Oil Corporation's Joliet Refinery and Citgo Petroleum's Lemont Refinery demonstrated that potential VOC emissions from sources at each facility not subject to a CTG are below the 100 TPY non-CTG threshold for moderate areas. Both refineries are subject to the BWON NESHAP (40 CFR 61, subpart FF). After considering BWON restrictions, the PTE VOC from refinery wastewater was calculated to be 75.3 TPY, which is below the 100 TPY non-CTG threshold. This value was derived from BWON NESHAP's 6.0 megagrams per year benzene limit and EPA's technology review in support of the recent amendments to the Petroleum Refinery Sector Rule.

Koppers in Cicero, IL submitted a modeling demonstration for the wastewater system at the plant. Environmental Resources Management, Inc. modeled the Koppers wastewater treatment plant using a Toxchem model to predict the annual PTE VOC. The total PTE VOC at Koppers was estimated to be 2.25 TPY, which is far below the 100 TPY non-CTG threshold.

Stepan Co. in Elwood, IL applied for a construction permit that provides operational limits on throughput from upstream processes into the wastewater stream. The operational limits on throughput are on the masses of methanol and other VOC compounds in the wastewater, which contribute to the VOC wastewater emissions. Biodegradation is also required to meet the effluent limitation in the federally enforceable National Pollutant Discharge Elimination System permit. After considering the application of biodegradation provided by the three aeration tanks at Stepan Co., the operational limits result in a potential to emit VOC of 97.8 TPY, which is below the 100 TPY non-CTG threshold. EPA is proposing to approve this construction permit as a revision to the Illinois SIP, making the throughput limits federally enforceable.

Based on the information that Illinois provided, we agree that that these sources either demonstrated RACT equivalence or are below the 100 TPY non-CTG major source threshold for moderate areas. Therefore, the VOC RACT SIP submittals for the Illinois portion are approvable as meeting the moderate VOC RACT requirements of section 182(b)(2) of the CAA.

EPA is proposing to approve negative declarations, a VOC RACT certification, and the Stepan Co. construction permit submitted by Illinois as meeting the CAA section 182(b)(2) moderate RACT requirements for the Illinois portion under the 2008 8-hour ozone NAAQS.

In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the Illinois construction permit for Stepan Company's Millsdale Plant, issued October 30, 2020, as described in section III. of this preamble. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

On January 7, 2021, we published a final rule defining the scope of the MBTA (16 U.S.C. 703 et seq. ) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA (86 FR 1134) (hereafter referred to as the “January 7 rule”). The January 7 rule codified an interpretation of the MBTA set forth in a 2017 legal opinion of the Solicitor of the Department of the Interior, Solicitor's Opinion M-37050, which concluded that the MBTA does not prohibit incidental take.

As initially published, the January 7 rule was to become effective 30 days later, on February 8, 2021. However, on February 4, 2021, USFWS submitted a final rule to the Federal Register correcting the January 7 rule's effective date to March 8, 2021, to conform with its status as a “major rule” under the Congressional Review Act, which requires a minimum effective date period of 60 days, see 5 U.S.C. 801(a)(3) and 804(2). The final rule extending the effective date of the January 7 final rule itself became effective when it was made available for public inspection in the reading room of the Office of Federal Register on February 5, 2021 and was published in the Federal Register on February 9, 2021 (86 FR 8715). In that document, we also sought public comment to inform our review of the January 7 rule and to determine whether further extension of the effective date is necessary.

After further review, we decided not to extend the effective date of the January 7 rule beyond March 8. We acknowledge that the January 7 rule will remain in effect for some period of time even if it is ultimately determined, after notice and comment, that it should be revoked. But, rather than extending the effective date again, we believe that the most transparent and efficient path forward is instead to immediately propose to revoke the January 7 rule. This proposed rule provides the public with notice of our current intent to revoke the January 7 rule's interpretation of the MBTA that it does not prohibit incidental take, subject to our final decision after consideration of public comments.

We have undertaken further review of the January 7 rule and have determined that the rule does not reflect the best reading of the MBTA's text, purpose, and history. It is also inconsistent with the majority of relevant court decisions addressing the issue, including the decision of the District Court for the Southern District of New York that expressly rejected the rationale offered in the rule. The rule's reading of the MBTA also raises serious concerns with a United States' treaty partner, and for the migratory bird resources protected by the MBTA and underlying treaties. Accordingly, we are proposing to revoke the January 7 rule.

The MBTA statutory provisions at issue in the January 7 rule have been the subject of repeated litigation and diametrically opposed opinions of the Solicitors of the Department of the Interior. The longstanding historical agency practice confirmed in the earlier Solicitor M-Opinion, M-37041, and upheld by most reviewing courts, had been that the MBTA prohibits the incidental take of migratory birds (subject to certain legal constraints). The January 7 rule reversed these several decades of past agency practice and interpreted the scope of the MBTA to exclude incidental take of migratory birds. In so doing, the January 7 rule codified Solicitor's Opinion M-37050, which itself had been vacated by the United States District Court for the Southern District of New York. This interpretation focused on the language of section 2 of the MBTA, which, in relevant part, makes it “unlawful at any time, by any means, or in any manner, to pursue, hunt, take, capture, kill” migratory birds or attempt to do the same. 16 U.S.C. 703(a). Solicitor's Opinion M-37050 and the January 7 rule argued that the prohibited terms listed in section 2 all refer to conduct directed at migratory birds, and that the broad preceding language, “by any means, or in any manner,” simply covers all potential methods and means of performing actions directed at migratory birds and does not extend coverage to actions that incidentally take or kill migratory birds.

As noted above, on August 11, 2020, a court rejected the interpretation set forth in Solicitor's Opinion M-37050 as contrary to the MBTA and vacated that opinion. Natural Res. Def. Council v. U.S. Dep't of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020) (“ NRDC  ”). In late January 2021, two new lawsuits were filed that challenge the January 7 rule. Nat'l Audubon Soc'y v. U.S. Fish & Wildlife Serv., 1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021); State of New York v. U.S. Dep't of the Interior, 1:21-cv-00452 (S.D.N.Y. filed Jan. 19, 2021). At the time the January 7 rule was published, the United States had filed a notice of appeal of the NRDC decision in the U.S. Court of Appeals for the Second Circuit. Since that time, the United States filed a stipulation to dismiss that appeal on February 25, 2021, and the Deputy Solicitor permanently withdrew M-37050 on March 8, 2021.

The District Court's decision in NRDC expressly rejected the basis for the January 7 rule's conclusion that the statute does not prohibit incidental take. In particular, the court reasoned that the plain language of the MBTA's prohibition on killing protected migratory bird species “at any time, by any means, and in any manner” shows that the MBTA prohibits incidental killing. See 478 F. Supp. 3d at 481. Thus, the statute is not limited to actions directed at migratory birds. After closely examining the court's holding, we are persuaded that it advances the better reading of the statute, including that the better reading of “kill” is that it also prohibits incidental killing.

The interpretation contained in the January 7 rule relies heavily on United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) ( CITGO ). The Fifth Circuit is the only Circuit Court of Appeals to expressly state that the MBTA does not prohibit incidental take. In CITGO, the Fifth Circuit held that the term “take” in the MBTA does not include incidental taking because “take” at the time the MBTA was enacted in 1918 referred in common law to “[reducing] animals, by killing or capturing, to human control” and accordingly could not apply to accidental or incidental take. Id. at 489 (following Babbitt v. Sweet Home Chapter Cmtys. for a Great Or., 515 U.S. 687, 717 (1995) (Scalia J., dissenting) ( Sweet Home )). While we do not agree with the CITGO court's interpretation of the term “take” under the MBTA, we further note that CITGO does not provide legal precedent for construing “kill” narrowly. The CITGO court's analysis is limited by its terms to addressing the meaning of the term “take” under the MBTA; thus, any analysis of the meaning of the term “kill” was not part of the court's holding. As discussed below, however, we also disagree with the CITGO court's analysis of the term “kill.”

Although the CITGO court's holding was limited to interpreting “take,” the court opined in dicta that the term “kill” is limited to intentional acts aimed at migratory birds in the same manner as “take.” See 801 F.3d at 489 n.10. However, the court based this conclusion on two questionable premises.

First, the court stated that “kill” has little if any independent meaning outside of the surrounding prohibitory terms “pursue,” “hunt,” “capture,” and “take,” analogizing the list of prohibited acts to those of two other environmental statutes—the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq. ) and the Migratory Bird Conservation Act (16 U.S.C. 715 et seq. ). See id. The obvious problem with this argument is that it effectively reads the term “kill” out of the statute; in other words, the CITGO court's reasoning renders “kill” superfluous to the other terms mentioned, thus violating the rule against surplusage. See, e.g., Corley v. United States, 556 U.S. 303, 314 (2009).

Second, employing the noscitur a sociis canon of statutory construction (which provides that the meaning of an ambiguous word should be determined by considering its context within the words it is associated with), the Fifth Circuit argued that because the surrounding terms apply to “deliberate acts that effect bird deaths,” then “kill” must also. See 801 F.3d at 489 n.10. The January 7 rule also relied heavily on this canon to argue that both “take” and “kill” must be read as deliberate acts in concert with the other referenced terms. Upon closer inspection though, the only terms that clearly and unambiguously refer to deliberate acts are “hunt” and “pursue.” Both the CITGO court and the January 7 final rule erroneously determined that “capture” can also only be interpreted as a deliberate act. This is not so. There are many examples of unintentional or incidental capture, such as incidental capture in traps intended for animals other than birds or in netting designed to prevent swallows nesting under bridges. Thus, the CITGO court's primary argument that “kill” only applies to “deliberate actions” rests on the fact that just two of the five prohibited actions unambiguously describe deliberate acts. The fact that most of the prohibited terms can be read to encompass actions that are not deliberate in nature is a strong indication that Congress did not intend those terms to narrowly apply only to direct actions.

The NRDC court similarly rejected the January 7 rule's interpretation of the term “kill” and its meaning within the context of the list of actions prohibited by the MBTA. The court noted the broad, expansive language of section 2 prohibiting hunting, pursuit, capture, taking, and killing of migratory birds “by any means or in any manner.” 478 F. Supp. 3d at 482. The court reasoned that the plain meaning of this language can only be construed to mean that activities that result in the death of a migratory bird are a violation “irrespective of whether those activities are specifically directed at wildlife.” Id. The court also noted that the Sweet Home decision relied upon by the CITGO court and the January 7 rule actually counsels in favor of a broad reading of the term “kill,” even assuming Justice Scalia accurately defined the term “take” in his dissent. The Sweet Home case dealt specifically with the definition of “take” under the ESA, which included the terms “harm” and “kill.” The majority in Sweet Home was critical of the consequences of limiting liability under the ESA to “affirmative conduct intentionally directed against a particular animal or animals,” reasoning that knowledge of the consequences of an act are sufficient to infer liability, including typical incidental take scenarios. Id. at 481-82.

The NRDC court went on to criticize the use of the noscitur a sociis canon in Solicitor's Opinion M-37050 (a use repeated in the January 7 rule). The court reasoned that the term “kill” is broad and can apply to both intentional, unintentional, and incidental conduct. The court faulted the Solicitor's narrow view of the term and disagreed that the surrounding terms required that narrow reading. To the contrary, the court found the term “kill” to be broad and not at all ambiguous, pointedly noting that proper use of the noscitur canon is confined to interpreting ambiguous statutory language. Moreover, use of the noscitur canon deprives “kill” of any independent meaning, which runs headlong into the canon against surplusage as noted above. The court did not agree that an example provided by the government demonstrated that “kill” had independent meaning from “take” under the interpretation espoused by Solicitor's Opinion M-37050. By analogy, the court referenced the Supreme Court's rejection of the dissent's use of the noscitur canon in Sweet Home, which similarly gave the term “harm” the same essential function as the surrounding terms used in the definition of “take” under the ESA, denying it independent meaning. See id. at 484.

In sum, after further review of the CITGO and NRDC decisions, along with the language of the statute, we now conclude that the interpretation of the MBTA set forth in the January 7 rule and Solicitor's Opinion M-37050, which provided the basis for that interpretation, is not the construction that best accords with the text, purposes, and history of the MBTA. It simply cannot be squared with the NRDC court's holding that the MBTA's plain language encompasses the incidental killing of migratory birds. Even if the NRDC court's plain-language analysis were incorrect, the operative language of the MBTA is at minimum ambiguous, thus USFWS has discretion to implement that language in a manner consistent with the conservation purposes of the statute and its underlying Conventions. To the extent that the primary policy justifications for the January 7 rule were resolving uncertainty and increasing transparency through rulemaking, we do not consider these concerns to outweigh the legal infirmities of the January 7 rule or the conservation purposes of the statute and its underlying Conventions. Interpreting the statute to exclude incidental take is not the reading that best advances these purposes, which is underscored by the following additional reasons for revoking the current regulation.

First, the January 7 rule is undermined by the 2002 legislation authorizing military-readiness activities that incidentally take or kill migratory birds. In that legislation, Congress temporarily exempted “incidental taking” caused by military-readiness activities from the prohibitions of the MBTA; required the Secretary of Defense to identify, minimize, and mitigate the adverse effect of military-readiness activities on migratory birds; and directed USFWS to issue regulations under the MBTA creating a permanent exemption for military-readiness activities. Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. A, Title III, section 315 (2002), 116 Stat. 2509 (Stump Act). This legislation was enacted in response to a court ruling that had enjoined military training that incidentally killed migratory birds. Ctr. for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 and 201 F. Supp. 2d 113 (D.D.C. 2002), vacated on other grounds sub nom. Ctr. for Biological Diversity v. England, 2003 U.S. App. Lexis 1110 (D.C. Cir. Jan. 23, 2003). Notably, Congress did not amend the MBTA to define the terms “take” or “kill.” Instead, Congress itself uses the term “incidental take” and provides that the MBTA “shall not apply” to such take by the Armed Forces during “military-readiness activities.” Moreover, Congress limited the exemption only to military-readiness activities to training and operations related to combat and the testing of equipment for combat use; it expressly excluded routine military-support functions and the “operation of industrial activities” from the exemption afforded by the 2002 legislation, leaving such non-combat-related activities fully subject to the prohibitions of the Act. Even then, the military-readiness incidental take carve-out was only temporarily effectuated through the statute itself. Congress further directed the Department of the Interior (DOI or the Department) “to prescribe regulations to exempt the Armed Forces for the incidental taking of migratory birds during military readiness activities.” This would be an odd manner in which to proceed to address the issue raised by the Pirie case if Congress' governing understanding at the time was that incidental take of any kind was not covered by the Act (we acknowledge that Congress's understanding when enacting legislation in 2002 is relevant to, but not dispositive of, Congress's intent when it enacted the MBTA in 1918). Congress simply could have amended the MBTA to clarify that incidental take is not prohibited by the statute or, at the least, that take incidental to military-readiness activities is not prohibited. Instead, Congress limited its amendment to exempting incidental take only by military-readiness activities, expressly excluded other military activities from the exemption, and further directed DOI to issue regulations delineating the scope of the military-readiness carve-out from the prohibitions of the Act. All of these factors indicate that Congress understood that the MBTA's take and kill prohibitions included what Congress itself termed “incidental take.”

In arguing that Congress's authorization of incidental take during military-readiness activities did not authorize enforcement of incidental take in other contexts, the January 7 rule cites the CITGO court's conclusion that a “single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded.” CITGO, 801 F.3d at 491. It is true that the Stump Act clearly did not, by its terms, authorize enforcement of incidental take in other contexts. It clearly could not do anything of the sort, based on its narrow application to military-readiness activities. Rather, the logical explanation is that Congress considered that the MBTA already prohibited incidental take (particularly given USFWS's enforcement of incidental take violations over the prior three decades) and there was no comprehensive regulatory mechanism available to authorize that take. Thus, it was necessary to temporarily exempt incidental take pursuant to military-readiness activities to address the Pirie case and direct USFWS to create a permanent exemption. This conclusion is supported by the fact that Congress specifically stated in the Stump Act that the exemption did not apply to certain military activities that do not meet the definition of military readiness, including operation of industrial activities and routine military-support functions.

On closer inspection, the CITGO court's analysis of the purposes behind enactment of the military-readiness exemption is circular. Assuming the military-readiness exemption is necessary because the MBTA otherwise prohibits incidental take only represents an implicit and huge expansion of coverage under the MBTA if it is assumed that the statute did not already prohibit incidental take up to that point. But Congress would have had no need to enact the exemption if the MBTA did not—both on its terms and in Congress's understanding—prohibit incidental take. The adoption of a provision to exempt incidental take in one specific instance is merely a narrowly tailored exception to the general rule, and provides clear evidence of what Congress understood the MBTA to prohibit.

Second, further consideration of concerns expressed by one of our treaty partners counsels in favor of revoking the January 7 rule. The MBTA implements four bilateral migratory bird Conventions with Canada, Mexico, Russia, and Japan. See 16 U.S.C. 703-705, 712. The Government of Canada communicated its concerns with the January 7 rule both during and after the rulemaking process, including providing comments on the environmental impact statement (EIS) associated with the rule.

After the public notice and comment period had closed, Canada's Minister of Environment and Climate Change summarized the Government of Canada's concerns in a public statement issued on December 18, 2020 ( https://www.canada.ca/en/environment-climate-change/news/2020/12/minister-wilkinson-expresses-concern-over-proposed-regulatory-changes-to-the-united-states-migratory-bird-treaty-act.html ). Minister Wilkinson voiced the Government of Canada's concern regarding “the potential negative impacts to our shared migratory bird species” of allowing the incidental take of migratory birds under the MBTA rule and “the lack of quantitative analysis to inform the decision.” He noted that the “Government of Canada's interpretation of the proposed changes . . . is that they are not consistent with the objectives of the Convention for the Protection of Migratory Birds in the United States and Canada.” Additionally, in its public comments on the draft EIS for the MBTA rule, Canada stated that it believes the rule “is inconsistent with previous understandings between Canada and the United States (U.S.), and is inconsistent with the long-standing protections that have been afforded to non-targeted birds under the Convention for the Protection of Migratory Birds in the United States and Canada . . . as agreed upon by Canada and the U.S. through Article I. The removal of such protections will result in further unmitigated risks to vulnerable bird populations protected under the Convention.” After further consideration, we have similar concerns to those of our treaty partner, Canada.

The protections for “non-targeted birds” noted by the Canadian Minister are part and parcel of the Canada Convention, as amended by the Protocol between the United States and Canada Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, which protects not only game birds hunted and trapped for sport and food, but also nongame birds and insectivorous birds. For instance, the preamble to the Convention declares “saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless” as its very purpose and declares that “many of these species are . . . in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.” Convention between the United States and Great Britain (on behalf of Canada) for the Protection of Migratory Birds, 39 Stat. 1702 (Aug. 16, 1916). Thus, whether one argues that the language of section 2 of the MBTA plainly prohibits incidental killing of migratory birds or is ambiguous in that regard, an interpretation that excludes incidental killing is difficult to square with the express conservation purposes of the Canada Convention. Moreover, until recently there had been a longstanding “mutually held interpretation” between the two treaty partners that regulating incidental take is consistent with the underlying Convention, as stated in an exchange of Diplomatic Notes in 2008. While Canada expressed its position before the final rule on January 7, upon review, we now have determined that the concerns raised by the United States' treaty partner counsel in favor of revocation of the rule.

In addition to the Canada Convention, the January 7 rule may also be inconsistent with the migratory bird conventions with Mexico, Japan, and Russia. The Japan and Russia Conventions both broadly call for the parties to prevent damage to birds from pollution. See Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Mar. 4, 1972, 25 U.S.T. 3329 (Japan Convention); Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, 29 U.S.T. 4647 (Russia Convention). The Protocols amending the Canada and Mexico Conventions contain similar language calling for the parties to seek means to prevent damage to birds and their environment from pollution. See Protocol between the Government of the United States and the Government of Canada Amending the 1916 Convention Between the United Kingdom and the United States of America for the Protection of Migratory Birds, Dec. 14, 1995, S. Treaty Doc. No. 104-28, T.I.A.S. 12721; Protocol Between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for the Protection of Migratory Birds and Game Mammals, May 5, 1997, S. Treaty Doc. No. 105-26.

Some of the relevant provisions include Article IV of the Protocol with Canada, which states that each party shall use its authority to “take appropriate measures to preserve and enhance the environment of migratory birds,” and in particular shall “seek means to prevent damage to [migratory] birds and their environments, including damage resulting from pollution”; Article I of the Mexico Convention, which discusses protecting migratory birds by “means of adequate methods[. . .]”; Article VI(a) of the Japan Convention, which provides that parties shall “[s]eek means to prevent damage to such birds and their environment, including, especially, damage resulting from pollution of the seas”; and Articles IV(1) and 2(c) of the Russia Convention, which require parties to “undertake measures necessary to protect and enhance the environment of migratory birds and to prevent and abate the pollution or detrimental alteration of that environment,” and, in certain special areas, undertake, to the maximum extent possible, “measures necessary to protect the ecosystems in those special areas . . . against pollution, detrimental alteration and other environmental degradation.”

The January 7 rule eliminates a source of liability for pollution that incidentally takes and kills migratory birds, a position that is difficult to square with the mutually agreed-upon treaty provisions agreeing to prevent damage to birds from pollution. The January 7 rule does not directly affect natural resource damage assessments conducted under the Comprehensive Environmental Response Compensation and Liability Act, the Oil Pollution Act, and the Clean Water Act to determine compensation to the public for lost natural resources and their services from accidents that have environmental impacts, such as oil spills. However, for oils spills such as the BP Deepwater Horizon Gulf oil spill and the Exxon Valdez oil spill in Alaska, significant penalties were levied in addition to those calculated under natural resource damage assessments based on incidental-take liability under the MBTA. Those fines constituted a large proportion of the total criminal fines and civil penalties associated with historical enforcement of incidental take violations. As noted in the EIS, the January 7 rule eliminates the Federal Government's ability to levy similar fines in the future, thereby reducing the deterrent effect of the MBTA and reducing funding for the North American Wetland Conservation Fund for the protection and restoration of wetland habitat for migratory birds.

In sum, the issues raised by the Government of Canada raise significant concerns regarding whether the January 7 rule is consistent with the Canada Convention, and questions also remain regarding that rule's consistency with the other migratory bird Conventions. We note as well that the primary policy justifications for the January 7 rule were resolving uncertainty and increasing transparency through rulemaking. These concerns, however, do not outweigh the legal infirmities of the January 7 rule or the conservation objectives described above. On these bases, in addition to the legal concerns raised above, we are proposing to revoke the MBTA rule.

We solicit public comments on the following topics:

1. Whether we should revoke the rule, as proposed here, and why or why not;

2. The costs or benefits of revoking the rule;

3. The costs or benefits of leaving the rule in place; and

4. Any reliance interests that might be affected by revoking the rule, or not revoking the rule.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . If you provided comments in response to the February 9, 2021, rule (86 FR 8715) to extend the effective date of the January 7 rule, you do not need to resubmit those comments in response to this proposed rule. The USFWS will consider all comments pertaining to the January 7 rule that were submitted in response to the February 9, 2021, rule in determining whether to revoke the January 7 rule. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES . We will not consider mailed comments that are not postmarked by the date specified in DATES .

We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive will be available for public inspection on http://www.regulations.gov.

Because we are proposing to revoke the January 7 MBTA rule, we will rely on the final EIS developed to analyze that rule in determining the environmental impacts of revoking it: “Final Environmental Impact Statement; Regulations Governing Take of Migratory Birds,” available on http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The alternatives analyzed in that EIS cover the effects of interpreting the MBTA to both include and exclude incidental take. If we finalize this proposed rule, we will publish an amended Record of Decision that explains our decision to instead select the environmentally preferable alternative, or Alternative B, in the final EIS. If we determine that any additional, relevant impacts on the human environment have occurred subsequent to our existing Record of Decision, we will describe those impacts in the amended Record of Decision.

In accordance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior's manual at 512 DM 2, we considered the possible effects of this rule on federally recognized Indian Tribes. The Department of the Interior strives to strengthen its government-to government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self governance and Tribal sovereignty.

We have evaluated the January 7 rule that this proposed rule would revoke under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and determined that the January 7 rule may have a substantial direct effect on federally recognized Indian Tribes. We received requests from nine federally recognized Tribes and two Tribal councils for government-to-government consultation on that rule. Accordingly, the Service initiated government to government consultation via letters signed by Regional Directors and completed the consultations before issuing the January 7 final rule.

During these consultations, there was unanimous opposition from Tribes to the re-interpretation of the MBTA to exclude coverage of incidental take under the January 7 rule. Thus, this proposal to revoke the January 7 rule is consistent with the requests of federally recognized Tribes during those consultations.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As noted above, this rule is a significant regulatory action under E.O. 12866, but the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The action has not been otherwise designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) as a significant energy action. Therefore, no Statement of Energy Effects is required.

Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531-44), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act.” 16 U.S.C. 1536(a)(1). It further states “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” 16 U.S.C. 1536(a)(2). We have determined that this rule proposing the revocation of the January 7 rule regarding the take of migratory birds will have no effect on ESA-listed species within the meaning of ESA Section 7(a)(2).

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this proposed rule is economically significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

This proposed regulation would revoke the January 7 MBTA rule. The legal effect of this proposal would be to remove from the Code of Federal Regulations (CFR) the interpretation that incidental take of migratory birds is not prohibited under the MBTA, based on the rationale explained in the preamble. As explained in the preamble, the Solicitor's Opinion (M-37050) that formed the basis for the January 7 rule was overturned in court and has since been withdrawn by the Solicitor's Office. By removing § 10.14 from subpart B of title 50 CFR, USFWS would revert to implementing the statute without an interpretative regulation governing incidental take, consistent with judicial precedent. This would mean that incidental take can violate the MBTA to the extent consistent with the statute and judicial precedent. Enforcement discretion would be applied, subject to certain legal constraints.

The Service conducted a regulatory impact analysis of the January 7 rule, which can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. In that analysis, we analyzed the effects of an alternative (Alternative B) where the Service would promulgate a regulation that interprets the MBTA to prohibit incidental take consistent with the Department's longstanding prior interpretation. By reverting to this interpretation, the Service would view the incidental take of migratory birds as a potential violation of the MBTA, consistent with judicial precedent. The Regulatory Impact Analysis for this proposed rule can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The primary benefit of this rule results from decreased incidental take. While we are unable to quantify the benefits, we expect this rule to result in increased ecosystem services and benefits to businesses that rely on these services. Further, benefits will accrue from increased bird watching opportunities. The primary cost of this rule is the compliance cost incurred by industry, which is also not quantifiable. Firms are more likely to implement best practice measures to avoid potential fines. Additionally, potential fines generate transfers from industry to the government. Using a 10-year time horizon (2022-2031), the present value of these transfers is estimated to be $73.6 million at a 7-percent discount rate and $67.1 million at a 3-percent discount rate. This would equate to an annualized value of $15.6 million at a 7-percent discount rate and $15.3 million at a 3-percent discount rate.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small businesses, small organizations, and small government jurisdictions. However, in lieu of an initial or final regulatory flexibility analysis (IRFA or FRFA) the head of an agency may certify on a factual basis that the rule would not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. Thus, for an initial/final regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). We prepared an Initial Regulatory Flexibility Analysis, briefly summarized below, to accompany this rule that can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.

The proposed rule may affect industries that typically incidentally take substantial numbers of birds and with which the Service has worked to reduce those effects (Table 1). In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. The vast majority of entities in these sectors are small entities, based on the U.S. Small Business Administration (SBA) small business size standards. It is important to note that many small businesses would not be affected if we ultimately promulgate this proposed rule. Only those businesses that reduced best management practices that avoid or minimize incidental take of migratory birds as a result of the issuance of M-37050 in January 2017 and the January 7, 2021, rule would incur costs. If we promulgate this proposed rule, those businesses would presumably reinstate those best management practices. We are requesting public comment on the number of businesses that reduced best management practices and the resulting cost savings as a direct result of issuance of M-37050 and the January 7 rule.

Since the Service does not currently have a permitting system dedicated to authorizing incidental take of migratory birds, the Service does not have specific information regarding how many businesses in each sector implement measures to reduce incidental take of birds. Not all businesses in each sector incidentally take birds. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. It is also unknown how many businesses continued or reduced practices to reduce the incidental take of birds since publication of the Solicitor's Opinion M-37050 or issuance of the January 7 rule. We did not receive sufficient information on that issue during the public comment periods associated with the January 7 rule and associated NEPA analysis or the February 9 rule extending the effective date of the January 7 rule. We reiterate our request for public comment on these issues for this proposed rule.

If this proposed rulemaking results in revoking the January 7 rule, any subsequent incidental take of migratory birds could violate the MBTA, consistent with the statute and judicial precedent. Some small entities would incur costs if they reduced best management practices after M-Opinion 37050 was issued in January 2017 or after promulgation of the January 7, 2021, rule and would need to subsequently reinstate those practices if the January 7 rule is revoked, assuming they did not already reinstate such practices after vacatur of M-Opinion 37050.

Table 2 identifies examples of bird mitigation measures, their associated costs, and why available data are not extrapolated to the entire industry sector or small businesses. We are requesting public comment so we can extrapolate data, if appropriate, to each industry sector and any affected small businesses. Table 3 summarizes likely economic effects of the proposed rule on the business sectors identified in Table 1. In many cases, the costs of actions businesses typically implement to reduce effects on birds are small compared to the economic output of business, including small businesses, in these sectors. We are requesting public comment regarding this estimate. As shown by the limited data in Table 3, we are also requesting public comment for the finfish fishing and solar power electric generation industries to determine significance. The likely economic effects summarized in Table 3 are based on the RFA analysis for the January 7 rule. We solicited public comments on these issues during the public comment periods associated with the January 7 rule and associated NEPA analysis and the February 9 rule extending the effective date of the January 7 rule. We reiterate our request for public comment on these data for this proposed rule.

While the Service concludes that certification is likely appropriate in this case, and consistent with our analysis of economic impacts under the January 7 rule, we have developed an IRFA out of an abundance of caution to ensure that economic impacts on small entities are fully accounted for in this rulemaking process.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

a. This proposed rule would not “significantly or uniquely” affect small government activities. A small government agency plan is not required.

b. This proposed rule would not produce a Federal mandate on local or State government or private entities. Therefore, this proposed action is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, this proposed rule does not contain a provision for taking of private property, and would not have significant takings implications. A takings implication assessment is not required.

This proposed rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. Some States may choose not to enact changes in their management efforts and regulatory processes and staffing to develop and or implement State laws governing birds, likely accruing benefits for States. Therefore, this proposed rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. 13132.

In accordance with E.O. 12988, we determine that this proposed rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This proposed rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

For the reasons described in the preamble, we hereby propose to amend subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below: