DOE proposes to incorporate by reference the following industry standard into part 430: ASME A112.19.2-2018/CSA B45.1-18, “Ceramic plumbing fixtures,” approved 2018 (“ASME A112.19.2-2018”).

Copies of ASME A112.19.2-2018 can be obtained from American Society of Mechanical Engineers at Two Park Avenue, New York, NY 10016-5990, or by going to www.asme.org.

For a further discussion of this standard, see section IV.M.

Water closets and urinals are included in the list of “covered products” for which DOE is authorized to establish and amend water use standards and test procedures. (42 U.S.C. 6292(a)(17) and (18)) DOE's test procedures for water closets and urinals are prescribed in the CFR at 10 CFR 430.23(u) and (v), respectively, and 10 CFR part 430 subpart B appendix T (“Appendix T”). The following sections discuss DOE's authority to establish test procedures for water closets and urinals, as well as relevant background information regarding DOE's consideration of test procedures for this product.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency or water use of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency and water use. These products include water closets and urinals, the subject of this document. (42 U.S.C. 6292(a)(17) and (18))

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

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

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

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section be (1) reasonably designed to produce test results which measure energy efficiency, energy use, water use (for plumbing products such as water closets and urinals), or estimated annual operating cost of a covered product during a representative average use cycle or period of use and (2) not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

EPCA directs that the test procedures for water closets and urinals are to be the test procedures specified in American Society of Mechanical Engineers A112.19.6-1990, “Hydraulic Requirements for Water Closets and Urinals” (“ASME A112.19.6-1990”). (42 U.S.C. 6293(b)(8)(A)) EPCA further directs that, if the requirements of ASME A112.19.6-1990 are revised at any time and approved by the American National Standards Institute (“ANSI”), DOE must amend the Federal test procedures to conform to the revised ASME/ANSI standard, unless DOE determines by rule that to do so would not meet the requirements of EPCA that the test procedures be reasonably designed to produce test results which measure water use during a representative average use cycle as determined by DOE, and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(8)(B)) If DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2))

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including water closets and urinals, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to be reasonably designed to produce test results that reflect water use and estimated operating costs during a representative average use cycle or period of use, and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(1)(A)). If the Secretary determines, on his own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. (42 U.S.C. 6293(b)(2)) The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. 4 Id. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy or water use or energy efficiency of the type (or class) of covered products involved. Id. If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures.

DOE is publishing this notice of proposed rulemaking (“NOPR”) in satisfaction of these requirements under EPCA. (42 U.S.C. 6293(b)(1)(A) and (b)(8)(B))

DOE's current test procedures for water closets and urinals are found in 10 CFR 430.23(u) and (v), respectively, and Appendix T.

DOE last amended the test procedures for water closets and urinals on October 23, 2013, (“October 2013 final rule”). 78 FR 62970. In the October 2013 final rule, DOE incorporated by reference ASME A112.19.2-2008, “Ceramic Plumbing Fixtures,” including Update No. 1, dated August 2009, and Update No. 2, dated March 2011 (“ASME A112.19.2- 2008”). ASME A112.19.2-2008 is a consolidation and revision of several ASME test methods, including a revised version of the test method previously incorporated by reference, ASME A112.19.6-1995, and, for purposes of testing water closets and urinals, is the successor standard to the ASME A112.19.6-1990 standard required by EPCA. (42 U.S.C. 6293(b)(8)(A))

In July 2013, ASME revised ASME A112.19.2-2008 by issuing ASME A112.19.2-2013, “Ceramic Plumbing Fixtures” (“ASME A112.19.2-2013”). In October 2013, ASME published Update 1 for ASME A112.19.2-2013 (“ASME A112.19.2-2013 Update 1”). Because of the timing of the issuance of ASME A112.19.2-2013 in July 2013, and ASME A112.19.2-2013 Update 1 in October 2013, DOE did not incorporate either 2013 version of the industry standard in the October 2013 final rule. 78 FR 62970, 62977.

In July 2018, ASME revised ASME A112.19.2-2013 by publishing ASME A112.19.2-2018, followed by the addition of an errata sheet in October 2018 (“ASME A112.19.2-2018” refers to both the original document and the October 2018 errata sheet). ASME A112.19.2-2018 does not contain any substantive differences compared to ASME A112.19.2-2013 regarding the test apparatus and instructions for testing water closets and urinals, and the test method for water consumption (see section III.B for further discussion).

On August 5, 2019, DOE published a request for information (“August 2019 RFI”) pertaining to the test procedures for water closets and urinals. 84 FR 37970. In the August 2019 RFI, DOE solicited public comments, data, and information on all aspects of, and any issues or problems with, the existing DOE test procedures for water closets and urinals, including on any needed updates or revisions. Specifically, DOE requested comment on whether to conform the test procedures to ASME A112.19.2-2018, including updates to terms and definitions, figures, and tables. Id. DOE received four comments in response to the August 2019 RFI from the interested parties listed in Table I.1. 5

In this NOPR, DOE proposes to update 10 CFR 430.2 (Definitions), 10 CFR 430.3 (Materials Incorporated by Reference), and Appendix T as follows:

(1) Incorporate by reference ASME A112.19.2-2018, “Ceramic plumbing fixtures;”

(2) Replace the current term “blowout toilet” with “blowout bowl water closet;” and

(3) Add terms and corresponding definitions for “blowout action,” “gravity flush tank water closet,” “siphonic action,” “siphonic bowl,” and “trough-type urinal.”

DOE's proposed actions are summarized in Table II-1, which provides a comparison of each proposed change to the current test procedures, as well as the rationale for the proposed change.

DOE has tentatively determined that the proposed amendments described in section III of this NOPR would not alter the measured water use of water closets and urinals, which is representative of average use cycles, and that the proposed test procedures would not be unduly burdensome to conduct. Discussion of DOE's proposed actions are addressed in detail in section III of this NOPR.

This NOPR applies to both water closets and urinals, as defined in 10 CFR 430.2. DOE defines a “water closet” as a plumbing fixture that has a water-containing receptor that receives liquid and solid body waste, and upon actuation, conveys the waste through an exposed integral trap seal into a gravity drainage system, except such term does not include fixtures designed for installation in prisons. 10 CFR 430.2. DOE defines a “urinal” as a plumbing fixture that receives only liquid body waste and, on demand, conveys the waste through a trap seal into a gravity drainage system, except such term does not include fixtures designed for installations in prisons. Id.

The proposed updates in this NOPR would not change the scope of the test procedures for water closets or urinals.

Currently, DOE's test procedures for water closets and urinals in Appendix T incorporate by reference ASME A112.19.2-2008, 6 sections 7.1, 7.1.1, 7.1.2, 7.1.3, 7.1.4, 7.1.5, 7.4, 8.2, 8.2.1, 8.2.2, 8.2.3, 8.6, Table 5, and Table 6. These sections and tables provide procedures for testing and measuring water consumption, specifications for test apparatus, and other general requirements for the testing of water closets and urinals.

ASME A112.19.2-2018, the current version of the standard, amends pertinent sections of the 2008 version currently incorporated into 10 CFR part 430. These amendments include (1) editorial changes and clarification in sections 7.1.2, 7.3.2, 7 8.6.4, and Figure 12;  8 (2) a correction in section 8.2.1 to the water consumption static test pressure value for urinals to reflect the corresponding value in Table 6; and (3) additions to Table 5 that do not appear to be relevant to the water consumption test for water closets. In the August 2019 RFI, DOE had tentatively determined that these amendments would not impact (1) the measured values of water use for water closets and urinals under Appendix T, (2) the representativeness of the results, or (3) the test burden, and requested comment on this tentative determination. 84 FR 37970, 37973.

In response to the August 2019 RFI, PMI generally agreed with DOE's evaluation of ASME A112.19.2-2018, as compared to the currently referenced version. (PMI, No. 3 at p. 1)  9 The CA IOUs generally supported updating the referenced ASME A112.19.2 standard to the 2013 version, which they stated is the most recent version formally approved and accepted, to capture substantive updates. (CA IOUs, No. 4 at p. 2). The CA IOUs also recommended that DOE include “less substantive” updates from the 2018 edition, including definitions, editorial changes, and corrections. Id. Specifically, the CA IOUs suggested that DOE make the correction in section 8.2.1 of ASME A112.19.2-2018 to the water consumption static pressure value for urinals in DOE's regulations to reflect the corresponding value in Table 6. (CA IOUs, No. 4 at p. 4) Other stakeholders did not comment directly on DOE's evaluation of the 2013 and 2018 versions of ASME A112.19.2.

DOE reiterates its tentative determination from the August 2019 RFI that the amendments in ASME A112.19.2-2018 would not impact (1) the measured values of water use for water closets and urinals under Appendix T, (2) the representativeness of the results, or (3) the test burden. As stated previously, ASME A112.19.2-2018 is the most recent version of the industry standard, and DOE understands the 2018 version to have been approved by ANSI on June 15, 2018. 10 The CA IOUs stated that the 2013 version of ASME A112.19.2 contains substantive updates to the 2008 version, currently referenced in DOE's test procedures. If DOE adopts the 2018 version as proposed, DOE's regulations would reflect the substantive updates of interest to the CA IOUs. For the reasons described in the August 2019 RFI and reiterated previously, DOE is proposing to incorporate by reference ASME A112.19.2-2018.

DOE requests comment on its proposal to incorporate by reference ASME A112.19.2-2018.

DOE also proposes to remove references in Appendix T to the industry standard that are superfluous. Specifically, Appendix T references section 7.1 in addition to subsections 7.1.1, 7.1.2, 7.1.3, 7.1.4 and 7.1.5 of ASME A112.19.2-2008. 11 Section 7.1 only provides the title “General,” without any other content. The referenced subsections 7.1.1, 7.1.2, 7.1.3, 7.1.4 and 7.1.5 provide the general specifications needed for performing the test procedure. Therefore, DOE proposes to exclude the reference to section 7.1 of ASME A112.19.2-2018 in Appendix T. Similarly, section 8.2 only provides the title “Test apparatus and general instructions,” whereas sections 8.2.1, 8.2.2, and 8.2.3 provide the test apparatus and instructions needed for performing the test procedure. Therefore, DOE also proposes to exclude the reference to section 8.2 of ASME A112.19.2-2018 in Appendix T.

DOE requests comment on its proposal to remove references to section 7.1 and 8.2 of ASME A112.19.2-2018 in Appendix T.

Several terms and definitions in ASME A112.19.2-2018 related to water closets and urinals vary from those in DOE regulations, including terms not defined in 10 CFR 430.2. Table III-1 provides a summary of the terms and definitions discussed in this NOPR.

These terms and definitions are discussed in greater detail in the following paragraphs.

Although EPCA and DOE's test procedure use the term “water closet,” several terms in 10 CFR 430.32(q) reference the term “toilet” instead, which is not defined. See 42 U.S.C. 6292(a)(17) DOE defines “water closet” at 10 CFR 430.2. DOE understands the terms “toilet” and “water closet” as interchangeable. As such, and consistent with the nomenclature in EPCA and DOE's product definitions, DOE proposes in this NOPR to replace all instances of the term “toilet” in 10 CFR 430.32(q) with “water closet”. Specifically, this proposal includes replacing “toilet” with “water closet” in the following terms: Gravity tank-type toilet, flushometer tank toilet, electromechanical hydraulic toilet and blowout toilet. DOE is also proposing other updates to many of these terms, as discussed in the following sections.

DOE requests comment on the proposal to replace the term “toilet” with “water closet” in 10 CFR 430.32(q).

DOE regulations at 10 CFR 430.32(q) use the statutory term “electromechanical hydraulic toilet” (42 U.S.C. 6295(k)(1)(A)) as the name of a product class subject to water standards. DOE defines “electromechanical hydraulic toilet” as a water closet that utilizes electrically operated devices such as, but not limited to, air compressors, pumps, solenoids, motors, or macerators in place of or to aid gravity in evacuating waste from the toilet. 10 CFR 430.2. ASME A112.19.2-2018, however, uses the term “electro-hydraulic water closet,” defined as a water closet with a non-mechanical trap seal incorporating an electric motor and controller to facilitate flushing. Both definitions include an electric motor as a mechanism to remove waste. However, in the August 2019 RFI, DOE tentatively concluded that the scope of the term “electromechanical hydraulic toilet” is broader because it also includes other electrically operated devices. 84 FR 37972.

In the August 2019 RFI, DOE requested comment on whether the terms “electromechanical hydraulic toilet” and “electro-hydraulic water closet” are understood to include the same products, and any potential impact, including to testing burden, of adopting the term “electro-hydraulic water closet” and the corresponding definition in ASME A112.19.2-2018, as compared to maintaining the current DOE term “electromechanical hydraulic toilet” and its definition in 10 CFR 430.2. In response to the August 2019 RFI, PMI recommended that DOE adopt the term “electro-hydraulic water closet” as defined in the latest industry standard and to remove its current term “electromechanical water closet.” (PMI, No. 3 at p. 2) PMI stated that the terms “electro-hydraulic water closet” and “electromechanical hydraulic toilet” are understood throughout the industry to include the same products. Id. The CA IOUs recommended keeping the current term and definition and stated that the ASME definition for “electro-hydraulic water closet” is narrower in scope than the current DOE definition for “electromechanical water closet.” (CA IOUs, No. 4 at p. 3)

DOE continues to view the current regulatory term “electromechanical hydraulic toilet” as broader in scope than ASME's “electro-hydraulic water closet” because it includes water closets that use electrically operated devices in addition to electric motors ( e.g., air compressors, pumps, solenoids, motors or macerators). In this NOPR, DOE is not proposing to change the scope of the water closet test procedure. As such, DOE is not proposing to amend the definition of “electromechanical hydraulic toilet” at 10 CFR 430.2 other than by replacing the term “toilet” with “water closet,” as discussed in section III.C.1 of this document.

DOE requests comment on the proposal to replace the term “electromechanical hydraulic toilet” with “electromechanical hydraulic water closet,” while retaining the existing regulatory definition of “electromechanical hydraulic toilet.”

DOE regulations use the statutory term “blowout toilet” (42 U.S.C. 6295(k)(1)(A)) as the name of a product class subject to water standards at 10 CFR 430.32(q). DOE defines this term at 10 CFR 430.2. DOE also uses the undefined terms “blowout bowl” and “blowout water closets” in section 3.a.ii of Appendix T. ASME A112.19.2-2018, on the contrary, defines the term “blowout bowl” and does not define the term “blowout toilet.” Although DOE's definition of “blowout toilet” and ASME's definition of “blowout bowl” are not identical, they are similar, as illustrated in Table III-1. DOE's definition of “blowout toilet” refers to the entire product, using the phrase “water closet that uses a non-siphonic bowl,” whereas ASME's definition of “blowout bowl” refers specifically to the bowl portion of the product, using the phrase “a non-siphonic water closet bowl.” Within ASME A112.19.2-2018, the term “blowout bowl” is used in some instances to refer specifically to the type of bowl ( e.g., in contrast to a “siphonic bowl” or “washdown bowl”), and in other instances to refer to the entire water closet ( e.g. in contrast to a “flushometer valve water closet”).

In the August 2019 RFI, DOE tentatively concluded that the terms “blowout toilet” and “blowout bowl” are synonymous and requested comment on this conclusion. 84 FR 37970, 37972. DOE also requested comment about any potential impact, including to testing burden, of adopting the term “blowout bowl” and the corresponding definition in ASME A112.19.2-2018, as compared to maintaining the current DOE term “blowout toilet” and its definition in 10 CFR 430.2. In response to the August 2019 RFI, PMI and the CA IOUs both agreed with DOE's preliminary conclusions and suggested that DOE should update the term “blowout toilet” to “blowout bowl” and define it per the latest ASME standard. (PMI, No. 3 at p. 2; CA IOUs, No. 4 at p. 3).

As discussed previously, in this NOPR DOE further clarifies that “blowout toilet” refers to the entire water closet, whereas ASME's definition of “blowout bowl” refers specifically to the bowl portion of the product only. Therefore, DOE is not proposing to update the defined term “blowout toilet” in 10 CFR 430.2 with “blowout bowl”; rather, DOE is proposing to replace every instance of “blowout toilet” with “blowout bowl water closet” and to use the definition for “blowout bowl” provided in ASME A112.19.2-2018 (“water closet” is already defined in 10 CFR 430.2) to harmonize its regulations with the industry accepted definition. In addition, DOE proposes to replace all instances of “blowout water closet” in Appendix T and 10 CFR 430.32(q) with “blowout bowl water closets” to be consistent with the proposed updates.

DOE requests comment on the proposal to replace all instances of “blowout toilet” and “blowout water closet” in Appendix T and 10 CFR 430.32(q) with “blowout bowl water closets.”

In addition, the proposed definition from ASME A112.19.2-2018 for “blowout bowl” includes the term “blowout action,” which is also defined in ASME A112.19.2-2018. ASME A112.19.2-2018 defines blowout action as “a means of flushing a water closet whereby a jet of water directed at the bowl outlet opening pushes the bowl contents into the upleg, over the weir, and into the gravity drainage system”. To ensure a consistent understanding of the term “blowout action” DOE also proposes to define in the Federal test procedure the term “blowout action” as it is defined in ASME A112.19.2-2018.

DOE requests comment on the proposal to adopt the term “blowout action” and its corresponding definition from ASME A112.19.2-2018.

Appendix T uses the term “gravity flush tank water closet,” which is not defined in 10 CFR 430.2. However, ASME A112.19.2-2018 defines this term, as shown in Table III-1of this NOPR. In the August 2019 RFI, DOE requested comment on whether this definition is consistent with how industry has understood and applied the term under DOE regulations, and whether there would be any potential impact to testing burden in adopting the definition to this term. 84 FR 37970 at 37972.

In response to the August 2019 RFI, PMI and the CA IOUs both agreed that the definition from ASME A112.19.2-2018 is consistent with how the industry understands and applies the term, and therefore DOE should adopt the definition. (PMI, No. 3 at p. 2; CA IOUs, No. 4 at pp. 3-4) In addition, amongst all responses to the August 2019 RFI, no stakeholders commented on the potential test burden of adopting the term as defined in ASME A112.19.2-2018. Therefore, because the industry already applies the definition from ASME A112.19.2-2018, DOE is proposing in this NOPR to adopt the same definition, and add it to 10 CFR 430.2. Furthermore, DOE proposes to replace “gravity tank-type toilets” with “gravity flush tank water closets” in 10 CFR 430.32(q).

DOE requests comment on its proposal to adopt the definitions from ASME A112.19.2-2018 for the term “gravity flush tank water closet”.

DOE requests comment on the proposal to replace the term “gravity tank-type toilets” with “gravity flush tank water closets” in its regulations.

Similar to “gravity flush tank water closet,” the term “siphonic bowl” is also not defined in 10 CFR 430.2, but is defined in ASME A112.19.2-2018. PMI and the CA IOUs commented that the definition from ASME A112.19.2-2018 is consistent with how the industry understands and applies the terms, and therefore DOE should adopt these definitions. (PMI, No. 3 at p. 2; CA IOUs, No. 4 at pp. 3-4) Because the industry already applies the definition from ASME A112.19.2-2018, DOE is proposing in this NOPR to adopt the same definition, and add it to 10 CFR 430.2. Furthermore, DOE proposes to replace “siphonic water closets” with “siphonic bowl water closets” in Appendix T to be consistent with the proposed updates.

DOE requests comment on its proposal to adopt the definition from ASME A112.19.2-2018 for the term “siphonic bowl.”

DOE requests comment on the proposal to replace the term “siphonic water closets” with “siphonic bowl water closets” in its regulations.

In addition, the proposed definition from ASME A112.19.2-2018 for “siphonic bowl” includes the term “siphonic action,” which is also defined in ASME A112.19.2-2018. ASME A112.19.2-2018 defines siphonic action as “the movement of water through a flushing fixture by creating a siphon to remove waste material.” To keep consistent with the industry standard and to clarify the same term for the water closet test procedure, DOE also proposes to adopt the term “siphonic action” and its corresponding definition in ASME A112.19.2-2018.

DOE requests comment on the proposal to adopt the term “siphonic action” and its corresponding definition from ASME A112.19.2-2018.

DOE prescribes maximum water use standards for “trough-type” urinals at 10 CFR 430.32(r); however, the term “trough-type” is not defined. ASME A112.19.2-2018 likewise does not define the term “trough-type” as it applies to urinals. In the August 2019 RFI, DOE requested comment on how to define the term “trough-type urinal,” and whether there is an industry definition for this term. 84 FR 37972.

In response, the CA IOUs suggested defining trough-type urinal as “a urinal designed for simultaneous use by two or more persons.” (CA IOUs, No. 4 at p. 4). The CA IOUs stated that this definition provided in a July 2013 publication from the CA IOUs titled “Codes and Standards Enhancement (“CASE”) Report,”  12 which addresses water efficiency opportunities for water closets and urinals through development of new and updated California Appliance Efficiency Regulations.

The definition suggested by the CA IOUs is the same as the definition for “trough-type” urinal found in section 1602(i) of the California Title 20 Appliance Efficiency Regulations and provides that a trough-type urinal is a “a urinal designed for simultaneous use by two or more people.”  13 PMI stated that it had no comment on defining “trough-type” urinal, stating that none of its members manufactured this product. (PMI, No. 3 at p. 2) DOE did not receive any other comments regarding the appropriate definition for trough-type urinals.

DOE tentatively concludes that industry is familiar with the definition of “trough-type” in the California regulations, and that the definition accurately describes the products at issue. Accordingly, DOE is proposing to use the definition found in California's regulations “trough-type” urinals.

DOE requests comment on the proposal to define the term “trough-type urinal” as “a urinal designed for simultaneous use by two or more people.” DOE specifically requests comment on whether the proposed definition would include products not currently understood to be trough-type urinals, or whether it would exclude products currently understood to be trough-type urinals. In addition, DOE requests comments on whether any physical characteristics or features differentiate trough-type urinals from other urinals.

Appendix T requires that the water consumption of water closets and urinals be determined using the flush volume in gallons per flush (“gpf”) or liters per flush (“Lpf”).

The CA IOUs commented that, in addition to water consumption, DOE should strongly consider flush performance. (CA IOUs, No. 4 at pp. 2-3) Specifically, they stated the water savings from toilets with low gpf rating would not be realized if more than one flush were required to effectively eliminate solid waste; therefore, as toilets become more efficient, it is important to maintain flush performance utility. Id. While ASME A112.19.2-2018 includes tests to evaluate the performance of the toilet ( i.e., how effectively it eliminates waste), the CA IOUs commented that industry stakeholders have expressed concern that these performance tests are not sufficient. Id. The CA IOUs also noted that there are voluntary test procedures to confirm flush performance, as determined through research for the CA IOU CASE Report, and that “Maximum Performance (“MaP”) Testing: Toilet Fixture Performance Testing Protocol: Version 5—March 2013” (“MaP Testing”) is the most popular performance testing method in the industry. Id. The CA IOUs commented that MaP Testing classifies how well a toilet moves waste, and is widely accepted by toilet stakeholders including manufacturers, water utilities and standard-setting entities. Id. The CA IOUs recommended that DOE consider evaluating the appropriateness of these flush performance metrics for evaluating performance in these plumbing applications. Id. at p. 3.

EPCA requires that any test procedures prescribed or amended be reasonably designed to produce test results which measure energy efficiency, energy use, water use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Accordingly, DOE's test procedure for water closets is designed to measure water use. Any quality- or performance-based measures, such as the ability of a water closet to eliminate solid waste, are outside the scope of EPCA's requirements for DOE test procedure.

Outside the context of a test procedure rulemaking, EPCA does direct DOE to consider potential impacts to product utility, specifically when evaluating new and amended standards. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) In evaluating design options and the impact of potential standard levels in the context of an energy conservation standard rulemaking, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. Id. However, this analysis is beyond the scope of this NOPR.

Appendix T requires water closets and urinals to be tested at various test pressures, as specified in Table III-2. Appendix T also requires that a test be performed three times at each required pressure. The final measured flush volume for each tested unit is the average of the total flush volumes recorded at all test pressures.

NRDC and ASAP commented that the averaging of results from the specified test pressures to determine the water consumption of a water closet or urinal is not representative of product performance in the real world. (NRDC and ASAP, No. 5 at p. 3) These commenters stated that while water pressure may vary substantially across a utility service area, the water pressure at which a single water closet operates would have an expected variation in the 5 to 10 psi range. Id. NRDC and ASAP stated that averaging under the DOE test procedure produces a composite result similar to that obtained at a mid-range test pressure. Additionally, citing an analysis of water pressure data from California, they stated the actual system pressures are more likely to be closer to the higher end of the pressure range rather than the lower end. Id. Accordingly, NRDC and ASAP recommended that, for both water closets and urinals, DOE require that the average of flush volumes at each test pressure not exceed the maximum flow rate requirement, rather than the average flush volume across all test pressures, and that the reported value be the highest of the averages. (NRDC and ASAP, No. 5 at pp. 3-4) NRDC and ASAP asserted that these recommended changes simply represent a revision to the calculation of reported test data and would not require additional testing or test apparatus, and thus would not increase the testing burden on manufacturers. Id.

As stated, EPCA requires that the test procedures for water closets and urinals be reasonably designed to produce test results which reflect water use during a representative average use cycle. (42 U.S.C. 6293(b)(3)) Water pressure can vary based on the site of installation of a water closet or urinal. Reflecting a range of water pressures in the calculated and reported flush volume provides an average representation. A flush volume reflecting a single water pressure would be less representative of the flush volumes of water closets and urinals installed at locations that do not experience that same water pressure.

Moreover, the analysis cited by NRDC and ASAP regarding water pressures experienced across water systems is specific to California and, as such, may not be representative nationally. In a separate proceeding involving clothes washers, the California Energy Commission (“CEC”) presented several differences in California's water systems relative to the rest of the nation. 14 Specifically, CEC noted that “California's water supply situation is unique in scope and scale compared to other states” (Docket No. EERE-2006-STD-0124-0010, CEC, No.1 at p. 11) As such, an analysis of water pressure in California may not be representative of water pressure nationally. DOE is not aware of available national-level data on water pressure levels in residential dwellings.

The requirement in Appendix T to average the total flush volumes recorded at all test pressures is consistent with ASME A112.19.2-2018, which is an industry consensus standard. The ASME industry-consensus process includes input from a wide variety of national stakeholders. For all the reasons DOE discussed in this section, DOE is not proposing changes to the water pressure and averaging requirements in Appendix T.

DOE requests comment on whether the current test method of averaging of results from the different test pressures to determine the water use of a water closet or urinal is representative of an average use cycle or period of use, and is not unduly burdensome to conduct.

DOE requests comment and data regarding water pressures at product installation sites, and information on how water pressures vary in different locations across the nation.

DOE also proposes to remove the static pressure requirements for flushometer valve water closets (with a siphonic bowl and blowout bowl) in section 3.a.ii. of Appendix T, and instead reference the static pressure requirement provided in Table 5 of ASME A112.19.2-2018. As discussed in the October 2013 Final Rule, stakeholders commented that ASME A112.19.2-2008 (the version of the standard currently incorporated by reference in Appendix T) published incorrect static pressure requirements for flushometer valve water closets and that the industry standard committee would be addressing this error in the subsequent version of the standard. 78 FR 62970, 62977. DOE specified the correct static pressures as part of the regulatory text in Appendix T in the October 2013 final rule. 78 FR 62970, 62977 In this NOPR, DOE is proposing to incorporate by reference ASME A112.19.2-2018, which includes the correct static pressure requirements. These static pressure requirements mirror the static pressure requirements currently specified in Appendix T.

DOE requests comment on removing the static pressure requirements in Appendix T section 3.a.ii. and instead referencing the static pressure requirement provided in Table 5 of ASME A112.19.2-2018.

Finally, in section 3.b of Appendix T, DOE proposes to replace the reference to section 8.6.4 of ASME A112.19.2-2008 with Table 6 of ASME A112.19.2-2018. Section 8.6.4 in ASME A112.19.2-2008 is referenced to specify the test pressures required for testing. Section 8.6.4 of ASME A112.19.2-2008 (and the 2018 version) in turn references Table 6 of the ASME standard, which provides the required test pressures. Section 8.6.4 of ASME A112.19.2-2008 (and the 2018 version) also provides performance specifications that are not relevant for the purpose of meeting DOE water use standards in 10 CFR 430.32(r). Accordingly, DOE proposes to reference Table 6 directly for the purpose of specifying the required test pressures.

DOE requests comment on replacing the static pressure requirements in Appendix T section 3.b from section 8.6.4 of ASME A112.19.2-2008 with Table 6 of ASME A112.19.2-2018.

Appendix T provides direction regarding the resolution of the recorded values; rounding of recorded and calculated values; and test set-up as it relates to manufacturer installation instructions. In the August 2019 RFI, DOE requested comment on whether these directions are necessary to ensure that the test procedures are reasonably designed to measure the water use of water closets and urinals during a representative average use cycle or period of use. 84 FR 37973.

In response, PMI suggested, without elaboration, that DOE should remove the additional directions beyond the ASME standard in Appendix T as they are no longer necessary. (PMI, No. 3 at p. 3) NRDC and ASAP commented that the additional directions to the version currently incorporated by reference in Appendix T, ASME A112.19.2-2008, are necessary because the industry standard has several weaknesses that subsequent revisions of the voluntary industry standard have failed to remedy. (NRDC and ASAP, No. 5 at p. 1)

Having considered these comments, DOE is not proposing to eliminate the additional directions in Appendix T. As noted, PMI did not provide any explanation as to why the additional directions are no longer necessary, and did not indicate that these additional instructions are the cause of any burden to manufacturers. As discussed, the additional directions include consistent resolution of the recorded values; rounding of calculated values; and test set-up as it relates to manufacturer installation instructions, which are not specified in ASME A112.19.2-2018, but are needed for compliance purposes.

Section 2 of Appendix T specifies that any measurements shall be recorded at the resolution of the test apparatus, and calculations of water consumption ( i.e., flush volume) are consistently rounded to the same number of significant digits as the previous step. While sections 7.3.2 and 8.6.1 of ASME A112.19.2-2018 specify the resolutions of the test apparatus to be used, sections 7.3.3 and 8.6.2 of ASME A112.19.2-2018 do not specify the resolution of recorded measurements. Instead, sections 7.3.3 and 8.6.2 of ASME A112.19.2-2018 specify only how the total calculated flush volume must be rounded, which is consistent with the resolution of the test apparatus. Accordingly, section 2 of Appendix T provides further detail for resolution and rounding requirements, which is consistent with ASME A112.19.2-2018.

Section 3.a.iii. of Appendix T provides further specifications on water level and trim setting for cases in which the manufacturer has provided no instructions regarding such settings. Otherwise, the same section requires that flush volume and tank trim component adjustments shall be set in accordance with the printed instructions supplied by the manufacturer, consistent with section 7.1.2 of ASME A112.19.2-2018. In the October 2013 final rule, DOE concluded that the specifications in ASME A112.19.2-2008 may not be adequate to ensure that manufacturers test gravity tank water closets at the maximum flush volume. 78 FR 62977. Specifically, DOE concluded that while section 7.1.2 of ASME A112.19.2-2008 specifies adjustments made to the tank water level and fill time, it does not specify adjustments made to other trim components such as (but not limited to) the flapper valve, fill valve and tank water level, which could be adjusted to increase flush volume. Id. Accordingly, for those products that do not include printed installation instructions, Appendix T specifies setting these trim components to the maximum water use setting so that the maximum flush volume is produced without causing the water closet to malfunction or leak. The latest version of the ASME standard, ASME A112.19.2-2018, does not provide any further specifications on adjusting the trim components in cases where the manufacturer has provided no instructions regarding these components. Therefore, the additional specifications provided by Appendix T are still warranted for testing products without printed instructions supplied by the manufacturer. For these reasons, DOE is proposing that the current additional directions provided in Appendix T be maintained.

NRDC and ASAP also suggested adding other directions to increase the precision of the measurement and rounding requirements for measuring flush volume from the 0.07 gallons specified in ASME 112.19.2-2008 and 112.19.2-2018 to 0.01 gallons. 15 (NRDC and ASAP, No. 5 at p. 2) (NRDC and ASAP, No. 5 at p. 2) They asserted that Appendix T results in measurements that are not representative of water consumption during a representative average usage cycle or period of use. Id. NRDC and ASAP stated that the current measurement and rounding requirements allow for models that use up to 0.07 gallons per flush (“gpf”) in excess of the DOE standard to be certified as meeting the standard. Id. NRDC and ASAP commented that at the current DOE standard of 1.6 gpf for water closets, Appendix T allows for a model with an exceedance of up to 4.4% to be certified and, at the current DOE standard of 1.0 gpf for urinals, Appendix T allows for an exceedance of up to 7% to be certified. Id. While NRDC and ASAP noted that DOE requirements at 10 CFR 429.30(b) and 10 CFR 429.31(b) require certification reports for water closets and urinals to include the maximum water use in gallons per flush rounded to the nearest 0.01 gallon, they stated that the current ASME test procedure incorporated by reference is not adequate to achieve the precision required by the current certification requirements for water closets. Id. Accordingly, NRDC and ASAP recommended that DOE add directions for testing water closet and urinal water consumption to require test equipment resolution of 0.01 gallon and rounding to the nearest 0.01 gallon. Id.

In the context of rounding resolution, ASME A112.19.2-2018 provides resolution requirements that are incorporated by reference in Appendix T. The rounding resolution for flush volume is derived from the resolution specification in ASME A112.19.2-2018 for the apparatus used to measure flush volume. ASME A112.19.2-2018 specifies that the receiving vessel, load cell, or other apparatus used to measure flush volume be capable of measuring volumes to within 0.25 L (0.07 gal). See sections 7.3.2 and 8.6.1 of ASME A112.19.2-2018 for water closets and urinals, respectively. Therefore, the ASME A112.19.2-2018 rounding resolution reflects the resolution specifications of the equipment required for use in the test procedure.

Further, section 7.3.3 and 8.6.2 of ASME A112.19.2-2018 requires that the tests be repeated three times at each of the test pressures. The final measured flush volume for each tested unit is the average of the total flush volumes recorded at each test pressure. In addition, DOE sampling requirements for represented values of water consumption requires that the minimum number of units tested shall be no less than two. See 10 CFR 429.30 and 10 CFR 429.31. Although ASME A112.19.2-2018 specifies measuring flush volume with a vessel, load cell, or apparatus capable of measuring volumes to within 0.25 L (0.07 gal), in all likelihood the repetition of the test and the sampling requirements would average together a range of variations around the nominal measurement; therefore, any variation in the final reported value (resulting from the specified apparatus resolution) is likely to be less than the maximum theoretical level of variation indicated by the commenters.

DOE expects that changes in equipment resolution and rounding requirements could require currently certified water closets and urinals to be retested and recertified. Currently, DOE has no indication that manufacturers are using the ASME A112.19.2-2018 instrument resolution and rounding requirements as a means for exceeding the DOE standard. Further, the benefits from improved resolution would be uncertain given the testing and sampling requirements discussed, but could create additional manufacturer burden. For these reasons, DOE is proposing to maintain the current specifications in Appendix T regarding measurement and rounding specifications.

DOE requests comment on maintaining the current instrument resolution specifications. DOE also requests comment on whether it should specify implementing an instrument resolution of 0.01 to match the DOE reporting requirements, and the associated testing or reporting burden associated with such a change.

DOE requests comment on the level of precision used by industry and test laboratories for measuring and rounding when performing tests for water consumption. Specifically, DOE requests comment on whether the apparatus used for testing generally has a resolution of 0.25 L (0.07 gal) or whether the resolution is more precise.

In the August 2019 RFI, DOE requested comment on measures that, consistent with EPCA, could be taken to lower the cost of its regulations that apply to water closets and urinals. 84 FR 37972. In response, PMI recommended removing the sample size requirement and instead, calculating the represented value based on only one sample, in line with the ASME standard. (PMI, No. 3 at p. 2) PMI acknowledged that, while there are reasons for testing more than one sample, the cost of compliance could be lowered by reducing sample size. Id.

The sampling provisions for water closets in 10 CFR 429.11 and 10 CFR 429.30 require testing at least two units. As PMI acknowledged, there are reasons for testing more than one sample. Relying on a sample size of at least two units is important to account for manufacturing variability and test uncertainty. Testing a minimum of two units and the associated statistics provide a sampling that is more representative of the total population of units than testing of only a single unit. For this reason, DOE is proposing to retain the minimum sample size of two units.

10 CFR 430.23(u) and (v) provide the test procedures for the measurement of water consumption for water closets and urinals, respectively. 10 CFR 430.23(u) requires that “the maximum permissible water use allowed for water closets, expressed in gallons and liters per flush (gpf and Lpf), shall be measured in accordance to section 3(a) of appendix T of this subpart.” Similarly, 10 CFR 430.23(v) requires that “the maximum permissible water use allowed for urinals, expressed in gallons and liters per flush (gpf and Lpf), shall be measured in accordance to section 3(b) of appendix T of this subpart.” The language “maximum permissible water use” in the aforementioned sections is incorrect, as the test procedures measure water use, and the term “maximum permissible water use” is instead descriptive of a water conservation standard. As such, DOE is proposing to replace the language “the maximum permissible water use allowed” in 10 CFR 430.23(u) and 10 CFR 430.23(v) with “the water use”. This amendment would clarify that the DOE test procedures measure water use, whereas the standards in 10 CFR 430.32(q) and (r) establish the maximum allowable water use for water closets and urinals, respectively.

DOE requests comment on the proposed updates for water closets and urinals to replace “maximum permissible water use allowed” with “water use” in 10 CFR 430.23(u) and (v), respectively.

The CA IOUs recommended that DOE consider the differences between single- and dual-flush water closets, and that DOE further research and differentiate between water closet classes. (CA IOUs, No. 4 at p. 2) The CA IOUs stated that the CA IOU CASE Report indicated insufficient data on dual-flush water closet usage patterns in real buildings to justify or verify what the CA IOUs described as a 2:1 flush ratio in the current water closet test procedure. The CA IOUs recommended that DOE consider an approach that takes the sum of the flush volumes from both flushes in the dual-flush, also known as the full-volume flush, into account. Id.

A dual-flush water closet is defined as a water closet incorporating a feature that allows the user to flush the water closet with either a reduced or a full volume of water. 10 CFR 430.2. The Federal test procedure does not include a 2:1 full-volume to reduced-volume flush ratio to determine a representative flush volume for dual-flush water closets, or average flush volume for dual flush water closets. Rather, section 3.a of Appendix T requires measuring the water flush volume for dual flush water closets separately for the full-flush and reduced-flush modes in accordance with section 7.4 of ASME A112.19.2-2008, but does not provide a method for averaging the results from testing the two modes. Because the water use standards in 10 CFR 430.32(q) are based on maximum allowable water use, certification reports and compliance with standards are based on the flush volume obtained from testing the full-flush mode. 10 CFR 429.30(b)(2).

In the October 2013 final rule, DOE determined that it did not have sufficient evidence on which to base a test procedure for representative average water use for dual-flush water closets ( i.e., representative water use reflecting an average of the full and reduced flush modes). 78 FR 62970, 62976. Furthermore, DOE stated that it was not establishing either a separate standard or separate certification requirements for the full-flush and reduced-flush modes for dual-flush water closets. Id. DOE does not have information or data that would suggest a different determination is warranted.

In the October 2013 final rule, DOE also emphasized that manufacturers, distributors, retailers, and private labelers are not permitted to make any representations of water use for dual-flush water closets other than the maximum flush volume ( e.g., average representative water use reflecting an average of the full and reduced flush modes) because DOE did not adopt a test procedure to calculate average representative water use for dual-flush water closets. Id. Under 42 U.S.C. 6293(c)(1) and (2), no manufacturer, distributor, retailer, or private labeler may make any representation with respect to the water use of a water closet unless that representation is based on testing conducted in accordance with the relevant DOE test procedures. Id.

The Environmental Protection Agency (“EPA”) WaterSense program  16 has a specification for measuring the flush volume of dual-flush water closets and uses a weighted average of the full and reduced flush volumes for residential toilets. In the October 2013 final rule, DOE stated that parties may state that a dual-flush water closet complies with the requirements of EPA's WaterSense program, either in writing or through use of the appropriate WaterSense label, as long as such representations are made in accordance with EPA specifications and such representations do not include a specific value of average representative water use. 78 FR 62970, 62976.

DOE also received comments related to standards for dual-flush water closets and installation of generic replacement flapper valves. As explained below, both topics are beyond the scope of this test procedure rulemaking.

The CA IOUs recommended amending the standard for dual-flush toilets to a maximum of 1.28 gpf for the full-volume flush. (CA IOUs, No. 4 at p. 2) As stated, DOE is issuing this NOPR as part of its obligation to review test procedures for these products. This follows EPCA's direction that if the requirements of ASME A112.19.6-1990 are revised at any time and approved by ANSI, DOE must amend the Federal test procedures to conform to the revised ASME/ANSI requirements, unless DOE determines by rule that to do so would not meet the statutory requirements for test procedures. (42 U.S.C. 6293(b)(8)(B)) Additionally, this NOPR addresses the periodic review of test procedures required by EPCA. (42 U.S.C. 6293(b)(1)) The maximum water use standards for water closets are not part of the test procedure and are therefore outside the scope of this rulemaking.

Reaves commented that current test procedure for toilets do not consider the full life cycle of the products being tested and unintentionally result in a significantly inflated measured water savings. (Reaves, No. 6 at p. 1) Reaves stated that installation of generic replacement flapper valves after initial installation often eliminates most of the estimated and expected lifetime water savings. Id. Reaves recommended that the test procedure consider the toilet flush volume specification with readily available market replacement parts expected to be used upon flapper valve replacement to achieve the water savings promised by standards. Id.

DOE's energy conservation standards and test procedures apply to new water closets. (42 U.S.C. 6302(a)(5)); see also, 78 FR 62977 (October 23, 2013). As such, the DOE test procedure for water closets addresses the product as manufactured, not as it may subsequently be modified by the consumer. As a result, consideration of replacement flapper valves is outside the scope of this rulemaking.

The August 2019 RFI sought comments, data and information on the issues related to the emerging smart technology market as they may apply to water closets and urinals. 84 FR 37973. The August 2019 RFI referenced a separate RFI on the emerging smart technology appliance and equipment market, in which DOE requested information to better understand related market trends and other issues to ensure that DOE did not inadvertently impede innovation while fulfilling its statutory obligations. 83 FR 46886 (Sept. 17, 2018; “September 2018 RFI”).

In response to the August 2019 RFI, the CA IOUs commented that emerging technologies and smart technologies are applicable to water closets and urinals and should be considered in this and future test procedures. (CA IOUs, No. 4 at p. 3) The CA IOUs stated that sensor technology has improved significantly and there is more widespread adoption of electronic, hands free flushing operations. Id. They also stated that there have been developments in sensor technology that allow for more reliable testing of water level. Id ) The CA IOUs recommended further evaluation of this and other sensors including ultrasonic, mechanical vibration-based approaches, and radio-frequency identification (“RFID”) readers. Id.

As stated in the September 2018 RFI, DOE recognizes that manufacturers are developing “connected” products, allowing for options such as remote control access, automatic supply replenishment, and intelligent energy consumption. 83 FR 46887. DOE is seeking to avoid inhibiting the market for “smart” products through its standards and test procedure development process. Id. Appendix T measures the flush volume of a single flush, and does not measure water levels in water closets or overflow. Under Appendix T, the procedures for measuring flush volume of water closets and urinals do not distinguish between flushing mechanisms activated manually as compared to those activated by sensor; therefore, the procedures would not impede the use of sensors. The CA IOUs did not indicate that the technologies it referenced are impeded by either the DOE test procedure or compliance with the maximum water use standard. DOE will continue to evaluate advances in sensors and smart technology, including any efforts to address these issues by industry.

In section 2 of Appendix T, DOE references the term “instrumentation,” several times. However, the term “instrumentation” is not used in the industry standard; rather, the synonymous term “apparatus” is used. “Apparatus” is also used throughout Appendix T, in addition to “instrumentation.” Therefore, to maintain consistency with the nomenclature used in ASME A112.19.2-2018, DOE is proposing to replace the term “instrumentation” with “apparatus” in Appendix T.

DOE requests comment on the proposal to replace the term “instrumentation” with “apparatus.”

EPCA requires that test procedures proposed by DOE not be unduly burdensome to conduct. 42 U.S.C. 6314(a)(2). In this NOPR, DOE is proposing to amend the existing test procedures for water closets and urinals by incorporating by reference the most recent version of the referenced industry standard, ASME A112.19.2-2018; updating the term “blowout toilet” to “blowout bowl;” and adding definitions for the terms “gravity flush tank water closet,” “siphonic action,” “siphonic bowl,” and “trough-type urinal,” which are currently used in Appendix T, but not defined. DOE has tentatively determined that these proposed amendments would not be unduly burdensome for manufacturers.

Further discussion of the cost impacts of the proposed test procedure amendments are presented in the following sections.

DOE proposes to amend the existing test procedures for water closets and urinals by incorporating by reference the most recent version of the referenced industry standard, ASME A112.19.2-2018. As discussed, DOE's review of the 2018 version compared with the 2008 version, identified the following two updates to sections relevant to the Federal test procedure include: (1) Editorial changes and clarifications; and (2) a correction in section 8.2.1 to the water consumption static test pressure value for urinals to reflect the corresponding value in Table 6. DOE has tentatively determined that the amendments in ASME A112.19.2-2018 would not impact (1) the measured values of water use for water closets and urinals under Appendix T, (2) the representativeness of the results, or (3) the test burden. In addition, incorporation of ASME A112.19.2-2018 would harmonize DOE's test procedures with current industry practice.

DOE proposes to update the replace “blowout toilet” with “blowout bowl water closet” and use the corresponding definition in ASME A112.19.2-2018. DOE has tentatively determined that the terms are understood to include the same products. In addition, incorporation of “blowout bowl” per ASME A112.19.2-2018 would harmonize the term and definition in the DOE's test procedures with current industry practice.

DOE also proposes to add definitions for “gravity flush tank water closet,” “siphonic bowl” and “siphonic action” as defined in ASME A112.19.2-2018, and for “trough-type urinal” as defined in California Title 20 Appliance Efficiency Regulations. Each of these aforementioned terms are used in either Appendix T, 10 CFR 430.2(q), 10 CFR 430.2(r), or within another definition; however, none of these terms is currently defined in 10 CFR 430.2. DOE has tentatively determined that the proposed definitions would harmonize the DOE's test procedures with current industry practice.

Based on these tentative conclusions, none of the proposed amendments to Appendix T and the associated definitions would require manufacturers to test water closets and urinals that are not already required to be tested). Additionally, none of the proposed amendments would require manufacturers to re-test or re-certify any existing models on the market that have already been tested using Appendix T and properly certified. Therefore, were DOE to adopt these proposed test procedure amendments, water closet and urinal manufacturers would not incur any additional costs.

DOE requests comment on its understanding that there will be no impact or costs to water closet and urinal manufacturers under the proposed amendments.

The test procedures for water closets and urinals at Appendix T incorporate by reference ASME A112.19.2-2008, relying on certain provisions of that industry standard. The provisions of the industry standard referenced in the Federal test procedure provide procedures for testing and measuring water consumption, specifications for test apparatus, and other general requirements for water closets and urinals. The industry standard DOE proposes to incorporate by reference via amendments described in this notice are discussed in further detail in section IV.M of this document.

DOE requests comment on the benefits and burdens of the proposed updates and additions to industry standards referenced in the DOE test procedure for water closets and urinals.

In the August 2019 RFI, DOE requested comment on the benefits and burdens of, or any other comments regarding, adopting any industry/voluntary consensus-based or other appropriate test procedure, without modification. 84 FR 37973. PMI responded by stating that certification agencies in the U.S. already require manufacturers of water closets and urinals to certify their products in accordance with the latest version of ASME A112.19.2-2018; therefore, it is important for DOE to match all the test procedures outlined in the recent ASME standard (including all terms, definitions, figures and tables) without modification. (PMI, No. 3 at p. 3) The CA IOUs commented generally that DOE should not adopt any industry/voluntary consensus-based method without modification because that risks limiting opportunity for stakeholder participation in the development and adoption of Federal requirements. (CA IOUs, No. 4 at p. 4) The CA IOUs stated that DOE must ensure transparency and that incorporated industry test procedures are fully vetted through the public rulemaking process. Id.

DOE is proposing to amend the test procedures consistent with the most recent version of the referenced industry standard, ASME A112.19.2-2018, and through this NOPR is providing an opportunity for comment on its proposal. As noted, EPCA directs that if the requirements of ASME A112.19.6-1990 are revised at any time and approved by ANSI, DOE must amend the test procedures for water closets and urinals to conform to the revised ASME standard, unless DOE determines by rule that to do so would not meet the requirements of EPCA that the test procedures be reasonably designed to produce test results which measure water use during a representative average use cycle as determined by DOE, and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(8)(B)) As discussed, DOE has proposed maintaining the additional direction in Appendix T, which DOE previously determined is necessary to provide for consistent resolution of recorded values, rounding of recorded and calculated values, and test set-up as it relates to manufacturer installation instructions.

DOE seeks further comment on the degree to which the DOE should consider harmonizing Appendix T with the most recent relevant industry standard for water closets and urinals, and whether there are any changes to the Federal test method that would produce test results that provide additional benefits to the public as compared to the current DOE test procedure or the relevant industry standard. DOE also requests comment on the benefits and burdens of, or any other comments regarding, adopting any industry/voluntary consensus-based or other appropriate test procedure, without modification.

In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of the existing test procedure for water closets and urinals. DOE issued an RFI to seek more information on whether, as required by EPCA, its test procedures are reasonably designed, to produce results that measure the energy and water use or efficiency of products during a representative average use cycle or period of use. 84 FR 9721 (Mar. 18, 2019). DOE particularly seeks comment on this issue as it pertains to the test procedures for water closets and urinals, as well as information that would help DOE create procedures that are not unduly burdensome to conduct. Comments regarding repeatability and reproducibility are also welcome.

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

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

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

DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE has tentatively concluded that this proposed rule will not have a significant impact on a substantial number of small entities. The factual basis for this determination is as follows:

The Small Business Administration (“SBA”) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers or earns less than the average annual receipts specified in 13 CFR part 121. The threshold values set forth in these regulations use size standards and codes established by the North American Industry Classification System (“NAICS”) that are available at: https://www.sba.gov/document/support--table-size-standards. DOE used three NAICS codes to cover all potential products for this rulemaking: 327110 (pottery, ceramics, and plumbing fixture manufacturing); 326191 (plastics plumbing fixture manufacturing); 332999 (all other miscellaneous fabricated metal product manufacturing). The threshold for NAICS classification code 327110 (pottery, ceramics, and plumbing fixture manufacturing), which includes most urinals and water closets covered by this rulemaking, is 1,000 employees or fewer. The threshold for NAICS classification codes 326191 (plastics plumbing fixture manufacturing) and 332999 (all other miscellaneous fabricated metal product manufacturing) is 750 employees or fewer. Since NAICS classification code 327110 includes the majority of water closet and urinal manufacturing and DOE assumes that most, if not all, water closet and urinal manufacturers make at least some products covered by that NAICS classification code, DOE used the more conservative 1,000 employee threshold value for this regulatory flexibility analysis.

DOE collected data from DOE's compliance certification database  17 to identify manufacturers of water closets and urinals. DOE then consulted publicly-available data and contacted manufacturers, where needed, to determine if they meet the SBA's definition of a “small business” and have their manufacturing facilities located within the United States. Based on this analysis, DOE identified 19 small businesses that manufacture either water closets or urinals covered by the proposed test procedure.

As described in section III.L.1 of this document, the amendments proposed in this test procedure would not increase costs to water closet or urinal manufacturers, including small businesses. Therefore, DOE tentatively concludes that the impacts of the test procedure amendments proposed in this NOPR would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of an IRFA is not warranted. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

Manufacturers of water closets and urinals must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including water closets and urinals. See, generally, 10 CFR part 429. The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

The collection-of-information requirement for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including water closets and urinals has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This proposed testing procedures impose no new information collection requirements beyond those approved by OMB in control number 1910-1400.

In this proposed rule, DOE proposes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for water closets and urinals. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and DOE's implementing regulations at 10 CFR part 1021. Specifically, DOE has determined that adopting test procedures for measuring energy efficiency of consumer products and industrial equipment is consistent with activities identified in 10 CFR part 1021, appendix A to subpart D, A5 and A6. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

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

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

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

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

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

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

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

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

The proposed modifications to the test procedure for water closets and urinals would incorporate testing methods contained in certain sections of the following commercial standard: ASME A112.19.2-2018. DOE has evaluated this standard and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA ( i.e., whether it was developed in a manner that fully provides for public participation, comment, and review.) DOE will consult with both the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to prescribing a final rule.

In this NOPR, DOE proposes to incorporate by reference the test standard jointly published by the American Society of Mechanical Engineers (“ASME”) and the Canadian Standards Association (“CSA Group”) titled ASME A112.19.2-2018. ASME A112.19.2-2018 is an industry-accepted test procedure that measures water consumption for water closets and urinals, and is applicable to products sold in North America. The test procedure proposed in this NOPR references various sections of ASME A112.19.2-2018 that address test setup, apparatus, test conduct, and calculations. These sections of ASME A112.19.2-2018 are Section 7.1 “General,” Section 7.1.1 “All tests,” Section 7.1.2 “Gravity flush tank water closets,” Section 7.1.3 “Flushometer tank, electro-hydraulic, or other pressurized flushing device water closets,” Section 7.1.4 “Flushometer valve water closets,” Section 7.1.5 “Procedures for standardizing the water supply system,” Section 7.3 “Water consumption test,” Section 7.3.3 “Procedure,” Section 7.3.5 “Performance,” “Section 8.2 “Test apparatus and general instructions,” Section 8.2.1, Section 8.2.2, and Section 8.2.3, Section 8.6 “Water Consumption Test,” Section 8.6.4 “Performance,” Table 5 “Static test pressures for water closets, kPa (psi),” and Table 6 “Static test pressures for urinals, kPa (psi).”

Copies of ASME Standard A112.19.2-2018 may be purchased from the ASME at Two Park Avenue, New York, NY 10016, or by going to https://www.asme.org/codes-standards/find-codes-standards/a112-19-2-csa-b45-1-ceramic-plumbing-fixtures?productKey=J0121TM1:J0121TM1.

The time and date webinar are listed in the DATES section at the beginning of this document. If no participants register for the webinar, it will be cancelled. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website: https://cms.doe.gov/eere/buildings/public-meetings-and-comment-deadlines. Participants are responsible for ensuring their systems are compatible with the webinar software.

Additionally, you may request an in-person meeting to be held prior to the close of the request period provided in the DATES section of this document. Requests for an in-person meeting may be made by contacting Appliance and Equipment Standards Program staff at (202) 287-1445 or by email: Appliance_Standards_Public_Meetings@ee.doe.gov.

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

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

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

Do not submit to 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 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 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 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 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. No faxes will be accepted.

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

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

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email to PlumbingProducts2017TP0028@ee.doe.gov or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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

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

(1) DOE requests comment on its proposal to incorporate by reference ASME A112.19.2-2018.

(2) DOE requests comment on its proposal to remove references to section 7.1 and 8.2 of ASME A112.19.2-2018 in Appendix T.

(3) DOE requests comment on the proposal to replace the term “toilet” with “water closet” in 10 CFR 430.32(q).

(4) DOE requests comment on the proposal to replace the term “electromechanical hydraulic toilet” with “electromechanical hydraulic water closet,” while retaining the existing regulatory definition of “electromechanical hydraulic toilet.”

(5) DOE requests comment on the proposal to replace all instances of “blowout toilet” and “blowout water closet” in Appendix T and 10 CFR 430.32(q) with “blowout bowl water closets.”

(6) DOE requests comment on the proposal to adopt the term “blowout action” and its corresponding definition from ASME A112.19.2-2018.

(7) DOE requests comment on its proposal to adopt the definitions from ASME A112.19.2-2018 for the term “gravity flush tank water closet”.

(8) DOE requests comment on the proposal to replace the term “gravity tank-type toilets” with “gravity flush tank water closets” in its regulations.

(9) DOE requests comment on its proposal to adopt the definition from ASME A112.19.2-2018 for the term “siphonic bowl.”

(10) DOE requests comment on the proposal to replace the term “siphonic water closets” with “siphonic bowl water closets” in its regulations.

(11) DOE requests comment on the proposal to adopt the term “siphonic action” and its corresponding definition from ASME A112.19.2-2018.

(12) DOE requests comment on the proposal to define the term “trough-type urinal” as “a urinal designed for simultaneous use by two or more people.” DOE specifically requests comment on whether the proposed definition would include products not currently understood to be trough-type urinals, or whether it would exclude products currently understood to be trough-type urinals. In addition, DOE requests comments on whether any physical characteristics or features differentiate trough-type urinals from other urinals.

(13) DOE requests comment on whether the current test method of averaging of results from the different test pressures to determine the water use of a water closet or urinal is representative of an average use cycle or period of use, and is not unduly burdensome to conduct.

(14) DOE requests comment and data regarding water pressures at product installation sites, and information on how water pressures vary in different locations across the nation.

(15) DOE requests comment on removing the static pressure requirements in Appendix T section 3.a.ii. and instead referencing the static pressure requirement provided in Table 5 of ASME A112.19.2-2018.

(16) DOE requests comment on replacing the static pressure requirements in Appendix T section 3.b from section 8.6.4 of ASME A112.19.2-2008 with Table 6 of ASME A112.19.2-2018.

(17) DOE requests comment on maintaining the current instrument resolution specifications. DOE also requests comment on whether it should specify implementing an instrument resolution of 0.01 to match the DOE reporting requirements, and the associated testing or reporting burden associated with such a change.

(18) DOE requests comment on the level of precision used by industry and test laboratories for measuring and rounding when performing tests for water consumption. Specifically, DOE requests comment on whether the apparatus used for testing generally has a resolution of 0.25 L (0.07 gal) or whether the resolution is more precise.

(19) DOE requests comment on the proposed updates for water closets and urinals to replace “maximum permissible water use allowed” with “water use” in 10 CFR 430.23(u) and (v), respectively.

(20) DOE requests comment on the proposal to replace the term “instrumentation” with “apparatus.”

(21) DOE requests comment on its understanding that there will be no impact or costs to water closet and urinal manufacturers under the proposed amendments.

(22) DOE requests comment on the benefits and burdens of the proposed updates and additions to industry standards referenced in the DOE test procedure for water closets and urinals.

(23) DOE seeks further comment on the degree to which the DOE should consider harmonizing Appendix T with the most recent relevant industry standard for water closets and urinals, and whether there are any changes to the Federal test method that would produce test results that provide additional benefits to the public as compared to the current DOE test procedure or the relevant industry standard. DOE also requests comment on the benefits and burdens of, or any other comments regarding, adopting any industry/voluntary consensus-based or other appropriate test procedure, without modification.

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

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

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

The additions read as follows:

DOE proposes to incorporate by reference the following industry standard into 10 CFR part 431: ASTM Standard F2324-13 (R2019), “Standard Test Method for Prerinse Spray Valves;” Reapproved 2019 (“ASTM F2324-13 (R2019)”).

Copies of ASTM F2324-13 (R2019) can be obtained from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959, or by going to www.astm.org.

For a further discussion of these standards, see section IV.M.

Commercial prerinse spray valves (“CPSV” or “CPSVs”) are included among the covered products for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6291(33); 42 U.S.C. 6293(b)(14); 42 U.S.C. 6295(dd)) DOE's energy conservation standards and test procedures for commercial prerinse spray valves are currently prescribed at 10 CFR part 431 subpart O. 1 The following sections discuss DOE's authority to establish test procedures for CPSVs and the relevant background information regarding DOE's consideration of test procedures for this product.

The Energy Policy and Conservation Act, as amended (“EPCA”), 2 authorizes DOE to regulate the energy efficiency of several consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  3 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency, which includes CPSVs. EPCA provides definitions for commercial prerinse spray valves under 42 U.S.C. 6291(33), the test procedure under 42 U.S.C. 6293(b)(14), and energy conservation standards for flow rate under 42 U.S.C. 6295(dd).

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

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

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

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

With respect to CPSVs, EPCA requires DOE to use ASTM Standard F2324 (“ASTM F2324”) as the basis for the test procedure for measuring flow rate. (42 U.S.C. 6293(b)(14))

Further, EPCA requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including CPSVs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A))

If the Secretary determines, on his own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. (42 U.S.C. 6293(b)(2)) The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. 4 Id. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. Id. If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this notice of proposed rulemaking (“NOPR”) in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A))

DOE's existing test procedures for CPSVs appear at 10 CFR part 431, subpart O. DOE most recently amended the test procedure for CPSVs in a final rule published December 30, 2015, in which DOE incorporated by reference the 2013 version of ASTM F2324 (“ASTM F2324-13”). 80 FR 81441 (“December 2015 Final Rule”). Also during the December 2015 Final Rule, DOE revised the definition of “commercial prerinse spray valve,” made minor adjustments to the DOE flow rate test method, and included a definition of “spray force” as well as added a test method for measuring the spray force of CPSVs. In 2019, ASTM reaffirmed the 2013 standard (“ASTM F2324-13 (2019)”). The 2019 version contains no changes from the 2013 version.

On June 5, 2020, DOE published a request for information soliciting public comment and data on all aspects of the existing DOE test procedure for CPSVs, including (1) the scope and definition of the test procedure, (2) incorporation of the reaffirmed industry standard, and (3) the representativeness of the test water pressure. 85 FR 34541 (“June 2020 RFI”). DOE also received a comment requesting an extension of the original comment period and on July 21, 2020, DOE reopened the comment period for an additional 30 days to close on August 20, 2020. 85 FR 44026.

DOE received comments in response to the June 2020 RFI from the interested parties listed in Table I.1.

The objectives of this proposed rule are to:

• Improve the organization and readability of FCA appraisal and evaluation regulations;

• Clarify expectations for internal controls in appraisal and evaluation practices;

• Expand authorities on using various sources of appraisers and evaluators as well as specifically authorizing use of automated valuation tools; and

• Update existing terminology and make other grammatical changes.

The prevailing body of law for conducting collateral appraisals and evaluations in financial transactions is Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). 1 Title XI of FIRREA created the Appraisal Subcommittee within the Federal Financial Institutions Examination Council (FFIEC)  2 to provide federal oversight of state appraiser regulatory programs. Title XI of FIRREA also requires certain federally regulated lending institutions to use appraisers that are either state certified or state licensed under the Uniform Standards of Professional Appraisal Practice (USPAP). 3 USPAP provides standards and qualifications for real estate appraisers and provides guidance on recognized valuation methods and techniques for all evaluation professionals.

The Farm Credit Act of 1971, as amended (Act)  4 charges FCA with issuing regulations establishing loan security requirements and the manner of conducting collateral security reviews. 5 The Act requires System direct lenders to determine the value of loan security “by appraisal under standards prescribed by the [institution] in accordance with [FCA] regulations.”  6 FCA is further tasked with examining the quality and sufficiency of collateral used to secure System loans. 7 Because these provisions within the Act existed before passage of FIRREA—and for other reasons—Congress exempted the System from Title XI of FIRREA, including following USPAP. However, FCA's present collateral evaluation rules are generally similar, although not identical, to FIRREA requirements.

In 1992, FCA issued subpart F of part 614, “Collateral Evaluation Requirements”, which sets forth minimum regulatory standards for performing appraisals and evaluations of collateral securing extensions of credit (lending and leasing) by Farm Credit banks and associations. 8 The 1992 rulemaking applied many of the evaluation standards used by the banking industry under Title XI of FIRREA, including requiring the use of USPAP in certain loan transactions. 9 In deciding to use these standards where appropriate, FCA determined the underlying policy behind Title XI of FIRREA was relevant to the System's operations, particularly for ensuring that reports on collateral values accurately reflect the current market value of collateral at the time of a credit decision and that those values be recognized as valid within the financial sector. However, our regulations differ from Title XI of FIRREA and USPAP where needed to address the unique cooperative structure of the System and to address specific provisions in the Act. For example, Title XI of FIRREA provides that no USPAP appraisal is required for a loan secured by real estate when that loan is made based on cashflow and not the value of real estate collateral ( i.e., abundance of caution collateral). The System cannot use this exception for loans made under the authorities of Title I of the Act because those loans require a first lien on the real estate. Meaning those loans would never be made without consideration of the real estate collateral's value.

Collectively, subpart F of Part 614 has not been updated in over 25 years. 10 As System institutions move toward increased use of fee appraisers and technology in loan making, we believe it is time to update our requirements for collateral appraisals and evaluations. We also believe our regulations should be updated to reflect the increased importance internal review and controls play in today's lending environment. Internal controls are an integral part of managing lending programs. Internal controls are also necessary to protect safety and soundness operations where institutions engage in credit programs using minimum information or where institutions move away from the use of staff appraisers and evaluators.

We discuss the specifics of our proposal below in the same order as they would appear in the regulation.

We propose general language changes to subpart F of Part 614 to enhance readability. We intend no change in the meaning of the affected regulatory provisions unless specifically stated in the discussions of those provisions. We also propose reorganizing existing provisions to consolidate like items, remove redundancy, and add clarity.

Among these proposed organizational changes are:

• Consolidating into § 614.4250 the existing basic appraisal and evaluation policies and standards of §§ 614.4245(a) and 614.4250(a) and proposing revisions to these policies and standards.

• Revising and consolidating into § 614.4255 the existing appraiser and evaluator independence requirements of §§ 614.4255, 614.4260(e), and 614.4267.

• Merging the existing contents of § 614.4266(a) and (b) into § 614.4260, to address in one section the evaluation requirements for all chattel, including personal and intangible property, while also revising the existing provisions of § 614.4266.

• Revising § 614.4250 to add a discussion of internal controls for valuing collateral.

• Consolidating the existing appraisal and evaluation requirements of §§ 614.4260, 614.4265, and 614.4266 into §§ 614.4260 and 614.4265, as appropriate for the type of collateral under discussion.

• Adding a new § 614.4270 discussing the use of appraisal and evaluation tools, including computer-based models.

• Moving to new § 614.4275 the existing contents of § 614.4260(d) regarding our authority to require appraisals and evaluations and proposing clarifications.

We propose deleting as obsolete or redundant the exiting requirements of:

• §§ 614.4250(b) and 614.4245(b), (c), and (d);

• § 614.4260(a); and

• §§ 614.4265(g) and 614.4266(d).

In keeping with proposed reorganizational changes, we propose renaming the subpart and its section headings as follows:

§ 614.4240 as “Definitions”;

§ 614.4245 as “General”;

§ 614.4250 as “Policies, standards, and internal controls for valuing collateral”;

§ 614.4255 as “Appraiser and evaluator qualifications and independence”;

§ 614.4260 as “Valuing business chattel, personal, and intangible property”;

§ 614.4265 as “Valuing real property”;

§ 614.4270 as “Appraisal and evaluation tools”; and

§ 614.4275 as “Reservation of authority”.

We propose general grammatical changes to certain terms in § 614.4240 to enhance readability. We intend no change in the meaning of the affected terms unless specifically stated. We also propose clarification, removal, or addition of certain terms as discussed below.

As a general matter, we propose adding introductory language explaining how certain terms ( e.g., paper, record, provide) may be interpreted to permit the electronic equivalent if allowed under our e-commerce regulations in part 609. We add this clarification to reduce questions on how technology adaptations in daily business activities are to be treated.

We propose clarifying changes to the following definitions:

We propose replacing the phrase “real estate” with “asset” when discussing an item taken out of an abundance of caution. We propose the change to recognize that not all collateral taken out of an abundance of caution is in the form of real estate. System lenders may hold collateral taken in an abundance of caution for real estate and non-real estate financial transactions. As a conforming change, we also propose replacing a reference to collateral required by regulations or the institution policies with a reference to assets legally required to secure the type of credit being extended. This change is intended to capture the variations in loan underwriting requirements, which allow for secured and unsecured lending in certain situations. However, the proposed clarification does not change legal requirements to take real estate as security for financing offered under Title I of the Act nor allow real estate taken as collateral for Title I lending to be considered an abundance of caution type of security.

We propose clarifying that the term “appraisal” means USPAP compliant valuations of real estate completed by either a state licensed or state certified appraiser. We propose this change as part of our objective to clarify our regulations by restricting the term “appraisal” to always mean a USPAP compliant real estate valuation. The proposed change would prevent using the term to identify non-USPAP valuations, including values assigned to non-real estate. We caution readers that our regulatory definition of “appraisal” is not meant to define the term as used in the Act. Instead, we believe both regulatory terms of “appraisal” and “evaluation” represent the appropriate interpretation of how the single term “appraisal” is used in the Act.

We propose adding cooperatives to the list of borrowing entities in recognition of lending authorities contained within Title III of the Act. In doing so, we propose changing the order of the list to aid in readability.

We propose clarifying changes to the meaning of “evaluation” to explain an evaluation is in writing and presents an independent and impartial opinion of market value supported by relevant information. This clarification would remove the necessity of repeating throughout subpart F that evaluations need to be in writing and prepared by independent evaluators.

We propose changing the existing term “qualified evaluator” to “evaluator”, using the same definition but with slight modifications. The term as proposed would explain an evaluator must always be qualified for the evaluation assignment by being trained and experienced in identifying values for the types of assets under review. For purposes of business chattel, personal and intangible property collateral evaluations, the term would continue to include eligible bank or association staff, certified public accountants, equipment dealers, grain buyers, livestock buyers, auctioneers, and other industry experts.

We propose clarifying the term to mean either an appraiser or evaluator of assets who is not employed by the System lender but acts as a third-party contractor. We make this change to further distinguish the term from appraisals or evaluations prepared by staff of the System lender. We also propose removing the last sentence of the existing definition that applies to personal and intangible evaluations. Instead, we propose moving that sentence to the term “evaluator.” In this definition we also propose conforming changes to use new or revised terms being proposed, such as replacing “Farm Credit System institution” with “System lender.”

We propose clarifying changes to the term “highest and best use” to explain it means the legal use of the asset and to remove language that gives the impression the term only applies to real estate and not other collateral.

We propose a clarifying change to the definition of “personal property” to exclude business chattel. As proposed, the term “personal property” would refer to moveable non-real estate property that is not in the form of equipment, livestock or crops. We propose the distinction to facilitate proper valuation of business chattel, which is commonly used as security for System financing, from other forms of chattel, such as household goods, which require different valuation efforts and resources. As a conforming change, we also propose adding a new definition for “business chattel”, which is discussed in section III.B.3 of this preamble.

We propose adding “or real property” to the existing term “real estate” to recognize the interchangeable use of the two terms. We also propose clarifying that the term includes fixtures, easements, rights of way, and other rights commonly attached to the land ( e.g., mineral, water, gas, timber). We make this clarification to ensure appropriate identification and value adjustments for these items are part of the appraisals or evaluations of real estate. As a conforming change, we propose deleting the existing separate definition for the term “real property.”

We propose clarifying and conforming language to the definition of “state certified appraiser” that explains no person will be accepted as meeting the FCA definition unless that person passed a state-administered examination equivalent to those exams conducted under the jurisdiction of the FFIEC appraisal subcommittee. Currently, the definition makes a definitive statement of who is or is not a “state certified appraiser.” Because FCA does not actually certify any appraisers, we believe the clarification is necessary.

First, we propose moving the terms “cost approach”, “income capitalization approach”, and “sales comparison approach” from the definitions contained in § 614.4240 and incorporating them into proposed § 614.4265, discussing real estate appraisals. This proposed movement should facilitate compliance with the requirements of real estate appraisals by keeping the definitions with the terms in the only place they are used within the rule.

Next, we propose deleting the term “Appraisal Foundation” because it is not used in the proposed rule text. We also propose removing the term “valuation” as the term has become a point of confusion. Currently, the term is defined as an evaluation that is not an appraisal. We propose removing this term and its definition, leaving only the terms “evaluation” and “appraisal”. In conformance with this proposed change, we also propose revisions to the definitions of “evaluation” and “appraisal”, drawing a distinction between the two types of reports. That proposed distinction would use the term “appraisal” only for USPAP compliance reports valuing real estate. All other reports of value, including those for business chattel, other personal property and intangible property, would be “evaluations.”

We propose adding six terms that would apply to all of subpart F, unless otherwise stated in the regulations. First, we propose adding a definition for “appraiser” to limit application of the term to only those persons state-certified or state-licensed under USPAP guidelines. The term as proposed would also specify that an appraiser has demonstrated experience in identifying values for real property under USPAP. We add this term as part of our efforts to differentiate USPAP required values from evaluations of non-real estate.

Second, we propose adding a definition of “automated valuation model” or AVM, explaining it means a computer-based program that estimates a property's market value based on certain factors. As proposed, the definition would also explain certain sub-set models used for particular assets. We propose adding the term to make clear what constitutes an automated model, selecting a description closely aligned with the definition used by the FIRREA agencies. We chose to use a definition similar to FIRREA agencies in recognition that vendors of most AVMs design their models to comply with FIRREA standards.

Third, we propose adding a new definition for “business chattel” that would apply to property kept for the carrying on of any agricultural activity, such as production or use in the farming of land. We believe adding the definition will help eliminate confusion with other forms of chattel not in the form of equipment, livestock or crops ( i.e., household goods, personal property). We propose the distinction to facilitate proper valuation of business chattel separate from other chattel that may not be subject to a lienhold by the System lender. The new definition of “business chattel” would explain it also applies to both livestock (any creature not in the wild but regarded as an asset) used to produce food, wool, skins, fur or similar purposes, and crops (growing, harvested, or in storage) kept for production or use in the farming of land or the carrying on of any agricultural activity.

Next, we propose adding a definition for “intangible property” to clarify the term refers to valuable items that are not physical in nature ( i.e., copyrights, trademarks, goodwill, brand names, etc.). As discussed earlier, this proposed change would include a conforming change to the existing definition of “personal property.”

Fifth, we propose adding a definition of “Other Financing Institutions (OFI)”, using a definition consistent with that used in other regulations. 11 We propose specifically including the OFI definition to recognize the requirements of 12 CFR part 614, subpart P that OFIs comply with System underwriting standards, including collateral evaluation requirements.

Lastly, we propose adding a definition of “System lender”, using a definition consistent with the existing collateral evaluation regulations explaining subpart J of 12 CFR part 614 applies to any System institution engaged in lending or leasing activities secured by collateral. This proposal would add greater readability to the rule through the use of one term rather than the existing use of several terms (identifying various types of System institutions) explaining who is responsible for obtaining an appraisal or evaluation of collateral used to secure an extension of credit. We believe our proposed use of the term “System lender” is in keeping with the appraisal requirements of the Act.

We propose § 614.4245 be an all-purpose section identifying the minimum expectations applicable to every collateral appraisal or evaluation. As part of the restructure, we propose moving existing § 614.4245(a) to another section and deleting, due to redundancy, the exiting requirements of § 614.4245(b), (c), and (d), along with other proposed changes.

We propose adding as new § 614.4245(a) the general rule that all collateral must be valuated via an evaluation or appraisal. This is not a new requirement, but rather a clarification of FCA's long-standing position that collateral securing a loan must be assigned a value. FCA issued an Informational Memorandum containing this clarification in 2016 after our examination staff identified some institutions held the belief no valuation was required in certain credit transactions for certain types of collateral. 12 We recognize that non-real estate collateral may not always be a primary consideration or factor in determining creditworthiness. However, we believe that all security, including property taken out of an abundance of caution, should be properly valued. We also recognize failing to assign a market value to all collateral may negatively affect capital treatment, servicing decisions and loan classifications, as well as create borrower confusion if the property is later assigned the true market value because it has become essential to the credit. Therefore, FCA believes that whenever property is used to secure a loan, a market value must be assigned and supported by an appraisal or evaluation.

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-2006-24733; Project Identifier MCAI-2021-00139-R” 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 Hal Jensen, Aerospace Engineer, Operational Safety Branch, FAA, 950 L'Enfant Plaza N SW, Washington, DC 20024; telephone (202) 267-9167; email hal.jensen@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 to remove AD 2002-08-16 (67 FR 19640, April 23, 2002) (AD 2002-08-16), and add a new AD. AD 2002-08-16 applies to Eurocopter France Model SA341G, SA342J, and SA-360C helicopters with a tie bar part number (P/N) 341A31-4904-00, -01, -02, -03; 341A31-4933-00, -01; or 360A31-1097-02, -03, installed. The NPRM published in the Federal Register on May 10, 2006 (71 FR 27215). The NPRM proposed to continue to require removing certain tie bars from service and revising the limitations section of the existing maintenance manual for your helicopter by adding life limits for those tie bars. The NPRM also proposed adding tie bar P/N 704A33-633-270 to the applicability, and to require removing it from service within 600 hours time-in-service (TIS) or 2 years, whichever occurs first, and revising the limitations section of the existing maintenance manual for your helicopter accordingly. The NPRM was prompted by DGAC AD 2001-587-041(A) R2, dated January 8, 2003 (DGAC AD 2001-587-041(A) R2), issued by the DGAC, which was the Technical Agent for France, to correct an unsafe condition for Model SA 341/342 helicopters. The DGAC advised of another affected tie-bar P/N 704A33-633-270 and additional flight restrictions for the new-affected tie bar. The DGAC also advised that Eurocopter issued Alert Service Bulletin No. 01.29, Revision 0, dated December 4, 2002 (ASB 01.29), to cancel Alert Telex (AT) No. 01.28, dated August 7, 2001, and supersede AT 01.29, Revision 1, dated December 11, 2001. This condition, if not addressed, could result in failure of a tie bar and subsequent loss of control of the helicopter.

Accordingly, DGAC AD 2001-587-041(A) R2, along with DGAC AD 2001-588-047(A) R1, dated December 26, 2001 (DGAC AD 2001-588-047(A) R1), for Model SA 360 helicopters, require removing certain part-numbered tie bars from service and a life limit for certain other part-numbered tie bars.

Since the NPRM was issued, a significant amount of time has 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 NPRM, Eurocopter France has changed its name to Airbus Helicopters. This SNPRM reflects that change and updates the contact information to obtain service documentation. This SNPRM also updates the estimated cost information.

Additional review also revealed necessary changes to address the unsafe condition. This SNPRM proposes to clarify that the compliance times of requirements continued from AD 2002-08-16 are effective after the effective date of AD 2002-08-16, clarify instances of life limits specified in calendar time that they are since initial installation of the tie bar on any helicopter, clarify one instance of a life limit that it is total hours TIS or calendar time—whichever occurs first, and add parts installation prohibitions. This SNPRM also updates the AD format. As a result, paragraph identifiers have changed, editorial changes have been made to meet current publishing requirements, and the proposed requirements have been revised by removing unnecessary information.

The FAA's Aircraft Certification Service has also changed its organizational structure. The new structure replaces product directorates with functional divisions. The FAA has 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).

Lastly, the identification of “Directorate Identifier 2005-SW-08-AD” has been changed to “Project Identifier MCAI-2021-00139-R.”

The following discussion presents the comments received on the NPRM and the FAA's response.

One commenter opposed the proposed AD without requesting any changes to the NPRM or on the determination of the cost. The FAA has made no changes based on this comment.

These helicopters have been approved by the European Union Aviation Safety Agency (EASA) and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, the FAA has been notified about the unsafe condition described in the DGAC ADs. 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 designs. 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 Eurocopter ASB 01.29 and Eurocopter AT No. 01.39, Revision 1, dated December 11, 2001. This service information specifies removing certain part-numbered tie bars at specified life limits.

This proposed AD would require removing tie bars P/N 341A31-4904-00, -01, -02, and -03; and 360A31-1097-02 and -03 from service and prohibit installing those part-numbered tie bars on any helicopter. This proposed AD would also initially require removing tie bars P/N 341A31-4933-00 and -01; and 704A33-633-270 from service if they have accumulated or exceeded the specified life limit, and thereafter removing those part-numbered tie bars before accumulating the specified life limit.

For an affected tie bar that has accumulated 7 or more years since initial installation on any helicopter, DGAC AD 2001-587-041(A) R2 requires removing the tie bar before next flight, whereas this proposed AD allows removal within 5 hours TIS instead.

For an affected tie bar that has accumulated 15 or more years since initial installation on any helicopter, DGAC AD 2001-588-047(A) R1 requires removing the tie bar before next flight, whereas this proposed AD does not. For an affected tie bar that has accumulated 7 or more years since initial installation on any helicopter, DGAC AD 2001-588-047(A) R1 requires removing the tie bar before next flight, whereas this proposed AD allows removal within 5 hours TIS instead. DGAC AD 2001-588-047(A) R1 allows a ferry flight not to exceed 5 hours to return the helicopter to a maintenance base, where as special flight permits are prohibited by this proposed AD.

The FAA estimates that this AD, if adopted as proposed, would affect 29 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Replacing a tie bar would take about 1.5 work-hours and parts would cost about $9,579 for an estimated cost of $9,707 per tie bar.

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 the 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 ATS routes to improve the efficiency of the NAS.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-0360; Airspace Docket No. 21-AEA-6) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters 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-2121-0360; Airspace Docket No. 21-AEA-6.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of 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 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 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 during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., 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 proposed rule. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

Federal airways V-39 and V-93 were originally part of a larger proposal that was published in the Federal Register for Docket No. FAA-2020-1146 (86 FR 5046; January 19, 2021). No comments were received in response to that NPRM. Subsequent to the publication of the NPRM, an FAA flight inspection of an airway fix (defined by the intersection of the Barnes, MA (BAF) VORTAC 279°, and the Chester, MA (CTR) VOR/DME 223° radials), could not be completed due to technical reasons. Because the fix would be common to both airways, the proposed amendments of V-39 and V-93 were removed from Docket No. FAA-2020-1146 and delayed to a later date in order to address the airway fix issue.

The FAA determined that the fix defined by the intersection of the Barnes, MA, and Chester, MA, radials (described above) could be removed from the route descriptions because it did not mark a turn point on the routes.

As a difference from the original NPRM, the FAA proposes to retain the affected route segments of V-39 and V-93 to Chester, MA, (as described below) rather than ending the route segments prior to Chester.

The FAA is proposing an amendment to 14 CFR part 71 to amend VOR Federal airways V-39 and V-93 as follows.

V-39: V-39 currently extends between Sandhills, NC, and Mont Joli, PQ, Canada. The FAA proposes to remove the airway segments between Chester, MA, and Augusta, ME. As amended, V-39 would consist of two parts: From Sandhills, NC, to Chester, MA; followed by a gap in the route; then from Augusta, ME to Mont Joli, PQ, Canada.

V-93: V-93 currently consists of two parts: From Patuxent River, MD, to the intersection of the Wilkes Barre, PA, 037° and the Sparta, NJ, 300° radials; and from the intersection of the Sparta, NJ, 018° and the Kingston, NY, 270° radials, to Bangor, ME. This action would remove the segments between Chester, MA, and Bangor, ME. As amended, V-93 would consist of two parts: From Patuxent River, MD, to the intersection of the Wilkes Barre, PA, 037° and the Sparta, NJ, 300° radials; followed by a gap; then from the intersection of the Sparta, NJ, 018° and the Kingston, NY, 270° radials, to Chester, MA.

Full route descriptions of the proposed amended routes are listed in “The Proposed Amendment” section of this notice.

VOR Federal airways are published in paragraph 6010(a) 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 RNAV routes listed in this document would be subsequently published 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 Department of Transportation (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:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Palestine Municipal Airport, Palestine, TX, to support instrument flight rule operations at this airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2021-0296/Airspace Docket No. 21-ASW-6.” The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

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

The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface within 6.6 mile (decreased from 7.1-mile) radius of Palestine Municipal Airport, Palestine, TX, and by removing the Palestine NDB and associated extension from the airspace legal description; and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

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

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

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

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 Class E airspace at Northwest Alabama Regional Airport, Muscle Shoals, AL, 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-2021-0075 and Airspace Docket No. 21-ASO-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-2020-0075; Airspace Docket No. 21-ASO-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 http://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 airspace extending upward from 700 feet above the surface at Northwest Alabama Regional Airport, Muscle Shoals, AL, as the Muscle Shoals VORTAC has been decommissioned, and associated approaches cancelled. The radius of the airport would decrease from 7 miles to 6.8 miles, adding a 12.5-mile extension to the east and an 8.1-mile extension to the south. Also, the FAA proposes to update the airport name to Northwest Alabama Regional Airport, (formerly Muscle Shoals Regional Airport) in both the surface E airspace and Class E airspace extending upward from 700 feet above the surface. In addition, the FAA proposes to replace the outdated term Airport/Facility Directory with the term Chart Supplement in the associated Class E airspace legal description for this airport.

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 designation 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 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:

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 amends Class E airspace in Massena, NY, 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-2021-0355 and Airspace Docket No. 21-AEA-7) 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-2021-0355; Airspace Docket No. 21-AEA-7.” 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 and Class E airspace extending upward from 700 feet above the surface for Massena International-Richards Field Airport, Massena, NY, as the Massena VORTAC has been decommissioned and all associated airspace extensions of Class E surface airspace and Class E airspace extending upward from 700 feet above the surface, off the Massena VORTAC have been eliminated. The Class E Surface airspace would be amended by increasing the radius of the airport to 6.0 miles (previously 4.0 miles), and the Class E airspace extending upward from 700 feet above the surface would be amended by increasing the radius to 8.5 miles (previously 7.4 miles). In addition, the geographical coordinates of Massena International-Richards Field Airport, Massena, NY, would be updated to coincide with the FAA's database.

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:

On November 18, 2016, OSHA published a final rule on Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) in the Federal Register (81 FR 82494). Since that time, OSHA has received many questions and requests for interpretation of the requirements for handrails and stair rail systems. From the number of questions and requests, OSHA believes there is confusion in the stakeholder community regarding when handrails are required on stairs as well as what the height requirements are for handrails on stairs and for stair rail systems, depending on date of installation. With this notice, OSHA is proposing language that it believes is clearer without changing the intent of the 2016 final rule. OSHA encourages interested parties to submit comments regarding the proposed language. Please note that OSHA is not re-opening for discussion any of the regulatory decisions made in the 2016 rulemaking. This rulemaking is focused solely on clarifying the requirements finalized in that rulemaking and providing flexibility in the transition from OSHA's previous requirements to the new ones.

The purpose of the OSH Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards (29 U.S.C. 655(b), 657, 658).

An occupational safety and health standard “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” (29 U.S.C. 652(8)).

As part of determining that a standard is reasonably necessary or appropriate within the meaning of 29 U.S.C. 652(8), OSHA must determine that the standard is technologically feasible and substantially reduces a significant risk of harm to workers.

A standard is technologically feasible if the protective measures it requires already exist, available technology can bring these measures into existence, or there is a reasonable expectation for developing the technology that can produce these measures. See, e.g., Am. Iron & Steel Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir. 1991) (per curiam). In the 2016 rulemaking, OSHA determined that the requirements of the walking-working surfaces standard were technologically feasible (81 FR 82800). The proposed revisions to that standard would not require any new equipment, practices, or procedures not already addressed in the previous technological feasibility finding, so OSHA preliminarily determines that the proposed rule would be technologically feasible.

The final rule for OSHA's 2016 standard contained an extensive analysis in which the agency concluded that employees face a significant risk of death or serious injury from stairway falls (81 FR 82496). When, as here, OSHA has previously determined that the standard substantially reduces a significant risk, it is unnecessary for the agency to make additional findings on risk for every provision of that standard. See, e.g., Public Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that OSHA must “find that each and every aspect of its standard eliminates a significant risk”). Rather, once OSHA makes a general significant risk finding in support of a standard, the next question is whether a particular requirement is reasonably related to the purpose of the standard as a whole. ( Asbestos Info. Ass'n/N. Am. v. Reich, 117 F.3d 891, 894 (5th Cir. 1997); Forging Indus. Ass'n v. Sec'y of Labor, 773 F.2d 1436, 1447 (4th Cir. 1985); United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1237-38 (D.C. Cir. 1980)). As explained elsewhere in this preamble, this proposed rule meets this test. OSHA is proposing revisions to the standard that are intended to give effect to OSHA's original intent in the 2016 rule with respect to handrails on open staircases and to clarify it with respect to the height of top-rail handrails.

OSHA is proposing changes to two provisions of the walking-working surfaces standard, Subpart D. The first, amending § 1910.28(b), clarifies that a stair rail system  1 with a handrail  2 is required on the open side of certain stairways. The second, amending § 1910.29(f), eases a restriction on previously-installed stair rail systems by allowing the top rail of those systems to serve as a handrail when it is as low as 30 inches.

Existing § 1910.28(b)(11)(ii) contains requirements for when handrails and stair rail systems must be present on certain flights of stairs. The provision refers to existing Table D-2, Stairway Handrail Requirements, which specifies handrail requirements based on the variables of stair width and how many sides of the stairway are open. Existing Table D-2 contains a formatting error that inadvertently omits several words from the table with two open sides and a width of less than 44 inches. A cell in the table currently contains the words “One stair rail system each open side,” but OSHA intended the cell to state: “One stair rail system with handrail on each open side (emphasis added).” OSHA is proposing to correct the cell to reflect the language that OSHA proposed in 2010 (see table on 75 FR 29141) and intended to finalize, as discussed in the summary and explanation section of the 2016 final rule: “Final paragraph (b)(11)(ii), consistent with . . . proposed paragraph (b)(11)(ii), requires . . .” (81 FR 82611). This language means that on new stair rail systems, both sides would need handrails. OSHA invites comment on this proposed correction.

OSHA recognizes that some employers may have already relied on the inadvertent error in existing Table D-2 when installing stair rail systems covered by this correction (stair width less than 44 inches, open on both sides). It is not OSHA's intent for any stair rail system installed before the effective date of a new final rule to need modification, so long as that system was in compliance with OSHA requirements at the time it was installed. OSHA is therefore proposing two separate provisions for stairs with two open sides and a width of less than 44 inches: The corrected requirements for new handrails and stair rail systems (located in Table D-2), and a separate provision to retain the current requirements for already existing handrails and stair rail systems. Proposed § 1910.28(b)(11)(ii) would address new stair rail systems through the corrected Table D-2, Stairway Handrail and Stair Rail System Requirements. OSHA would add proposed § 1910.28(b)(11)(iii) to maintain the existing requirements for flights of stairs less than 44 inches (1.1 m) wide, with two open sides, and installed before the effective date of a final rule that would result from this rulemaking. Those stairways would be required to have a stair rail system on each open side, but would not need to include a handrail.

With the addition of proposed paragraph (b)(11)(iii), existing paragraph (b)(11)(iii) would be redesignated as (b)(11)(iv) with no change to the regulatory text.

OSHA is proposing to reorganize provisions in § 1910.29(f) to address confusion in the stakeholder community on the application of existing § 1910.29(f)(1)(iii)(A). OSHA has received many questions and requests for letters of interpretation asking when the top rail of a stair rail system may also serve as a handrail ( i.e., “combination” top rails). In the 2016 rulemaking, OSHA had allowed the top rail of stair rail systems to serve as a handrail when two conditions were met: (1) The height of that stair rail system is not less than 36 inches and not more than 38 inches, as measured at the leading edge of the stair tread to the top surface of the top rail; and (2) the stair rail system was installed before the effective date of the rule (January 17, 2017). 3 However, installations at those height specifications were technically precluded by OSHA's previous standard, which mandated the top rail of a stair rail system to be between 30 and 34 inches. The 2016 final rule did not specifically address combination handrail requirements for stair rail systems that have a top rail height not less than 30 inches (the previous minimum height for a stair rail system) and up to 36 inches. Moreover, OSHA has become aware that employer confusion over that part of the 2016 rulemaking has led to some employers relying on the top rail of stair rail systems as a “combination” handrail for various heights at 38 inches or below for installations after January 2017, despite OSHA's new minimum 42-inch requirement for top stair rails.

In light of the employer confusion following the 2016 rulemaking regarding the height requirements for combination top rails, OSHA is proposing to expand the height range in proposed paragraph (f)(1)(ii)(A) to state that the top rail of stair rail systems installed prior to the effective date of a new final rule can serve as a hand rail if that top rail is 30 to 38 inches in height, and meets the other handrail requirements of paragraph (f). OSHA is not proposing to require employers to modify otherwise compliant stair rail systems installed between January 17, 2017, and the date of any final rule resulting from this proposal.

OSHA is also proposing to revise the captions for Figures D-12 and D-13 to clarify that they are depicting only height requirements for handrails and combination handrail and stair rail systems installed before the effective date of a new final rule. They do not depict any other requirements for handrails and stair rail systems contained in § 1910.29(f). OSHA is also proposing to add Figure D-13A to further clarify height requirements for handrails and stair rail systems installed on or after the effective date of a new final rule.

OSHA requests comment on these proposed changes.

Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the impacts of certain rules that OSHA promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

In the 2016 rulemaking, OSHA provided these analyses (81 FR 82670). Those analyses would not be impacted by this proposed rule. OSHA does not anticipate any significant effects on the costs or benefits identified in the 2016 rulemaking from the proposed revisions to § 1910.28 and § 1910.29 addressing handrails and stair rail systems. This proposal reorganizes the rule in a clearer, more logical manner and further explains OSHA's intent. Although OSHA proposes to amend § 1910.28 to correct an inadvertent error in the 2016 rule—handrails should have been required on the open side of a stairway—OSHA anticipates that this correction will result in no costs or cost savings. Because the agency had estimated full current compliance ( i.e., full current industry practice) with that proposed requirement, costs for that requirement in both the 2016 economic analysis and the economic analysis of the proposal for that rulemaking were zero. Moreover, and as discussed above, OSHA anticipates this proposed rule will not have a significant impact on the benefits of the 2016 standard because it will generally maintain the same level of safety and health protections for workers. The agency requests public comment on this preliminary assessment.

As discussed earlier in this preamble, with respect to § 1910.28(b)(11) Stairways, it is not OSHA's intent for any stair rail system installed before January 17, 2017, to need modification, so long as that system was in compliance with OSHA requirements at the time it was installed. With respect to § 1910.29(f)(1) Handrails and stair rail systems; Height criteria, OSHA did not intend for any of the “grandfathered” stair rail systems that had a top rail height between 30 and 38 inches to need to be modified if the stair rail system was installed before January 17, 2017, and it complied with the previous rule. OSHA is therefore proposing to clarify that the top rail of stair rail systems installed prior to January 17, 2017, can serve as a handrail if that top rail is 30 to 38 inches in height and meets the other handrail requirements of paragraph (f). In the economic analysis of the 2016 rule, OSHA did not identify costs for employers to modify existing handrails or stair rail systems in any of those scenarios, so OSHA is not identifying any potential cost savings that might be attributed to the avoidance of those modifications.

OSHA recognizes the possibility that employers who installed a separate handrail on an existing stair rail system incurred compliance costs associated with the regulatory text for § 1910.29(f)(1) Handrails and stair rail systems, as published in the 2016 final rule. OSHA lacks the data to quantify any potential cost savings for employers who would not need to add additional handrails to stair rail systems in accordance with the 2016 rulemaking that effectively precluded combination stair rails for new installations after January 17, 2017. Therefore, OSHA characterizes any potential cost savings from this proposed rulemaking in qualitative terms and not quantitatively, and the agency requests public comment on this question of potential cost savings from the proposed clarification of the regulatory language for § 1910.29(f)(1) Handrails and stair rail systems.

Because this action will impose no new or additional compliance burden on the affected employers and therefore no new or additional costs, OSHA has determined that the proposed revisions to the standard are economically feasible. OSHA requests public comment on this preliminary assessment.

This proposed rule is not an “economically significant regulatory action” under Executive Order 12866 or UMRA, or a “major rule” under the Congressional Review Act (5 U.S.C. 801 et seq. ). Neither the benefits nor the costs of this proposed rule would exceed $100 million in any given year. Furthermore, because the proposed rule would not impose any costs, OSHA certifies that it would not have a significant impact on a substantial number of small entities.

Section 6(b)(8) of the Occupational Safety and Health Act of 1970 (“the Act”; 29 U.S.C. 655(b)(8)) requires OSHA to publish “a statement of the reasons why the rule as adopted will better effectuate the purposes of the Act than the national consensus standard.” OSHA included that explanation when it adopted new rules in the 2016 rulemaking (81 FR 82807). This proposed rule would modify two of the provisions adopted in 2016, but does not adopt separate new rules.

This proposal to update and revise the requirements for handrails and stair rail systems in the Walking-Working Surfaces Standards contains no information collection requirements subject to OMB approval under the Paperwork Reduction Act of 1995 (PRA), U.S.C. 3501 et seq., and the implementing regulations at 5 CFR part 1320. The PRA defines “collection of information” to mean “the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format” (44 U.S.C. 3502(3)(A)). Under the PRA, a federal agency cannot conduct or sponsor a collection of information unless OMB approves it, and the agency displays a valid OMB control number (44 U.S.C. 3507). Also, notwithstanding any other provision of law, no employer shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB control number (44 U.S.C. 3512). The information collections related to walking-working surfaces standards for general industry—29 CFR 1910.23(b)(10), 29 CFR 1910.27(b)(1)(i) and (ii), and 29 CFR 1910.28(b)(1)—have been approved under OMB control number 1218-0199. The existing currently approved information collections would not be affected by this proposal and therefore would go forward unchanged. The Department welcomes any comments on this preliminary determination.

OSHA reviewed this NPRM in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that federal agencies, to the extent possible, refrain from limiting state policy options, consult with states prior to taking any actions that would restrict state policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. Executive Order 13132 provides for preemption of state law only with the expressed consent of Congress. Any such preemption must be limited to the extent possible.

Under section 18 of the Occupational Safety and Health Act of 1970 (“OSH Act”; U.S.C. 651 et seq. ), Congress expressly provides that states may adopt, with federal approval, a plan for the development and enforcement of occupational safety and health standards; states that obtain federal approval for such a plan are referred to as “State-Plan States” (29 U.S.C. 667). Occupational safety and health standards developed by State-Plan States must be at least as effective in providing safe and healthful employment and places of employment as the federal standards. Subject to these requirements, State-Plan States are free to develop and enforce their own requirements for occupational safety and health standards.

OSHA previously concluded that promulgation of subpart D complies with Executive Order 13132 (81 FR 82975). That analysis applies to this proposed rule, which would clarify several provisions and expand the number of existing stair rail systems exempted from modification requirements; therefore, this proposed rule complies with Executive Order 13132.

When Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, states and U.S. territories with their own OSHA-approved occupational safety and health plans (“State Plans”) must either amend their standards to be identical or “at least as effective as” the new standard or amendment, or show that an existing state standard covering this area is “at least as effective” as the new federal standard or amendment (29 U.S.C. 667(c)(2); 29 CFR 1953.5(a)). State Plans' adoption must be completed within six months of the promulgation date of the final federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, State Plans do not have to amend their standards, although OSHA may encourage them to do so.

Of the 28 states and territories with OSHA-approved State Plans, 22 cover public and private-sector employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The remaining six states and territories cover only state and local government employees: Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.

The proposed amendments to § 1910.28(b), clarifying that a handrail is required on the open side of certain stairways, are important corrections that are necessary for worker protection. OSHA has preliminarily determined that within six months of the rule's final promulgation date, each State Plan would be required to review its standards and revise their standards to include this handrail requirement unless the State Plan can demonstrate that such revisions are not necessary because the existing standards, and the enforcement of the standards, are already at least as effective.

The proposed amendments to § 1910.29(f) expand the existing grandfather provision for previously-installed stair systems, are permissive, and are clarifying in nature without imposing any new requirement. OSHA does not view the proposed amendments as more stringent than the existing standard, so OSHA has preliminarily determined that State Plans would not be required to adopt the expanded grandfather provision. State Plans States may, however, choose to conform their standards to allow employers this increased flexibility.

OSHA invites comments on these preliminary determinations.

OSHA reviewed this proposed rule according to the Unfunded Mandates Reform Act of 1995 (“UMRA”; 2 U.S.C. 1501 et seq. ) and Executive Order 13132 (64 FR 43255). As discussed above in section IV of this preamble (“Preliminary Economic Analysis and Initial Regulatory Flexibility Screening Analysis”), the agency does not expect the private-sector employers to incur any new costs not previously accounted for in the economic analysis of the 2016 rule. While this proposed rule establishes a federal mandate in the private sector, it is not a significant regulatory action within the meaning of section 202 of the UMRA (2 U.S.C. 1532).

Under voluntary agreement with OSHA, some states enforce compliance with their state standards on public sector entities, and these agreements specify that these state standards must be equivalent to OSHA standards. Thus, although OSHA had included compliance costs for the affected public sector entities in the analysis of the expected impacts associated with the 2016 rulemaking, neither that rulemaking nor this proposal would involve any unfunded mandates being imposed on any state or local government entity. Consequently, this proposed rule does not meet the definition of a “Federal intergovernmental mandate” (See section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the agency preliminarily certifies that this proposed rule does not mandate that state, local, and tribal governments adopt new, unfunded regulatory obligations.

The Department has reviewed this proposed rule in accordance with Executive Order 13175, (65 FR 67249 (Nov. 9, 2000)) and has determined that it does not have “tribal implications” as defined in that order. The proposed rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes.

This document was prepared under the direction of James S. Frederick, Acting Assistant Secretary of Labor for Occupational Safety and Health. This action is taken pursuant to sections 29 U.S.C. 653, 655, 657; Secretary of Labor's Order 1-2012 (77 FR 3912 (1/25/2012), and 29 CFR part 1911.

Pursuant to sections 4, 6, and 8 of the OSH Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order No. 5-2007 (72 FR 31159), and 29 CFR part 1911, OSHA proposes to amend subpart D of 29 CFR part 1910 as follows:

On February 16, 2021, OSHA published a Notice of Proposed Rulemaking (NPRM) to modify the Hazard Communication Standard (HCS) to align with the United Nations' Globally Harmonized System of Classification and Labelling of Chemicals (GHS) Revision 7, to address specific issues that have arisen since OSHA last updated the HCS in 2012, and to provide better alignment with other U.S. agencies and international trading partners, without lowering the overall protections of the standard.

OSHA received comments concerning the proposed rule during the comment period, which ended May 19, 2021. Commenters shared information on a variety of topics including proposed definitions of “release for shipment” and “immediate outer container,” changes to paragraph (d)(1) “normal conditions of use,” and clarification of compliance dates. OSHA received two requests for an informal public hearing (Document ID 0276 and 0294).

OSHA invites interested persons to participate in this rulemaking by providing oral testimony and documentary evidence at the informal public hearing. OSHA also welcomes presentation of data and documentary evidence that will provide the agency with the best available evidence to use in developing the final rule.

Pursuant to 29 CFR 1911.15(a) and 5 U.S.C. 553(c), members of the public have an opportunity at the informal public hearing to provide oral testimony and evidence on issues raised by the proposal. An administrative law judge (ALJ) will preside over the hearing and will resolve any procedural matters relating to the hearing.

OSHA's regulation governing public hearings (29 CFR 1911.15) establishes the purpose and procedures of informal public hearings. Although the presiding officer of the hearing is an ALJ and questioning of witnesses is allowed on crucial issues, the proceeding is largely informal and essentially legislative in purpose. Therefore, the hearing provides interested persons with an opportunity to make oral presentations in the absence of rigid procedures that could impede or protract the rulemaking process. The hearing is not an adjudicative proceeding subject to the Federal Rules of Evidence. Instead, it is an informal administrative proceeding convened for the purpose of gathering and clarifying information. Accordingly, questions of relevance, procedure, and participation generally will be resolved in favor of developing a clear, accurate, and complete record.

Conduct of the hearing will conform to 29 CFR 1911.15. In addition, pursuant to 29 CFR 1911.4, the Acting Assistant Secretary may, on reasonable notice, issue additional or alternative procedures to expedite the proceedings, to provide greater procedural protections to interested persons, or to further any other good cause consistent with applicable law. Although the ALJ presiding over the hearing makes no decision or recommendation on the merits of the proposal, the ALJ has the responsibility and authority necessary to ensure that the hearing progresses at a reasonable pace and in an orderly manner. To ensure a full and fair hearing, the ALJ has the power to regulate the course of the proceedings; dispose of procedural requests, objections, and comparable matters; confine presentations to matters pertinent to the issues the proposed rule raises; use appropriate means to regulate the conduct of persons present at the hearing; question witnesses and permit others to do so; limit the time for such questioning; and leave the record open for a reasonable time after the hearing for the submission of additional data, evidence, comments, and arguments from those who participated in the hearing (29 CFR 1911.16).

At the close of the hearing, there will be a post-hearing comment period for interested persons who filed a timely notice of intention to appear at the hearing, during which those persons may submit final briefs, arguments, summations, and additional data and information to OSHA.

Interested persons who intend to participate in and provide oral testimony or documentary evidence at the hearing must file a written notice of intention to appear prior to the hearing. To testify or question witnesses at the hearing, interested persons must electronically submit their notice by June 18, 2021. The notice must provide the following information:

Name, address, email address, and telephone number of each individual who will give oral testimony;

Name of the establishment or organization each individual represents, if any;

Occupational title and position of each individual testifying;

Approximate amount of time required for each individual's testimony;

A brief statement of the position each individual will take with respect to the issues raised by the proposed rule; and

A brief summary of documentary evidence each individual intends to present. Individuals who request more than 10 minutes to present their oral testimony at the hearing or who will submit documentary evidence at the hearing must submit the full text of their testimony and all documentary evidence no later than August 21, 2021.

The agency will review each submission and determine if the information it contains warrants the amount of time the individual requested for the presentation. If OSHA believes the requested time is excessive, the agency will allocate an appropriate amount of time for the presentation. The agency also may limit to 10 minutes the presentation of any participant who fails to comply substantially with these procedural requirements, and may request that the participant return for questioning at a later time. Before the hearing, OSHA will notify participants of the time the agency will allow for their presentation and, if less than requested, the reasons for its decision. In addition, before the hearing, OSHA will provide the hearing procedures and hearing schedule to each participant who filed a notice of intention to appear. OSHA emphasizes that the hearing is open to the public; however, only individuals who file a notice of intention to appear may question witnesses and participate fully at the hearing. If time permits, and at the discretion of the ALJ, an individual who did not file a notice of intention to appear may be allowed to testify at the hearing, but for no more than 10 minutes.

Following the close of the hearing and the post-hearing comment periods, the ALJ will certify the record to the Assistant Secretary of Labor for Occupational Safety and Health. The record will consist of all of the written comments, oral testimony, and documentary evidence received during the proceeding. The ALJ, however, will not make or recommend any decisions as to the content of the final standard. Following certification of the record, OSHA will review all the evidence received into the record and will issue the final rule based on the record as a whole.

This document was prepared under the direction of James S. Frederick, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. It is issued under the authority of sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 5 U.S.C. 553; section 304, Clean Air Act Amendments of 1990 (Pub. L. 101-549, reprinted at 29 U.S.C.A. 655 Note); section 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); section 107, Contract Work Hours and Safety Standards Act (40 U.S.C. 3704); section 1031, Housing and Community Development Act of 1992 (42 U.S.C. 4853); section 126, Superfund Amendments and Reauthorization Act of 1986, as amended (reprinted at 29 U.S.C.A. 655 Note); Secretary of Labor's Order No. 8-2020 (85 FR 58383-94); and 29 CFR part 1911.

In accordance with 38 U.S.C. 3100, the purpose of the Chapter 31 Vocational Rehabilitation and Employment program is to provide for all services and assistance necessary to enable Veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent possible, to become employable and to obtain and maintain suitable employment. VA proposes to change the program name from “Vocational Rehabilitation and Employment” to “Veteran Readiness and Employment”.

We begin by proposing to amend 38 CFR 3.341(c) and 3.342(c)(1) by replacing references to “Vocational Rehabilitation and Employment” with “Veteran Readiness and Employment (VR&E)” and to amend 38 CFR 17.37(e) by replacing a reference to “vocational rehabilitation” with “Veteran Readiness and Employment (VR&E)”. We also propose to amend 38 CFR part 18, Appendix A to Subpart A, Appendix A to Subpart D, and Appendix A to Subpart E by replacing all references to “vocational rehabilitation” with “Veteran Readiness and Employment”. We also propose to amend the title of 38 CFR part 21 from “Vocational Rehabilitation and Education” to “Veteran Readiness and Employment and Education” and the title of part 21, subpart A from “Vocational Rehabilitation and Employment Under 38 U.S.C. Chapter 31” to “Veteran Readiness and Employment Under 38 U.S.C. Chapter 31”.

The term “vocational” may be misinterpreted as referring to a participant who is undergoing training in a skill or trade. For a Service member or Veteran needing assistance to become independent in daily living or to increase the individual's potential to return to work by obtaining services to lessen or accommodate the effects of a disability(ies), the term “vocational” may be misconstrued in regard to the types of services available. Furthermore, VR&E provides training towards employment goals through a wide variety of programs beyond vocational schools for individuals seeking benefits and services to become employable. Training is provided to the level generally recognized as necessary for entry into employment in a suitable occupational objective. VR&E's focus includes successful employment outcomes, while still providing services aimed at readjustment and preparation through retraining. The term “vocational” may have deterred individuals from applying for benefits and services. VR&E's purpose is to enhance a Service member or Veteran's job-readiness and job-seeking skills to increase the Service member or Veteran's ability to obtain and maintain employment. The Service member or Veteran is the most important part of the mission; therefore, VR&E Service proposes replacing “vocational” with “Veteran” in the program name for a more Service member and Veteran friendly approach to providing benefits and services.

VR&E Service recently consulted various stakeholders regarding replacing the term “rehabilitation” in the program name. This consultation yielded insights, using a human-centered design approach, from vocational rehabilitation counselors, Service members, Veterans, Veterans Service Organizations, and VR&E claimants. Individuals from each service branch and gender from across the Nation were included to ensure a comprehensive and inclusive data pool. Essentially, we determined that the term “rehabilitation” has a negative connotation, including the perception of it being related to drug and alcohol addiction treatment, which may inhibit some individuals from taking advantage of VR&E benefits and services. Therefore, VR&E Service proposes to replace “rehabilitation” with “readiness”. The new name is more in line with what Service members and Veterans already understand from their military service. The VR&E acronym will remain unchanged.

For purposes of maintaining consistency with the program's name change in 38 CFR chapter 1, part 21, we propose to amend all references to Vocational Rehabilitation and Employment Officer to read as Veteran Readiness and Employment Officer.

The VR&E Officer manages a VR&E division within a Regional Office and is responsible for providing administrative and technical direction and professional leadership to a staff of Vocational Rehabilitation Counselors (VRC), Employment Coordinators (EC), and administrative support staff members. (We plan to retain the current title for VRCs because it is based on the credentialing that these individuals receive.) VR&E Officers provide internal policy direction and administrative expertise in all phases of the rehabilitation activities. The VR&E Officer works closely with VRCs, ECs, Service members, and Veterans to resolve complex issues regarding services and benefits. The VR&E Officer has specific authorities to review and approve program costs throughout the life of a rehabilitation plan. The change in title would align it more with the overall mission of the program.

To make the language in 38 CFR chapter 1, part 21 consistent with the changes above, we also propose to amend the reference to the Director, Vocational Rehabilitation and Employment Service to read as the Executive Director, Veteran Readiness and Employment Service.

The Executive Director oversees the program by developing policies and procedures, formulating budgets, developing workload management systems, supporting Regional Office staff with training programs, and providing oversight over and developing the structure of the office staff. The Executive Director supports the mission, vision, strategic direction, and enterprise thinking for all program services and also serves as the chief point of contact for Congress and all Federal agencies on any matters related to the program. The Executive Director must approve extensions for specific rehabilitation plans and waivers for repayment of supplies in certain instances. The change in title would align it more with the overall mission of the program.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its Regulatory Impact Analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). There are no small entities that would be affected by the provisions associated with this rulemaking. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.116, Vocational Rehabilitation for Disabled Veterans; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.

Denis McDonough, Secretary of Veterans Affairs, approved this document on April 9, 2021 and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 3, part 17; part 18, part 21.

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

Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

In addition to replacing the previous versions of the submitted rules listed in Table 1, the EPA is proposing to rescind SCAQMD Rule 1107 as it applies to the Riverside County portion of the MDAQMD, as requested by CARB. 1

On November 24, 2020 the EPA determined that the submittal for MDAQMD Rule 1115, PCAPCD Rule 102, and SCAQMD Rule 1107 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We approved an earlier version of MDAQMD Rule 1115 into the SIP on February 27, 2020 (85 FR 11812); we approved an earlier version of PCAPCD Rule 102 into the SIP on January 31, 2013 (78 FR 6736); and we approved an earlier version of SCAQMD Rule 1107 into the SIP on November 24, 2008 (73 FR 70883).

Emissions of VOCs contribute to the production of ground-level ozone, smog and PM, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. PCAPCD Rule 102 is a definition rule that provides clarity for rules in the District. MDAQMD Rule 1115 and SCAQMD Rule 1107 control VOCs emitted from coating operations associated with metal parts and products. Rules 1107 and 1115 were revised to address the reasonably available control technology (RACT) requirement. The EPA's technical support documents (TSDs) have more information about these rules.

The rescissions remove the replaced versions of the submitted rules, and also remove the obsolete requirements found in an older version of SCAQMD Rule 1107 within MDAQMD's boundaries. 2

A. How is the EPA evaluating the rules and rescissions?

Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must require RACT for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source of VOCs in ozone nonattainment areas classified as moderate or above (see CAA section 182(b)(2)).

The MDAQMD regulates an ozone nonattainment area classified as Severe for the 1997, 2008 and 2015 8-hour ozone national ambient air quality standard (NAAQS) (40 CFR 81.305). Therefore, these rules must implement RACT. The SCAQMD regulates an ozone nonattainment area classified as Extreme for the 1997, 2008 and 2015 8-hour ozone NAAQS (40 CFR 81.305). Therefore, these rules must implement RACT. The PCAPCD regulates an ozone nonattainment area classified as Severe for the 1997 and 2008 8-hour ozone NAAQS and Moderate for the 2015 8-hour ozone NAAQS (40 CFR 81.305). The PCAPCD must implement RACT for rules that are covered by a CTG document as well as each major source of VOCs in ozone nonattainment areas classified as moderate or above (see CAA section 182(b)(2)), however definitions rules are administrative and RACT does not apply.

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

These rules meet CAA requirements and are consistent with relevant guidance regarding enforceability, and SIP revisions. The TSDs have more information on our evaluation.

The MDAQMD Rule 1115 TSD includes a recommendation for the next time the MDAQMD modifies the rule.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rules because they fulfill all relevant requirements. The EPA also proposes to rescind the current SIP-approved versions of the submitted rules, and the version of SCAQMD Rule 1107 that is currently in the SIP for the Riverside County portion of the MDAQMD, because these rules will be replaced by the updated rules we are proposing to approve. We will accept comments from the public on this proposal until June 21, 2021. If we take final action to approve the submitted rules, our final action will incorporate these rules into the federally enforceable SIP.

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

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

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

• 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 (Public Law 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 the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 the 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).

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

Table 1 lists the rule addressed by this proposal with the date that it was amended by the local air agency and submitted by the California Air Resources Board (CARB, or “State”). Subsequent to the submittal of SCAQMD Rule 445, the District and CARB excluded subdivision (k), “Penalties,” from the SIP submission. 1

On April 29, 2021, the submittal for SCAQMD Rule 445 became complete by operation of law under CAA section 110(k)(1)(B).

We approved an earlier version of Rule 445 into the SIP on September 26, 2013. 2 On June 5, 2020, the SCAQMD adopted revisions to the SIP-approved version of Rule 445 to add provisions addressing the contingency measure requirement in CAA section 172(c)(9) for PM 2.5 . CARB submitted Rule 445, as amended June 5, 2020, to the EPA on October 21, 2020. 3 The District subsequently adopted additional revisions to Rule 445 and CARB submitted the rule, as amended October 27, 2020, to the EPA on October 29, 2020. 4 The October 27, 2020 version of Rule 445 contains additional ozone-related provisions in paragraph (g) and supersedes Rule 445, as amended June 5, 2020. We are proposing to approve Rule 445, as amended October 27, 2020, except for the ozone-related provision in paragraph (g), which we are not acting on at this time, and the penalty provision in paragraph (k) of the rule, which the District and CARB have excluded from the SIP submission. If we take final action to approve all other portions of Rule 445, as amended October 27, 2020, these portions of the rule will replace the previously approved version of Rule 445 in the SIP.

On November 9, 2020, the EPA approved portions of California's SIP submission to address the CAA's Moderate area requirements for the 2012 PM 2.5 NAAQS in the South Coast nonattainment area (“2016 PM 2.5 Plan”) and, as part of this action, conditionally approved the contingency measure element of the 2016 PM 2.5 Plan as meeting the requirements of CAA section 172(c)(9) and 40 CFR 51.1014 for the 2006 PM 2.5 NAAQS and the 2012 PM 2.5 NAAQS. 5 Our conditional approval was based on commitments from SCAQMD and CARB to develop, adopt, and submit specific revisions to Rule 445 to meet the attainment contingency measure requirement for the 2006 PM 2.5 NAAQS and the reasonable further progress (RFP) contingency measure requirement for the 2012 PM 2.5 NAAQS in the South Coast by the earliest of certain specified dates. The District adopted the identified revisions to Rule 445 on June 5, 2020, and retained them unchanged in the October 27, 2020 version of the rule. CARB's submission of Rule 445, as amended October 27, 2020, for incorporation into the SIP fulfills the State's and District's commitments that had provided the basis for the EPA's conditional approval of the contingency measure element of the 2016 PM 2.5 Plan, thus enabling the EPA to convert the conditional approval into a full approval. Our proposed rulemaking on the 2016 PM 2.5 Plan contains a detailed discussion of our rationale for conditionally approving the contingency measure element of this plan. 6

The District's October 27, 2020 revisions to Rule 445 include a new contingency measure provision in paragraph (g) to be implemented upon a failure to meet an RFP requirement for an applicable ozone NAAQS or a failure to attain an applicable ozone NAAQS. We are not acting on paragraph (g) of Rule 445 at this time and will evaluate this provision for compliance with applicable CAA requirements in a subsequent rulemaking.

Finally, as part of our November 9, 2020 final action on the 2016 PM 2.5 Plan, the EPA also reclassified the South Coast to Serious nonattainment for the 2012 annual PM 2.5 NAAQS. This action triggered requirements for the State to submit, among other plan components, provisions to implement best available control measures (BACM), including best available control technology (BACT), to the EPA no later than June 9, 2022. 7 We are not evaluating Rule 445 for compliance with BACM requirements at this time and will address the BACM requirements that apply to the South Coast area in subsequent rulemakings.

Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and RFP or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Additionally, we are evaluating Rule 445 to determine whether it fulfills the commitments made by the District and the State to submit a revised rule meeting the requirements of CAA section 172(c)(9) and the regulatory provisions of 40 CFR 51.1014 for contingency measures. Specifically, the District committed (1) to modify Rule 445 to lower the wood burning curtailment threshold upon any of the four EPA determinations ( i.e., “findings of failure”) listed in 40 CFR 51.1014(a), and (2) to submit the revised rule to the EPA within one year of the EPA's final action conditionally approving the contingency measure element of the 2016 PM 2.5 Plan or within 60 days of a determination by the EPA that the South Coast area failed to attain the 2006 PM 2.5 NAAQS by the applicable attainment date, which ever occurred sooner. 8 Additionally, CARB committed to submit the revised District rule to the EPA as a SIP revision by the earlier of these two dates. 9

Rule 445, as amended October 27, 2020, is enforceable and adds new, lower mandatory wood-burning curtailment provisions in section (f) to be implemented as contingency measures upon a determination by the EPA that any of the four “findings of failure” listed under 40 CFR 51.1014(a) has occurred. These new provisions and related revisions strengthen the SIP and do not interfere with applicable requirements concerning attainment and RFP or other CAA requirements.

In addition, the SIP submittal fulfills the District's and the State's commitment to adopt and submit a specific enforceable contingency measure to address the requirements of CAA section 172(c)(9) and 40 CFR 51.1014 for the 2006 24-hour PM 2.5 NAAQS and the 2012 annual PM 2.5 NAAQS. CARB submitted the revised rule to the EPA on October 29, 2020, within 60 days of the EPA's September 16, 2020 finding that the South Coast area had failed to attain the 2006 PM 2.5 NAAQS by the applicable attainment date. 10

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve all but paragraphs (g) and (k) of Rule 445, as amended October 27, 2020, based on our conclusion that the rule fulfills CAA requirements for enforceability and SIP revisions. The EPA also proposes to convert our conditional approval of the contingency measure element of the 2016 PM 2.5 Plan, as found in 40 CFR 52.248(k), to a full approval. We are not acting on paragraphs (g) and (k) of Rule 445 and are not evaluating the rule for compliance with BACM requirements at this time. We will accept comments from the public on this proposal until June 21, 2021. If we take final action to approve the submitted rule, our final action will incorporate this rule, except for paragraphs (g) and (k), into the federally enforceable SIP.

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

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

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

• 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 the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 the 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 October 9, 2020, North Carolina submitted changes to the North Carolina SIP for EPA approval. EPA is proposing to approve changes to the following SIP-approved regulations under 15A North Carolina Administrative Code Subchapter 02D, 1 Section .0600, Monitoring: Recordkeeping: Reporting: Rule .0601, Purpose and Scope; Rule .0602, Definitions; Rule .0604, Exceptions to Monitoring and Reporting Requirements; Rule .0605, General Recordkeeping and Reporting Requirements; and Rule .0606, Sources Covered by Appendix P of 40 CFR part 51. 2

The changes that are the subject of this proposed rulemaking make revisions to monitoring, recordkeeping, and reporting regulations under Subchapter 2D of the North Carolina SIP. Specifically, they revise the SIP by adding one definition, adding references to approved testing methods, updating the reference format, and making minor changes to general formatting and language use for clarity purposes. EPA is proposing to find that the changes do not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement. Detailed descriptions of the changes are below:

1. Rule .0601, Purpose and Scope is revised to make clarifying edits to the rule text in the form of minor wording changes and an update to the format of references.

2. Rule .0602, Definitions is revised to reformat the definition of “Emission standard” and clarify that the term relates to State rules or federal regulations, to add a definition for the term “Good operation and maintenance,”  3 to make minor wording, spelling, and grammatical updates to the rule text, and to update the format of references.

3. Rule .0604, Exceptions to Monitoring and Reporting Requirements is revised to make clarifying edits to the rule text regarding monitoring requirements during system malfunctions and to clarify that operation and maintenance practices for monitoring systems may be specified by the manufacturer, federal regulation, rule, or a permit condition. In addition, the revisions include a minor word change and other changes to update the format of references.

4. Rule .0605, General Recordkeeping and Reporting Requirements is revised to make minor updates and minor wording changes to the rule text and to update the format of references.

5. Rule .0606, Sources Covered by Appendix P of 40 CFR part 51 is revised to make minor changes to punctuation and rule text, update the format of references, and clarify how compliance with the sulfur dioxide and nitrogen oxide emissions standards is determined. Specifically, the language is revised to clarify that average hourly values shall be calculated based on a minimum of four data points, with one data point in each of the 15-minute quadrants of the hour, and to clarify that this data requirement does not apply to opacity monitoring, which is based upon six-minute time periods, as stipulated at paragraph .0606(c). In addition, paragraph .0606(f) is revised to clarify that the owner or operator of the source shall conduct a daily zero and span check of a continuous emissions monitoring system.

Lastly, Method 6C and Method 7E of 40 CFR part 60, Appendix A, are being added to paragraphs .0606(i) and (j), respectively, as approved testing methods for determining compliance with the emissions standards for sulfur dioxide and nitrogen oxide, respectively. Additionally, the rule is revised to allow other test methods approved into the SIP at 15A NCAC 02D .2600 via cross-references. The new cross-reference to approved testing methods for sources of sulfur dioxide, which are regulated by Appendix P to Part 51, is to 15A NCAC 02D .2611. The new cross-reference to approved testing methods for sources of nitrogen oxide, which are regulated by Appendix A to Part 60, is to 15A NCAC 02D .2612. As these test methods have previously been approved in 15 NCAC 02D .2600 as valid procedures to determine emissions from stationary sources, EPA has determined the cross-references are appropriate.

EPA has preliminarily determined that the changes to the regulations above provide clarity and appropriate updates to monitoring, recordkeeping, and reporting requirements. These changes are minor and do not relax the regulations. The changes to the SIP do not interfere with any requirement concerning attainment or any other applicable requirement of the Act, and therefore, satisfy CAA section 110(l). For these reasons, EPA is proposing approval of the changes to these regulations.

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the following rules in 15A NCAC Subchapter 2D with a state-effective date of November 1, 2019: Rule .0601, Purpose and Scope; Rule .0602, Definitions; Rule .0604, Exceptions to Monitoring and Reporting Requirements; Rule .0605, General Recordkeeping and Reporting Requirements; and Rule .0606, Sources Covered by Appendix P of 40 CFR part 51. The proposed changes add one definition, add references to approved testing methods, update the reference format, and make minor changes to general formatting and language to provide clarity to the monitoring, recordkeeping, and reporting requirements. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

EPA is proposing to approve North Carolina's October 9, 2020, SIP revisions, which contain changes to the following regulations under 15A NCAC Subchapter 02D: Rule .0601, Purpose and Scope; Rule .0602, Definitions; Rule .0604, Exceptions to Monitoring and Reporting Requirements; Rule .0605, General Recordkeeping and Reporting Requirements; and Rule .0606, Sources Covered by Appendix P of 40 CFR part 51. The proposed changes are consistent with the CAA.

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

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

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

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

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

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

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

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

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

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Section 111(d) of the Clean Air Act (CAA) requires pollutants controlled under new source performance standards (NSPS) also be controlled at existing sources in the same source category. Once an NSPS is issued, EPA then publishes emission guidelines (EGs) applicable to the control of the same pollutant for existing (designated) facilities. States with designated facilities must develop state plans to adopt the EGs into their body of regulations. States must also include in their state plans other elements, such as legal authority, inventories, and public participation documentation to demonstrate their ability to enforce the state plans.

Section 129(b)(2) of the CAA requires states to submit state plans to EPA for approval. Each state must show that its state plan will carry out and enforce the EGs. State plans must be at least as protective as the EGs and will become federally enforceable upon EPA's approval. The procedures for adopting and submitting state plans are in 40 CFR part 60, subpart B.

EPA is required to regulate air emissions from MWCs under sections 111(d) and 129 of the Clean Air Act. When burned, municipal solid wastes emit various air pollutants, including hydrochloric acid, dioxin/furan, toxic metals (lead, cadmium, and mercury) and particulate matter. Mercury is highly hazardous and is of particular concern because it persists in the environment and bioaccumulates through the food web. Serious human health effects, primarily to the nervous system, have been associated with exposures to mercury. Harmful effects in wildlife have also been reported; these include nervous system damage and behavioral and reproductive deficits. Human and wildlife exposure to mercury occur mainly through eating of fish. When inhaled, mercury vapor attacks the lung tissue and is a cumulative poison. Short-term exposure to mercury in certain forms can cause hallucinations and impair consciousness. Long-term exposure to mercury in certain forms can affect the central nervous system and cause kidney damage.

Exposure to particulate matter can aggravate existing respiratory and cardiovascular disease and increase risk of premature death. Hydrochloric acid is a clear colorless gas. Chronic exposure to hydrochloric acid has been reported to cause gastritis, chronic bronchitis, dermatitis, and photosensitization. Acute exposure to high levels of chlorine in humans may result in chest pain, vomiting, toxic pneumonitis, pulmonary edema, and death. At lower levels, chlorine is a potent irritant to the eyes, the upper respiratory tract, and lungs.

Exposure to dioxin and furan can cause skin disorders, cancer, and reproductive effects such as endometriosis. These pollutants can also affect the immune system.

On January 11, 1999, MassDEP submitted a section 111(d)/129 State Plan for implementing and enforcing EGs for existing Large Municipal Waste Combustors (MWCs) pursuant to 40 CFR part 60, subpart Cb. On November 16, 2001, MassDEP submitted minor revisions for inclusion in its MWC State Plan. EPA approved that State Plan on October 9, 2002 (67 FR 62896).

Section 129(a)(5) of the CAA requires EPA to conduct a 5-year review of NSPS and EGs for solid waste incinerators and to amend standards and requirements as appropriate. Accordingly, EPA promulgated amended standards and requirements for Large MWCs on May 10, 2006 (71 FR 27324). This rulemaking included revised limits for dioxin/furan (only for units equipped with electrostatic precipitators), mercury, cadmium, lead, particulate matter, and nitrogen oxides (for some types of units). It also contained revisions to the compliance testing provisions to require increased data availability from continuous emissions monitoring systems (CEMS). CEMS are required to generate at least ninety-five percent (95%) data availability on a calendar year basis and at least ninety percent (90%) data availability on a calendar quarter basis. The compliance testing provisions have also been revised to allow the optional use of CEMS to monitor particulate matter and mercury. Other revisions include:

• Operator stand-in provisions to clarify how long a shift supervisor is allowed to be off site when a provisionally certified control room operator is standing in;

• An eight-hour block average for measuring activated carbon injection rate;

• A provision for waiver of operating parameter limits during the mercury performance test and for two weeks preceding the test, as is already allowed for dioxin testing;

• A revision to relative accuracy criteria for sulfur dioxide and carbon monoxide CEMS;

• Flexibility to the annual compliance testing schedule so that a facility tests once per calendar year, but no less than nine months and no more than 15 months since the previous test;

• Allowing use of parametric monitoring limits from an exceptionally well-operated MWC unit to be applied to all identical units at the same plant site without retesting for dioxin;

• The option of monitoring the activated carbon injection pressure or equivalent parameter; and

• Clarifying the exclusion of monitoring data from compliance calculations.

In response to the amended EGs, MassDEP revised the Code of Massachusetts Regulations (CMR), specifically at 310 CMR 7.08(2) entitled “Municipal Waste Combustors,” effective March 9, 2018, and submitted the revised State Plan to EPA on December 18, 2018. 1 The submittal only addresses those portions of the State Plan that have been updated since EPA's October 9, 2002 approval. 2

MassDEP revised the State Plan to incorporate changes to the state inventory of sources and to amend the state regulations that serve as the State Plan's enforceable mechanism. MassDEP revised the state MWC regulations at 310 CMR 7.08(2) and submitted the revised State Plan to EPA on December 18, 2018. Revisions to the MWC regulations address the list of sources, emissions standards, operating practices, compliance and performance testing, operator training and certification, and reporting and recordkeeping requirements.

MassDEP removed the closed Fall River MWC from the list of existing Massachusetts MWC facilities subject to the MWC State Plan. The facility ceased operation in June 1999.

The emission limits for particulate matter, cadmium, lead, and dioxin/furan with electrostatic precipitator at 310 CMR 7.08(2)(f)2. are revised to be consistent with EPA's May 2006 EGs for Large MWCs at 40 CFR 60.33b. The annual Massachusetts mercury emission limit is already more stringent than the federal EGs and therefore is not revised. The carbon monoxide emission limit for Mass Burn Refractory MWCs is removed from Table 1 at 310 CMR 7.08(2)(f)2. to reflect the municipal waste combustor technology that is employed at existing large MWCs in Massachusetts. The nitrogen oxides emission limits in 7.08(2)(f)3. are revised to be more stringent than the federal EGs as of March 10, 2020. The nitrogen oxide emission limits for facilities electing to implement a nitrogen oxides emissions averaging plan for multiple units located at the same municipal waste combustor plant, at 7.08(2)(f)4. are revised to be more stringent than the federal EGs.

Operating practices under 310 CMR 7.08(2)(f)1.b. are revised to be consistent with 40 CFR 60.58b(m)(2)(i) to clarify requirements for combustor load and particulate matter control device operating parameters preceding and during quarterly or nine-month mercury compliance testing, and to clarify requirements for average carbon feed rate limits during mercury and dioxin/furan testing. 3

Provisions of 40 CFR 60.58b, “Compliance and Performance Testing,” are incorporated by reference into 310 CMR 7.08(2)(g). In addition, references are revised to reflect the latest EGs amendment date of May 10, 2006.

Procedures for measurement and calculation of the eight-hour block average carbon (or equivalent) usage rate in 310 CMR 7.08(2)(g)1.d. and (h)4.e. are revised, and 310 CMR 7.08(2)(g)3.d. is added for municipal waste combustor units where carbon injection (or its equivalent) is used to comply with the dioxin/furan and mercury emission limits, as required in 40 CFR 60.58b(m) and (d)(2)(xi). Provisions are incorporated from the EGs at 40 CFR 60.58b(g)(10) and (d)(4) for elective use of continuous automated sampling or emissions monitoring for dioxin/furan and mercury emissions, at 310 CMR 7.08(2)(g)1.e. and 2. Provisions from the EGs at 40 CFR 60.58b(c)(10), (d)(3) and (f)(8) are also incorporated for the elective use of continuous emissions monitoring of particulate matter, cadmium, lead and hydrogen chloride at 310 CMR 7.08(2)(g)7., 8., and 9. Provisions at 310 CMR 7.08(2)(g)5.a. are deleted as unnecessary due to the revised more stringent EPA emissions data capture requirements in the amended EGs. The limited waiver from the mercury emission limit at 310 CMR 7.08(2)(g)4 is deleted from the State Plan because the time by which an MWC could have applied for a limited waiver has passed, and the provision is no longer applicable. Requirements in 310 CMR 7.08(2)(j)1. and 6. for emission control plan submissions are updated with new submission deadlines and requirements, including new or amended applicable requirements of the revised State Plan. The schedule for compliance in 310 CMR 7.08(2)(k) is updated with new dates based on promulgation of the State Plan on March 9, 2018.

Operator training and certification requirements in 310 CMR 7.08(2)(f)6.b., (h)11., (i)1., and (i)1.h. are revised to incorporate requirements in EPA's May 2006 EG revisions at 40 CFR 60.54b(c)(2). 4 Revisions address the specific requirements associated with occasions when control room operators provisionally certified under the American Society of Mechanical Engineers WRO-1 Standard for the Qualification and Certification of Resource Recovery Facility Operators may perform duties ordinarily restricted to QRO certified operators and shift supervisors.

Recordkeeping and reporting requirements at 310 CMR 7.08(2)(h) and (i) are amended to incorporate the requirements of EPA's May 2006 EGs at 40 CFR 60.59b(d), (g) and (h) by reference. 5 Revised requirements cover average emissions concentrations, highest levels records, exceedances, instances of insufficient data, excluded data, test results, accuracy determinations, sampling systems quality evaluations, details of when a certified operator is temporarily off site, and optional use of continuous monitoring and continuous automated sampling.

EPA has evaluated the MWC State Plan submitted by MassDEP for consistency with the Act, the May 2006 EGs, and EPA guidelines and policy. EPA has determined that MassDEP's State Plan that was submitted on December 18, 2018 meets all requirements and, therefore, EPA is proposing to approve MassDEP's Plan to implement and enforce the EGs, as they apply to existing Large MWCs.

EPA's proposal to approve MassDEP's State Plan is based on our findings that:

(1) MassDEP provided adequate public notice of public hearings for the proposed rule-making, which allows Massachusetts to carry out and enforce provisions that are at least as protective as the EGs for Large MWCs, and

(2) MassDEP demonstrated its legal authority to: Adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require record keeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and make emission data publicly available.

EPA is proposing to approve the MassDEP's revised State Plan for existing Large MWCs. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the provisions of 310 CMR 7.08(2), entitled “Municipal Waste Combustors,” effective March 9, 2018, excluding the site assignment provisions of 310 CMR 7.08(2)(a), the definition of “materials separation plan” at 310 CMR 7.08(2)(c), and the materials separation plan provisions at 310 CMR 7.08(2)(f)8. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a State Plan submittal that complies with the provisions of the Act and applicable Federal regulations. Clean Air Act sections 111(d) and 129(b); 40 CFR part 60, subparts B and Cb; and 40 CFR part 62, subpart A; and 40 CFR 62.04. Thus, in reviewing state plan submissions, EPA's role is to approve state choices, provided they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the State Plan is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

This is a summary of the Commission's document, Report No. 3172, which was released May 11, 2021. The full text of the Petitions can be accessed online via the Commission's Electronic Comment Filing System at: http://apps.fcc.gov/ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because the Commission is not adopting any rules.

Subject: Establishing the Digital Opportunity Data Collection and Modernizing the FCC Form 477 Data Program, FCC 20-94, published at 85 FR 50886, August 18, 2020 and FCC 21-20, published at 86 FR 18124, April 7, 2021, in WC Docket Nos. 19-195 and 11-10. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

Number of Petitions Filed: 2.

This is a summary of the Commission's document, Report No. 3173, released May 11, 2021. The full text of the Petition can be accessed online via the Commission's Electronic Comment Filing System at: http://apps.fcc.gov/ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission.

Subject: Advanced Methods to Target and Eliminate Unlawful Robocalls, published 86 FR 17726, April 6, 2021, in CG Docket No 17-59. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

Number of Petitions Filed: 1.

DoD is proposing to amend the DFARS to implement section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 818 amends 10 U.S.C. 2305 to enhance postaward debriefing rights for competitive negotiated contracts, task orders, and delivery orders that exceed $10 million and to provide offerors the opportunity, upon receiving a postaward debriefing, to submit follow-up questions related to the debriefing and to receive agency responses. Section 818 also amends 31 U.S.C. 3553(d) to extend the timeframe during which the contracting officer shall immediately suspend contract performance or terminate the awarded contract if a protest is filed. Section 818(a)(4) requires robust procedures, consistent with 10 U.S.C. 2305(b)(5)(D), that must preclude point-by-point comparisons of the debriefed offeror's offer with other offers and may not disclose any information that is exempt from disclosure under 5 U.S.C. 552(b). There is sufficient existing policy in FAR 3.104-4, Disclosure, protection, and marking of contractor bid or proposal information and source selection information; therefore, no additional DFARS changes are required in this regard.

The following changes to the DFARS are proposed to implement section 818 of the NDAA for FY 2018:

DFARS 215.506 implements new requirements for contracting officers when providing postaward debriefings, stipulating the requirements for information to be provided to successful and unsuccessful offerors. DFARS 215.506(S-70) outlines the debriefing process, which provides the opportunity for offerors to submit written follow-up questions within two business days after receiving the debriefing, as well as requirements for the agency to respond in writing to the timely submitted follow-up questions within five business days after receipt of the questions. DFARS 215.506(S-70)(2) ensures contracting officers do not consider the postaward debriefing to be concluded until the agency delivers its written response to an offeror.

DFARS 215.506(b) informs contracting officers that notwithstanding FAR 15.506(b), when requested, a written or oral debriefing is required for all contracts valued at $10 million or more.

DFARS 215.506(d)(i) and (ii) specify the following: (1) for contract awards in excess of $10 million, and not in excess of $100 million, with a small business or nontraditional defense contractor (as defined in DFARS 201.101), the debriefing information must include the option for a small business or nontraditional defense contractor to request the disclosure of the written source selection decision document, redacted to protect the confidential and proprietary information of other offerors; and (2) for the award of a contract in excess of $100 million, the debriefing information must include the disclosure of the written source selection decision document, redacted accordingly.

DFARS 216.505(b)(6) informs contracting officers that, in addition to the notice required at FAR 16.505(b)(6), a written or oral debriefing is required for task and delivery orders valued at $10 million or more. Paragraph (b)(6)(ii) directs contracting officers to follow the procedures in DFARS 215.506 when providing postaward debriefings to successful and unsuccessful awardees for task or delivery orders valued at $10 million or more.

Paragraph (c)(1) in DFARS 233.104, notifies contracting officers of the new timeframes for the suspension of performance or termination of a contract, task order, or delivery order awarded, upon notification from the General Accountability Office (GAO) of a protest filed within the following time periods, whichever is later:

• Within 10 days after the date of contract award or the issuance of a task or delivery order, where the value of the order exceeds $25 million.

• Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, and the unsuccessful offeror submits no additional questions related to the debriefing.

• Within 5 days after the date that is offered to an unsuccessful offeror for a debriefing that is requested, and when requested is required, if the debriefing date offered is not accepted.

• Within 5 days, commencing on the day the Government delivers its written response to additional questions timely submitted by the unsuccessful offeror, when a requested and required debriefing is held on the date offered.

A new solicitation provision is added at DFARS 252.215-70XX, Notification to Offerors—Postaward Debriefings, for use in competitive negotiated solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items. The solicitation provision informs offerors of the new enhanced postaward debriefing requirements for contracts valued at $10 million or higher. The prescription for the provision is added at DFARS 215.570. The provision is also listed at DFARS 212.301(f)(vi) for use in the acquisition of commercial items.

The proposed rule adds a new contract clause at DFARS 252.216-70YY, Postaward Debriefings for Task Orders and Delivery Orders, for use in multiple-award contracts. The clause informs multiple-award contractors of the new enhanced postaward debriefing requirements for task orders and delivery orders. The clause is prescribed in paragraph (S-71) at DFARS 216.506 and is listed at DFARS 212.301, new paragraph (f)(vii), for use in the acquisition of commercial items.

This proposed rule implements section 818 of the NDAA for FY 2018. Section 818 requires that DoD provide successful and unsuccessful offerors the opportunity for enhanced postaward debriefings. The rule adds one new solicitation provision at 252.215-70XX, Notification to Offerors—Postaward Debriefings, for use in competitive negotiated solicitations, and one new contract clause at 252.216-70YY, Postaward Debriefings for Task Orders and Delivery Orders, for use in multiple-award contracts.

DoD does not intend to apply this rule to contracts and subcontracts valued at or below the SAT. DoD intends to apply this rule to commercial items, including COTS items, for the reasons described in section III.C. of this preamble.

41 U.S.C 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory (FAR) Council makes a determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Principal Director, Defense Pricing and Contracting (DPC), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations.

10 U.S.C. 2375 governs the applicability of laws to DoD contracts and subcontracts for the acquisition of commercial items, including COTS items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items, including COTS items. 10 U.S.C. 2375 provides that if a provision of law contains criminal or civil penalties, or if the Under Secretary of Defense for Acquisition and Sustainment (USD(A&S)) makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Due to delegations of authority from USD(A&S), the Principal Director, DPC is the appropriate authority to make this determination.

DoD is proposing to not apply the requirements of section 818 to contracts at or below the SAT, since the requirements apply to contracts valued at $10 million or higher. The section 818 requirements will apply to negotiated procurements and contracts for the acquisition of commercial items, including COTS items.

DoD plans to make a determination to apply this statute to acquisitions for commercial items, including COTS items. It is not in the best interest of the Federal Government to exempt application of this rule to commercial items, including COTS items, for the following reasons. Implementation of section 818 affords offerors the opportunity for enhanced postaward debriefings for contracts and task or delivery orders that exceed $10 million. Implementation provides offerors the opportunity, upon receiving a postaward debriefing, to submit follow-up questions related to the debriefing and to receive agency responses. These enhanced postaward debriefing requirements will assist in developing small business capabilities, provide increased participation, and promote competition. Properly conducted postaward debriefings with this enhanced transparency may minimize the number of unnecessary protests filed while strengthening relationships between DoD and industry.

Applying these requirements to the acquisition of commercial items does not increase the burden on offerors, since the rule only enhances existing requirements concerning postaward debriefings. Exclusion of acquisitions of commercial items, including COTS items, would greatly limit access to the benefits afforded to successful and unsuccessful offerors by the section 818 requirements.

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

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules Under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . This rule is not anticipated to be a major rule under 5 U.S.C. 804.

DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule implements requirements primarily for the Government. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

This rule proposes to amend the DFARS to implement section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 818 provides offerors and contractors with significantly enhanced written or oral debriefing information for negotiated contracts and task or delivery orders that exceed $100 million, and the opportunity for small entities and nontraditional contractors to obtain such information for awards that exceed $10 million, but do not exceed $100 million, with small entities and nontraditional contractors.

The objective of this proposed rule is to ensure contractors and offerors are provided a standard written or oral postaward debriefing at the dollar thresholds in the statute, while protecting the confidential and proprietary information of other offerors. The statute also provides direction to contracting officers when notified that a protest has been received by the Government Accountability Office. The legal basis for the rule is section 818 of the NDAA for FY 2018 (Pub. L. 115-91).

The enhanced ability to obtain source selection information for actions over $10 million by submitting questions is voluntary. The rule is expected to have a beneficial impact on small entities by increasing the transparency of the award decision process. Obtaining such additional information may be helpful to entities competing on future actions.

Data obtained from the Federal Procurement Data System for FY 2018, 2019, and 2020 indicate that DoD awarded an average of approximately 5,534 negotiated awards and delivery or task orders per year valued between $10 and $100 million. Of those actions, an average of 3,994 were awarded to approximately 1,543 unique small entities and 1,311 nontraditional contractors. Based upon that data, approximately 1,543 unique small entities will have the opportunity to request and obtain enhanced debriefing information if desired.

This proposed rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses. The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no known significant alternative approaches to the proposed rule that would meet the requirements of the statute.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D009), in correspondence.

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

Therefore, 48 CFR parts 212, 215, 216, 233, and 252 are proposed to be amended as follows:

The additions read as follows:

The additions read as follows:

DoD is proposing to amend the DFARS to implement section 823 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232). Section 823 requires performance evaluations in accordance with specified conditions for individual partners of joint ventures for construction and architect-engineer (A&E) services contracts with an estimated value in accordance with the threshold set forth in FAR 42.1502(e), currently $750,000; and for first-tier subcontractors performing a portion of a construction or A&E services contract exceeding the threshold set forth in FAR 42.1502(e) or 20 percent of the value of the prime contract, whichever is higher. An exception may be granted when submission of annual past performance evaluations would not provide the best representation of the contractor's performance, including subcontractors and joint venture partners.

The following changes to the DFARS are proposed to implement section 823 of the NDAA for FY 2019:

DFARS 242.1501-70 defines “first-tier subcontractor” and “subcontractor” as those terms are applicable to subpart 242.15. Requirements for past performance evaluations to be performed for first-tier subcontractors and partners of a joint venture are provided at DFARS 242.1502 paragraph (e) for construction contracts, and paragraph (f) for A&E services contracts. Specifically, past performance evaluations are required for first-tier subcontractors performing a portion of construction or A&E services contracts or orders that are valued at or above the threshold in FAR 42.1502(e) or 20 percent of the value of the prime contract, whichever is higher. Past performance evaluations are required for individual partners of a joint venture awarded a construction or A&E services contract or order valued at or above the threshold in FAR 42.1502(e).

When acquiring construction or architect-engineer services, contracting officers will consider, as part of the past performance evaluation, an offeror's past performance as a first-tier subcontractor or individual partner of a joint venture under construction and/or architect-engineer services contracts. In reviewing first-tier subcontractor and joint venture partner past performance evaluations, contracting officers, in coordination with the cognizant requiring office, will work to ensure the following: Consistency between prime and first-tier subcontractor rating information; successful completion of applicable contracts; the same opportunity for each joint venture partner to submit comments, rebutting statements, or additional information consistent with FAR subpart 42.15; and clear identification, in the rating, of the responsibilities of each partner for discrete elements of the work where the partners are not jointly and severally responsible for the project.

DFARS 242.1502, paragraphs (e)(iv) and (f)(iv) provide guidance to contracting officers for providing an exception when the submission of annual past performance ratings would not provide the best representation of the performance of a prime contractor, subcontractor, or joint venture partners.

DFARS 242.1504-70(a) adds a prescription for a new DFARS solicitation provision 252.242-70XX, Identification of Joint Venture Partners for Past Performance—Construction and Architect-Engineer Services, to convey the requirement to identify, as part of an offer, all partners in the joint venture. This provision is required for construction and A&E services solicitations that include the clause at DFARS 252.242-70YY. The provision requires all joint venture partners to be registered in the System for Award Management (SAM) in accordance with FAR 4.11 and FAR provision 52.204-7, System for Award Management, prior to submission of an offer.

DFARS 242.1504-70(b)(1) and (b)(2), respectively, add new prescriptions for the use of two new DFARS contract clauses: 252.242-70YY, Past Performance of Joint Venture Partners—Construction and Architect-Engineer Services; and 252.242-70ZZ, Past Performance of Subcontractors—Construction and Architect-Engineer Services. The clause at 252.242-70YY informs the contractor that past performance evaluations are required for joint ventures awarded a construction or A&E services contract exceeding the threshold set forth in FAR 42.1502(e) (currently $750,000). DFARS clause 252.242-70ZZ instructs contractors to prepare past performance evaluations for first-tier subcontractors performing a portion of a construction or an A&E services contract with an estimated value in accordance with the thresholds set forth in FAR 42.1502(e), and 242.1502(e)(i) or 242.1502(f)(i), or 20 percent of the value of the prime contract, whichever is higher. In addition, the clause requires contractors to provide the legal business name, the unique entity identifier, and Commercial and Government Entity (CAGE) code of each first-tier subcontractor under the contract as a part of its offer or as new subcontracts are issued during performance.

New text is added to DFARS 215.305(a)(2)(C) advising contracting officers to consider past performance information on first-tier subcontractors and joint venture partners in source selections for construction and A&E services contracts.

The rule provides cross-references to the policy and requirements of DFARS 242.1502(e) at other applicable subparts for the DFARS.

To implement section 823 of the NDAA for FY 2019, this proposed rule adds one new solicitation provision and two new contract clauses.

The new solicitation provision is 252.242-70XX, Identification of Joint Venture Partners for Past Performance—Construction and Architect-Engineer Services. This provision is used to convey the identification requirements to joint venture partners.

The two new clauses are 252.242-70YY, Past Performance of Joint Venture Partners—Construction and Architect-Engineer Services; and 252.242-70ZZ, Past Performance of Subcontractors—Construction and Architect-Engineer Services. The clauses inform the contractor that past performance evaluations are required for partners in a joint venture awarded a construction or A&E services contract exceeding the threshold set forth in FAR 42.1502(e) (currently $750,000), and for first-tier subcontractors performing a portion of a construction or an A&E services contract with an estimated value in accordance with the threshold set forth in FAR 42.1502(e) or 20 percent of the value of the prime contract, whichever is higher.

DoD is not proposing to apply the requirements of section 823 to contracts at or below the simplified acquisition threshold. Section 823 requirements will not apply to the acquisition of commercial items, including commercially available off-the-shelf items.

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

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . This rule is not anticipated to be a major rule under 5 U.S.C. 804.

This proposed rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Therefore, an initial regulatory flexibility analysis has been performed and is summarized as follows:

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 823 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019. Section 823 requires performance evaluations in accordance with specified conditions for individual partners of joint ventures awarded construction or architect-engineer (A&E) services contracts exceeding the threshold set forth in FAR 42.1502(e) (currently $750,000), and for first-tier subcontractors performing a portion of a construction or A&E services contract with an estimated value in accordance with the threshold set forth in FAR 42.1502(e) or 20 percent of the value of the prime contract, whichever is higher. An exception may be granted when submission of annual past performance evaluations would not provide the best representation of the contractor's performance, including subcontractors and joint venture partners.

The objective of this proposed rule is to implement the statutory changes to require performance evaluations for first-tier subcontractors and individual partners of joint ventures for construction and A&E services contracts. An exception may apply when submission of annual evaluations would not provide the best representation of the contractor's performance, including subcontractors and joint venture partners.

This rule is expected to impact small entities performing as prime contractors, first-tier subcontractors, or partners in joint ventures awarded construction or A&E services contracts or orders exceeding $750,000. According to data obtained from the Federal Procurement Data System for fiscal years 2016 through 2018, an average of 490 small entities received DoD contracts, task orders, or delivery orders for construction and A&E services exceeding $750,000. Those small entities would need to provide performance evaluations of their first-tier subcontractors.

Approximately 822 contracts, task orders, and delivery orders over $750,000 were awarded each year for construction and A&E services. Each of those awards is estimated to have two to four subcontracts, for a total of 2,121 subcontracts that would require performance evaluations. DoD estimates that approximately 1,208 of those subcontracts were awarded to small entities. These small entities would receive a performance evaluation as a first-tier subcontractor.

DoD estimates that approximately 112 joint ventures per year were awarded contracts, task orders, or delivery orders for construction and A&E services. DoD further estimates that approximately half (56) of those joint ventures include at least one small entity as a partner in the joint venture. Those small entities would receive a performance evaluation as a partner in the joint venture.

This proposed rule does include new reporting, and other compliance requirements for small businesses. Small business prime contractors will be required to prepare past performance evaluations for their first-tier subcontractors described in DFARS 242.1502(e)(i) and (f)(i). Small businesses that are first-tier subcontractors and small business partners in joint ventures described in DFARS 242.1502(e)(i) and (f)(i) will be given the opportunity to submit comments, rebutting statements, or additional information in response to past performance evaluations. There are no associated recordkeeping requirements. Accordingly, DoD estimates that it takes approximately one hour at an hourly rate of $56.76 for a contractor representative to draft, review, comment, accomplish senior level concurrence, and return past performance evaluations for: (1) First-tier subcontractors, and (2) joint ventures.

The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the proposed rule that would meet the statutory requirements.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2018-D055), in correspondence.

The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). This rule contains information collection requirements in addition to those at FAR 42.15, under OMB Control Number 9000-0142 for prime contractor past performance evaluations. This rule adds a new DoD information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). Accordingly, DoD has submitted a request for approval of a new information collection requirement concerning a DFARS solicitation provision at 252.242-70XX, Identification of Joint Venture Partners for Past Performance-Construction and Architect-Engineer Services; and contract clauses at 252.242-70YY, Past Performance of Joint Venture Partners—Construction and Architect-Engineer Services; and 252.242-70ZZ, Past Performance of Subcontractors—Construction and Architect-Engineer Services.

A. Public reporting burden for this collection of information is estimated to average 1.1 hours per response, including the time for reviewing instructions, and completing and reviewing the collection of information. The annual reporting burden is estimated as follows:

Respondents: 112.

Responses per respondent: 1.

Total annual responses: 112.

Hours per response: 0.5.

Total response burden hours: 56.

Respondents: 336.

Responses per respondent: 1.

Total annual responses: 336.

Hours per response: 1.

Total response burden hours: 336.

Respondents: 2,943.

Responses per respondent: 1.

Total annual responses: 2,943.

Hours per response: 1.

Total response burden hours: 2,943.

Respondents: 82.

Responses per respondent: 1.

Total annual responses: 82.

Hours per response: 0.5.

Total response Burden Hours: 41.

Written comments and recommendations on the proposed information collection, including suggestions for reducing this burden, should be sent to Ms. Susan Minson at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, or email Susan_M_Minson@omb.eop.gov, with a copy to the Defense Acquisition Regulations System, Attn: Ms. Barbara Trujillo, OUSD (A&S)DPC/DARS, Room 3B938, 3060 Defense Pentagon, Washington, DC 20301-3060. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.

Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the DFARS, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

To obtain a copy of the supporting statement and associated collection instruments, please email osd.dfars@mail.mil. Include DFARS Case 2018-D055 in the subject line of the message.

Therefore, 48 CFR parts 215, 236, 242, and 252 are proposed to be amended as follows: