This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement No. 121 and Marketing Order No. 915, both as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida. Part 915, (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of growers and handlers of avocados operating within the production area, and a public member.

This rule is also issued under section 8e of the Act (7 U.S.C. 608e-1), which provides that whenever certain specified commodities, including avocados, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for domestically produced commodities.

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866 and 13563. Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. In accordance with Executive Order 13175, AMS has not identified any tribal implications as a result of this proposed rule.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling (7 U.S.C. 608c(15)(B)).

There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This proposed rule would change the maturity requirements under the Order. This action would establish April 16 to April 15 of the following year as the beginning and end dates for the annual maturity shipping schedule, with an exception for the requirements listed under Guatemalan seedling, which would run from June 9 to June 8 of the following year. This rule would provide clarity regarding the schedule and dates in effect, assist with compliance to help ensure a quality product reaches consumers, and reflect current industry practices. These changes were unanimously recommended by the Committee at its October 14, 2020, meeting.

Section 915.51 of the Order provides, in part, authority to establish maturity requirements under the Order. Section 915.52 of the Order provides authority for the modification, suspension, or termination of established regulations. Section 915.332 of the Order's rules and regulations establishes the maturity requirements for avocados grown in Florida. These requirements are specified in Table I of § 915.332(a) and establish minimum weights and diameters to delineate specific shipping time frames for avocados shipped under the Order. Maturity requirements for avocados imported into the United States are currently in effect under § 944.31.

The maturity regulations are designed to prevent the shipment of immature avocados and include the annual shipping schedule to help ensure only mature fruit reaches the market. Avocado varieties mature at different times, and varieties can vary considerably in terms of size and weight. Consequently, the schedule establishes shipping dates and maturity requirements by variety. Varieties not specifically listed on the schedule are covered by the requirements for West Indian seedling or Guatemalan seedling. These maturity dates and requirements are established based on a testing procedure developed by USDA.

The shipping schedule in Table I specifies the individual maturity requirements for the numerous avocado varieties shipped each season. As larger fruit within a variety matures earliest, the schedule makes the larger sized fruit available for market first followed by other dates to incrementally release smaller sizes for shipment as they mature. As such, the maturity requirements for a variety are usually divided into A, B, C, and D dates, which are associated with specific weights and sizes reflecting when a particular variety matures.

Avocados may not be handled until the earliest date, the A date, specified for that variety on the shipping schedule so only the largest, most mature fruits are available for market for each variety early in its season. The final date, the D date, for each variety correlates to the end of its season when all fruits of that variety should be mature and releases all remaining sizes and weights for shipment.

While the maturity schedule includes dates and maturity requirements for individual varieties, the regulations do not specify beginning and end dates for the annual maturity schedule itself. In the past, there was a gap in shipments in April, which created a natural break from one season's schedule to the next, with the first varieties appearing on the maturity schedule in May. This break served as the indicator of where the requirements of one annual schedule ended, and the new annual schedule began.

Such a differentiation between schedules is important as it clarifies which schedule is in place, so handlers know which maturity requirements need to be met. Specifically, this demarcation makes it clear the D dates for one schedule do not stretch to the A dates of the new schedule. Such a delineation between schedules provides a gap between the D dates and the A dates. This helps to ensure avocados are not shipped early to take advantage of the relaxed maturity requirements of the D-date, which could result in the shipment of immature fruit, and would circumvent the requirement that avocados may not be handled prior to the earliest date specified by the A date for that variety.

However, with the development of late-season varieties, there has been an increase in shipments under the Guatemalan seedling category in March, April, and May. Consequently, there is no longer a break in shipments between annual schedules, which has created an overlap from one annual schedule to the next. With this overlap, questions have arisen regarding the schedule, and when one annual schedule ends and another begins.

In discussing this issue, the Committee supported establishing beginning and end dates for the maturity schedule to address the overlap, and to address questions regarding which maturity schedule and dates were in effect. The Committee believes doing so would provide clarity regarding the schedule and would help assist with any compliance issues related to the dates established.

The Committee agreed that using an end date of April 15 for the shipping schedule, with an exception for avocados handled under the Guatemalan seedling category would be appropriate. This date reflects the break in schedules the industry has used to delineate one schedule from the next, and it remains applicable for all listings on the shipping schedule apart from the Guatemalan seedling.

For most avocados covered under the schedule, the normal harvest cycle, from the A date when the harvest of a particular variety begins to when all fruit of that variety has been picked, is around three months. The last A date listed on the schedule for a specific variety is for the Monday nearest December 12, with a D date of the following Monday nearest January 23. Using these dates, April 15 would provide more than enough time to harvest and ship those varieties listed on the schedule, other than Guatemalan seedling.

While the A date for the “Guatemalan Seedling” appears on the maturity schedule in September, the listing provides the maturity requirements for avocados of the Guatemalan type varieties and seedlings, as well as hybrid varieties and seedlings, and unidentified seedlings not listed elsewhere in Table I. Consequently, the requirements for the Guatemalan seedling cover numerous varieties with shipments extending into March, April, and May for some of the varieties in this category.

Recognizing the shipments under the Guatemalan seedling and related varieties and seedlings do not conform to the same seasonal schedule as the other varieties listed on the maturity schedule, the Committee considered alternative dates for the beginning and end dates for the maturity requirements for those varieties covered under this category. In discussing dates for the Guatemalan seedling, Committee members were concerned about establishing an end date that was beyond the proper maturity timeframe for this fruit, which could allow inferior fruit to enter the market.

Avocados mature on the tree and start the ripening process as they are picked. Avocados can be held on the tree to delay shipments or to lengthen the harvest period. However, if they remain on the tree too long, they will pass their optimal maturity. This can negatively impact the quality of the fruit resulting in fruit that is overmature or overripe.

In past seasons, the industry had been considering June 30 as an end date for the annual requirements for Guatemalan seedling. However, Committee members agreed this date was too late in the season and could result in poor quality fruit reaching the market, as some overripe avocados had appeared at the wholesale level. Committee members believe setting an end date earlier in the month would address the issues related to overmature fruit, improving the quality of avocados entering the market, and providing customers with a better product.

According to information from the Committee, avocados declared as Guatemalan seedling have typically completed shipping before the first week in June. Considering the timing of shipments, and to ensure consumers would be receiving a quality product, the Committee recommended establishing an end date for the Guatemalan maturity requirements of June 8.

With most shipments ending before the first week in June, a June 8 end date would provide an additional week for handlers to ship any remaining avocados covered by the Guatemalan seedling requirements. Also, by having a clear end date defining where one schedule ends, and the new schedule becomes applicable, handlers could adjust their shipping dates accordingly to meet the requirements.

As a result, the Committee recommended establishing beginning and end dates for the annual maturity shipping schedule of April 16 to April 15 of the following year, with an exception for Guatemalan seedling which would extend from June 9 to June 8 of the following year. The Committee believes establishing these dates would provide clarity regarding the schedule, assist with compliance to help ensure a quality product reaches consumers, and reflect current industry practices and changes in the industry. This proposed change would only impact the maturity requirements under the Order and would make no change to the current grade requirements.

Section 8e of the Act provides that when certain domestically produced commodities, including avocados, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Maturity requirements for avocados imported into the United States are currently in effect under § 944.31. As this rule would revise the maturity requirements for Florida avocados by establishing beginning and end dates for the annual maturity shipping schedule, a corresponding change would need to be made to the import regulations.

Imports and importers would also benefit from these proposed changes, which would establish beginning and end dates for the maturity requirements. Clarifying the schedule and the requirements that are in place, thus helping ensure customers are receiving a quality product would be beneficial for the entire industry, including imports.

The Hass, Fuerte, Zutano, and Edranol varieties of avocados currently are exempt from the maturity regulations and continue to be exempt under this rule. However, these varieties are not exempt from the import grade regulation, which is not being changed by this action.

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

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

There are approximately 325 producers of Florida avocados in the production area and 25 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $1,000,000, and small agricultural service firms are defined as those whose annual receipts are less than $30,000,000 (13 CFR 121.201).

According to the National Agricultural Statistical Service (NASS), the average grower price paid for Florida avocados during the 2020-21 season was $21.97 per 55-pound bushel. Utilized production was equivalent to 624,364 55-pound bushels for a total value of over $13,718,830. Dividing the crop value by the estimated number of producers (325) yields an estimated average receipt per producer of $42,212, so the average producer would have annual receipts of less than $1,000,000.

USDA Market News reported April 2021 terminal market prices for green skinned avocados were about $36.43 per 24-pound container. Using this price and the total utilization, the total 2020-21 handler crop value is estimated at $52.1 million. Dividing this figure by the number of handlers (25) yields an estimated average annual handler receipts of slightly over $2 million, which is below the SBA threshold for small agricultural service firms.

In 2020, the Dominican Republic, Peru, Mexico, and Colombia were the major countries exporting avocado varieties other than Hass to the United States. In 2020, shipments of these types of avocados imported into the United States totaled around 29,630 metric tons. Of that amount, 29,133 metric tons were imported from the Dominican Republic. Information from USDA's Global Agricultural Trade System database indicates the dollar value of these avocados to be approximately $41,385,000. There are approximately 20 importers of green skin avocadoes. Using the total value and the number of importers, the average importer would have annual receipts of less than $30 million.

Based on these estimates, the majority of Florida avocado producers and handlers, and importers may be classified as small entities.

This proposed rule would change the maturity requirements under the Order. This action would establish April 16 to April 15 of the following year as the beginning and end dates for the annual maturity shipping schedule, with an exception for Guatemalan seedling which would run from June 9 to June 8 of the following year. This rule would provide clarity regarding the maturity schedule and dates in effect, assist with compliance to help ensure a quality product reaches consumers, and reflect current industry practices. This proposed rule would revise § 915.332. Authority for this change is provided in §§ 915.51 and 915.52. This proposed rule would also change § 944.31 in the avocado import regulation, as is required by section 8e of the Act.

This action is not expected to increase the costs associated with the Order's requirements or the avocado import regulation. Rather, it is anticipated that this action would have a beneficial impact by providing clarity regarding the maturity schedule and dates in effect, assist with compliance, and help ensure a quality product reaches consumers.

This change would provide clarity as to which schedule is in place, so producers, handlers, and importers know which maturity requirements need to be met. Establishing beginning and end dates for the maturity requirements would clearly identify when the requirements of one annual schedule end, and the new annual schedule begins. Further, having a delineation between schedules would assist with compliance by making it clear that the D dates for one schedule do not stretch to the A date of the new schedule. This would help ensure that immature avocados are not shipped early using the previous season's D date to circumvent the requirement that avocados may not be handled prior to the A date specified for that variety.

For the Guatemalan seedling, establishing the beginning and end dates for the annual maturity requirements would help prevent shipments beyond the quality lifecycle of varieties covered under this category. This change would set a clear date by which shipments under the D date would end, assisting both with compliance and with fruit quality. Absent this change, fruit could be shipped past its proper maturity period, which could provide the consumer with an inferior product.

This change would not create any additional burdens for producers, handlers, or importers. The April 15 end date reflects the break in schedules the industry has used to delineate one schedule from the next, and it remains applicable for all listings on the shipping schedule, apart from the Guatemalan seedling. The April 15 end date would provide more than enough time to harvest and ship those varieties listed on the schedule.

For those varieties covered under the Guatemalan seedling, Committee data indicates most shipments are completed before the first week in June. This change would provide an additional week beyond June 1 for handlers to ship any remaining avocados covered by the Guatemalan seedling requirements. Also, by establishing a clear end date, handlers would be able to adjust their shipping dates accordingly to meet the new requirements. Establishing an end date of June 8 for maturity requirements for the Guatemalan seedling would provide sufficient time for avocados to ship under this designation, while helping prevent the shipment of overmature fruit.

This rule would provide clarity regarding the maturity schedule and dates in effect, assist with compliance to help ensure a quality product reaches consumers, and reflect current industry practices. The benefits of this rule are expected to be equally available to all fresh avocado growers, handlers, and importers, regardless of their sizes of operations.

One alternative to this action would be to maintain the current maturity requirements without establishing end dates for the maturity schedule. However, the Committee recognized that shipments have changed over the years and wanted to provide clarity regarding the maturity schedule. Another alternative considered was establishing an end date for the requirements for Guatemalan seedling of June 30. In discussing this date, Committee members expressed concern that this date was past the proper maturity for this fruit and would allow inferior fruit to enter the market. The Committee believes establishing the changes in this proposed rule, rather than the alternatives, would assist with compliance and help ensure a quality product reaches consumers. Therefore, the Committee rejected these alternatives.

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

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements would be necessary as a result of this proposed rule. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large avocado handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

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

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

In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this proposed rule.

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

For the reasons set forth in the preamble, 7 CFR parts 915 and 944 are proposed to be amended as follows:

Section 2.802 of title 10 of the Code of Federal Regulations (10 CFR), “Petition for rulemaking—requirements for filing,” provides an opportunity for any person to petition the Commission to issue, amend, or rescind any regulation. The NRC received and docketed a PRM dated August 2, 2018, filed by Mr. Bill Pitesa on behalf of the Nuclear Energy Institute (NEI). The NRC assigned this PRM the docket number of PRM-50-116. On November 20, 2018 (83 FR 58509), the NRC published a notice of docketing and request for comment on PRM-50-116 in the Federal Register . The petitioner requests that the NRC revise its regulations in 10 CFR 50.72, “Immediate notification requirements for operating nuclear power reactors,” to remove the current requirement for licensees to immediately report nonemergency events that occur at operating nuclear power reactors. The petitioner states that licensees currently have procedures for responding to nonemergency events and ensuring that NRC resident inspectors are notified of nonemergency events independent of the requirements in § 50.72. The petitioner did not request removal of § 50.72 in its entirety, only the nonemergency notification requirements in § 50.72(b). The petitioner believes that “duplicative notifications under § 50.72 serve no safety function and are not needed to prevent or minimize possible injury to the public or to allow the NRC to take necessary action.”

The petitioner suggests that in lieu of the currently required notifications, the NRC should establish guidance for the resident inspectors that provides consistent and standard expectations for using the existing communication protocols that the petitioner claims have proven to be effective for communicating from the site to the resident inspectors and, from there, to NRC management.

On November 20, 2018, the NRC requested comments from the public on the petition and posed five specific questions to gain a better understanding of the scope and basis for the issues raised by the petitioner. The comment period ended on February 4, 2019, and the NRC received 16 public comments. Eleven comments (from NEI and nuclear power reactor licensees) supported the petition, one comment (from two private citizens) partially supported the petition, two comments (from a private citizen and a nongovernmental organization) opposed the petition, and two comments (from private citizens) were out of scope. The following is a summary of the comments organized by the specific questions in the notice of docketing.

In the first question, the NRC requested feedback on how stakeholders review and use the information contained in nonemergency event notifications, and how they would be affected if all nonemergency event notifications were eliminated. Two private citizens stated that they do not regularly review notifications on the NRC's website, but the information may be beneficial to maintain for public review. The same commenters supported the removal of redundancies in communication and suggested that the NRC maintain only those § 50.72 requirements that do not have a corresponding § 50.73, “Licensee event report system” report so the public is kept informed.

Several industry commenters also responded to this question. While their comments varied regarding the level of regular review of nonemergency event notifications, the consensus was that their organizations would not be adversely impacted by the elimination of the nonemergency reporting requirements of § 50.72. Several industry commenters stated that their primary sources of operating experience are § 50.73 licensee event reports (LERs), NRC inspection reports, NRC generic communications, and the Institute for Nuclear Power Operations (INPO) operating experience database. Several commenters also stated that § 50.72 event notifications are of little value because they do not contain sufficient information on which to base follow-up or corrective actions.

The second NRC question requested feedback on whether the public release of § 50.73 LERs alone meets the needs of the public and noted the three § 50.72 reporting requirements that do not have a corresponding § 50.73 LER. Two private citizens and a nongovernmental organization agreed that the NRC should retain those nonemergency event notifications that do not have a corresponding § 50.73 LER. For the remaining reporting requirements, the public comments were divided. Two private citizens suggested that redundant reporting requirements should be eliminated, and a third private citizen preferred maintaining the status quo for nonemergency event notifications. A nongovernmental organization stated that notification of plant shutdown, deviation from technical specifications, degraded conditions ( i.e., safety barriers), unanalyzed conditions, and system actuation should continue because the seriousness of some conditions may not be readily apparent.

Several industry members also provided comments in response to this question. In general, the industry commenters agreed that the information in the § 50.73 LERs provides more detail and context than § 50.72 event notifications. The commenters also concluded that generally, additional information beyond the § 50.73 LER ( e.g., from the INPO operating experience database) is necessary to meet the information needs of the industry in order to determine applicability and take corrective actions.

The third NRC question requested that stakeholders identify, from their perspectives, the most burdensome provisions in § 50.72. The NRC received several responses from members of the industry on this topic. Several commenters repeated concerns raised by the petition. In addition, the commenters provided additional insight to the potential burdens of the nonemergency reporting requirements of § 50.72. Specifically, one commenter expressed a concern that the training required to make infrequent event notifications detracts from training in other areas. Another commenter stated that subjective terms in the regulation, such as “seriously” (§ 50.72(b)(3)(ii)(A)), “significantly” (§ 50.72(b)(3)(ii)(B)), or “could” (§ 50.72(b)(3)(v)) foster strenuous debates within the licensee organization or between the licensee and the NRC. One commenter estimated that approximately 30 to 40 evaluations per licensee are performed per year and determined not to be reportable under § 50.72.

The fourth NRC question directly asked if stakeholders agree with the petitioner's assertion that § 50.72 nonemergency notifications are contrary to the best interests of the public and are contrary to the stated purpose of the regulation. The comments received from members of the public generally disagreed with the petitioner's assertion. Comments received from industry agreed with the petitioner's assertion.

The fifth NRC question requested feedback from stakeholders on potential alternatives to the petitioner's proposed changes that would address the concerns raised in the petition while still providing timely event information to the NRC and the public. Most of the comments received were from members of the industry and did not provide alternative approaches to the petitioner's proposed changes to § 50.72. One commenter stated that the NRC should eliminate the reporting requirements of §§ 50.72 and 50.73 on the basis that licensees already have access to various industry platforms in order to obtain pertinent operational experience information.

The NRC received other comments related to the petition, including specific comments on the basis and background of current requirements, the significance of a loss of safety function, and suggested alternatives to the timeliness requirements for submission of § 50.73 LERs.

The NRC reviewed the other public comments received and recommends consideration of these comments in the rulemaking process. The NRC uses the basis and background of the current requirements to inform the regulatory basis of any proposed rule. The staff will discuss the significance of the loss of a safety function in greater detail in its regulatory basis.

Regarding the suggested alternatives to the timeliness requirements for submission of a § 50.73 LER, the staff notes that this would result in a significant change to the reporting requirements of § 50.73. This change may also result in the NRC receiving less information regarding root causes of the events reported due to the more stringent time demand. The NRC intends to gather additional stakeholder feedback on this topic in the rulemaking process.

Although the petitioner requested elimination of the requirements for licensees to immediately report nonemergency events that occur at operating nuclear power plants, the underlying issue is whether the current nonemergency reporting requirements create an unnecessary reporting burden. The NRC will consider this issue in its rulemaking process. The NRC will evaluate the current requirements and guidance for immediate notification of nonemergency events for operating nuclear reactors, assess whether the requirements present an unnecessary reporting burden, and if they do, determine whether reporting can be reduced or eliminated that does not have a commensurate safety benefit. The NRC must preserve the ability to maintain situational awareness of significant events at nuclear power plants, and the visibility and openness of the event notifications to public stakeholders.

Assertion 1: § 50.72 is overdue for an update.

The petitioner states that the NRC has occasionally revised the notification and reporting requirements in §§ 50.72 and 50.73 based on accumulated operating experience to remove certain requirements that provided little or no safety benefit. The petitioner asserts that these regulations have not been updated in this manner since January 2001, and that the petition is based on the accumulation of additional operating experience.

NRC Evaluation: The NRC agrees with this assertion. The NRC acknowledges that it last updated notification and reporting requirements in § 50.72 in 2001 and that sufficient operating experience exists to consider an update to the reporting requirements in § 50.72(b). The staff performed an initial evaluation of each reporting requirement in § 50.72(b) and preliminarily determined that some nonemergency reporting requirements could be updated. The NRC agrees that the reporting requirements in § 50.72(b) should be assessed and will evaluate each reporting requirement in its rulemaking process.

Assertion 2: The § 50.72 nonemergency notifications are redundant with resident inspectors' communications to the NRC.

In support of this assertion, the petitioner states that resident inspectors are familiar with the design and operations of nuclear power plants and are trained how to react to events that occur at the site, including when to escalate issues to NRC management. The petitioner also claims that NRC licensees have procedures or practices in place that ensure notification of the resident inspector independent of the requirements of § 50.72, and that the nonemergency notifications under § 50.72 serve no unique safety function.

NRC Evaluation: The NRC disagrees with the assertion that § 50.72 nonemergency notifications to the Headquarters Operations Center (HOC)  1 are redundant with resident inspectors' communications to the NRC. The petitioner claims that licensees have procedures in place to ensure that resident inspectors are informed of these types of events and that the reports made under § 50.72 are duplicated by licensee verbal reports to the onsite NRC resident inspectors. The NRC notes that the notifications to the resident inspectors as described by the petitioner are voluntary initiatives performed by the licensees; the NRC does not require licensees to contact the resident inspector. If the NRC relies on voluntary practices alone to maintain awareness of the nonemergency events listed in § 50.72(b), then there is an increased risk of loss of situational awareness and the ability to make timely decisions with adequate information. The resident inspectors may receive voluntary reports from licensees but may not always be immediately available and are not expected to perform the communication duties assumed by the HOC. Headquarters Operations Officers (HOOs) are always on call and have special knowledge and communication tools to enable accurate and efficient collection and dissemination of information for all types of facilities. In addition, every call to the HOO is recorded to ensure accuracy of information. Adding this burden to the resident inspectors could impact their ability to provide adequate oversight of the nonemergency events and decrease the speed and quality of information sharing within the NRC about nonemergency events. Further, reliance on the Resident Inspectors picking up the reporting requirement undermines the basis for the rule change as it would recognize that the need for the reporting is still necessary, it would simply shift the responsibility from the licensee to the NRC.

Assertion 3: The § 50.72 nonemergency notifications distract key plant staff when they are addressing events.

The petitioner claims that elimination of the § 50.72(b) nonemergency notifications requirement would provide a safety benefit by allowing licensees to redirect technical and engineering resources away from procedural reporting compliance activities and toward assessment and corrective action activities immediately following nonemergency events.

NRC Evaluation: The NRC disagrees, in part, with this assertion. A wide variety of events are reportable in accordance with § 50.72. Likewise, the amount of effort expended to determine if the event in question is reportable varies widely. For example, a licensee should know immediately if it is issuing a press release or notifying another government agency, which is reportable under § 50.72(b)(2)(xi). The burden for reporting this event should be only the additional cost of calling the NRC HOO and reporting the event without a significant amount of internal deliberation by the licensee. The one-hour report for deviation from a technical specification in accordance with § 50.54(x) serves as an example reporting requirement that should be apparent to the licensee and require minimal resources to report. On the other hand, commenters on the petition noted that other events, such as unanalyzed conditions, are less apparent and require more resources to determine if they are reportable. The time estimates provided by the commenters varied significantly. The NRC also received public comments that question whether licensees have sufficient resources to respond to events if they do not have sufficient resources to determine if an event is reportable. This assertion also raises a concern that licensees do not have a sufficient understanding of the intent of § 50.72(b).

To address these concerns, the NRC would need to perform additional analysis on each reporting requirement to determine which reporting requirements are creating these issues. The NRC will gather additional input from external stakeholders to determine the best way to resolve these concerns.

In summary, it is likely that certain reporting requirements have significantly more impact on licensees than others. As part of the rulemaking process, the NRC will hold public meetings with licensees to better understand which requirements cause these issues and how best to address them.

Assertion 4: The § 50.72 nonemergency notifications that are not currently reported in a 60-day LER under § 50.73 are unrelated to reactor safety.

The petitioner asserts that the three § 50.72 nonemergency notifications that do not have a corresponding requirement for a 60-day LER under § 50.73 are unrelated to reactor safety. These three requirements are § 50.72(b)(2)(xi), involving a news release or notification to another government agency; § 50.72(b)(3)(xii), involving the transport of a radioactively contaminated person to an offsite medical facility; and § 50.72(b)(3)(xiii), involving a major loss of emergency assessment capability, offsite response capability, or offsite communications capability.

The petitioner states that the first two requirements are essentially “courtesy calls,” and resident inspectors can handle them. The petitioner claims that § 50.72(b)(3)(xiii) is a good example of a burdensome regulation that distracts licensee managers from the problems at hand. The petitioner claims that resident inspectors will be aware of these types of emergency preparedness problems. Furthermore, the petitioner claims that issues reported under § 50.72(b)(3)(xiii) will be captured in the licensee's corrective action program, reviewed by the resident inspector, and, as appropriate, captured in a subsequent quarterly inspection report that is made available to the public.

NRC Evaluation: The NRC disagrees, in part, with this assertion. The petitioner correctly points out the three kinds of § 50.72 event notifications that have no corresponding requirement for a LER pursuant to § 50.73. The NRC believes that these reports are important for other reasons not identified by the petitioner. Although the § 50.72(b)(2)(xi) and (3)(xii) events do not directly impact reactor safety, the § 50.72(b)(3)(xiii) notification allows the NRC to confirm that reasonable assurance of public health and safety and the common defense and security is maintained by quickly evaluating and ensuring that the licensee maintains its ability to effectively implement the emergency response plan or that the licensee has taken or is taking the appropriate compensatory measures to ensure the emergency plan can still be effectively implemented. The NRC may need to take immediate action in response to these events. For example, a major loss of assessment capability, without adequate compensatory measures put in place, could degrade or prevent a licensee's ability to successfully implement its emergency response plan and negatively affect the NRC's reasonable assurance determination. The NRC needs to be able to quickly assess the impact of the loss of assessment capability as well as the adequacy of the compensatory measure(s) put in place to address the loss, to allow for timely engagement with the licensee, if required.

The number of event reports under § 50.72(b)(3)(xiii) dropped significantly after NRC endorsement of NEI 13-01, “Reportable Action Levels for Loss of Emergency Preparedness Capabilities,” dated July 2014 in Supplement 1 to NUREG-1022, Revision 3, dated September 2014. Prior to the endorsement of NEI 13-01, the NRC received on the order of hundreds of reports per year under this requirement. After the endorsement of NEI 13-01, the NRC now receives approximately 50-60 reports per year. As explained in the statement of considerations for the 2000 final rule amending § 50.72, “Reporting Requirements for Nuclear Power Reactors and Independent Spent Fuel Storage Installations at Power Reactor Sites; Final Rule” (65 FR 63769, 63774; October 25, 2000), the 8-hour reports, such as § 50.72(b)(3)(xii) through (xiii), are for “events where there may be a need for the NRC to take an action within about a day, such as initiating a special inspection or investigation.” If the NRC accepts the petitioner's suggested changes and relies solely on licensees' voluntary calls to the resident inspectors, then the NRC may not be able to take appropriate action in a timely manner. The current requirements in § 50.72 establish timeliness requirements for notifying the NRC. If the NRC removed these requirements, then licensees would instead provide voluntary reports to resident inspectors based on each licensee's procedures, which may or may not impose timeliness expectations for notification of the resident inspector. For example, event response for nonemergency events could be delayed several days if an event, such as an actuation of the reactor protection system, occurs on a Friday night, and the resident inspector is not informed until Monday morning. Such a delay may impact the agency's ability to determine the appropriate response to an event in a timely manner. If, due to the delay in reporting, the NRC is delayed in this assessment and in potentially taking responsive action, public health and safety could be affected.

In addition, it may not be readily apparent to the public how the NRC communicates and utilizes information received under these reporting requirements. The HOO communicates this information to all the interested internal NRC stakeholders when these reports are made. The reports in § 50.72(b)(2)(xi) and (b)(3)(xii) are of particular interest to the agency in that they ensure that the NRC is aware of communications made to other agencies and is kept informed of situations that are of high public interest ( i.e., news releases and transport of contaminated personnel). An important factor for event notifications under § 50.72(b)(3)(xii) is the potential for radioactive materials on the contaminated individual to be removed from the site and distributed outside of the radioactivity-controlled area.

The petitioner claims that reports made under § 50.72(b)(2)(xi) and (b)(3)(xii) are essentially “courtesy calls” made to the NRC. The NRC notes that by the petitioner's own admission, licensees expend minimal effort to notify the NRC if a news release or notification to another government agency is made. In these cases, the reportability of these events should be readily apparent to the licensee and, therefore, cause little administrative burden beyond that of a call to the NRC HOO.

Regarding the claim that resident inspectors can handle these “courtesy calls,” in addition to the previous discussion regarding delayed communication, communicating these events only to the resident inspector could alter the direct and efficient communication structure via the HOO and replace it with an indirect structure that is less efficient at disseminating information within the NRC. Moreover, licensee calls to the NRC HOC are recorded to ensure accuracy of information but, under the petitioner's proposal, licensee conversations with resident inspectors would not be recorded. Since the NRC HOC infrastructure for dissemination of this information currently exists, the resident inspectors could report the information to the NRC HOC. But this shifts the responsibility of contacting the HOC from the licensee to the resident inspectors. In addition, the NRC HOC procedures would need to be updated to address any issues associated with this change, and the NRC would need to develop guidance for the resident inspectors to communicate nonemergency events to the NRC HOC. These changes would incur additional costs for training and equipment and may result in inconsistencies in the quality and timeliness of information about these events being shared within the NRC. This could potentially delay the NRC in the performance of its regulatory functions. The concerns with additional burden on resident inspectors if they are expected to communicate issues within the NRC are provided in the NRC's evaluation of Assertion 2.

The NRC needs to preserve the ability to respond effectively to events, maintain situational awareness, provide proper regulatory oversight, and maintain credibility with the public. The NRC intends to gather additional stakeholder feedback on this topic in the rulemaking process.

Assertion 5: The public will continue to be notified of the event in accordance with § 50.73.

The petitioner states that the fuller descriptions in LERs “provided within 60 days, as required by 10 CFR 50.73, are available to the public. Given that these are nonemergency events, this is sufficient for transparency purposes.”

NRC Evaluation: The NRC agrees, in part, with this assertion. The petitioner's claim that the public will be notified of the event in accordance with § 50.73 is correct, with the exception of the three reporting requirements in § 50.72, as discussed in Assertion 4, that do not have a corresponding reporting requirement in § 50.73: § 50.72(b)(2)(xi), (b)(3)(xii), and (b)(3)(xiii). For these reports, the NRC disagrees that the reporting requirements of § 50.73 are sufficient for the purposes of public transparency.

The NRC agrees with the petitioner's statement that LERs contain “fuller,” or more complete, descriptions of the reported event. The requirements of § 50.73 contain more detail regarding required content than the event notification requirements in § 50.72. The LERs generally contain a much more descriptive narrative of the event and the failure mechanisms involved.

In addition, the NRC received several public comments regarding timeliness of LERs. Two private citizens expressed support for the petition with the caveat that § 50.73 LERs should be moved to a 30-day reporting requirement to meet the needs of informing the public. However, such a significant change to the timing of the reporting requirements in § 50.73 may increase the burden on licensees and result in the NRC receiving less information regarding root causes of the events reported due to the more stringent time demand. Furthermore, even a 30-day reporting requirement for § 50.73 LERs would represent a significant reduction in timeliness for public notification compared to the current § 50.72 notification requirements. As part of the rulemaking, the NRC will consider how it would continue to provide timely notification of events to the public if it also alters timing requirements for notifications by licensees. The NRC intends to gather additional stakeholder feedback on this topic in the rulemaking process.

Assertion 6: The NRC has never taken any kind of action in response to prompt notifications.

The petitioner claims that the requirement to notify the NRC within 4 or 8 hours implies that the NRC would need to take action before the end of the 8-hour shift (for a 4-hour report) or soon after the shift turnover (for an 8-hour report). The petitioner claims that in the almost 40 years that this regulation has been in place, the NRC has never taken any kind of action in this tight timeframe to protect the public for one of these nonemergency events. The petitioner claims that there is no need for this type of prompt action, and that the NRC rarely dispatches inspection teams. The petitioner claims that notification from the resident inspector is more than sufficient for this kind of “prompt action.”

NRC Evaluation: The NRC disagrees with this assertion. The petitioner claims that the requirement to notify the NRC within 4 or 8 hours implies that the NRC would need to take action before the end of the 8-hour shift (for a 4-hour report) or soon after the shift turnover (for an 8-hour report). When the NRC receives these reports, the NRC HOO adds the items to a database for communication in a regular morning email. If there are items of interest ( e.g., complicated reactor scrams, emergency core cooling system injection) that indicate a need for prompt communication, the NRC HOO notifies interested NRC stakeholders via immediate phone calls as soon as the information from the event is put into the database. The NRC HOO may also issue to NRC management a “HOO Highlight” email. These events are typically communicated to staff and management within an hour of receipt of the notification.

There are several other actions that the NRC could take in response to these notifications. In the statement of considerations for the 2000 final rule, the Commission analyzed the intent of the timeliness requirements in § 50.72(b), and noted that the final provisions required 4-hour reporting, if the event was not reported in 1 hour, for an event or situation, related to the health and safety of the public or onsite personnel, or protection of the environment, for which a news release is planned or notification to other government agencies has been or will be made. The Commission stated that such an event may include an onsite fatality or inadvertent release of radioactively contaminated materials, and that this is the same as previously required. The Commission concluded that these reports are needed promptly because they involve events where there may be a need for the NRC to respond to heightened public concern.

The 2000 final rule also required 4-hour reporting, if the event was not reported in 1 hour, for unplanned transients. The Commission explained that these are events where there may be a need for the NRC to take a reasonably prompt action, such as partially activating its response plan to monitor the course of the event. For the remaining events reportable under § 50.72, the final rule required 8-hour reporting, if not reported in 1 hour or 4 hours; these are events where there may be a need for the NRC to take an action within about a day, such as initiating a special inspection or investigation.

Since the implementation of the 2000 final rule, the NRC has taken various prompt actions in response to event notifications under § 50.72(b). For example, the nonemergency event notifications serve as a potential trigger for Management Directive (MD) 8.3, “NRC Incident Investigation Program,” evaluations, which may or may not result in a reactive inspection in response to the event.

The NRC performed a total of 140 reactive inspections from 2006 to 2018, an average of approximately 11 reactive inspections per year. In the period from 2006 to 2012, the NRC performed an average of approximately 14 reactive inspections per year. In the period from 2013 to 2018, the NRC performed an average of approximately 7 reactive inspections per year. In 2018, the NRC performed 4 reactive inspections. Even though the total number of reactive inspections has declined over the past 12 years, the NRC still performs several reactive inspections per year. In addition to these reactive inspections, there are more events for which the agency performs an MD 8.3 evaluation. For those evaluations where baseline inspection is recommended (no reactive inspection), the regions occasionally dispatch additional inspectors to the site to respond to nonemergency events. There are also cases, such as the dual unit trip at the Calvert Cliffs Nuclear Power Plant in 2015 (Event Notification 50961), where the NRC performed an MD 8.3 evaluation and decided to perform a reactive inspection within approximately 24 hours (“Calvert Cliffs Nuclear Power Plant Units 1 and 2—NRC Special Inspection Report 05000317/2015009 and 05000318/2015009,” dated May 27, 2015).

The NRC also routinely receives inquiries from reporters and members of the public regarding events at nuclear power stations. The nonemergency event notifications provide timely notification of events for those situations where the agency may need to respond to heightened public concern. For example, the Calvert Cliffs dual unit trip resulted in local news media coverage. Wholesale removal of these reporting requirements could render the agency unable to respond effectively to public requests for information.

Finally, depending on the nature of the nonemergency event, the agency may need to activate its response plan. At the Pilgrim Nuclear Power Station, winter storm Juno in January 2015 caused a loss-of-offsite power that caused a reactor trip (see Event Notification 50769). Then, about 10 hours later, a second event notification, 50771, was made due to complications with the plant response and failed mitigating systems. At that point, the NRC's Incident Response Center entered into Monitoring mode for this complicated event even though emergency plan activation criteria were not met.

The petitioner claims that the NRC dispatches inspection teams for only 1% of nonemergency events. However, the petitioner's statement does not recognize the actions taken by the NRC prior to dispatching these inspection teams. As discussed earlier in this section, the NRC sends inspection teams to nuclear power plants several times a year. The notifications made under § 50.72 serve as a potential trigger for the resident inspectors and regional staff to perform an MD 8.3 evaluation. The MD 8.3 evaluation assesses an event against several criteria to determine if the NRC should, in response to an event, (1) handle the issue in the baseline inspection program, (2) dispatch a special inspection team to investigate the event, or (3) dispatch an augmented inspection team to investigate the event in greater detail. The NRC may initiate an MD 8.3 evaluation as soon as a report is received, depending on the event.

Based on these reasons and examples, the NRC disagrees with the petitioner's assertion that the NRC has never taken any kind of action in response to these types of prompt event notifications or that these types of “prompt actions” are not needed.

Assertion 7: The § 50.72 nonemergency notification requirements are contrary to the NRC's principles of good regulation, specifically efficiency and openness.

As set forth in NUREG-1614, Volume 7, “Strategic Plan: Fiscal Years 2018-2022,” the NRC's principle of efficiency states, in part, “Regulatory activities should be consistent with the degree of risk reduction they achieve. Where several effective alternatives are available, the option which minimizes the use of resources should be adopted.” The petitioner argues that the burden of these requirements is not consistent with the degree of risk reduction achieved for the reasons discussed in the petition. Several commenters provided additional details about burdens associated with these requirements, including developing and maintaining procedures and training, screening events for possible reporting, over-reporting, retracting notifications determined to be unnecessary, and recordkeeping. The petitioner and several commenters state that the limited benefit to the NRC and the public from these notifications is not commensurate with the time and resources expended. The petitioner states that there are currently two pathways for communicating similar information, and the more efficient pathway that optimizes resources and also communicates more information should be the one that is adopted. The petitioner believes that the more efficient pathway is from the licensee to a resident inspector and then from the resident inspector to NRC regional management.

Regarding the principle of openness, the petitioner states that a perceived benefit of the current § 50.72 requirements is that information is provided to the public. However, the petitioner states that the public availability of LERs under § 50.73 within 60 days is sufficient for transparency purposes given that these are nonemergency events. The NRC's response to this view is included in its evaluation of Assertion 5.

NRC Evaluation: The NRC disagrees that the reporting requirements of § 50.72 are contrary to the other principles of good regulations. The NRC agrees in part with the petitioner's claim that the reporting requirements of § 50.72 should be evaluated for efficiency. However, as discussed previously, the reporting requirements vary greatly by number of reports per year and the amount of time licensees may spend deciding whether a specific reporting requirement has been met. Therefore, the NRC will consider this issue in its rulemaking process, where the NRC may solicit public input to help determine the best course of action to address the petitioner's concerns.

The NRC agrees in part that LERs meet the informational needs of the public, except in those cases where an event causes immediate heightened public concern. These cases may include press releases, emergency response to the site, failures or inadvertent actuation of emergency sirens, notification of other government agencies, or the transport of contaminated individuals from the site, and openness and efficiency is of utmost importance.

Regarding the principle of independence, the nonemergency reporting requirements in § 50.72 support the concept of seeking all available facts and opinions from licensees. Specifically, the nonemergency reporting requirements support this principle in that licensees notify the NRC of events of interest. The intent of the rule is to support the capability of the NRC to make timely decisions and to provide adequate assurances regarding actual or potential threats to public health and safety. This depends heavily on the rapidity with which significant events are communicated by nuclear power reactor licensees to NRC. The NRC has an obligation to collect facts quickly and accurately about significant events, assess the facts, take necessary action, and inform the public about the extent of the threat, if any, to public health and safety. Notification of these nonemergency events in a timely manner allows the agency to perform an independent assessment of the event and take appropriate action, if necessary.

Regarding reliability, the NRC acknowledges that § 50.72 has not been updated since 2001. During the rulemaking process, the NRC will evaluate the additional operating and regulatory experience gained since 2001 and determine if any changes are necessary to the nonemergency reporting requirements of § 50.72.

Assertion 8: The purpose and objectives of § 50.72 will continue to be fully met if the requested amendments are made.

The petitioner claims that the purpose and objectives of § 50.72 will continue to be fully met if the NRC grants the petitioner's request to remove the nonemergency reporting requirements contained in § 50.72(b). The petitioner bases the request on the existence of voluntary procedures to inform resident inspectors.

NRC Evaluation: For the reasons listed in the responses to the assertions in this section of this document, the NRC disagrees in general that the intent of § 50.72 would be fully met if the requested amendments were implemented as stated; however, the NRC intends to assess this claim in the rulemaking process to determine whether the NRC can eliminate any requirements within § 50.72 (due to being unnecessarily burdensome) and still preserve the purposes and objectives of § 50.72. The NRC needs to maintain the ability to respond effectively to events, maintain situational awareness, provide proper regulatory oversight, and preserve credibility with the public.

Assertion 9: Rulemaking is the preferred solution to deal with the petitioner's concerns.

NRC Evaluation: The NRC agrees, in part, that the rulemaking process can evaluate and potentially resolve the petitioner's underlying concerns associated with unnecessary burden caused by requirements associated with nonemergency event notifications. The NRC will address this issue in the rulemaking process. The NRC disagrees with the petitioner's proposed changes that would eliminate all nonemergency reporting requirements in § 50.72. Rulemaking will enable the NRC to evaluate the reporting criteria in § 50.72(b) on a case-by-case basis to determine if the reporting requirements should be modified ( e.g., changing the timeliness or method of reporting requirements or eliminating or adding requirements). The NRC will hold public meetings with stakeholders throughout the rulemaking process to better understand which requirements have the greatest impact on industry and the public. It may be possible to address some of these concerns by clarifying regulatory guidance.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

For the reasons cited in this document, the NRC will consider the petition in the rulemaking process. The NRC will evaluate the current requirements and guidance for immediate notification of nonemergency events for operating nuclear power reactors, assess whether the requirements present an unnecessary reporting burden, and if they do, determine whether reporting can be reduced or eliminated that does not have a commensurate safety benefit.

The NRC tracks the status of all rules and PRMs on its website at https://www.nrc.gov/about-nrc/regulatory/rulemaking/rules-petitions.html. The public may monitor the docket for the rulemaking on the Federal rulemaking website, https://www.regulations.gov, by searching on Docket ID NRC-2020-0036. Publication of this document in the Federal Register closes Docket ID NRC-2018-0201 for PRM-50-116.

Please refer to Docket ID NRC-2021-0124 when contacting the NRC about the availability of information for this action. You may obtain publicly- available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2021-0124. Address questions about NRC dockets to Dawn Forder, telephone: 301-415-3407, email: Dawn.Forder@nrc.gov. For technical questions contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

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

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

Please include Docket ID NRC-2021-0124 in your comment submission. The NRC requests that you submit comments through the Federal rulemaking website at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

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

Because the NRC considers this action to be non-controversial, the NRC is publishing this proposed rule concurrently with a direct final rule in the Rules and Regulations section of this issue of the Federal Register . The direct final rule will become effective on October 26, 2021. However, if the NRC receives any significant adverse comment by September 13, 2021, then the NRC will publish a document that withdraws the direct final rule. If the direct final rule is withdrawn, the NRC will address the comments in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action in the event the direct final rule is withdrawn.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule.

For a more detailed discussion of the proposed rule changes and associated analyses, see the direct final rule published in the Rules and Regulations section of this issue of the Federal Register .

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “[t]he Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on March 24, 2017 (82 FR 14987), as corrected (82 FR 34387; July 25, 2017), that approved the TN Americas LLC NUHOMS® EOS Dry Spent Fuel Storage System design and added it to the list of NRC-approved cask designs in § 72.214, “List of approved spent fuel storage casks,” as Certificate of Compliance No. 1042.

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

The documents identified in the following table are available to interested persons as indicated.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2021-0124.

Title III, Part B  1 of the Energy Policy and Conservation Act, as amended (“EPCA”), 2 established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) These products include kitchen ranges and ovens, which encompass microwave ovens, the subject of this NOPD. (42 U.S.C. 6292(a)(10))

DOE is issuing this NOPD pursuant to the EPCA requirement that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking (“NOPR”) including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m))

For this proposed determination, DOE analyzed microwave ovens subject to standards specified in 10 CFR 430.32(j)(3).

DOE first analyzed the technological feasibility of microwave ovens with lower energy use. For those microwave ovens for which DOE determined higher standards to be technologically feasible, DOE estimated energy savings that would result from potential energy conservation standards by using the same approach as when it conducts a national impacts analysis.

Based on the results of the analyses, summarized in section V of this document, DOE has tentatively determined that current standards for microwave ovens do not need to be amended.

The following section briefly discusses the statutory authority underlying this proposed determination, as well as some of the historical background relevant to the establishment of standards for microwave ovens.

EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include kitchen ranges and ovens, which include microwave ovens, the subject of this document. (42 U.S.C. 6292(a)(10)) EPCA prescribed energy conservation standards for kitchen ranges and ovens and directed DOE to conduct two cycles of rulemakings to determine whether to amend standards for these products. (42 U.S.C. 6295(h)(2)(A)-(B))

The energy conservation program for covered products under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) the establishment of 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).

Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(o)(3)(A) and 42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 42 U.S.C. 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for microwave ovens appear at title 10 of the Code of Federal Regulations (“CFR”) part 430.23(i) and 10 CFR part 430, subpart B, appendix I (“Appendix I”).

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

Pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures for microwave ovens address standby mode and off mode energy use. In this analysis, DOE considers such energy use in its determination of whether energy conservation standards need to be amended.

DOE must periodically review its already established energy conservation standards for a covered product no later than 6 years from the issuance of a final rule establishing or amending a standard for a covered product. (42 U.S.C. 6295(m)) This 6-year look-back provision requires that DOE publish either a determination that standards do not need to be amended or a NOPR, including new proposed standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) EPCA further provides that, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6295(m)(2))

A determination that amended standards are not needed must be based on consideration of whether amended standards will result in significant conservation of energy, are technologically feasible, and are cost-effective. (42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)) Additionally, any new or amended energy conservation standard prescribed by the Secretary for any type (or class) of covered product shall be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Among the factors DOE considers in evaluating whether a proposed standard level is economically justified includes whether the proposed standard at that level is cost-effective, as defined under 42 U.S.C. 6295(o)(2)(B)(i)(II). Under 42 U.S.C. 6295(o)(2)(B)(i)(II), an evaluation of cost-effectiveness requires DOE to consider savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard. (42 U.S.C. 6295(n)(2) and 42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE is publishing this NOPD in satisfaction of the 6-year review requirement in EPCA.

In a final rule published on June 17, 2013 (“June 2013 Final Rule”), DOE prescribed the current energy conservation standards for microwave ovens manufactured on or after June 17, 2016. 78 FR 36316. These energy conservation standards address standby mode and off mode energy use and prescribe the maximum allowable average standby power in watts (“W”) as set forth in 10 CFR 430.32(j)(3) and repeated in Table II-1 of this document.

EPCA prescribed an energy conservation standard for kitchen ranges and ovens, 3 and directed DOE to conduct two cycles of rulemakings to determine whether to amend standards for these products. (42 U.S.C. 6295(h)(2)(A)-(B)) DOE completed the first of these rulemaking cycles by publishing a final rule on September 8, 1998, that codified the prescriptive design standard for gas cooking products established in EPCA, but found that no standards were justified for electric cooking products, including microwave ovens, at that time. 63 FR 48038, 48053-48054. DOE completed the second rulemaking cycle and published a final rule on April 8, 2009, in which it determined, among other things, that standards for microwave oven active mode energy use were not economically justified. 74 FR 16040 (“April 2009 Final Rule”).

Most recently, DOE published the June 2013 Final Rule, adopting energy conservation standards for microwave ovens. 78 FR 36316. In the June 2013 Final Rule, DOE maintained its prior determination that active mode standards are not warranted for microwave ovens and prescribed energy conservation standards that address the standby and off mode energy use of microwave ovens. 78 FR 36316, 36317.

In support of the present review of the microwave oven energy conservation standards, DOE published a request for information (“RFI”) on August 13, 2019 (“August 2019 RFI”), which identified various issues on which DOE sought comment to inform its determination of whether the standards need to be amended. 84 FR 39980.

DOE received six comments in response to the August 2019 RFI from the interested parties listed in Table II-2.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the comments in the public record. 4

DOE developed this proposed determination after considering comments and information from interested parties that represent a variety of interests. This NOPD addresses issues raised by these commenters.

When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used or by capacity or other performance-related features that justify differing standards. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE determines are appropriate. (42 U.S.C. 6295(q)) The microwave oven classes for this proposed determination are discussed in further detail in section IV.B.4 of this document. This proposed determination covers microwave ovens defined as household cooking appliances consisting of a compartment designed to cook or heat food by means of microwave energy, including microwave ovens with or without thermal elements designed for surface browning of food and convection microwave ovens. This includes any microwave oven components of a combined cooking product. 10 CFR 430.2. The scope of coverage is discussed in further detail in section IV.B.1 of this document.

EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the energy use of their product. (42 U.S.C. 6295(s) and 42 U.S.C. 6293(c)) DOE's current energy conservation standards for microwave ovens are expressed in terms of average watts of standby mode power consumption. See 10 CFR 430.23(j)(3). DOE originally established test procedures for microwave ovens in an October 3, 1997 final rule that addressed active mode energy use only. 62 FR 51976. Those procedures were based on the International Electrotechnical Commission (“IEC”) Standard 705—Second Edition 1998 and Amendment 2-1993, “Methods for Measuring the Performance of Microwave Ovens for Households and Similar Purposes” (“IEC Standard 705”). On July 22, 2010, DOE published in the Federal Register a final rule for the microwave oven test procedures (“July 2010 Repeal Final Rule”), in which it repealed the regulatory test procedures for measuring the cooking efficiency of microwave ovens. 75 FR 42579. In the July 2010 Repeal Final Rule, DOE determined that the existing microwave oven test procedure did not produce representative and repeatable test results. 75 FR 42579, 42580. DOE stated at that time that it was unaware of any test procedures that had been developed that address these concerns. 75 FR 42579, 42581.

On March 9, 2011, DOE published an interim final rule establishing test procedures for microwave ovens regarding the measurement of the average standby mode and average off mode power consumption that incorporated by reference specific clauses from the IEC Standard 62301, “Household electrical appliances—Measurement of standby power,” First Edition 2005-06 (“IEC Standard 62301 (First Edition)”). 76 FR 12825. On January 18, 2013, DOE published a final rule amending the microwave oven test procedure to incorporate by reference certain provisions of the revised IEC Standard 62301 Edition 2.0 2011-01, along with clarifying language for the measurement of standby mode and off mode energy use. 78 FR 4015.

On December 16, 2016, DOE published a final rule (“December 2016 TP Final Rule”) amending the cooking products test procedure to, in part, incorporate methods for calculating the annual standby mode and off mode energy consumption of the microwave oven component of a combined cooking product by allocating a portion of the combined low-power mode energy consumption measured for the combined cooking product to the microwave oven component using the estimated annual cooking hours for the given components comprising the combined cooking product. 81 FR 91418, 91438-91439. That final rule, which resulted in the most recent version of the microwave oven test procedure, was codified in the CFR at Appendix I.

On January 18, 2018, DOE published an RFI (“January 2018 RFI”) initiating a data collection process to assist in its evaluation of the test procedure for microwave ovens. 83 FR 2366. On November 14, 2019, DOE published a NOPR (“November 2019 TP NOPR”) proposing amendments to the existing test procedure with requirements for both the clock display and network functionality when testing standby mode and off mode power consumption and certain technical corrections. 84 FR 61836. DOE subsequently published an SNOPR on August 3, 2021 (“August 2021 TP SNOPR”) providing additional clarification on the requirements for testing microwave ovens with network functionality. 86 FR 41759.

In evaluating potential amendments to energy conservation standards, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the determination. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially available products or in working prototypes to be technologically feasible. 10 CFR part 430, subpart C, appendix A, sections 6(c)(3)(i) and 7(b)(1).

After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; (3) adverse impacts on health or safety; and (4) unique-pathway proprietary technologies. 10 CFR part 430, subpart C, appendix A, sections 6(c)(3)(ii)-(v) and 7(b)(2)-(5). Section IV.B.3 of this document discusses the results of the screening analysis for microwave ovens, particularly the designs DOE considered, those it screened out, and those that are the basis for the standards considered in this proposed determination.

As when DOE proposes to adopt an amended standard for a type or class of covered product, in this analysis it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such a product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (“max-tech”) improvements in energy efficiency for microwave ovens, using the design parameters for the most efficient products available on the market or in working prototypes. The max-tech levels that DOE determined for this analysis are described in section IV.C of this proposed determination.

For each efficiency level (“EL”) evaluated using the tools developed for the June 2013 Final Rule, 5 DOE projected energy savings from application of the EL to the microwave ovens purchased in the 30-year period that begins in the assumed year of compliance with the potential standards (2024-2053). The savings are measured over the entire lifetime of the microwave ovens purchased in the 30-year period. DOE quantified the energy savings attributable to each EL as the difference in energy consumption between each standards case and the no-new-standards case. The no-new-standards case represents a projection of energy consumption that reflects how the market for a product would likely evolve in the absence of amended energy conservation standards. DOE used the methodology from its national impact analysis to estimate national energy savings (“NES”) from potential amended standards for microwave ovens. The methodology calculates energy savings in terms of site energy, which is the energy directly consumed by products at the locations where they are used.

In determining whether amended standards are needed, DOE must consider whether such standards will result in significant conservation of energy. (42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(o)(3)(B)) Although the term “significant” is not defined in the EPCA, the U.S. Court of Appeals, for the District of Columbia Circuit in Natural Resources Defense Council v. Herrington, 768 F.2d 1355, 1373 (D.C. Cir. 1985), opined that Congress intended “significant” energy savings in the context of EPCA to be savings that were not “genuinely trivial.”

Historically, DOE did not provide specific guidance or a numerical threshold for determining what constitutes significant conservation of energy. Instead, DOE determined on a case-by-case basis whether a particular rulemaking would result in significant conservation of energy. In a final rule published February 14, 2020, DOE adopted a numerical threshold for significant conservation of energy. 85 FR 8626, 8670. Specifically, the threshold requires that an energy conservation standard result in a 0.30 quadrillion British thermal units (“quads”) reduction in site energy use over a 30-year analysis period or a 10-percent reduction in site energy use over that same period. Id. Although a numeric threshold may serve as an informative guide, the significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. For example, the United States has now rejoined the Paris Agreement and will exert leadership in confronting the climate crisis. 6 Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with relatively constant demand. Further establishing a set, numerical site energy threshold for all covered products and equipment does not allow DOE to account for differences in primary energy and full-fuel-cycle (“FFC”) effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a more complete picture of the impacts of energy conservation standards. Accordingly, in a two part NOPR process, the first of which published on April 12, 2021 and part two on July 7, 2021, DOE reconsidered the numerical threshold process for determining significance of energy savings and whether to revert to its prior practice of making such determinations on a case-by-case basis. 86 FR 18901, 35668. Currently, under section 6(b) of appendix A to 10 CFR part 430 subpart C (“Process Rule”), if DOE determines that a more stringent energy conservation standard would not result in an additional 0.3 quads of site energy savings or an additional 10-percent reduction in site energy use over a 30-year period, DOE would propose to make a no-new standards determination.

Under EPCA's six-year-lookback review provision for existing energy conservation standards at 42 U.S.C. 6295(m)(1), cost-effectiveness of potential amended standards is a relevant consideration both where DOE proposes to adopt such standards, as well as where it does not. In considering cost-effectiveness when making a determination of whether existing energy conservation standards do not need to be amended, DOE considers the savings in operating costs throughout the estimated average life of the covered product compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(m)(1)(A)( referencing 42 U.S.C. 6295(n)(2))) Additionally, any new or amended energy conservation standard prescribed by the Secretary for any type (or class) of covered product shall be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is technologically feasible and economically justified. 42 U.S.C. 6295(o)(2(A) Cost-effectiveness is one of the factors that DOE must ultimately consider under 42 U.S.C. 6295(o)(2)(B) to support a finding of economic justification, if it is determined that amended standards are appropriate under the applicable statutory criteria. (42 U.S.C. 6295(o)(2)(B)(i)(II)))

This section addresses the analyses DOE performed for this proposed determination regarding microwave ovens. Separate subsections address components of DOE's analyses as performed for the June 2013 Final Rule. DOE used a national impact analysis methodology and calculated the NES expected to result from potential energy conservation standards.

As part of the January 2018 RFI, DOE requested information on the feasibility of establishing an active mode test procedure for microwave ovens, including convection microwave ovens. 83 FR 2566, 2570. Similarly, in the August 2019 RFI, DOE requested comment and information on whether standards for microwave ovens in active mode were justified and on the feasibility of incorporating active mode, standby mode and off mode energy use into a single standard if DOE were to develop an active mode test procedure. 84 FR 39980, 39983.

In response to the August 2019 RFI, DOE received several comments related to active mode energy conservation standards. GE Appliances stated that there is no justification for active mode energy conservation standards due to the insufficient energy savings and lack of economic benefit. (GE Appliances, No. 5 at p. 2) GE Appliances and AHAM also stated that no other country currently requires active mode testing for microwave oven energy conservation standards, with AHAM adding that a requirement for active mode measurement would put the United States at odds with other countries, be unduly burdensome, and would require 5-6 times the current test time. (GE Appliances, No. 5 at p. 2 and AHAM, No. 6 at p. 2) AHAM stated that if DOE were to amend the test procedure to address active mode energy use, DOE would need to seek information again on energy conservation standards for microwave ovens as the test procedure affects the standards analysis. (AHAM No. 5, at p. 2)

AHAM further commented that it does not believe that standards would be justified for active mode because, to AHAM's knowledge, there is no technology currently available to reduce energy use in the active mode for either microwave-only ovens or convection microwave ovens. AHAM stated that there is no evidence to indicate that DOE's prior analysis and determination in the April 2009 Final Rule that active mode standards for microwave ovens would not be economically justified would be different today. The CA IOUs provided comments in support of incorporating active mode energy usage into microwave oven efficiency standards, stating that active mode accounts for 80 percent of annualized unit energy consumption for microwave ovens. (CA IOUs, No. 7 at p. 3) ASAP and CEC encouraged DOE to adopt an active mode test procedure for microwave ovens, stating that active mode energy consumption is almost 90 percent of the total annual energy consumption for microwave ovens, and that there is significant variation in active mode energy use among models. ASAP and CEC added that it likely is not technically feasibility to incorporate active mode, standby mode, and off mode into a single energy use metric. (ASAP and CEC, No. 8 at p. 1)

As stated, the DOE test procedure does not measure active mode energy use of microwave ovens. DOE considered in the most recent microwave oven test procedure rulemaking whether to adopt provisions for measuring the energy use of microwave ovens in active mode. In the November 2019 TP NOPR, DOE made an initial determination that an active mode measurement for microwave ovens would be unduly burdensome at this time due to the expected increase in testing cost resulting from increased testing time and the potential need for new laboratory equipment and facility upgrades that would not be justified. 84 FR 61838. Therefore, DOE did not propose an active mode test procedure in the November 2019 TP NOPR. Accordingly, DOE did not consider energy conservation standards for active mode energy use of microwave ovens in this NOPD.

Additionally, consistent with AHAM's comment, DOE is unaware of changes to the market or available technology that would suggest DOE's previous determination in the April 2009 Final Rule that an energy conservation standard for microwave oven active mode would not be technologically feasible and economically justified would be different at the present time. See 74 FR 16040, 16087.

DOE develops information in the market and technology assessment that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment for this proposed determination include (1) a determination of the scope and product classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends, and (6) technologies or design options that could improve the energy efficiency of microwave ovens. The key findings of DOE's market assessment are summarized in the following sections.

In this analysis, DOE relied on the definition of microwave ovens in 10 CFR 430.2, which defines “microwave oven” as household cooking appliances consisting of a compartment designed to cook or heat food by means of microwave energy, including microwave ovens with or without thermal elements designed for surface browning of food and convection microwave ovens. This includes any microwave oven components of a combined cooking product. Any product meeting the definition of microwave oven is included in DOE's scope of coverage.

For this proposed determination, DOE considered the two product classes of microwave ovens prescribed in the current energy conservation standards: (1) Microwave-Only Ovens and Countertop Convection Microwave Ovens, and (2) Built-In and Over-the-Range Convection Microwave Ovens. Section IV.B.4 of this document describes the two product classes in additional detail.

As previously stated in section III.B of this document, for these two classes of microwave ovens, DOE's current test procedure measures the energy consumption in standby mode and off mode only. Consequently, DOE's current energy conservation standards for microwave ovens are also expressed in terms of standby mode and off mode power. There are currently no active mode energy conservation standards nor a prescribed test procedure for measuring the active mode energy use or efficiency ( e.g., cooking efficiency) of microwave ovens.

GE Appliances stated that using the microwave oven standards to regulate combined cooking products would improperly regulate the non-microwave portion of the combined product. (GE Appliances, No. 5 at p. 2) AHAM stated that there is no technological method to accurately measure the standby mode and off mode power consumption of the microwave oven portion of a combined cooking product, as a combined cooking product typically has one power source. (AHAM, No. 6 at p. 4)

In a final rule published on August 18, 2020 (“August 2020 TP Final Rule), DOE withdrew the test procedure for conventional cooking tops, determining that it was not representative of energy use or efficiency during an average use cycle and was overly burdensome to conduct. 85 FR 50757. As part of the August 2020 TP Final Rule, DOE removed provisions for measuring the energy use of combined cooking products, which are household cooking appliances that combine a cooking product with other appliance functionality ( e.g., microwave/conventional cooking tops, microwave/conventional ovens, and microwave/conventional ranges.) Id. The current test procedure for measuring standby mode and off mode power consumption for microwave ovens excludes the microwave oven component of a combined cooking product. Appendix I, Section 3.2.1.

DOE also received several comments related to microwave ovens equipped with connected functionality in response to the August 2019 RFI. EEI stated that DOE should update the current microwave oven standby mode requirements to account for new technologies, including the integration of “smart” devices with demand response functionality. (EEI, No. 4 at p. 2) EEI stated that, to the extent that energy use of a “connected” function is measured, the current energy conservation standards for microwave ovens may impede the inclusion of such functions. Id. EEI suggested DOE should revise the microwave oven standby power requirements to contain three categories of microwave oven operation: standby and non-connected, standby and connected, and standby and disconnected. (EEI, No. 3 at p. 2) AHAM urged DOE not to revise the microwave oven test procedure or standards to account for the energy consumed while performing connected functions to avoid stifling innovation and potential energy saving benefits. (AHAM, No. 6 at p. 7) Based on a review of manufacturer websites and user manuals of various appliances, as well as testing conducted at DOE and third-party laboratories, connected features continue to be implemented in a variety of ways across different brands. Further, the design and operation of these features is continuously evolving as the market continues to grow for these products. Because there are a lack of available data to establish a representative test configuration for assessing the energy consumption of network functionality for microwave ovens, DOE, in the August 2021 TP SNOPR, proposed explicit language to generally require network functions to be disabled during testing. 86 FR 41759. As such, DOE is not addressing energy consumption specific to connected functions in this proposed determination.

To develop a list of technology options, DOE uses information about existing and past technology options and prototype designs to help identify technologies that manufacturers could use to meet and/or exceed a given set of energy conservation standards under consideration.

In the August 2019 RFI, DOE identified several technology options that would be expected to reduce the energy consumption of microwave ovens in standby mode and off mode, as measured by the DOE test procedure. 84 FR 39980, 39984-39985.

DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:

(1) Technological feasibility. Technologies that are not incorporated in commercial products or in working prototypes will not be considered further.

(2) Practicability to manufacture, install, and service. If it is determined that mass production and reliable installation and servicing of a technology in commercial products could not be achieved on the scale necessary to serve the relevant market at the time of the projected compliance date of the standard, then that technology will not be considered further.

(3) Impacts on product utility or product availability. If it is determined that a technology would have significant adverse impact on the utility of the product to significant subgroups of consumers or would result in the unavailability of any covered product type with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as products generally available in the United States at the time, it will not be considered further.

(4) Adverse impacts on health or safety. If it is determined that a technology would have significant adverse impacts on health or safety, it will not be considered further.

(5) Unique-Pathway Proprietary Technologies. If a design option utilizes proprietary technology that represents a unique pathway to achieving a given efficiency level, that technology will not be considered further.

10 CFR part 430, subpart C, appendix A, sections 6(c)(3) and 7(b). In summary, if DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis.

Regarding impacts of technology options on costs, DOE does not consider cost as a factor for screening out technology options. DOE considers the economic impacts and costs on individual customers, manufacturers, and the nation in later analyses.

DOE received several comments on technology options in response to the August 2019 RFI. Whirlpool stated that all feasible technology options are currently used in microwave ovens to meet DOE's current energy conservation standards. (Whirlpool, No. 3 at p. 1) GE Appliances stated that all available and economically feasible technologies are being used in microwave ovens. (GE Appliances, No. 5 at p. 2) AHAM commented that all technology options are being employed to meet current energy conservation standards, and that it is not aware of any new technologies that increase the efficiency of microwave ovens without decreasing consumer utility. (AHAM, No. 6 at p. 4) AHAM also stated that most microwave ovens on the market are minimally compliant with the current standards, and that these units are already using the available technology options. (AHAM, No. 6 at p. 5) Whirlpool stated that additional reduction in standby mode power consumption would jeopardize key functionalities demanded by consumers, would be technologically impractical, and would be cost prohibitive. (Whirlpool, No. 3 at p. 1) CA IOUs urged DOE to investigate more stringent microwave oven standby mode standards, stating that there is evidence that technological limitations have changed since the last rulemaking. The CA IOUs commented that 33 percent of microwave-only ovens and countertop convection microwave ovens and 11 percent of built-in and over-the-range convection microwave ovens are performing better than the current standards. (CA IOUs, No. 7 at p. 1) ASAP and CEC commented that there are a range of potential intermediate efficiency levels between the current standards and the max-tech levels from the previous final rule, citing data from DOE's Compliance Certification Database, 7 which shows that for microwave-only and countertop convection microwave ovens, the models with the lowest standby power consumption consume just 0.10-0.19 W and for built-in and over-the-range convection microwave ovens, the models with the lowest standby power consumption consume 0.50-0.59 W.

DOE notes that nearly 30 percent of microwave-only ovens and countertop convection microwave ovens and 20 percent of built-in and over-the-range convection microwave ovens certified in the Compliance Certification Database exceed the minimum requirements for standby mode and off mode energy use ( i.e., have standby power consumption that is lower than the applicable standard). The Compliance Certification Database data indicates that technology options to achieve efficiencies higher than the current DOE standard readily exists without jeopardizing key functionalities. Consistent with the screening criteria previously discussed, DOE's engineering analysis considered technologies that are technologically feasible and that do not have significant adverse impacts on the utility of the microwave ovens to significant subgroups of consumers or that would result in the unavailability of any microwave oven with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as products generally available in the United States.

As discussed, DOE takes into account whether a technology option will adversely impact consumer utility and product availability. In response to the August 2019 RFI, GE Appliances stated that clock displays are a critical function of microwave ovens. (GE Appliances, No. 5 at p. 2) Similarly, AHAM stated that an automatic power-down feature that shuts off the clock display decreases consumer utility, and that maintaining the clock display is critical. (AHAM, No. 6 at p. 6)

DOE has previously stated it is uncertain how greatly consumers value the function of a continuous display clock, but that loss of such function may result in significant loss of consumer utility. 78 FR 36316, 36362. Consistent with this prior concern and with comments provided by AHAM, DOE has screened out “automatic power-down” as a technology option due to its impact on consumer utility.

After reviewing each technology, DOE did not screen out the following technology options and considers them as design options in the engineering analysis:

AHAM stated that cooking and humidity sensors identified by DOE take longer to re-energize, pre-condition, and calibrate, and are not applicable for the on-demand operational requirements of microwave ovens. (AHAM, No. 6 at p. 5)

In the June 2013 Final Rule, DOE concluded that cooking sensors are a viable design option for reducing microwave oven standby power consumption. 78 FR 36316, 36331. Interviews with microwave oven manufacturers and cooking sensor manufacturers and DOE's own research at the time confirmed that cooking sensors that are able to energize in a period of time that is small (5-10 seconds) compared to the duration of the cooking cycle had already been successfully deployed in commercially available products with no reliability concerns, and little to no cost premiums and impact on consumer utility. Id. AHAM provided no more than a generalized statement as to the operation of such sensors and DOE has no indication that its prior consideration and determination of such sensors are no longer valid. As such, DOE included such cooking sensors in its analysis.

DOE also tentatively finds that all of the remaining technology options meet the other screening criteria ( i.e., practicable to manufacture, install, and service; do not result in adverse impacts on consumer utility, product availability, health, or safety; and are not a proprietary technology providing a unique pathway).

In general, when evaluating and establishing energy conservation standards, DOE divides the covered product into classes by (1) the type of energy used; (2) the capacity of the product; or (3) any other performance-related feature that affects energy efficiency and justifies different standard levels, considering factors such as consumer utility. (42 U.S.C. 42 U.S.C. 6295(q))

For microwave ovens, the current energy conservation standards specified in 10 CFR 430.32(j)(3) are based on two product classes determined according to the following performance-related features that provide utility to the consumer, in terms of locations where the product may be installed and availability of additional cooking functions: Intended installation ( i.e., countertop, built-in, or over-the-range) and presence of convection heating components. The two existing product classes are listed below.

AHAM stated that there is no need to merge existing product classes or create additional product classes for microwave ovens currently. (AHAM, No. 6 at p. 3) DOE did not identify any additional product classes for microwave ovens based on (1) the type of energy used, (2) the capacity of the product, or (3) any other performance-related feature that affects energy efficiency and justifies different standard levels. Further, DOE did not identify any rationale to merge the existing product classes. Accordingly, DOE's analysis is based on the two existing product classes.

In summary, DOE assesses the product classes shown in the following list in its analysis.

In the engineering analysis, DOE establishes the relationship between the manufacturer production cost (“MPC”) and improved microwave oven efficiency. There are two dimensions to consider in the engineering analysis; the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of microwave ovens that use less power, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each product class, DOE estimates the baseline manufacturer cost, as well as the incremental cost for the product at efficiency levels above the baseline. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses.

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

For this proposed determination, DOE applied a combination of the efficiency-level approach and the design level approach. For microwave-only ovens and countertop convection microwave ovens (“Product Class 1”), the standby power consumption at each efficiency level were initially derived from review of the DOE Compliance Certification Database and comparison to the levels from the June 2013 Final Rule. 78 FR 36316, 36317. The baseline standby power level, EL 0, is equal to the current standard of 1.0 W. To develop EL 1, which is 0.84 W, DOE purchased and evaluated countertop microwave-only ovens with a more efficient power supply. DOE analyzed two representative units: One that just meets the current standard of 1.0 W and another that has a lower standby power consumption. The two units otherwise share similar design characteristics such as cooking mode power, cavity size and installation configuration ( i.e. both were countertop microwave-only ovens). In testing, DOE measured each of the internal power supply units' no-load power consumption, which is the power consumption with all other components disconnected. The first representative unit that just meets DOE's current standards had a no-load power consumption of 0.3 W, while the second unit had a 0.14 W no-load power consumption. DOE estimated that the difference between these two units ( i.e., 0.16 W) is the direct consequence of implementing an improved power supply. DOE, therefore, subtracted this value from the current 1.0 W standard to produce an EL 1 at 0.84 W that represents a microwave oven with an upgraded internal power supply. For Product Class 1, DOE determined that this EL 1 is also the max-tech level. DOE had previously identified a max-tech efficiency level based on automatic power-down as the technology option in the June 2013 Final Rule, with a corresponding standby power consumption of 0.02 W. 78 FR 36316, 36325. In the analysis for this NOPD, however, this technology option was screened out for the reasons discussed in section IV.B.3.a of this document.

For the built-in and over-the-range convection microwave ovens product class (“Product Class 2”), the baseline standby power consumption used for the analysis at EL 0 is the current DOE standard of 2.2 W. This maximum allowable average standby power consumption is higher than that allowed for microwave-only ovens and countertop convection microwave ovens because, in the June 2013 Final Rule, DOE had concluded that built-in and over-the-range convection microwave ovens require a larger power supply to support additional features such as an exhaust fan, additional relays, and additional lights, and that the larger power supply contributes to a higher standby power consumption. 78 FR 36316, 36328. Nonetheless, because consumer utility of the microwave oven in standby mode is similar for both product classes, DOE expects that the available design options for reducing standby power consumption would be similar. From market data, DOE observed a large percentage of built-in and over-the-range convection microwave oven models at or below the 1.0 W level. Given the prevalence of such products, DOE expects that all products in Product Class 2 could meet the 1.0 W level by using the same improved power supply design as in EL 1 for Product Class 1. Even though EL 1 for Product Class 1 is at 0.84 W, DOE expects the larger power supply needed for Product Class 2 microwave ovens would only allow these products to achieve 1.0 W using the same power supply design. Furthermore, similar to Product Class 1, the previous max-tech level that had been identified in the June 2013 Final Rule for built-in and over-the-range convection microwave ovens based on an automatic power-down feature was removed due to concerns over consumer utility. DOE, therefore, analyzed 1.0 W as the max-tech level for this product class (in this case, EL 2, because as discussed, DOE also evaluated a gap-fill level for Product Class 2 that it designated as EL 1).

For the gap-fill EL 1 in Product Class 2, DOE analyzed a standby power level at 1.16 W, which represents a built-in and over-the-range convection microwave oven with less efficient power supplies, albeit of the same type as analyzed at max-tech. DOE estimated the standby power consumption for this EL 1 by adding the difference in wattage between an efficient and inefficient power supply's no-load consumption previously determined for Product Class 1 ( i.e., 0.16 W) to the 1.0 W standby power consumption of the Product Class 2 max-tech level. DOE used this approach because the improvements needed to make the power supply more efficient would be nearly identical for both product classes. Since both Product Class 2, EL 2 and Product Class 1, EL 1 utilizes the same power supply efficiency improvements, removing the improvements results in the baseline power supply design of Product Class 1. DOE therefore determined that for Product Class 2, EL 1 standby levels can be readily achieved using the Product Class 1 baseline power supply.

For both product classes, DOE tested and tore down additional microwave ovens with standby power consumptions that are lower than the max-tech values established in this rulemaking. DOE was, however, unable to isolate further technology options that resulted in the improved standby power consumption of these models other than automatic power-down.

In summary, DOE analyzed the following efficiency levels for this NOPD:

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

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

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

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

In the present case, after establishing the efficiency levels, DOE estimated the MPC of attaining each efficiency level based on the technology options identified for that level ( i.e., physical tear downs). The MPC takes into account the costs for materials, labor, depreciation, and overhead. These values were developed based on product teardowns that generated BOMs for components and manufacturing processes which contribute directly to standby power consumptions. DOE uses these BOMs, along with information on material and component prices, costs for labor, depreciation, and overhead to derive the MPC. For this analysis, the primary component of interest was the control board and its associated power supply unit.

For microwave-only ovens and countertop convection microwave ovens, DOE calculated the difference in manufacturing cost between a standard and improved power supply from BOM analysis and found the cost difference to be $0.16.

For Product Class 2, DOE modeled EL 1 using the same power supply design and cost as in the baseline products for Product Class 1. The overall teardown costs of these power supplies were on the order of $0.70, and DOE estimated that these power supplies could be used with near-zero differential cost in Product Class 2, noting that the slightly larger power supply requirement of Product Class 2 would not result in a measurable cost increase. DOE therefore applied the same incremental manufacturing cost to Product Class 2, EL 1 as Product Class 1, EL 0 ( i.e. $0). Similarly, DOE modeled EL 2 for Product Class 2 as utilizing the same efficiency improvements made to the baseline power supply of Product Class 1 and therefore applied the same incremental cost of $0.16.

The purpose of the energy use analysis is to determine the annual energy consumption of microwave ovens at different efficiencies in representative U.S. single-family homes, multi-family residences, and manufactured homes, and to assess the energy savings potential of increased microwave oven efficiency. The energy use analysis estimates the range of energy use of microwave ovens in the field ( i.e., as they are actually used by consumers). The energy use analysis provides the basis for other analyses DOE performed, particularly assessments of the energy savings and the savings in consumer operating costs that could result from adoption of amended or new standards.

For this NOPD, DOE used the same methodology as that described in chapter 7 of the June 2013 Final Rule technical support document (“TSD”). 8 DOE primarily used data from the Energy Information Administration (“EIA”)'s Residential Energy Consumption Survey (“ RECS ”). RECS is a national sample survey of housing units that collects statistical information on the consumption of and expenditures for energy in housing units, along with data on energy-related characteristics of the housing units and occupants. RECS was constructed by EIA to be a national representation of the household population in the United States. For the June 2013 Final Rule, DOE used RECS2009 . 9 For this NOPD, DOE updated the household sample to RECS2015. RECS2015 includes data specific to microwave oven use frequency, whereas RECS2009 frequency usage was estimated from overall numbers of cooked meals.

For each household, RECS2015 provides information on the frequency of microwave oven usage per week. DOE calculated the RECS usage factor for each household in the sample by multiplying the frequency of use by 52 weeks per year and dividing by the weighted-average usage based on the entire RECS sample. The weighted-average usage was calculated by summing the average microwave use frequency per week as reported in RECS and multiplying by 52 weeks per year and by the housing record weight before dividing by the sum of housing record weights for the housing sample.

DOE determined the annual energy consumption of the standby mode and off mode of microwave ovens by estimating the number of hours of operation throughout the year and assuming that the unit would be in standby mode and off mode the rest of the time. For the June 2013 Final Rule, DOE determined the average hours of operation for microwaves to be 44.9 hours per year. DOE subtracted the number of calculated operating hours from the total number of hours in a year and multiplied that difference by the standby mode power usage at each efficiency level to determine annual standby mode and off mode energy consumption.

CA IOUs stated that microwave ovens spend approximately 53 hours annually in active mode. (CA IOUs, No. 7 at p. 3) DOE reviewed CA IOU's 2014 study  10 and found the sample size to be relatively small at 122 households and geographically limited, as compared to RECS. DOE acknowledges the benefit of using field-metered studies for energy use; however, DOE concluded that a larger study with greater geographic area would be helpful before amending the active hours used.

Chapter 7 of the June 2013 Final Rule TSD provides details on DOE's energy use analysis for microwave ovens.

For the present analysis, DOE projected the energy savings, over the lifetime of microwave ovens sold from 2024 through 2053. DOE evaluates the effects of new or amended standards by comparing a case without such standards with standards-case projections. The no-new-standards case characterizes energy use for each microwave oven class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each microwave oven class if DOE adopted new or amended standards at specific energy efficiency levels ( i.e., the standards cases) for that class. For the standards cases, DOE considers how a given standard would likely affect the market shares of microwave oven with efficiencies greater than the standard.

For the June 2013 Final Rule, DOE used a methodology consistent with the national impact analysis to calculate the energy savings from each EL.

A key component of the national energy savings analysis is the trend in energy efficiency projected for the no-new-standards case and each of the standards cases. To accurately estimate the share of consumers that would be affected by a potential energy conservation standard at a particular efficiency level, DOE's analysis considered the projected distribution (market shares) of product efficiencies under the no-new-standards case ( i.e., the case without amended or new energy conservation standards).

To estimate the energy efficiency distribution for microwave oven standby power, DOE used the same methodology as presented in the June 2013 Final Rule TSD and updated the model counts from the Compliance Certification Management System. The estimated market shares for the no-new-standards case for microwave ovens are shown in Table IV-6. See chapter 8 of the June 2013 Final Rule TSD for further information on the derivation of the efficiency distributions.

For the standards cases, DOE used a “roll-up” scenario to establish the shipment-weighted efficiency for the year that standards are assumed to become effective. In this scenario, the market shares of products in the no-new-standards case that do not meet the standard under consideration would “roll up” to meet the new standard level, and the market share of products above the standard would remain unchanged.

The NES analysis involves a comparison of national energy consumption of the considered products between each potential standards case and the case with no new or amended energy conservation standards. DOE calculated the national energy consumption by multiplying the number of units (stock) of each product (by vintage or age) by the unit energy consumption (also by vintage). DOE calculated annual NES based on the difference in national energy consumption for the no-new-standards case and for each higher efficiency standard case. DOE estimated energy consumption and savings based on site energy and converted the electricity consumption and savings to primary energy ( i.e., the energy consumed by power plants to generate site electricity) using annual conversion factors derived from the U.S. Energy Information Administration's Annual Energy Outlook 2019. 11 Cumulative energy savings are the sum of the NES for each year over the timeframe of the analysis.

In evaluating cost-effectiveness, DOE typically conducts life-cycle cost (“LCC”) and payback period (“PBP”) analyses to evaluate the economic impacts on individual consumers of potential energy conservation standards for microwave ovens. The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE uses the following two metrics to measure consumer impacts:

• The LCC is the total consumer expense of an appliance or product over the life of that product, consisting of total installed cost (manufacturer selling price, distribution chain markups, sales tax, and installation costs) plus operating costs (expenses for energy use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.

• The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that amended or new standards are assumed to take effect.

For any given efficiency level, DOE measures the change in LCC relative to the LCC in the no-new-standards case, which reflects the estimated efficiency distribution of microwave ovens in the absence of new or amended energy conservation standards. In contrast, the PBP for a given efficiency level is measured relative to the baseline product.

One input to the LCC analysis is the repair and maintenance cost. AHAM stated that LED and liquid crystal display (“LCD”) technologies are more expensive and could result in higher repair and maintenance costs for the consumer. (AHAM, No. 6 at p. 6) AHAM also stated that LED and LCD displays have lower reliability compared to vacuum fluorescent displays (“VFDs”), especially in high temperature over-the-range conditions. (AHAM, No. 6 at p. 5) GE Appliances stated that there are no existing over-the-range microwave ovens using LCD technology due to extreme temperature conditions. They also indicated that previous GE Appliances over-the-range microwave ovens with an LCD screen are no longer being produced due to quality issues related to LCD screen heat exposure. (GE Appliances, No. 5 at p. 2)

As discussed in section V of this document, DOE has initially determined that the amended energy conservation standards for microwave ovens would not result in significant energy savings as required by EPCA. As such, DOE did not conduct the LCC and PBP analyses. Therefore, DOE considers the comments from AHAM and GE Appliances regarding the repair costs related to LED and LCD technologies moot.

As required by EPCA, this NOPD analyzes whether the Secretary should issue a notification of determination not to amend standards for microwave ovens based on DOE's consideration of whether amended standards would be technologically feasible, result in significant conservation of energy, and be cost-effective. (42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)) Any new or amended standards issued by the Secretary would be required to comply with the economic justification and other requirements of 42 U.S.C. 6295(o).

EPCA mandates that DOE consider whether amended energy conservation standards for microwave ovens would be technologically feasible. (42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)(B)) DOE has tentatively determined that there are technology options that would improve the efficiency of microwave ovens. These technology options are being used in commercially available microwave ovens and therefore are technologically feasible. (See section IV.B.2 of this document for further information.) Hence, DOE has tentatively determined that amended energy conservation standards for microwave ovens are technologically feasible.

EPCA also mandates that DOE consider whether amended energy conservation standards for microwave oven standby power would result in significant conservation of energy. (42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)(A))

To estimate the energy savings attributable to potential amended standards for microwave ovens, DOE compared their energy consumption under the no-new-standards case to their anticipated energy consumption under each potential standard level. The savings are measured over the entire lifetime of products purchased in the 30-year period that begins in the year of anticipated compliance with amended standards (2024-2053).

DOE analyzed the energy savings of two potential standards levels (“PSLs”) for microwave ovens (see Table V-1). The PSLs were derived from the energy efficiency levels for microwave ovens that DOE developed in engineering analysis. For this NOPD, PSL 1 represents the max-tech level for microwave-only ovens and countertop convection microwave ovens and an efficiency level above the baseline efficiency level for built-in and over-the-range convection microwave ovens. PSL 2 represents the max-tech level for standby power for both product classes.

Table V-2 presents DOE's projections of the NES for each potential standard level considered for microwave ovens.

DOE estimates that amended standards for microwave oven standby power would result in energy savings of 0.01 quads at PSL 2, the max-tech level, which is under the 0.3-quads threshold currently provided in Section 6(b)(3) of the Process Rule. Additionally, DOE estimates that the percentage reduction in standby power energy use at PSL 2, the max-tech level, is 8 percent over the 30-year analysis period, which is under the 10-percent threshold currently provided in Section 6(b)(4) of the Process Rule. (See results in Table V-3). Therefore, DOE has tentatively determined that amended energy conservation standards for microwave oven standby power would not result in significant conservation of energy.

DOE did not conduct an evaluation of the cost-effectiveness of amended standards for microwave ovens. As stated, DOE has tentatively determined that amended standards would not result in significant energy savings as required by EPCA. Absent the necessary energy savings, DOE is prohibited from establishing amended standards regardless of the cost-effectiveness of such standards. As such, DOE did not consider further the cost-effectiveness of amended standards.

Based on DOE's tentative determination that amended energy conservation standards for microwave oven standby power would not result in significant conservation of energy, DOE has tentatively determined that energy conservation standards for microwave oven standby power do not need to be amended. DOE will consider all comments received on this proposed determination in issuing any final determination.

This proposed determination has been determined to be not significant for purposes of Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). As a result, the Office of Management and Budget (“OMB”) did not review this proposed determination.

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 E.O. 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 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 determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. Because DOE is proposing not to amend standards for microwave ovens, if adopted, the determination would not amend any energy conservation standards. On the basis of the foregoing, DOE certifies that the proposed determination, if adopted, would have no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared an IRFA for this proposed determination. DOE will transmit this 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 microwave ovens 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 microwave ovens. (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”). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

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

DOE is analyzing this proposed action in accordance with the National Environmental Policy Act of 1969 (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for actions which are interpretations or rulings with respect to existing regulations. 10 CFR part 1021, subpart D, appendix A4. DOE anticipates that this action qualifies for categorical exclusion A4 because it is an interpretation or ruling regarding an existing regulation and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. DOE will complete its NEPA review before issuing the final action.

E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal 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 determination and has tentatively 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) Therefore, no further action is required by E.O. 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” 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. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 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 section 3(a) and section 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, this proposed determination meets the relevant standards of E.O. 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 them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

This proposed determination does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. As a result, the analytical requirements of UMRA do not apply.

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

Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this proposed determination 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 Federal agencies to review most disseminations of information to the public under information quality 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). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at https://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has reviewed this NOPD under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

E.O. 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 the Office of Information and Regulatory Affairs (“OIRA”) at 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 promulgates 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 Executive 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.

Because this proposed determination does not propose to amend energy conservation standards for microwave ovens, it is not a significant regulatory action, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” Id. at 70 FR 2667.

In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a Peer Review report pertaining to the energy conservation standards rulemaking analyses. 12 Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. DOE has determined that the peer-reviewed analytical process continues to reflect current practice, and the Department followed that process for considering amended energy conservation standards in the case of the present action.

The time and date of the webinar are listed in the DATES section at the beginning of this document. If no participants register for the webinar then 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://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=33. Participants are responsible for ensuring their systems are compatible with the webinar software.

Any person who has an interest in the topics addressed in this document, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Requests may be sent by email to the Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121, or ApplianceStandardsQuestions@ee.doe.gov. Persons who wish to speak should include with their request a computer file in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format that briefly describes the nature of their interest in this rulemaking and the topics they wish to discuss. Such persons should also provide a daytime telephone number where they can be reached.

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

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

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

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

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

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

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

However, your contact information will be publicly viewable if you include it in the comment itself 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. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

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

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

Submitting comments via email. Comments and documents submitted via email also will be posted to https://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. With this instruction followed, 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, that are written in English, and that are 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, postal mail, or hand delivery/courier 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. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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

DOE welcomes comments and views on any aspect of this proposal from all interested parties.

The Secretary of Energy has approved publication of this notification of proposed determination.

This document of the Department of Energy was signed on August 6, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0658; Project Identifier MCAI-2020-01582-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; email 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-52, dated November 30, 2020 (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Bombardier, Inc., Model BD-100-1A10 airplanes. You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0658.

This proposed AD was prompted by a discovery that a lockwire may not have been installed on the side stay actuator pin nut of the MLG. The FAA is proposing this AD to address a possible missing lockwire, which could result in loss of the nut, and if undetected, lead to the collapse of the affected MLG. See the MCAI for additional background information.

Bombardier has issued Service Bulletin 100-32-36, dated June 25, 2020; and Service Bulletin 350-32-012, dated June 25, 2020. This service information describes procedures for inspecting the left-hand and right-hand MLG side stay actuator assembly pin nut for presence of a lockwire and installing a lockwire. These documents are distinct since they apply to different airplane configurations.

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

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

This proposed AD would require accomplishing the actions specified in the service information already described.

The FAA estimates that this AD, if adopted as proposed, would affect 623 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0655; Project Identifier MCAI-2020-01497-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0244, dated November 5, 2020 (EASA AD 2020-0244), to correct an unsafe condition on RRD Trent 7000-72 and Trent 7000-72C model turbofan engines.

This proposed AD was prompted by the manufacturer revising the engine TLM life limits of certain critical rotating parts and updating certain maintenance tasks. The FAA is proposing this AD to prevent the failure of critical rotating parts.

The FAA reviewed EASA AD 2020-0244. EASA AD 2020-0244 specifies revising the approved AMP by incorporating the limitations, tasks, and associated thresholds and intervals described in the TLM. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA reviewed Chapter 05-10 of Rolls-Royce (RR) Trent 7000 TLM T-T7000-1RR, dated July 10, 2020. RR Trent 7000 TLM T-T7000-1RR, Chapter 05-10, identifies the reduced life limits of certain critical rotating parts.

The FAA also reviewed Chapter 05-20 of RR Trent 7000 TLM T-T7000-1RR, dated July 10, 2020. RR Trent 7000 TLM T-T7000-1RR, Chapter 05-20, identifies the critical rotating part inspection thresholds and intervals.

These engines have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified about the unsafe condition described in the EASA AD referenced in this proposed AD. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2020-0244, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0244 will be incorporated by reference in the FAA final rule. This proposed AD would require compliance with EASA AD 2020-0244 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2020-0244 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2020-0244. Service information specified in EASA AD 2020-0244 that is required for compliance with it will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0655 after the FAA final rule is published.

This AD does not mandate the “Maintenance Tasks and Replacement of Critical Parts” and “Corrective Action(s)” sections of EASA AD 2020-0244. Where EASA AD 2020-0244 requires compliance from its effective date, this AD requires using the effective date of this AD. Where EASA AD 2020-0244 requires revising the AMP within 12 months from its effective date, this AD requires revising the AMP within 90 days after the effective date of this AD. This AD does not mandate compliance with the “Remarks” section of EASA AD 2020-0244.

The FAA estimates that this AD, if adopted as proposed, would affect 10 engines installed on airplanes of U.S. Registry.

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

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0657; Project Identifier MCAI-2021-00478-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Nick Wilson, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3230; email nicholas.wilson@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0112, dated April 22, 2021 (EASA AD 2021-0112), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 airplanes.

This proposed AD was prompted by a report indicating that during maintenance, a fuse pin retaining the MLGSS was found incorrectly engaged in the trunnion block and improperly secured with the associated retaining pin; this was due to incorrect installation during assembly. The FAA is proposing this AD to address incorrect fuse pin installations, which could lead to premature failure of the retaining pin and subsequent fuse pin migration and disconnection, and could ultimately lead to main landing gear collapse and possible damage to the airplane. See the MCAI for additional background information.

EASA AD 2021-0112 describes procedures for a detailed inspection for discrepancies (missing or migrated fuse pins, and fuse pins improperly secured with the associated retaining pin) in the left- and right-hand sides of the MLGSS trunnion block. The service information also describes procedures for corrective action (including replacement of discrepant fuse pins and the MLG forward pintle assembly). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0112 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0112 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0112 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0112 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0112. Service information required by EASA AD 2021-0112 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0657 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 17 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0567; Project Identifier AD-2021-00663-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

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

The FAA was notified of two separate IFSDs resulting from the failure of the TGB radial gearshaft. After further investigation, the manufacturer determined that rework on the TGB radial gearshaft teeth chamfers during manufacturing may have caused local burrs and micro-cracks which led to high-cycle fatigue failure. GE subsequently issued service information to provide instructions for a one-time visual inspection of the affected radial gearshafts for the presence of burrs or rework on TGB gearshaft teeth chamfers. This condition, if not addressed, could result in failure of one or more engines, loss of thrust control, and damage to the aircraft.

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

The FAA reviewed GE GE90 Service Bulletin (SB) 72-1201 R01, dated April 28, 2021 (GE90 SB 72-1201 R01), and GE GE90-100 SB 72-0857 R01, dated April 28, 2021 (GE90-100 SB 72-0857 R01). GE90 SB 72-1201 R01 specifies procedures for performing a one-time inspection of the TGB radial gearshaft for presence of burrs or rework on teeth chamfers on GE90-76B, GE90-85B, GE90-90B, and GE90-94B model turbofan engines. GE90-100 SB 72-0857 R01 specifies procedures for performing a one-time inspection of the TGB radial gearshaft for presence of burrs or rework on teeth chamfers on GE90-110B1 and GE90-115B model turbofan engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require visual inspection of the TGB radial gearshaft and, depending on the results of the inspection, replacement of the TGB gearshaft.

Differences Between this Proposed AD and the Service Information

GE90 SB 72-1201 R01 and GE90-100 SB 72-0857 R01 identify affected TGB radial gearshafts with serial numbers (S/Ns) listed in paragraph 4., APPENDIX—A, Table 1, and with serial numbers starting with prefix FIAAXXXX, FIA05XXX to FIA09XXX, or FIA0AXXX to FIA0NXXX. This AD applies only to TGB radial gearshafts with S/Ns listed in paragraph 4., APPENDIX—A, Table 1 of GE90 SB 72-1201 R01 and GE90-100 SB 72-0857 R01. The FAA determined that TGB radial gearshafts with S/Ns starting with prefix FIAAXXXX, FIA05XXX to FIA09XXX, or FIA0AXXX to FIA0NXXX are not required to be inspected and removed as part of this AD. However, operators may still elect to inspect the TGB radial gearshaft with these S/Ns at the next scheduled engine shop visit.

The FAA estimates that this AD, if adopted as proposed, would affect 126 engines installed on airplanes of U.S. registry.

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0656; Project Identifier MCAI-2021-00394-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Chirayu Gupta, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; email 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2021-12, dated April 14, 2021 (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0656.

This proposed AD was prompted by reports of loss of hydraulic fluid and annunciation of the check fire detect light. The FAA is proposing this AD to address insufficient separation between the APD sensing line and surrounding components, which could lead to a hydraulic leak, loss of hydraulic systems, and loss of fire detection in the MLG primary zone should prolonged contact occur. See the MCAI for additional background information.

De Havilland Aircraft of Canada Limited has issued Service Bulletin 84-26-20, Revision A, dated March 9, 2021. This service information describes procedures for doing a detailed visual inspection for chafing and proper clearance of the LH and RH MLG primary zone APD sensing lines, the hydraulic tube assemblies and the surrounding structure, and doing all applicable corrective actions. Corrective actions include repair and replacement of the APD sensing line and the hydraulic tube assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in the service information already described.

The FAA estimates that this AD, if adopted as proposed, would affect 54 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

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

On June 28, 2021, Ports America Chesapeake, LLC notified the Coast Guard that the M/V ZHEN HUA 24 will be transporting four new Super-Post Panamax container cranes to the Port of Baltimore. The vessel transit is taking place from Shanghai, China. The M/V ZHEN HUA 24 is anticipated to arrive between September 4, 2021, and September 29, 2021. The current estimated arrival date is September 5, 2021, but is subject to change. These cranes will be delivered to, and installed at, the Seagirt Marine Terminal at Baltimore, MD.

The cranes exceed the beam of the M/V ZHEN HUA 24 on the port side by approximately 129 feet and on the starboard side by approximately 40 feet. The total beam for the vessel with the cranes aboard is approximately 300 feet. The maximum height of the cranes aboard the vessel is approximately 326 feet. This beam width and cargo height will severely restrict the M/V ZHEN HUA 24's ability to maneuver and create a hazard to navigation if required to meet or pass other large vessels transiting the navigation channels. Because of the size of the cargo and the width of the navigation channels, vessels will not be able to transit safely around the M/V ZHEN HUA 24 at close distances. During the inbound transit of the M/V ZHEN HUA 24 the vessel will travel from sea into the Chesapeake Bay, crossing the Chesapeake Bay Bridge-Tunnel (CBBT) and then proceeding north toward Baltimore. During this time safety concerns will be heightened due to the importance of CBBT and the Chesapeake's sensitive estuary environment. Hazards associated with the movement of a large freight vessel with an oversized cargo severely restricted in its ability to maneuver while transiting confined shipping channels include injury or loss of life and damage to property and the environment resulting from collisions with other vessels. The COTP Virginia has determined that potential hazards associated with the crane delivery operation would be a safety concern for any vessel required to transit the navigation channels in the Chesapeake Bay and Coastal Virginia that would meet, pass, or overtake the M/V ZHEN HUA 24. These hazards can be mitigated with a 500 yard radius safety zone around the vessel.

The Coast Guard is requesting that interested parties provide comments within a shortened comment period of 10 days instead of the typical 30 days for this notice of proposed rulemaking. The Coast Guard believes the 10-day comment period still provides for a reasonable amount of time for interested parties to review the proposal and provide informed comments on it while also ensuring that the Coast Guard has time to review and respond to any significant comments and has a final rule in effect in time for the scheduled event in order to protect against the identified hazards.

The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP is proposing to establish a temporary moving safety zone with a radius of 500 yards centered around the M/V ZHEN HUA 24 during the inbound transit through the territorial sea and the Chesapeake Bay to Baltimore, MD. The M/V ZHEN HUA 24 is currently anticipated to arrive at Baltimore sometime between September 4, 2021, and September 29, 2021. The current estimated arrival date is September 4, 2021, but is subject to change. The inbound transit is expected to last approximately 15 hours.

Enforcement of the safety zone would begin when M/V ZHEN HUA 24 crosses the 12-mile line into the U.S.-Territorial Sea and end when the vessel crosses the Virginia-Maryland state line. This enforcement period would be broadcast to mariners via email, VHF-FM radio notifications, and by COTP representatives on scene.

The duration of the zone is intended to ensure the safety of vessels and protect the environment and critical national infrastructure such as the Chesapeake Bay bridge-tunnel during the vessels transit to Baltimore. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

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

This regulatory action determination is based on the size and duration of the safety zone, which would impact only vessel traffic required to transit certain navigation channels of the Chesapeake Bay and the Coastal Virginia for an expected total no more than 15 enforcement-hours. Although these waterways support both commercial and recreational vessel traffic, small portions of the waterway would be restricted for a small period of time as the M/V ZHEN HUA 24 transits northward in the Chesapeake Bay. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a temporary safety zone that would prohibit entry within certain navigable waters of the Chesapeake Bay and Coastal Virginia. Normally such actions are categorically excluded from further review under paragraph L60c of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Memorandum for the Record supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2021-0623 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:

This is a summary of the Public Notice, Wireless Telecommunications Bureau Seeks Comment on Implementation of the Commission's Incremental Reduction Plan for Phase I Accelerated Relocation Payments, GN Docket No. 18-122; GN Docket No. 21-320; DA 21-958 ( Public Notice ), released on August 4, 2021. The complete text of the Public Notice, is available on the Commission's website at https://www.fcc.gov/document/wtb-seeks-comment-c-band-phase-i-incremental-reducation-plan or by using the search function for GN Docket No. 18-122 or GN Docket No. 21-320 on the Commission's ECFS web page at www.fcc.gov/ecfs.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file elections on or before the date indicated on the first page of this document.

People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Ex Parte Rules: This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenters written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the Commission's rules. In proceedings governed by § 1.49(f) of the rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml., .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Synopsis: With this Public Notice, the Wireless Telecommunications Bureau (WTB or Bureau) seeks comment on its proposed implementation of the Commission's incremental reduction plan for Phase I Accelerated Relocation Payments (ARP) relating to the ongoing transition of the 3.7 GHz band. On August 4, 2021, as directed by the Commission in the 3.7 GHz Report and Order, WTB issued a Public Notice to prescribe the filing procedures for eligible space station operators to submit Certifications of Accelerated Relocation (Certifications) and stakeholders to submit related challenges as part of the Phase I migration of incumbent services in this band. Related to this process, WTB hereby seeks comment on its proposed approach for calculating an incremental reduction for an eligible space station operator's ARP due to its failure to meet the Phase I Accelerated Relocation Deadline. Filers responding to this Public Notice should submit comments in GN Docket No. 21-320.

In the 3.7 GHz Report and Order, the Commission adopted rules to make 280 megahertz of mid-band spectrum available for flexible use (plus a 20 megahertz guard band) throughout the contiguous United States by transitioning existing services out of the lower portion of the band and into the upper 200 megahertz of the C-band ( i.e., 4.0-4.2 GHz). The 3.7 GHz Report and Order established that new 3.7 GHz Service licensees would reimburse the reasonable, actual relocation costs of eligible FSS space station operators, incumbent FSS earth station operators, and incumbent Fixed Service licensees (collectively, incumbents) to transition out of the band.

The 3.7 GHz Report and Order established a deadline of December 5, 2025, by which incumbent space station operators were to complete the transition of their operations to the upper 200 megahertz of the band, but it also provided an opportunity for accelerated clearing of the band by allowing eligible space station operators to voluntarily commit to relocate on a two-phased accelerated schedule, with a Phase I deadline of December 5, 2021, and a Phase II deadline of December 5, 2023. All five eligible space station operators elected accelerated relocation. By electing accelerated relocation, the eligible space station operators, among other things, have voluntarily committed to perform all the tasks necessary to enable any incumbent earth station that receives or sends C-band signals to a space station owned by that operator to maintain that functionality in the upper 200 megahertz of the band. The 3.7 GHz Report and Order stated that “[t]o the extent eligible space station operators can meet the Phase I and Phase II Accelerated Relocation Deadlines, they will be eligible to receive the accelerated relocation payments associated with those deadlines.” Once validated, the ARPs will be disbursed by the Relocation Payment Clearinghouse (Clearinghouse).

The 3.7 GHz Report and Order specified that an “eligible space station operator's satisfaction of the Accelerated Relocation Deadlines will be determined by the timely filing of a Certification of Accelerated Relocation demonstrating, in good faith, that it has completed the necessary clearing actions to satisfy each deadline” and directed WTB to prescribe the form of such Certifications. Further, “the Bureau, Clearinghouse, and relevant stakeholders will have the opportunity to review the Certification of Accelerated Relocation and identify potential deficiencies.”

The 3.7 GHz Report and Order also directed that if “credible challenges as to the space station operator's satisfaction of the relevant deadline are made, the Bureau will issue a public notice identifying such challenges and will render a final decision as to the validity of the certification no later than 60 days from its filing.” Absent notice from WTB of deficiencies in the Certification within 30 days of its filing, the Certification will be deemed validated. Following validation, the Clearinghouse shall promptly notify overlay licensees, who must pay the ARP to the Clearinghouse within 60 days of the notice. The Clearinghouse must disburse the ARP to the eligible space station operator within seven (7) days of receipt. Should an eligible space station operator miss the Phase I or Phase II deadline, it may still receive a reduced, but non-zero, ARP if it otherwise meets the Certification requirements within six months after the relevant Accelerated Relocation Deadline.

The 3.7 GHz Report and Order directed WTB to: (1) “prescribe the form” of Certifications and any challenges by relevant stakeholders, and (2) establish the process for how such challenges will impact incremental decreases in the ARP. On August 4, 2021, the Bureau issued a Public Notice implementing filing procedures for Phase I Certifications and related challenges. With the instant Public Notice, the Bureau seeks comment on how different Phase I Certification scenarios will affect both the challenge process and incremental decreases in the ARP.

At the outset, we recognize the two most straightforward scenarios. First, all Certifications filed without subsequent change—whether by amendment or superseded by a refiled Certification—will not be subject to any incremental decrease in the ARP if the Certification was filed before the Phase I deadline and is ultimately validated. Second, any Certifications filed for the first time after the Phase I deadline and later validated without amendment or refiling will be subject to the incremental reduction schedule established by the Commission in the 3.7 GHz Report and Order, using the Certification filing date as the “Date of Completion” for determining the applicable percentage by which the ARP will be reduced. In both situations, the challenge process laid out in our recent Public Notice would remain unaffected. Below we seek comment on more complex scenarios involving the potential amendment or refiling of Certifications, as well as on how to take into account possible remedial actions and agreements between eligible space station operators and other stakeholders on the Certification process.

Amending or Refiling a Certification by the Phase I Deadline. In the 3.7 GHz Report and Order, the Commission stated that it was adopting accelerated relocation rules “to facilitate the expeditious deployment of next-generation services nationwide across the entire 280 megahertz made available for terrestrial use.” In furtherance of this goal, we propose that eligible space station operators may amend or refile an incomplete or invalid Certification without any incremental reduction in the ARP if, prior to the Phase I deadline, the eligible space station operator corrects any underlying problems and submits an amended or refiled Certification that has no invalidating infirmities. Such amendment or refiling may be either on the eligible space station operator's own motion, in response to a challenge, or in response to the Bureau's determination that the original Certification was invalid. In this scenario, any issues in the Certification would be resolved before the Phase I deadline, and the certifying space station operator would have, in fact, come into compliance with all the requirements for claiming the ARP by said deadline.

In these circumstances, we propose that the amended or refiled Certification take the place of the original and start a new challenge process. Thus, new challenges to this amended or refiled Certification would be permitted but would be limited to matters involving changes made to the original Certification (whether the addition of new information, modifications of information that had been included in the original Certification, or the deletion of previously included information). If, however, WTB has not already ruled on the original Certification, the Bureau could nevertheless consider all points raised during the original challenge cycle to the extent those points may still be relevant to the amended or refiled Certification. We seek comment on this approach.

If WTB ultimately decides that the amended or refiled Certification was valid, the eligible space station operator's ARP would be based on the filing date of the amended or refiled Certification. As noted above, where the amended or refiled Certification is submitted before the Phase I deadline, we propose that there will be no reduction in the ARP.

Amending or Refiling a Certification After the Phase I Deadline. Alternatively, if WTB rejects a Certification filed before the Phase I deadline (whether the original or an amended or refiled one), the eligible space station operator would have to finish any incomplete aspects of the transition and file a new, valid Certification before its entitlement to an ARP could be determined. Where the filing date of this new, valid Certification falls after the Phase I deadline, the ARP would thus be subject to the incremental reduction schedule established by the Commission in the 3.7 GHz Report and Order, as applicable based on such Certification's filing date. We propose the same treatment in cases where the Bureau has not yet ruled on a Certification and the eligible space station operator either submits an amended or refiled Certification on its own motion, or in response to a challenge, after the Phase I deadline. We seek comment on this approach.

Where a Certification is amended or refiled after the Phase I deadline, we propose the same challenge process as where an amended or refiled Certification is filed before the Phase I deadline. Thus, new challenges to the amended or refiled Certification would be permitted but would be limited to matters involving changes made to the original Certification (whether the addition of new information, modifications of information that had been included in the original Certification, or the deletion of previously included information). If, however, WTB has not already ruled on the original Certification, the Bureau could nevertheless also consider all points raised during the original challenge cycle to the extent those points may still be relevant to the amended or refiled Certification. We seek comment on this approach.

Accounting for Remedial Action by Eligible Space Station Operators. WTB proposes to consider remedial action that an eligible space station operator may take only if said operator has memorialized that action in a Certification (whether amended or refiled). Thus, if WTB issues a final determination rejecting a Certification, the fact that the eligible space station operator may have taken remedial action—after filing its Certification but before WTB's decision—to address the problems in said Certification that had prompted WTB's rejection would not in itself invalidate or otherwise affect WTB's determination. Rather, for such remedial action to be considered, the eligible space station operator would need to submit an amended or refiled Certification reflecting that remedial action. The amended or refiled Certification would initiate a new challenge process as to those aspects that had not yet been subject to the initial challenge process and would establish a new date by which the eligible space station operator's ARP was calculated. We seek comment on this approach.

Agreements. Notwithstanding the proposals in the preceding sections, we propose to allow eligible space station operators and stakeholders (including, but not limited to, incumbent earth station operators) to enter into agreements to resolve any outstanding issues raised in a challenge to a Certification and submit any such agreements to WTB before the Bureau has made a final determination regarding the validity of the Certification. For instance, if an eligible space station operator submits a Certification (either before or after the Phase I deadline) that is credibly challenged, and it attempts to address any alleged deficiency before WTB has issued a decision, the eligible space station operator and challenging parties can enter into an agreement to resolve all outstanding issues between those parties and submit this agreement to WTB. If after review WTB accepts this agreement as a good faith resolution of issues in the eligible space station operator's Certification, the Bureau would find that the original Certification is valid and dismiss the related outstanding challenges. If such agreement resolved all outstanding challenges, the Bureau would calculate the ARP as of the date the original Certification was filed. If the agreement does not resolve all outstanding issues in an eligible space station operator's Certification and requires further remedial steps by the operator, then the Bureau proposes that it would calculate the ARP as of the date the eligible space station operator files an amended Certification, attesting that it has completed the remedial steps as per its agreement with the challenging parties (and assuming this Certification is found valid). We seek comment on this approach.

Although we propose to allow eligible space station operators and stakeholders to enter into agreements to resolve issues raised in challenges, to ensure the integrity of the transition process we also propose to bar the use of greenmail in agreements to avoid incremental reductions. For example, whenever a challenge against a Certification is withdrawn through an agreement with an eligible space station operator, we propose to require that the written withdrawal agreement be accompanied by an affidavit certifying that no parties involved have received or will receive any money or other consideration in excess of legitimate and prudent expenses in exchange for the agreement or withdrawal of the challenge. We seek comment on this approach.

Finally, we propose that if the eligible space station operator takes remedial action to address any challenges but does not attempt to negotiate with the challengers or such negotiations fail, WTB will proceed to make a decision based on the information submitted by the eligible space station operator in its Certification (original, amended, or refiled). We seek comment on this approach.