This proposal affecting the Order (7 CFR part 1216) is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

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 action has been reviewed in accordance with requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. AMS has assessed the impact of this proposed rule on Indian tribes and determined that this rule would not have tribal implications that require consultation under Executive Order 13175. AMS hosts a quarterly teleconference with tribal leaders where matters of mutual interest regarding the marketing of agricultural products are discussed. Information about proposed changes to regulations will be shared during an upcoming quarterly call, and tribal leaders will be informed about proposed revisions to the regulation and the opportunity to submit comments. AMS will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided as needed with regards to this change to the Order.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

This proposed rule invites comments on increasing the threshold for defining primary peanut-producing states as states that maintain a 3-year average production of at least 20,000 tons of peanuts instead of 10,000 tons of peanuts as currently prescribed in the Order. This would help ensure that the Board reflects the peanut production in the United States. The Order is administered by the Board with oversight by USDA.

The Order became effective on July 30, 1999. Under the Order, the Board administers a nationally coordinated program of promotion, research and information designed to strengthen the position of peanuts in the marketplace and to develop, maintain, and expand the demand for peanuts in the United States. Under the program, assessments are levied on all farmers stock peanuts sold at a rate of $3.55 per ton for Segregation 1 peanuts and $1.25 per ton for Segregation 2 peanuts and 3 peanuts, as those terms are defined in 7 CFR 996.13(b) through (d). Assessments are remitted to the Board by handlers and, for peanuts under loan, by the Commodity Credit Corporation.

The Order defines terms “minor peanut-producing states” and “primary peanut-producing states” for purposes of Board representation and voting at meetings. According to USDA, Federal-State Inspection Service, National Peanut Tonnage Reports, there are 13 peanut-producing states, which include: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, and Virginia. Section 1216.21 currently defines primary peanut-producing states as Alabama, Arkansas, Florida, Georgia, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, and Virginia. These states must maintain a 3-year average production of at least 10,000 tons of peanuts to meet the current definition. All other peanut-producing states are defined as minor peanut-producing states in § 1216.15 and are represented by one member and one alternate on the Board—currently only Louisiana meets this definition.

With the growth in farm size, there are fewer and larger peanut producers than when the Order was promulgated in 1999. As stated above, currently, there is only one state, Louisiana, that represents the minor peanut-producing states, which is the at-large position on the Board. This makes it difficult to get adequate numbers of nominees to fill both member and alternate member seats on the Board. By increasing the threshold for defining primary peanut-producing states to states that maintain a 3-year average production of at least 20,000 tons instead of 10,000 tons of peanuts as currently prescribed, this action would increase the candidate pool for at-large member seats on the Board.

Pursuant to § 1216.87, amendments to the Order may be proposed from time to time by the Board or by any interested person affected by provisions of the 1996 Act, including the Secretary of Agriculture.

The Board has been concerned about having enough nominees to fill vacant seats for several years and was hopeful that the situation would improve. The Board staff has actively recruited candidates to be considered for nomination from multiple primary peanut-producing states and the at-large state, sometimes with little success. Due to an alternate member vacancy for New Mexico and difficulty finding producers to serve, the Board determined it was time to increase the 3-year average.

The Board discussed increasing the threshold with the industry to explain the situation, and it was determined that increasing the threshold for defining primary peanut-producing states was a good way to give the peanut producing states an opportunity to be nominated for a member or alternate seat on the Board.

The Board met to discuss methods to increase the pool of candidates for representation of the minor peanut-producing states to serve on the Board. At the time of the Board's formation in July 1999 (64 FR 41252), peanut farms were smaller, and therefore, there were many more producers eligible to be nominated to serve on the Board. In April 1999, USDA reported there were approximately 25,000 peanut producers (64 FR 80107). Based on the Board's records, for the 2018 production crop year, there were 8,126 peanut producers and for the 2019 crop year, there were 7,200 peanut producers.

Currently, in minor peanut-producing states the pool of candidates is very small, with Louisiana being the only state in this category. The Board has had difficulty in gathering the required two nominees for each open position for submission to the Secretary of Agriculture.

The Board has been concerned about this issue for several years and was hopeful that the situation would improve. For approximately 10 years, the Board's management has actively recruited candidates to be considered for nomination from multiple primary and minor peanut-producing states to fill seats on the Board. In the 2020 submission to the Secretary for appointments to fill member and alternate seats for New Mexico, only two nominees were submitted for consideration instead of four. Therefore, only the member seat was filled, and the alternate seat remains vacant. In addition, since there is currently only one state (Louisiana) representing minor peanut-producing states, it is often difficult to get a sufficient number of nominees to fill member and alternate positions as well. These nominees are comprised of producers of all sizes including small producers.

In 1999, the Board was comprised of 10 members and their alternates. The Board's representation for primary peanut-producing states were Alabama, Florida, Georgia, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, and Virginia and minor peanut-producing states were represented by a Louisiana member and an Arizona alternate member. Over the years, there have been three adjustments of membership, which increased the size of the Board's membership. On July 9, 2008, the Board increased its membership from 10 to 11 when it added Mississippi as a primary peanut-producing state (73 FR 39214). On March 21, 2014, the Board increased its membership a second time from 11 to 12 when it added Arkansas as a primary peanut-producing state (79 FR 15636). The most recent change in the Board's membership was the addition of Missouri, which was published on March 23, 2020 (85 FR 16229). That addition increased the membership from 12 to 13.

For the 2019 production year, computations based on Federal State Inspection Service data show that Georgia was the largest producer, with 49.8 percent followed by Florida (10.7 percent), Alabama (9.4 percent), Texas (8.7 percent), North Carolina (8.1 percent), South Carolina (4.1 percent), Arkansas (3.1 percent), Virginia (2.0 percent), Mississippi (1.4 percent), Missouri (1.2 percent), Oklahoma (1.0 percent), and New Mexico (0.3 percent). Currently, these 12 states are considered primary peanut-producing states and they each have a member, with their alternate, seated on the Board. All other states (minor peanut-producing states) that produce peanuts are represented by the at-large member.

As a result of membership adjustments described above, there is currently only one minor peanut-producing state (Louisiana) representing “at-large” seats. That minor peanut-producing state has only five producers producing peanuts in that state. Increasing the threshold from 10,000 tons to 20,000 tons, would cause the state of New Mexico to become a minor peanut-producing state instead of a primary peanut-producing state. This change would increase the pool of candidates eligible to represent minor peanut-producing states as the at-large member and alternate. Minor peanut-producing states would be represented by Louisiana and New Mexico. This proposal would increase the threshold for defining primary peanut-producing states as states that maintain a 3-year average production of at least 20,000 tons of peanuts instead of 10,000 tons of peanuts, an increase of 10,000 tons.

The intent of the Order was to allow peanut farmers to oversee a peanut research, marketing, and promotion organization to improve their economic condition. To be successful, there must be an adequate pool of interested, qualified producers to serve on the Board. The Board voted unanimously on December 3, 2020, and February 3, 2021, to raise the threshold for primary peanut-producing states to those that maintain a 3-year average production of at least 20,000 tons of peanuts. This proposed change would cause the state of New Mexico to become a minor peanut-producing state instead of a primary peanut-producing state, since its production will be below the proposed 20,000-ton threshold. Minor peanut-producing states will be represented by Louisiana and New Mexico. The Board recommended that the change take place by January 1, 2022, to give New Mexico's certified peanut producer organization enough notice of their status change to a minor peanut-producing state. Nominations to fill the at-large seats would take place in 2022 for the term of office to begin in 2023.

Accordingly, this proposed rule would amend §§ 1216.15 and 1216.21 to define the state of New Mexico as a minor peanut-producing state. This proposal would require primary peanut-producing states to maintain a 3-year average production of at least 20,000 tons of peanuts. This proposal would also revise § 1216.40(a) to specify that the Board would be comprised of no more than 12 peanut producer members and their alternates rather than 13, and revise § 1216.40(a)(1) to reflect the new number of primary peanut-producing states, by revising 12 to 11.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of the proposed rule on small entities. Accordingly, AMS has considered the economic impact of this action on small entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration (SBA) defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $1 million and small agricultural service firms (handlers) as those having annual receipts of no more than $30 million.

According to the Board, there were approximately 7200 producers and 34 handlers of peanuts who were subject to the program in 2019.

Most producers would be classified as small agricultural production businesses under the criteria established by the SBA (no more than $1 million in annual peanut sales). USDA's National Agricultural Statistics Service (NASS) reported that crop values of peanuts produced in the top 11 peanut-producing states for the years 2017, 2018, and 2019 were $1.63 billion, $1.17 billion, and $1.13 billion, respectively. The 3-year crop average was $1.31 billion. With a 2019 crop value of $1.13 billion and a total of 7,200 producers, average peanut sales per producer were approximately $157,000. With a 2017-2018 average crop value of $1.31 billion, average sales per producer were approximately $182,000. Both figures are well below the $1 million threshold for a small producer, providing strong evidence that most peanut producers are small businesses.

With 34 handlers, the average annual peanut crop value per handler from 2017 to 2019 ranged from $33 million to $48 million, with a 3-year average of $39 million. With average sales figures moderately higher than the small business threshold size of $30 million, it appears that several handlers are small businesses and there are also a number that are large businesses—no definitive statement can be made.

According to NASS, the number of pounds of U.S. peanut production from 11-primary peanut-producing states for 2017, 2018, and 2019 were 7.12 billion, 5.50 billion and 5.47 billion, respectively. The 3-year average production was 6.03 billion pounds. Computations based on NASS data show that Georgia was the largest producer, with 50.9 percent of the 3-year average quantity, followed by Alabama (9.9 percent), Florida (9.9 percent), Texas (9.1 percent), North Carolina (7.2 percent), South Carolina (5.4 percent), Arkansas (2.4 percent), Mississippi (1.9 percent), Virginia (1.8 percent), Oklahoma (1.0 percent), and New Mexico (under one percent).

This proposal would amend §§ 1216.15, 1216.21 and 1216.40 to redefine the state of New Mexico from a primary peanut-producing state to a minor peanut-producing state. The Order is administered by the Board with oversight by USDA. Under the Order, primary peanut-producing states must maintain a 3-year average production of at least 10,000 tons of peanuts. This amendment would increase the production threshold to 20,000 tons of peanuts. This action would expand the number of minor peanut-producing states to ensure that the Board obtains an adequate pool of qualified producers to serve on the Board to represent minor peanut-producing states. This action is authorized under § 1216.87 of the Order.

Regarding the economic impact of this proposed rule on affected entities, this action would impose no costs on producers or handlers. Changes would define the state of New Mexico as a minor peanut-producing state based on the proposed increase to the threshold to 20,000 tons of peanuts.

Regarding alternatives, the Board has been concerned about obtaining the required two nominees for each open seat to be submitted to the Secretary of Agriculture for primary peanut-producing states and minor peanut-producing states. For years, the Board's staff has actively recruited candidates to be considered for nomination from multiple primary peanut-producing states and minor peanut-producing states, sometimes with little success. The Board considered increasing the threshold for primary peanut-producing states from 10,000 to 30,000 per ton for a 3-year production average. After discussion, the Board voted to double the threshold and require the primary peanut-producing states to maintain a 3-year production average of at least 20,000 tons of peanuts.

In accordance with OMB regulation [5 CFR part 1320], which implements information collection requirements imposed by the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq. ], there are no new requirements contained in this rule. In fact, a decrease of 0.30 hours in the information collection burden for the peanut program is expected. Information collection requirements have been previously approved by OMB under OMB control number 0581-0093 and 0505-0001.

As with all Federal promotion 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.

Regarding outreach efforts, the Board invited Executive Directors of certified peanut producer organizations who represent the primary peanut-producing states (Georgia, Alabama, Texas, Florida, North Carolina, South Carolina, Mississippi, Missouri, Arkansas, Virginia, Oklahoma, and New Mexico) to attend its annual meeting on February 3, 2021. Most of the Executive Directors for certified peanut producer organizations attended this meeting. All the Board's meetings are open to the public and interested persons are invited to participate and express their views. The Board announced that it voted to increase the threshold level from 10,000 to 20,000 per ton on a 3-year average production for a state to become a primary peanut-producing state. No concerns were raised.

We have performed this initial RFA analysis regarding the impact of this proposed action on small entities, and we invite comments concerning potential effects of this action on small businesses.

USDA has determined that this proposed rule is consistent with and would effectuate the purposes of the 1996 Act. A 30-day comment period is provided to allow interested persons to respond to this proposal. All written comments received in response to this proposed rule will be considered prior to finalizing this action.

For reasons set forth in the preamble, 7 CFR part 1216 is proposed to be amended as follows:

The following sections discuss the statutory authority underlying this proposed interpretive rule, as well as the relevant background related to determination of what constitutes a “feature” for the purpose of establishing energy conservation standards under EPCA. Additionally, these sections address DOE's historic interpretation, DOE's interpretation in the January 15, 2021 final interpretive rule (86 FR 4776), and the issuance of Executive Order 13990. This background sets the stage for presentation of DOE's current proposed interpretive rule addressing whether non-condensing technology (and associated venting) constitutes a performance-related “feature” under EPCA which may not be eliminated by an energy conservation standard.

EPCA  1 , Public Law 94-163 (42 U.S.C. 6291 et seq. ), as amended, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. When establishing new or amended standards for covered products, DOE is directed to consider any lessening of the utility or the performance of covered products likely to result from the imposition of the standard. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) Moreover, the Secretary of Energy (Secretary) may not prescribe an amended or new standard if the Secretary finds (and publishes such finding) that interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes (collectively referred to hereafter as “features”) that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6295(o)(4); the “features” provision)

EPCA provides a companion provision at 42 U.S.C. 6295(q)(1), which requires that a rule prescribing an energy conservation standard for a type of covered products shall specify a level of energy use or efficiency higher or lower than that which applies (or would apply) to any group of covered products which have the same function or intended use, if the Secretary determines that covered products within such group:

In making a determination of whether a performance-related feature justifies the establishment of a higher or lower standard, the Secretary must consider such factors as the utility to the consumer of such a feature, and such other factors as the Secretary deems appropriate. (42 U.S.C. 6295(q)(1))

These provisions apply generally to covered commercial and industrial equipment, other than ASHRAE equipment, 2 through the crosswalk provision at 42 U.S.C. 6316(a). ASHRAE equipment has its own separate statutory scheme under EPCA, with the default situation being that DOE must adopt the level set forth in ASHRAE Standard 90.1 unless the Department has clear and convincing evidence to adopt a more stringent standard ( see 42 U.S.C. 6313(a)(6)). Under 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa), there is a provision similar to the “features” provision previously discussed that states that the Secretary may not prescribe an amended standard under this subparagraph if the Secretary finds (and publishes the finding) that interested persons have established by a preponderance of the evidence that a standard is likely to result in the unavailability in the United States in any product type (or class) of performance characteristics (including reliability, features, sizes, capacities, and volumes) that are substantially the same as those generally available in the United States at the time of the finding of the Secretary. However, it is noted that this provision contains the specific limitation that it applies to an amended standard prescribed under this subparagraph ( i.e., when DOE is acting under its authority to set a more-stringent standard). There is no companion “features” provision under 42 U.S.C. 6313(a)(6)(A), which is the provision that would apply when DOE is triggered to adopt the levels set by ASHRAE. There is likewise no companion provision to 42 U.S.C. 6295(q)(1) for ASHRAE equipment.

In addition, on January 20, 2021, the White House issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037 (Jan. 25, 2021). Section 1 of that Order lists several policies related to the protection of public health and the environment, including reducing greenhouse gas emissions and bolstering the Nation's resilience to climate change. Id. at 86 FR 7037, 7041. Section 2 of the Order also instructs all agencies to review “existing regulations, orders, guidance documents, policies, and any other similar agency actions (agency actions) promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, [these policies].” Id. Agencies are then directed, as appropriate and consistent with applicable law, to consider suspending, revising, or rescinding these agency actions and to immediately commence work to confront the climate crisis. Id.

In light of E.O. 13990, DOE has undertaken a review of the final interpretation and withdrawal of proposed rulemakings published in the Federal Register on January 15, 2021. While E.O. 13990 triggered the Department's re-evaluation, DOE is relying on the analysis presented below, based upon EPCA, to re-examine the January 2021 Final Interpretive Rule. Accordingly, the Department has initially determined that the historic application of the “features” provision to non-condensing technology reflects the better reading of the requirements in EPCA.

As discussed, when evaluating and establishing energy conservation standards, DOE is required to divide covered products into product classes by the type of energy used, by capacity, or by other performance-related features that DOE determines justify a different standard. In making a determination of whether a performance-related feature justifies a different standard, the Department must consider factors such as the utility to the consumer of the feature and other factors DOE determines are appropriate. (42 U.S.C. 6295(q)) As the product class provision is complementary to the “features” provision, consideration of what constitutes a feature and what constitutes utility for the purpose of establishing a product class is germane to the application of the “features” provision.

At a basic level, a “feature” is a trait, attribute, or function of a product. The usefulness and benefit provided to a consumer by a feature is the feature's “utility.” Given the multitude of covered products and equipment for which DOE is responsible, the Department has found the concept of “feature” to be very case-specific. 86 FR 4776, 4797 (Jan. 15, 2021). No single definition could effectively capture the potential for features across the broad array of consumer products and commercial equipment subject to EPCA's regulatory scheme. Id. That is why DOE developed the concept of consumer utility and how the consumer interacts with the product/equipment for when DOE is assessing “features.” Id.

Historically, DOE has viewed utility as an aspect of the product that is accessible to the layperson and is based on user operation and interaction with the product. This interpretation has been applied in DOE's previous rulemakings by determining utility through the value the item brings to the consumer, rather than through analyzing complicated design features that do not impact what the consumer perceives as the value of the product, or costs that anyone, including the consumer, manufacturer, installer, or utility companies, may bear. DOE reasoned that this approach is consistent with EPCA's requirement for a separate and extensive analysis of economic justification for the adoption of any new or amended energy conservation standard ( see 42 U.S.C. 6295(o)(2)(A)-(B) and (3)). Examples of prior consideration of the “features” provision, utility, and product/equipment classes are provided in the following paragraphs.

In a final rule addressing energy conservation standards for cooking products, DOE did not consider a design option that eliminated oven door windows. 63 FR 48038, 48041 (Sept. 8, 1998). A number of commenters asserted that the oven door window provides consumer utility by alleviating the need for users to open the oven door to check on the contents. Id. DOE agreed with commenters that the removal of the oven door window would increase the frequency in which consumers open the oven door. Id. DOE also found this increased opening would have the potential to increase energy usage. Id. DOE further indicated that it would re-evaluate oven door window designs should a window material with higher thermal insulation properties become a proven technology. Id.

In the case of residential clothes washers, DOE has maintained a product class distinction based on axis of loading ( i.e., front-loading and top-loading units). Based on comments received during rulemakings, DOE identified axis of loading as a feature that impacts consumer utility ( i.e., the longer cycle times of front-loading residential clothes washers versus cycle times for top-loaders are likely to impact consumer utility). 77 FR 32307, 32319 (May 31, 2012). Conversely, DOE eliminated the suds-saving product class because the market had changed, and, at the time of the rulemaking, DOE did not identify any suds-saving residential clothes washers on the market in the United States. 77 FR 32307, 32317 (May 31, 2012).

In a 2011 rulemaking, DOE created separate product classes for vented and ventless residential clothes dryers based on DOE's recognition of the “unique utility” that ventless clothes dryers offer to consumers. 76 FR 22454, 22485 (April 21, 2011). This utility could be characterized as the ability to have a clothes dryer in a living area where vents are impossible to install ( i.e., an apartment in a high-rise building). As explained in the accompanying technical support document, ventless dryers can be installed in locations where venting dryers would be precluded due to venting restrictions. 3

But in another rulemaking, DOE found that water heaters that utilize heat pump technology did not need to be put in a separate product class from conventional types of hot water heaters that utilize electric resistance technology, even though water heaters utilizing heat pumps require the additional installation of a condensate drain that a hot water heater utilizing electric resistance technology does not require. 75 FR 20112, 20135 (April 16, 2010). Regardless of the installation factors, DOE did not find the mode of heating water to be a performance-related feature or provide a unique utility. Id. DOE also noted comments stating that in the then-current market, water heaters that employed heat pump technology were advertised as replacements for water heaters that employed electric resistance technology. Id.

However, DOE has cautioned that disparate products may have very different consumer utilities, thereby making direct comparisons difficult and potentially misleading. 76 FR 22454, 22485 (April 21, 2011).

On March 12, 2015, DOE published a notice of proposed rulemaking (NOPR) in the Federal Register to amend energy conservation standards for residential non-weatherized gas furnaces and mobile home furnaces, in furtherance of its statutory obligation to determine whether more stringent amended standards would be technologically feasible and economically justified, and would save a significant amount of energy. 80 FR 13120 (March 2015 Furnace NOPR). To provide further consideration of comments suggesting a separate product class for furnaces based on input capacity and in order to mitigate some of the negative impacts of the proposed standards, DOE published a notice of data availability (NODA) in the Federal Register on September 14, 2015. 80 FR 55038 (September 2015 Furnaces NODA). DOE subsequently published a supplemental notice of proposed rulemaking (SNOPR) for this rulemaking in the Federal Register on September 23, 2016, in which DOE proposed to establish capacity-based product classes. 81 FR 65720 (September 2016 Furnaces SNOPR). On May 31, 2016, DOE published in the Federal Register a proposal to amend the energy conservation standards for commercial water heaters. 81 FR 34440 (May 2016 Commercial Water Heaters NOPR).

In both the residential furnaces rulemaking and the commercial water heaters rulemaking, DOE proposed amended energy conservation standards that would effectively require products/equipment in certain classes to use condensing technology to meet the amended standards. See 81 FR 65720, 65852 (Sept. 23, 2016) and 81 FR 34440, 34503-34504 (May 31, 2016). For the product/equipment classes where such standards were proposed, if finalized, the amended standards would have effectively eliminated all non-condensing products/equipment that are currently on the market in those classes.

In the March 2015 Furnace NOPR, DOE tentatively concluded that the methods by which a furnace is vented—which is a significant differentiator of condensing and non-condensing furnaces—do not provide any separate performance-related impacts. Therefore, DOE had no statutory basis for defining a separate class based on venting and drainage characteristics because venting methods do not provide unique utility to consumers beyond the basic function of providing heat, which all furnaces perform. 80 FR 13120, 13138 (March 12, 2015). In the September 2016 Furnace SNOPR, DOE reiterated its tentative conclusion that methods of venting do not provide any performance-related utility separate from the basic function of a furnace. 81 FR 65720, 65753 (Sept. 23, 2016). Similarly, in the May 2016 Commercial Water Heater NOPR, DOE tentatively concluded that both non-condensing and condensing gas-fired commercial water heating equipment provide the same hot water for use by commercial consumers, and, therefore, separate equipment classes could not be justified. 81 FR 34440, 34463 (May 31, 2016).

On October 18, 2018, DOE received a petition for rulemaking submitted by the American Public Gas Association, Spire, Inc., the Natural Gas Supply Association, the American Gas Association, and the National Propane Gas Association, collectively referred to as the “Gas Industry Petitioners,” asking DOE to: (1) Issue an interpretive rule stating that DOE's proposed energy conservation standards for residential furnaces and commercial water heaters would result in the unavailability of “performance characteristics” within the meaning of EPCA, specifically by eliminating from the market units utilizing non-condensing technology, and (2) withdraw the proposed energy conservation standards for residential furnaces and commercial water heaters based upon such findings. DOE published the notice of petition in the Federal Register on November 1, 2018 and requested public comment. 4 83 FR 54883.

Following consideration of the comments on the petition, DOE published a notice of proposed interpretive rule on July 11, 2019, presenting DOE's tentative interpretation that, in the context of residential furnaces, commercial water heaters, and similarly-situated products/equipment, use of non-condensing technology (and associated venting) would constitute a performance-related “feature” under EPCA that cannot be eliminated through adoption of an energy conservation standard. 84 FR 33011 (July 2019 Proposed Interpretive Rule). 5 DOE also provided that, if such interpretation were to be finalized, it anticipated developing supplemental notices of proposed rulemaking that would implement the new legal interpretation for the subject residential furnaces and commercial water heaters. 84 FR 33011, 33021 (July 11, 2019).

DOE published a supplemental notice of proposed interpretation in the Federal Register on September 24, 2020, which proposed alternative approaches to product/equipment class setting in this context. 85 FR 60090. The supplemental proposed interpretive rule was in response to comments expressing concern with the proposed focus on “non-condensing” technology as the performance-related feature. 85 FR 60090, 60094-60095 (Sept. 24, 2020). Alternatively, the supplemental notice of proposed interpretation considered venting compatibility as a possible “feature.” 85 FR 60095 (Sept. 24, 2020). DOE requested comment on this alternative approach. Id.

On January 15, 2021, DOE published in the Federal Register a final interpretive rule determining that, in the context of residential furnaces, commercial water heaters, and similarly-situated products/equipment, use of non-condensing technology (and associated venting) constitutes a performance-related “feature” under EPCA that cannot be eliminated through adoption of an energy conservation standard. 86 FR 4776 (January 2021 Final Interpretation). Following consideration of comments and data submitted by stakeholders in response to the proposed interpretation and supplemental proposal, DOE found that when used by the appliances in question, non-condensing technology (and associated venting) constitutes a performance-related feature that provides consumer utility distinct from that provided by such appliances that employ condensing technology. More specifically, in contrast to condensing units, non-condensing units: (1) Avoid complex installations in certain locations constrained by space, existing venting, and available drainage; (2) avoid the encroachment on usable space that would occur in certain installations, and (3) do not enhance the level of fuel switching that might accompany standard setting absent a separate product/equipment class for non-condensing appliance. 86 FR 4776, 4816 (Jan. 15, 2021). DOE stated that such an interpretation would extend to all relevant/applicable cases involving consumer products, non-ASHRAE commercial equipment, and ASHRAE equipment where DOE adopts a level more stringent than the ASHRAE level. 86 FR 4776, 4816-4817 (Jan. 15, 2021).

In light of this final interpretation, DOE withdrew its March 12, 2015 proposed rule and September 23, 2016 supplemental proposed rule for energy conservation standards for non-weatherized gas furnace and mobile home gas furnaces, as well as its May 31, 2016 proposed rule for energy conservation standards for commercial water heating equipment. 86 FR 3873 (Jan. 15, 2021). However, DOE has not implemented the January 15, 2021 final interpretation in the context of any individual energy conservation standards rulemakings for affected covered products/equipment.

Based on DOE's reconsideration of the January 2021 Final Interpretation, the Department is proposing to revise its interpretation of EPCA's “features” provision in the context of condensing and non-condensing technology used in furnaces, water heating equipment, and similarly-situated appliances. Consistent with the interpretation presented in the May 2015 Furnaces NOPR, the September 2016 Furnaces SNOPR, and the May 2016 Commercial Water Heaters NOPR, DOE tentatively concludes that in the context of residential furnaces, commercial water heaters, and similarly-situated products or equipment, use of non-condensing technology (and associated venting) is not a performance-related “feature” for the purpose of the EPCA prohibitions at 42 U.S.C. 6295(o)(4) and 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa). DOE initially finds that non-condensing technology (and the associated venting) does not provide unique utility to consumers separate from an appliance's function of providing heated air or water, as applicable.

Upon further consideration, DOE has tentatively concluded that utility is determined through the benefits and values the feature provides to the consumer while interacting with the product, not through analyzing or making comparisons to more complicated design features, or costs that anyone, including the consumer, manufacturer, installer, or utility companies, may bear. Stated differently, DOE has tentatively determined that differences in cost or complexity of installation between different methods of venting ( e.g.., a condensing furnace versus a non-condensing furnace) do not make any method of venting a performance-related feature under 42 U.S.C. 6295(o)(4), as would justify separating the products/equipment into different product/equipment classes under 42 U.S.C. 6295(q)(1). Again, this approach is consistent with EPCA's requirement for a separate and extensive analysis of economic justification for the adoption of any new or amended energy conservation standard ( see 42 U.S.C. 6295(o)(2)-(3); 42 U.S.C. 6313(a)(6)(A)-(C); 42 U.S.C. 6316(a)).

Therefore, because DOE has come to see that the issues underlying its January 15, 2021 final interpretive rule are appropriately framed as matters of cost, this proposed interpretation would return those issues for resolution to their proper sphere as part of DOE's economic analysis in individual energy conservation standards rulemakings. DOE initially finds this interpretation to be the best reading of the relevant provisions of EPCA, which is consistent with the intent and purposes of the statute. In DOE's view, the proposed interpretation would align better with EPCA's goals of increasing the energy efficiency of covered products and equipment through the establishment and amendment of energy conservation standards and promoting conservation measures when feasible. (42 U.S.C. 6291 et seq., as amended) The following paragraphs set forth DOE's rationale for its proposed revised interpretation in further detail. As background, DOE must follow specific statutory criteria for prescribing new or amended standards for covered products and covered equipment. In general, a new or amended standard must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A); 42 U.S.C. 6295(o)(3)(B); 42 U.S.C. 6316(a)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens after receiving comments on the proposed standard and by considering, to the greatest extent practicable, seven factors ( see footnote 6). One of the seven factors for consideration is the lessening of the utility or the performance of the covered products likely to result from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(IV); 42 U.S.C. 6313(a)(6)(B)(ii)(IV); 42 U.S.C. 6316(a)) As discussed, EPCA further directs that the Secretary may not prescribe an amended or new standard if the Secretary finds (and publishes such finding) that interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6295(o)(4); 42 U.S.C. 6313(a)(6)(B)(iii)(II); 42 U.S.C. 6316(a)) Also, as discussed, when prescribing an energy conservation standard, DOE must consider whether separate product/equipment classes are justified based on performance-related features and their associated utility. (42 U.S.C. 6295(q)(1); 42 U.S.C. 6316(a)) The “features” provision, the seven factors for economic justification, and the product class provisions are all required considerations in establishing new and amended energy conservation standards.

As mentioned previously, a “feature” is a trait, attribute, or function of a product. The usefulness and benefit provided to a consumer by a feature is the feature's “utility,” and consumer utility is used to evaluate whether a purported feature justifies a separate product class. DOE has historically viewed utility of a product or equipment as an aspect of the appliance that is accessible to the layperson consumer and is based upon user operation and interaction with that appliance. Examples of features, such as oven door windows and angle of access for clothes washers, are illustrative of this principle. Consumers use the oven door window (in conjunction with the oven lamp) to gauge the progress of food undergoing baking, without the need to open the oven door. Needing to open the oven door entails loss of heat, which would decrease the energy efficiency of the oven. The oven door window is a feature which consumers generally appreciate and with which they routinely interact when cooking. The window's elimination would result in the loss of a performance-related feature that provides valued utility for consumers. Another example would be the angle of access of a clothes washer. Currently, consumers have two options when purchasing clothes washers: Front-loading machines and top-loading machines. Some consumers, such as the elderly, may prefer a top-loading clothes washer, because it is easier to reach the laundry without excessive bending, which is in contrast to the angle of access of a front-loading washer. A broader spectrum of consumers recognizes and appreciates the ability of a top-loading washer to readily accept additional clothing items, even after a wash cycle has begun. Other consumers, such as those with disabilities, may prefer a front-loading machine because that angle of access better suits their access needs. The two angles provided consumer utility in terms of ease of use to different consumer subgroups. Consequently, consistent with the requirements of EPCA, DOE viewed angle of access as a performance-related feature for clothes washers that cannot be eliminated from the market through adoption of an energy conservation standard.

In contrast to the examples discussed in the preceding paragraph, DOE has historically viewed a consumer's interaction with a furnace or water heater to be a simple one, whereby the user only interacts to place a call for heated air or water. After the consumer adjusts the thermostat or faucet, the user receives the requested heated air or water. There is no noticeable difference to the consumer in access or output based upon the type of technology or venting used by the appliance. As noted previously, this had been DOE's longstanding interpretation of EPCA's “features” provision in the context of these appliances until the January 15. 2021 final interpretive rule, and for the reasons explained in the following paragraphs, DOE proposes to once again return to an interpretation that different venting methods of natural gas, propane gas, and/or oil-fired furnaces, water heaters, and similarly-situated products or equipment are not features that provide unique utility to consumers independent from such appliances' function of providing heated air or water, as applicable.

Furthermore, DOE has tentatively concluded that it gave insufficient weight to other policy arguments in development of the January 15, 2021 final interpretive rule. Most importantly, as explained in prior rulemakings, tying the concept of “feature” to a specific technology would effectively lock in the currently existing technology as the ceiling for product efficiency and eliminate DOE's ability to address technological advances that could yield significant consumer benefits in the form of lower energy costs while providing the same functionality/utility for the consumer. 81 FR 65720, 65752 (Sept. 23, 2016). Because the statute effectively accords performance-related features a protected status, the Department must take great care when making a features determination. Although DOE acknowledges that the January 15, 2021 final interpretive rule suggested that making a features determination would not impede innovation and the development of more efficient technologies, after careful reevaluation, the agency has tentatively reached a different conclusion, for the reasons explained in this proposed interpretive rule. DOE is concerned that determining features solely on product technology, rather than on how the consumer interacts with and benefits from the feature, could undermine the Appliance Standards Program as established by EPCA. See id. If DOE is required to maintain separate product classes to preserve less efficient technologies, then future advancements in the energy efficiency of covered products would become largely voluntary, an outcome in conflict with Congress's purposes and goals in enacting EPCA. DOE's proposed interpretation would avoid such deleterious outcomes.

Finally, the proposed revised interpretation would maintain consideration of installation costs as part of the extensive analysis of economic justification for the adoption of any new or amended energy conservation standard, as required by EPCA, thereby avoiding what would amount to double-counting of cost considerations as arguably would occur through the January 15, 2021 final interpretive rule. In order for DOE to set an energy conservation standard, EPCA requires that such standard must be designed to achieve the maximum improvement in energy savings that is technologically feasible and economically justified. The statute further recites seven factors for use when considering economic justification. 6 (42 U.S.C. 6295(o)(2)-(3); 42 U.S.C. 6313(a)(6)(A)-(C); 42 U.S.C. 6316(a)) DOE again notes that the statute's “features” provision makes no mention of cost as a relevant consideration. (42 U.S.C. 6295(o)(4); 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa)) As required by EPCA, DOE conducts a comprehensive economic analysis as part of each standards rulemaking. In this case, DOE originally considered the additional costs associated with installing condensing residential furnaces and condensing commercial water heaters in the rulemaking proceedings for those appliances that were withdrawn in conjunction with the January 2021 interpretive rule ( See 81 FR 65720, 65776-65783 (Sept. 23, 2016); 81 FR 34440, 34484-34485 (May 31, 2016)) and would do so again in future rulemakings if the interpretation in this proposal were to be finalized.

The Department acknowledges that in its January 2021 final interpretive rule, it extended its view of consumer utility of furnaces and water heaters beyond those appliances' primary function of providing heated air or water, giving considerable weight to installation situations that could require the addition of new pipes or venting to the usable space of a home or business, major modifications to a utility room, or encroachment upon an existing window or patio. 86 FR 4776, 4786 (Jan. 15, 2021). However, upon further evaluation, DOE realizes that its change in interpretation was unnecessary and arguably beyond what the statute can support, because even if the Department had definitive evidence regarding the extent of difficult or impossible installation situations, loss of usable residential or commercial space, or fuel switching effects, DOE nonetheless had a strong statutorily-based rationale for its historic interpretation, as would support a subsequent return thereto. If consumer utility turns on the layperson's operation and interaction with the product ( i.e., calling for and enjoying the heated air or water which the appliance in question provides) rather than type of venting, then all furnaces and water heaters provide the same basic utility: heated air or water. While DOE acknowledges that installation of condensing products/equipment requires modifications to the installed space in some applications ( e.g., concealing vent pipes that pass through the living space by inclusion in a soffit), such modifications may impact the installation cost and/or complexity, but once installed, they do not impact the user's operation and interaction with the appliance. Moreover, the Department understands that there are technological solutions for most difficult installation situations and that consumers also have heating and water-heating options other than installation of a condensing appliance. Consequently, the agency tentatively finds that the matter essentially boils down to one of cost, which is a topic properly analyzed and adequately addressed under the economic justification provisions of EPCA. DOE's reasoning, which is consistent with the Department's historic interpretation, is discussed in further detail in the paragraphs that follow. However, before turning to that rationale, DOE would add furthermore that it has tentatively concluded that it gave undue weight to these arguments presented by the Gas Industry Petitioners, which were largely based upon anecdotal accounts and limited installer survey data. After reexamining the record, DOE has preliminarily determined that the qualitative arguments made by the Gas Industry Petitioners were not accompanied by sufficient evidence to establish the existence or magnitude of the alleged problem, as would support the significant change from DOE's historic interpretation to the interpretation contained in the January 2021 final interpretive rule.

As noted previously, upon reconsideration, DOE has tentatively concluded that consumers have other options for resolving difficult installation situations—the situations that provided two of the three reasons for the January 15, 2021 final interpretive rule—without the need for the Department to declare non-condensing technology and associated venting to be a performance-related feature under EPCA. This provides a further basis for DOE's proposed return to its historic interpretation. In short, consumers facing difficult installation situations can either: (1) Utilize a technological solution to resolve their installation problem, or (2) switch to an appliance utilizing alternative technologies. Either approach would allow those consumers with potentially difficult installation situations to choose how best to avoid loss of usable space, extensive building modifications, or extreme installation costs identified in the January 15, 2021 final interpretive rule.

The first option is to use new technology to overcome identified installation problems. It has been DOE's historic position that there is a technological solution to accommodate virtually all of the difficult installation situations involving gas-fired appliances, although some might be costly ( e.g., requiring new venting). Although a critical piece of the Gas Industry Petitioners' argument in support of their petition was that it may be impossible to install a condensing appliance in certain replacement applications, they never provided any definitive proof as to the existence of this problem or its extent. In promulgating the January 15, 2021 final interpretive rule, DOE found these theories persuasive, but upon further examination, there is at best weak foundational support to challenge the Appliance Standards Program's record of evidence that it is technologically feasible to install condensing appliances in virtually all replacement applications. If the consumer's affinity for gas-fueled appliances is sufficiently high to warrant their continued use, the consumer will choose to make such changes when installing the more efficient appliance, which reflects an economic decision.

Technological solutions should also resolve the specific issue of orphaned water heaters identified by the Gas Industry Petitioners. (An “orphaned water heater” refers to the situation in which a non-condensing furnace and non-condensing water heater share a common vent, but, upon replacement of the non-condensing furnace with a condensing furnace, they can no longer share that same venting due to differences in venting requirements.) DOE has, in fact, identified a newer technology for which comprehensive data are currently unavailable, but when mature, it could address the issue of orphaned appliances, allow consumers to switch from a non-condensing furnace to a condensing furnace, and permit continued use of existing common venting in a greater variety of applications. 7 86 FR 4776, 4781 (Jan. 15, 2021). More specifically, this venting technology may allow a consumer to obtain the efficiency of a condensing furnace using the existing venting in a residence by sharing venting space with a water heater. It would significantly reduce the cost burden associated with installing condensing furnaces and reduce potential instances of “orphaned” water heaters. This technology could allow consumers to switch from a non-condensing furnace to a condensing furnace in a greater variety of applications, such as urban row houses. See 80 FR 13120, 13138 (March 12, 2015). DOE is concerned that characterizing the method of venting as a “feature” due to concerns over orphaned water heaters would limit future advancements in this technology, because establishment of separate product or equipment classes for non-condensing appliances would limit the market for such innovative devices that allow condensing and non-condensing appliances to share the same venting. 8 Consequently, DOE has reconsidered and changed its view regarding the argument put forth in the January 2021 Final Interpretation—that replacement of a non-condensing furnace with a condensing unit may result in an orphaned water heater. 86 FR 4776, 4785 (Jan. 15, 2021).

DOE would also clarify that the present case of non-condensing gas-fired residential furnaces and commercial water heaters is distinguishable from certain other products that the Department has regulated in the past, such as space-constrained central air conditioners and ventless and compact clothes dryers. DOE explained in two direct final rules that the latter products necessitated design differences related to their reduced size or ventless operation that inherently limited their energy efficiency, and the agency set separate classes on that basis. For ventless clothes dryers, DOE also found that certain consumers ( e.g., high-rise apartment dwellers) might not be able to have a clothes dryer at all, unless a ventless option were available. See 76 FR 37408, 37439-37440 (June 27, 2011); 76 FR 22454, 22485 (April 21, 2011). In contrast, there are insufficient data to show that consumers would be without furnace and water heater options in the absence of non-condensing furnaces and water heaters. Furthermore, the subject non-condensing furnaces and water heaters are not significantly different in overall footprint or size from their condensing counterparts (although the composition of the venting used may be different), and the energy efficiency differences are a result of the technology used, a design parameter that is dictated by considerations other than size.

The second option for resolving difficult installation situations would be for the consumer to replace a gas-fired furnace or water heater with an electric heat pump or water heater, thereby obviating the need for extensive changes to existing venting. Consumers routinely make such choices where they deem it appropriate, which reflects an economic decision. This option would accommodate the needs of consumers who are predominantly concerned with loss of usable space or aesthetics  9 because it would obviate the need to make significant changes to the residential or commercial space. Nothing in EPCA precludes such effects, as long as DOE's standard would not eliminate the appliance of that fuel type entirely, and in this case, maintaining non-condensing and condensing units under a single class of product or equipment would not eliminate the availability of natural gas, propane, or other fuel type models from the U.S. market.

It bears noting that while EPCA recognizes that various fuel types exist in the appliance marketplace and provides certain protections, it does not directly address fuel switching or mandate that DOE take regulatory action to preclude such marketplace effects. In certain appropriate cases, Congress set statutory energy conservation standard levels for products, such as consumer water heaters ( see 42 U.S.C. 6295(e)(1)) and consumer boilers ( see 42 U.S.C. 6295(f)(3)), based on fuel type ( e.g., gas, oil, electricity). EPCA also recognizes differences in fuel type under 42 U.S.C. 6295(q)(1)(A), which provides for setting separate classes where appliances “consume a different kind of energy from that consumed by other covered products within such type (or class).” Notably, however, ECPA's “features” provision at 42 U.S.C. 6295(o)(4) does not include fuel type within its ambit. Thus, Congress structured EPCA to recognize fuel-type distinctions and to create a level playing field, while balancing the need for overall energy savings. In historically implementing the Appliance Standards Program, DOE has similarly sought to adhere to a policy of fuel neutrality, where consistent with EPCA. DOE develops energy conservation standards in compliance with the statutory requirements of EPCA, which does not generally involve cross-class comparisons for standard setting. Although DOE typically analyzes fuel-switching effects, the agency is generally free to set an appropriate level under the applicable statutory criteria regardless of any ancillary fuel-switching effects. Thus, to the extent the January 15, 2021 final interpretive rule sought to enshrine an agency obligation to prevent fuel-switching, such action was without statutory basis. Moreover, DOE finds the Gas Industry Petitioners' arguments about potential fuel switching to be likely overstated for the reasons explained subsequently.

To start, the January 15, 2021 final interpretive rule was misguided in suggesting that any rule that would result in fuel switching violates the fuel neutrality principle, because fuel switching occurs frequently and most certainly in the context of new energy conservation standards. Fuel switching is a natural part of market operation for the subject appliances, and it may occur even in the absence of amended energy conservation standards. Installation costs may influence consumer decisions regarding fuel choice, and at any time, a segment of consumers may choose replacement products that rely on a different fuel source than that of the unit being replaced. With that said, the mere potential for fuel switching should not serve as the basis for establishment of a performance-related feature under EPCA.

The appropriate threshold for when fuel switching violates the fuel neutrality principle requires a degree of fuel switching that is much greater than typically found in DOE energy conservation standards rulemakings. Given DOE's policy of fuel neutrality and because fuel switching may be impacted by the adoption of standards, when conducting an energy conservation standards rulemaking, the Department routinely accounts for potential fuel switching in its consumer choice model, which is one part of its full suite of analyses. In certain applications, consumers may choose to replace natural gas or propane gas products with electric products that provide the same utility in the face of changed standards. The extent to which consumers might replace natural gas or propane products with electric products is dependent in part on the stringency of the standards. 10 See e.g., 81 FR 65720, 65791-65793 (Sept. 23, 2016). DOE has typically found fuel switching to occur in a small number of cases in any given rulemaking, and based upon currently available information, the Department does not expect that instances of fuel switching would be significantly different for the subject residential furnaces, commercial water heaters, and similarly-situated products or equipment.

For example, DOE notes that it was required by statute in a prior rulemaking to consider differential standards for small furnaces based upon input capacity as a means to address fuel switching. Specifically, under 42 U.S.C. 6295(f)(1)(B), Congress directed DOE to consider the appropriate standard level to be set for furnaces with an input capacity of less than 45 kBtu/h. In doing so, Congress directed DOE to consider a standard level within a specified range that was not likely to result in a significant shift from gas heating to electric resistance heating with respect to either residential construction or furnace replacement. Id. See also 54 FR 47916 (Nov. 17, 1989) (final rule adopting energy conservation standards for “small” furnaces). In the September 2016 Furnace SNOPR, DOE considered the potential for reduction of fuel-switching in proposing the capacity-based standards. 81 FR 65720, 65755 (Sept. 23, 2016). Regarding commercial water heaters, DOE initially determined that fuel switching beyond the continuation of historical trends would be unlikely due to differences in operating costs and differences in hot water delivery capacity. 81 FR 34440, 34494 (May 31, 2016). Although the Gas Industry Petitioners made vocal arguments to the contrary about fuel switching in support of their petition and in the context of various rulemaking proceedings, they did not provide data to substantiate these claims.

In this case, there is insufficient evidence that fuel switching would be greater than is typically encountered in DOE rulemakings. DOE notes that the incidence of fuel switching for the subject appliances may be mitigated further by the availability of technological solutions such as the vent-sharing device discussed previously. For all of these reasons, DOE does not find potential fuel switching alone to be a basis to support a determination that non-condensing technology and associated venting constitute a performance-related feature.

Based on the foregoing discussion, DOE proposes to revise its interpretation of EPCA's “features” provision in the context of condensing and non-condensing technology used in furnaces, water heating equipment, and similarly-situated appliances (where permitted by EPCA) along the lines discussed previously. Accordingly, DOE tentatively concludes that in the context of residential furnaces, commercial water heaters, and similarly-situated products/equipment, use of non-condensing technology (and associated venting) is not a performance-related “feature” for the purpose of the EPCA prohibitions at 42 U.S.C. 6295(o)(4) and 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa).

DOE has initially determined that its proposed interpretation is the best reading of the language of EPCA and DOE's statutory obligation to establish energy conservation standards for covered products and equipment. Additionally, the proposed interpretation would allow DOE to consider more efficient standards for certain products and equipment.

DOE is proposing to revise its application of the “features” provisions in 42 U.S.C. 6295(o)(4) and 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa) as an interpretive rule within the meaning of the Administrative Procedure Act (APA). 5 U.S.C. 551(4); 5 U.S.C. 553(b). DOE is publishing this proposed interpretive rule to solicit comment and to provide the public with a clear and transparent explanation of DOE's view of a specific legal question, thereby following a process similar to that which resulted in the January 2021 final interpretive rule.

DOE wishes to make clear that an interpretive rule is a type of rule or regulation within the meaning of those terms in the Administrative Procedure Act, 5 U.S.C. 551(4). It is well established under the APA that agencies have the authority to issue interpretive rules, and that these rules are a valuable tool for an agency to use to advise the public prospectively and in a clear and transparent manner of the agency's construction of a statute it administers.

Once again, it is noted that DOE withdrew its March 12, 2015 proposed rule and September 23, 2016 supplemental proposed rule for energy conservation standards for non-weatherized gas furnace and mobile home gas furnaces, as well as its May 31, 2016 proposed rule for energy conservation standards for commercial water heating equipment, for further proceedings consistent with the interpretation contained in the January 15, 2021 final interpretive rule. 86 FR 4776, 4817 (Jan. 15, 2021); see also 86 FR 3873 (Jan. 15, 2021). As explained in this document, DOE is once again examining its interpretation of the relevant statutory provisions in the context of residential furnaces, commercial water heating equipment, and similarly-situated products/equipment. When this proceeding is complete, DOE plans to again evaluate whether amended energy conservation standards would result in significant savings of energy, be technologically feasible, and be economically justified, consistent with its latest interpretation.

However, in any future rulemaking, DOE would make clear that the rulemakings for residential furnaces and commercial water heating equipment have been subject to multiple rounds of public comment, including public meetings, and that extensive records have been developed in the relevant dockets. ( See Docket Number EERE-2014-BT-STD-0031 and Docket Number EERE-2014-BT-STD-0042, respectively). Consequently, DOE wishes to reassure stakeholders that the information obtained through those earlier rounds of public comment, information exchange, and data gathering have not gone to waste. Instead, DOE anticipates building upon the existing record through further notice and comment rulemaking. Such an approach also reflects DOE's cognizance of the statutory deadlines associated with the energy conservation standards for residential furnaces and commercial water heating equipment.

The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) waived review of this proposed interpretive rule under Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (Oct. 4, 1993).

DOE invites all interested parties to submit in writing by the date listed in the DATES section of this document, comments and information regarding this proposed interpretive rule. 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 www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment 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 www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

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

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

Include contact information each time you submit comments, data, documents, and other information to DOE. No telefacsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, 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 two well-marked copies: one copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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

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

This document of the Department of Energy was signed on August 17, 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 Energy Policy and Conservation Act, as amended (“EPCA”), 1 (42 U.S.C. 6291-6317, as codified) authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B  2 of EPCA (42 U.S.C. 6291-6309, as codified), established the Energy Conservation Program for “Consumer Products Other Than Automobiles.” Title III, Part C  3 of EPCA (42 U.S.C. 6311-6317, as codified), added by Public Law 95-619, Title IV, section 411(a), established the Energy Conservation Program for Certain Industrial Equipment. The Energy Policy Act of 1992, Public Law 102-486, amended EPCA and directed DOE to prescribe energy conservation standards for those distribution transformers for which DOE determines such standards would be technologically feasible, economically justified, and would result in significant energy savings. (42 U.S.C. 6317(a)) The Energy Policy Act of 2005, Public Law 109-58, amended EPCA to establish energy conservation standards for low-voltage dry-type distribution transformers. (42 U.S.C. 6295(y))

EPCA further provides that, not later than six years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notice 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. 6316(a); 42 U.S.C. 6295(m)(1)) Not later than three years after issuance of a final determination not to amend standards, DOE must publish either a notice 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. 6316(a); 42 U.S.C. 6295(m)(3)(B))

Under EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(3)(B))

DOE is publishing this Preliminary Analysis to collect data and information to inform its decision consistent with its obligations under EPCA.

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products and covered equipment, including distribution transformers. 4 As noted, EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy efficiency (or water efficiency for certain products specified by EPCA) that is technologically feasible and economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(3)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy, or is not technologically feasible or economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(3))

On February 14, 2020, DOE published an update to its procedures, interpretations, and policies for consideration in new or revised energy conservation standards and test procedure, i.e., “Procedures, Interpretations, and Policies for Consideration of New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Certain Commercial/Industrial Equipment” (see 10 CFR 431.4; 10 CFR part 430, subpart C, appendix A (“Process Rule,”)). 5 85 FR 8626. In the updated Process Rule, DOE established a significance threshold for energy savings under which DOE employs a two-step approach that considers both an absolute site energy savings threshold and a threshold that is a percent reduction in the energy use of the covered product. 10 CFR 431.4; section 6(a) of the Process Rule.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0716; Project Identifier 2019-CE-023-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jim Rutherford, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0082, dated April 12, 2019 (referred to after this as “the MCAI”), to address an unsafe condition on Stemme AG Model Stemme S 12 gliders. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0716.

The FAA reviewed Stemme Service Bulletin No. P062-980027, Revision 00, dated December 17, 2018. The service information specifies checking the ASI markings and provides illustrations of correct markings. The service information specifies the procedure to replace an affected ASI with an ASI with correct markings. The service information also includes a temporary page to insert into the AFM until the ASI is replaced. 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 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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require a one-time inspection of the ASI markings and, depending on findings, either replacing the ASI before further flight or amending the existing AFM until the ASI is replaced within 3 months.

The FAA estimates that this AD, if adopted as proposed, would affect 20 gliders of U.S. registry. The FAA estimates that it would take about 0.5 work-hour per glider to comply with the inspection requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the cost of this AD on U.S. operators to be $850 or $42.50 per glider.

The FAA estimates that amending the AFM to insert and then remove the temporary page as a result of the inspection would take about 1 work-hour per glider for a total cost of $85 per glider. The FAA estimates that replacing the ASI would take about 3.5 work-hours and require parts costing $603, for a total cost of $900.50 per glider. The FAA has no way of determining the number of gliders that may need these actions.

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

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0714; Project Identifier 2019-CE-016-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend 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 Gregory Johnson, Aviation Safety Engineer, AIR-732 International Validation Section FAA, 901 Locust, Room 301, Kansas City, MO 64106-2641. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0015, dated January 29, 2019 (referred to after this as “the MCAI”), to address an unsafe condition on ASI Aviation (type certificate previously held by Reims Aviation S.A.) Model F406 airplanes. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0714.

The FAA reviewed ASI Aviation Service Bulletin No. F406-62, Revision 01, dated December 14, 2018, which specifies inspecting the CB switches to determine the date code, replacing CB switches with certain date codes, and establishing a life limit of 6 years for the new CB switches. The FAA also reviewed ASI Aviation Service Bulletin No. F406-90, dated December 14, 2018, which specifies replacing the CB switches and establishing a life limit of 6 years for the new CB switches. 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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining 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, except as discussed under “Differences Between this Proposed AD and the MCAI.”

The MCAI allows installation of an affected CB switch until the airplane is modified. This proposed AD would prohibit installation of an affected CB switch as of the effective date of this AD.

The FAA estimates that this AD, if adopted as proposed, would affect 4 airplanes of U.S. registry.

The FAA also estimates that it would take about 5 work-hours per airplane to comply with the inspection required by this proposed AD. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the inspection cost of this proposed AD on U.S. operators to be $1,700 or $425 per airplane.

In addition, the FAA estimates that each replacement required by this proposed AD would take about 1 work-hour and require parts costing $350. Based on these figures, the FAA estimates the replacement cost of this proposed AD on U.S. operators to be $435 per airplane.

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-2021-0715; Project Identifier AD-2021-00259-A” 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 Marks, Aviation Safety Engineer, Wichita ACO Branch, FAA, 1801 Airport Road, Wichita, KS 67209. 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 a Piper production line issue with the installation of a Garmin G3X Touch Electronic Flight Instrument System installed under STC No. SA01899WI. After calibration and fueling the airplane to a known level, the flight crew noted that the fuel quantity indicator displayed a higher level of fuel.

The Garmin G3X Touch Electronic Flight Instrument System, when interfaced with the Garmin GEA 24 (Engine Airframe Adapter) for display of the fuel quantity, uses a 1K ohm resistor inline between the GEA 24 and the airplane fuel quantity resistance style sending unit (float). This resistor provides lightning protection to the fuel tank as required by 14 CFR 23.954.

Use of the 1K resistor causes a GEA error with changing resistor temperature. The farther the actual (ambient) temperature of the resistor is from the temperature of the fuel quantity calibration, the larger the error. The lower the operating resistance of the fuel sending unit, the larger the error. The largest errors occur in installations with fuel sending units having an operational range less than 100 ohms. The Garmin GI 275 MFDS installed under STC No. SA02658SE, when interfaced with the Garmin GEA 24 for display of the fuel quantity, is also subject to this unsafe condition.

The displayed fuel quantity can have an error as much as four gallons/fuel tank with the display indicating four gallons with an empty tank. This condition, if not addressed, could result in fuel starvation and engine shutdown with consequent loss of airplane control.

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

The FAA reviewed Garmin Mandatory STC Service Bulletin No. 2134, Revision A, and Garmin Mandatory STC Service Bulletin No. 2135, Revision A, both dated April 23, 2021. This service information specifies procedures for modifying the GEA 24 resistive fuel probe interface. These documents are distinct since they apply to different STCs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA also reviewed Master Drawing List (MDL) Document No. 005-01320-00, Revision 10, for STC No. SA01899WI, and MDL Drawing No. 005-01208-41, Revision 10, for STC No. SA02658SE, both dated April 23, 2021. This service information contains the type design data for installation of the STC. Revision 10 introduces a new fuel quantity interface and configuration to eliminate the unsafe condition described previously.

This proposed AD would require modifying the resistive fuel probe interface. The proposed AD would apply to airplanes on the approved model list for STC No. SA01899WI, installed in accordance with MDL Document No. 005-01320-00, Revision 9 or earlier, and STC No. SA02658SE, installed in accordance with MDL Drawing No. 005-01208-41, Revision 9 or earlier, if the installation is interfaced with a Garmin Engine Adapter GEA 24 connected to resistive fuel probes.

The FAA estimates that this AD, if adopted as proposed, would affect 920 airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0713; Project Identifier AD-2021-00180-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may 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 Haytham Alaidy, Aerospace Engineer, Certification & Program Management Section, DSCO Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5224; email haytham.alaidy@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA proposes to adopt a new AD for Bell Textron Inc., Model 412, 412EP, and 412CF helicopters. This proposed AD was prompted by the results of an evaluation of BLR Aerospace Strake and FastFin system part number (P/N) 412-705-040-101. During the evaluation, additional flight loads were recorded that impact the collective lever fatigue life. Accordingly, this proposed AD would require adding a permanent life penalty for affected collective levers and prohibit installing those collective levers unless the permanent life penalty has been added. This condition, if not addressed, could result in fatigue damage and cracking, failure of the collective lever, and subsequent loss of control of the helicopter.

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 Bell Helicopter Alert Service Bulletin 412-12-151, Revision A, dated July 8, 2014. This service information specifies procedures for adding a permanent flight hour penalty for collective levers installed or previously installed on helicopters with a Strake and FastFin system P/N 412-705-040-101.

This proposed AD would require, depending on the configuration, adding a permanent life penalty of 5,000 hours time-in-service (TIS) or 50% of the total hours TIS accumulated by the collective lever on the component history card or equivalent record for the collective lever. This proposed AD would also prohibit installing an affected collective lever unless the permanent life penalty has been added on its component history card or equivalent record.

The service information specifies adding the permanent life penalty at the next scheduled inspection, whereas this proposed AD would require that action within 50 hours TIS after the effective date of this AD instead. This proposed AD would require adding the permanent life penalty for helicopters without a Strake and FastFin system P/N 412-705-040-101 installed, but with a collective lever P/N 412-010-408-101 installed, whereas the service information does not specify this.

The FAA estimates that this AD, if adopted as proposed, would affect 96 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Replacing a collective lever would take about 2 work-hours and parts would cost about $18,237, for an estimated cost of $18,407 per helicopter and up to $1,767,072 for the U.S. fleet.

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-2021-0661; Project Identifier AD-2020-01349-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 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 Nicholas Paine, 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 issued AD 2011-07-02, Amendment 39-16639 (76 FR 16526, March 24, 2011), (AD 2011-07-02), for all P&W JT8D-209, JT8D-217, JT8D-217A, JT8D-217C, and JT8D-219 model turbofan engines. AD 2011-07-02 was prompted by nine reports of failure of Tinidur material LPT-to-exhaust case bolts. AD 2011-07-02 requires initial and repetitive torque inspections of the 3rd-stage and 4th-stage LPT blades, replacement of the LPT blade if wear limits are exceeded, and replacement of the LPT-to-exhaust case bolts and nuts with longer bolts and nuts made of Tinidur material. AD 2011-07-02 also requires installation of crushable sleeve spacers on the bolts. The agency issued AD 2011-07-02 to prevent an LPT blade failure that could result in uncontained engine debris and damage to the airplane.

Since the FAA issued AD 2011-07-02, the agency received a report of an MD-82 airplane, equipped with JT8D-217C model turbofan engines that, on approach to Taipei Songshan Airport, experienced an engine surge on the number one engine resulting in LPT blade fracture and uncontained LPT blade failure. An inspection by the manufacturer determined that this event was caused by shroud notch wear of the LPT blades, which led to changes in the vibration mode and subsequent high-cycle fatigue of the airfoil. In addition to this event, the FAA received reports of five events that involved uncontained failure of the LPT blades on the affected engines. Based on its investigation of these events, P&W determined that revised or more restrictive inspection thresholds and replacement intervals of the 3rd-stage and 4th-stage LPT blades are necessary and revised its service information accordingly.

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 Pratt & Whitney Alert Service Bulletin (ASB) No. JT8D A6224, Revision No. 7, dated August 26, 2019. This service information specifies procedures for the initial and repetitive torque inspections of the 3rd-stage and 4th-stage LPT blades for shroud notch wear at revised inspection thresholds and intervals. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA reviewed Pratt & Whitney ASB No. JT8D A6494, Revision No. 1, dated January 26, 2010, Pratt & Whitney ASB JT8D A6507, dated November 2, 2020, and Sections 72-53-12 through 72-53-13 of Pratt & Whitney Engine Maintenance Manual (EMM), Part No. 773128, Revision 107, dated October 15, 2020. Pratt & Whitney ASB No. JT8D A6494, Revision No. 1, dated January 26, 2010, describes procedures for replacing the LPT-to-exhaust case bolts and nuts and installing the crushable sleeve spacers. Pratt & Whitney ASB JT8D A6507, dated November 2, 2020, describes procedures for replacing the 3rd-stage and 4th-stage LPT blades. Sections 72-53-12 through 72-53-13 of Pratt & Whitney EMM, Part No. 773128, Revision 107, dated October 15, 2020, describe procedures for inspecting and repairing the 3rd-stage and 4th-stage LPT blades.

This proposed AD would retain certain requirements of AD 2011-07-02. This proposed AD would require an initial torque inspection of certain 3rd-stage LPT blades and repetitive torque inspections of 4th-stage LPT blades for shroud notch wear at revised inspection thresholds and intervals. This proposed AD would also require replacement of the 3rd-stage and 4th-stage LPT blades before accumulating 5,000 hours time-in-service.

The FAA estimates that this AD, if adopted as proposed, would affect 42 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 that the 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-2021-0712; Project Identifier 2019-CE-018-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend 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 Gregory Johnson, Aviation Safety Engineer, FAA, General Aviation & Rotorcraft Section, International Validation Branch, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2015-16-07 R1, Amendment 39-18328 (80 FR 72563, November 20, 2015) (AD 2015-16-07 R1), for certain serial-numbered Reims Aviation S.A. (type certificate now held by ASI Aviation) Model F406 airplanes. AD 2015-16-07 R1 was prompted by MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued EASA AD 2015-0159R1, dated August 24, 2015, to identify and correct an unsafe condition identified as detachment of the pilot's rudder control pedal in flight.

AD 2015-16-07 R1 requires inspecting the left-hand and right-hand rudder control pedal torque tubes and replacing with a serviceable part as necessary. The FAA issued AD 2015-16-07 R1 to detect and correct cracking of the pilot rudder control pedal which, if not corrected, could result in detachment of the pedal with possible loss of airplane directional control. AD 2015-16-07 R1 revised AD 2015-16-07, Amendment 39-18232 (80 FR 49127, August 17, 2015) (AD 2015-16-07), by adding an option for acceptable serviceable replacement parts. AD 2015-16-07 R1 retained the compliance times required by AD 2015-16-07.

Since the FAA issued AD 2015-16-07 R1, EASA superseded EASA AD 2015-0159R1, dated August 24, 2015, and issued EASA AD 2019-0016, dated January 29, 2019 (referred to after this as “the MCAI”). The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0712.

The FAA reviewed ASI Aviation Service Bulletin No. F406-104, Revision 1, dated December 14, 2018. The service information specifies procedures for repetitively inspecting the left-hand and right-hand rudder control pedal torque tubes for cracks and replacing with a serviceable part.

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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would retain the requirements of AD 2015-16-07 R1, expand the applicability, and require repetitive inspections (using improved procedures) of the left-hand and right-hand rudder control pedal torque tubes, and, depending on findings, replacement with a serviceable part.

The MCAI specifies an initial compliance time of during the next 600 flight hour (FH) maintenance check for a visual and a dye or fluorescent penetrant inspection. This proposed AD would require those initial inspections before further flight.

The MCAI specifies an initial compliance time of during the next 2,400 FH maintenance check for a magnetic particle inspection. This proposed AD would require that initial inspection within 100 hours time-in-service after the effective date of this AD.

If a crack is detected during any inspection, the MCAI specifies contacting ASI Aviation for further information. This proposed AD would require replacing the rudder control pedal torque tube with a serviceable part.

The FAA estimates that this proposed AD, if adopted as proposed, would affect 4 airplanes of U.S. registry.

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

The FAA estimates the following costs to replace a rudder control pedal torque tube if required by the results of the proposed inspections. The FAA has no way of determining the number of airplanes that might need these replacements:

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-2021-0711; Project Identifier 2019-CE-024-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mike Kiesov, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The Civil Aviation Authority (CAA), which is the aviation authority for New Zealand, has issued AD No. DCA/750XL/37, effective April 25, 2019 (referred to after this as “the MCAI”), to correct an unsafe condition for certain Pacific Aerospace Limited Model 750XL airplanes. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0711.

The FAA reviewed Pacific Aerospace Mandatory Service Bulletin PACSB/XL/113, Issue 2, dated March 8, 2019. The service information contains procedures for inspecting the engine fuel feed line hoses and the electrical wiring for chafing or damage, rerouting all fuel lines and the fuel transducer and pressure switch wiring (including installing P clips), and inspecting the fuel hose for chafing and replacing chafed fire sleeves or fuel hoses if necessary. 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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining 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 described previously, except as discussed under “Differences Between this Proposed AD and the MCAI.”

The MCAI requires an inspection at the next 150 hour maintenance inspection or within the next 50 hours time-in-service (TIS), whichever occurs later, while this proposed AD would require those actions within 50 hours TIS or at the next annual inspection after the effective date of this AD, whichever occurs later. If there is no chafing and damage found during the inspection, the MCAI requires certain follow-on actions at the next 300 hour maintenance inspection or within the next 50 hours TIS, whichever is later. This proposed AD would require those actions within 50 hours TIS or at the next annual inspection, whichever occurs later, because there is no regulatory requirement for operators in the U.S. to have 150-hour or 300-hour maintenance inspections.

The FAA estimates that this AD, if adopted as proposed, would affect 23 airplanes of U.S. registry. The FAA also estimates that it would take about 5 work-hours per airplane and require parts costing $20 per airplane to comply with the inspection and re-routing that would be required by this proposed AD. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the inspection and re-routing cost of this proposed AD on U.S. operators to be $10,235, or $445 per airplane.

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

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

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

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

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

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

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2021-0674/Airspace Docket No. 21-ASW-14.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

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

The FAA is proposing an amendment to 14 CFR part 71 by:

Amending the Class D airspace to within a 4.3-mile (increased from a 4.2-mile) radius of Ardmore Municipal Airport, Ardmore, OK; updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;

Amending the Class E airspace area designated as an extension to Class D airspace at Ardmore Municipal Airport within 1.4 (increased from 1.3) miles each side of the Ardmore VORTAC 050° (previously 056°) radial extending from the 4.3-mile (increased from 4.2-mile) radius of airport to 7.4 (decreased from 8.4) miles southwest of airport; updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;

And amending the Class E airspace extending upward from 700 feet above the surface at Ardmore Municipal Airport by adding an extension within 1.5 miles each side of the Ardmore VORTAC 050° radial extending from the 6.8-mile radius of the airport to 8.4 miles southwest of the airport; within 1.1 miles each side of the 315° bearing from the airport extending from the 6.8-mile radius of the airport to 7 (increased from 6.9) miles northwest of the airport; updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and removing the extension northwest of the Ardmore VORTAC as it is no longer required.

These actions are the result of airspace reviews caused by the decommissioning of the Arbuckle NDB which provided guidance to instrument procedures at these airports.

Class D and Class E airspace designations are published in paragraph 5000, 6004, and 6005, respectively, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

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

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

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

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

The Coast Guard views 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-2020-0069 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).

Public meeting. We do not plan to hold a public meeting but we will consider doing so if we determine from public comments that a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

The purpose of this proposed rule is to extend the maximum period of validity of merchant mariner medical certificates issued to first-class pilots (FCPs) and masters or mates serving as pilot to 5 years, which would reduce the frequency that they must submit a medical certificate application to the Coast Guard. Reducing the frequency of medical certificate applications would reduce the administrative burden on the mariner submitting the application and on the Coast Guard when processing the application and issuing the medical certificate. This proposed rule would also amend the submission requirements for the results of the statutorily required annual physical examination for pilots serving on vessels greater than 1,600 gross register tons (GRT).

The legal basis of this proposed rule is Title 46 of the United States Code (U.S.C.), Section 7101(c), which authorizes the Coast Guard to issue licenses to pilots who are found qualified as to physical fitness and Section 7101(c)'s other qualifications. Title 46 U.S.C. 7101(e)(2) further specifies that an individual may only be issued a license as pilot if they are found to be of sound health and have no physical limitations that would hinder or prevent them in the performance of a pilot's duties. Section 7101(e)(3) also requires each pilot serving on vessels 1,600 GRT or greater to have a thorough physical examination each year while holding the license. The Secretary of the Department of Homeland Security (DHS) has delegated these statutory authorities to the Coast Guard through DHS Delegation No. 00170.1(92)(e), Revision No. 01.2, which generally authorizes the Coast Guard to determine and establish the experience and professional qualifications required for the issuance of credentials. Additionally, 14 U.S.C. 102(3) grants the Coast Guard broad authority to promulgate and enforce regulations for the promotion of safety of life and property on waters subject to the jurisdiction of the United States.

The Coast Guard issues Merchant Mariner Credentials (MMCs) and medical certificates to qualified mariners who meet the requirements in title 46 of the Code of Federal Regulations (CFR), subchapter B, parts 10 through 13. The requirements for medical certification are described in 46 CFR part 10, subpart C. Currently, as described in § 10.301, the medical certificate will be issued for various periods of time based upon the endorsements the mariner holds. For mariners employed or engaged on vessels to which the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention) applies, the maximum validity period is 2 years. For mariners serving as FCP, or masters or mates serving as pilot under 46 CFR 15.812, the maximum validity period is 2 years. For all other mariners serving on national MMC endorsements, the maximum validity period of the medical certificate is 5 years. Mariners may not be employed in a position requiring an MMC unless they hold a valid medical certificate as described in § 15.401(c).

Under the current requirements, FCPs and masters or mates who are serving as pilot on vessels of any tonnage must submit the results of a physical examination recorded on form CG-719K, the “Application for Medical Certificate,” to the Coast Guard every 2 years in order to maintain a valid medical certificate.

In accordance with § 11.709, FCPs and masters or mates serving as pilot on vessels of 1,600 GRT or more are required to have an annual physical examination that meets the medical and physical requirements described in part 10 subpart C. This annual physical examination requirement for pilots serving on vessels of 1,600 GRT or more has been in place since the enactment of the Port and Tanker Safety Act of 1978 (Pub. L. 95-474) and is codified in 46 U.S.C. 7101(e)(3). The Port and Tanker Safety Act was implemented as a result of safety concerns related to increased port congestion and vessel traffic, increasing vessel size, and the unique physical and cognitive demands placed upon pilots in performing their duties.

In 1985, the Coast Guard amended its regulations to require FCPs and masters or mates serving as pilot on vessels greater than 1,600 GRT to undergo annual physical examinations and to provide copies of their most recent physical examination to the Coast Guard upon request (see Volume 50 of the Federal Register (FR) at page 26106). In 2006, the Coast Guard published a notice exercising its authority to require all FCPs on vessels of 1,600 GRT or more, and other individuals serving as pilot on vessels of 1,600 GRT or more, to submit their physical examination results annually (see 71 FR 56999, Sept. 28, 2006). In 2009, the regulations were amended to include the annual physical examination submission requirement described in the 2006 public notice (see 74 FR 11196, March 16, 2009).

In 2014, the Coast Guard implemented a final rule titled, “Implementation of the Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, (STCW Convention) and Changes to National Endorsements” (see 78 FR 77796, December 24, 2013), which established the current 2-year maximum period of validity of mariner medical certificates for FCPs. That rule reinforced the requirement in 46 CFR 11.709 that pilots serving on vessels of 1,600 GRT or more must undergo annual physical examination, but it changed the submission requirement of the annual physical exam to every other year to coincide with the expiration of the medical certificate.

In July 2017, the Coast Guard tasked the Merchant Mariner Personnel Advisory Committee, the Merchant Mariner Medical Advisory Committee, and the Great Lakes Pilotage Advisory Committee with identifying regulations, guidance, or information collections that that are outdated, ineffective, or exceed benefits and impose administrative burdens or costs on the maritime industry (see 82 FR 32511, 82 FR 32513, 82 FR 34909).

These three advisory committees noted that they received comments regarding the maximum period of validity of medical certificates for FCPs and those serving as pilot on vessels of 1,600 GRT or more. Specifically, these comments indicated that pilots are limited to a 2-year maximum period of validity of their medical certificate when the validity period is 5 years for all other national endorsements. The advisory committees concluded that the 2-year maximum period of validity of the medical certificate for FCPs posed a burden on mariners and suggested the Coast Guard extend the period of validity to 5 years. Additionally, in July 2018, the Coast Guard received a petition for rulemaking from the American Pilots' Association requesting that we change the maximum period of validity of the medical certificate from 2 years to 5 years for FCPs and those authorized to serve as pilot. The petition for rulemaking and our response are available in the docket where indicated under the ADDRESSES portion of the preamble.

This proposed rule would increase the current 2-year maximum period of validity of the medical certificate for FCPs and masters or mates serving as pilot to 5 years. Mariners serving as pilot would be required to submit the results of a physical examination, recorded on form CG-719K, the “Application for Medical Certificate,” every 5 years to the Coast Guard. The following provides a section-by-section discussion of the proposed changes.

The Coast Guard proposes to amend 46 CFR 10.301, which contains the general requirements for the issuance of medical certificates to mariners meeting the medical and physical standards. We propose to extend the 2-year maximum period of validity of the medical certificate for FCPs and those serving as pilot by deleting current § 10.301(b)(2), which contains the 2-year maximum provision. This notice of proposed rulemaking (NPRM) also proposes to move current § 10.301(b)(4), without change, into its own paragraph. We would redesignate it as § 10.301(c) and redesignate current § 10.301(c) as § 10.301(d).

The standard maximum periods of validity for medical certificates in § 10.301(b)(1) for all persons employed or engaged onboard vessels to which the STCW Convention applies will remain the same. With this proposed rule, the standard maximum periods of validity for medical certificates in § 10.301(b) for all other mariners will be 5 years (including FCPs and mariners serving as pilot). As a result, like all other mariners holding national endorsements, FCPs and masters or mates serving as pilot would generally only have to submit a medical certificate application to the Coast Guard every 5 years. This proposed change would reduce the administrative burden on the pilots and the Coast Guard.

The time required for the medical certificate application and evaluation can be lengthy if the Coast Guard requests amplifying information to support the results of the physical examination. There may be correspondence between the mariner, the Coast Guard, and the mariner's medical practitioner that results in additional time for a medical certificate application to be approved. It is possible that the extra time required for the Coast Guard to complete the evaluation of the medical certificate application can result in a lapse in validity of an FCP endorsement or the ability of a master or mate to serve as pilot. The proposed change may allow more time for the Coast Guard to evaluate applications without jeopardizing the pilot's ability to serve under the authority of their endorsement.

This proposed rule would not change the regulations on medical waivers, limitations, and restrictions in § 10.303 for not meeting the medical and physical requirements of § 10.302. If the medical or physical standards are not met, the Coast Guard may grant waivers with conditions, such as operational limitations or restrictions on the medical certificate. Certain conditions, such as a need for more frequent monitoring of the mariner's medical condition, may result in the issuance of a time-limited medical certificate that would be valid for a shorter period than the maximum. Pilots holding a medical certificate with a 2-year validity period would be issued a 5-year maximum period of validity at their next medical certificate issuance, unless the certificate is time-limited due to a medical condition.

The Coast Guard is proposing that the 5-year medical certificate period of validity would apply to all pilots, regardless of the tonnage of the vessel they are serving on. The Coast Guard believes that this increase in the validity period would not result in a risk that compromises maritime safety, given that the proposed rule does not relax the annual examination requirement for FCPs or masters and mates serving as pilot. Instead, it is expected that the rule will support greater transparency regarding a pilot's medical fitness because it includes a new requirement that pilots must submit the results of their annual examination to the Coast Guard for review if the medical practitioner determines that they no longer meet the medical and physical standards of 46 CFR, part 10, subpart C.

Mariners who serve as pilot on vessels of less than 1,600 GRT are currently issued 2-year medical certificates and are required to submit the physical examination results with their application for a new medical certificate every 2 years. These mariners include pilots on less than 1,600 GRT and masters or mates who serve as pilots on vessels of less than 1,600 GRT. These mariners who serve exclusively as pilot on vessels of less than 1,600 GRT are not subject to the annual physical examination requirement in § 11.709 and would not be subject to the new submission requirements in § 11.709 of this proposed rule. Under this proposed rule, pilots, masters, and mates who serve as pilot on only vessels less than 1,600 GRT would be issued 5-year medical certificates and would submit the results of a physical exam to the Coast Guard every 5 years when applying for a new medical certificate.

Even without an annual physical exam requirement, we believe allowing these mariners to have 5-year medical certificates like all other national endorsements does not pose a large risk to maritime safety by allowing them to pilot a vessel for the 5-year period. When masters or mates serve as pilot on vessels less than 1,600 GRT, it is typically a small fraction of their duties. Prior to the “Implementation of the Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, and Changes to National Endorsements” final rule (78 FR 77796, Dec. 24, 2013), which took effect on March 24, 2014, this same group of mariners serving as pilot on vessels less than 1,600 GRT were issued 5-year medical certificates. Masters and mates serving as pilots on vessels less than 1,600 GRT were not required to take an annual physical exam either before or after the rule mentioned above. The Coast Guard does not have data to determine whether there was a change in the number of marine incidents caused by medical issues in this group of pilots when their medical certificates were issued with 5-year validity periods.

Section 11.709 contains the requirements for pilots of vessels 1,600 GRT or more to undergo an annual physical examination. This section specifies when the annual physical examinations must be conducted, how the examination results are recorded, and how often the examination results are reported to the Coast Guard.

To ensure consistency with 46 U.S.C. 7101(e)(3), we propose to clarify the applicability of this section by including masters or mates serving as pilot on vessels of 1,600 GRT or more, under § 15.812, in the introductory text of § 11.709(b). Adding these mariners to § 11.709(b) would provide additional clarity on the applicability of the annual physical examination requirements.

Paragraph (b) of this section currently states that the examination results are to be reported to the Coast Guard every other year to coincide with the current 2-year maximum period of validity of medical certificates. Because this proposed rule would extend the pilot's medical certificate to a 5-year maximum period of validity, we also propose to remove the every-other-year form CG-719K submission requirement for pilots. This proposed rule would revise the section to state that the physical examination results must be submitted on form CG-719K to the Coast Guard every 5 years, in accordance with the medical certificate application requirements in §§ 10.301 and 10.304. In practice, pilots who meet the medical and physical standards in 46 CFR part 10 would generally be required to report the results of the annual examination to the Coast Guard only when applying for a medical certificate, every 5 years.

The Coast Guard recognizes that when medical certificates remain valid for 5 years, as opposed to 2 years, there is a higher risk that someone could have a valid medical certificate for a significant time period after developing a disqualifying medical condition. In order to reduce the risk created by extending the validity period of the medical certificate, this proposed rule would require FCPs and masters or mates who serve as pilot on vessels that are 1,600 GRT or more to submit their annual physical examination results to the Coast Guard if any of the following circumstances occur: (1) The examining medical practitioner documents that the individual does not meet the physical ability requirements described in § 10.304(c); (2) the examining medical practitioner documents that the individual has a condition that does not meet the general medical exam requirements described in § 10.304(a), the vision requirements described in § 10.305, or the hearing requirements described in § 10.306; (3) the examining medical practitioner documents that the individual is not recommended for a medical certificate or needs further review by the Coast Guard; or (4) the Coast Guard requests the results.

We propose requiring self-submission of the medical examination to the Coast Guard when these pilots do not meet the requirements for physical abilities, general medical examination, vision or hearing, or are not recommended for a medical certificate, so that the Coast Guard can further review the results of the medical exam. As part of the review, the Coast Guard may request additional information in the interest of mariner safety and full performance of the pilot's duties.

Service on vessels may be arduous and impose unique physical and medical demands on pilots. The submission requirements would support our statutory responsibility under 46 U.S.C. 7101 to ensure that pilots are physically and medically fit to pilot a vessel. The public safety risks associated with the medical and physical condition of pilots on vessels are important considerations for the safe operation of vessels and the safety and well-being of the crew. As stated in § 11.709(b), the pilot's annual physical examination would continue to be recorded on form CG-719K, which documents physical ability, medical conditions, and hearing and vision requirements. Form CG-719K also documents whether a mariner is “not recommended,” which could prompt a submission under the proposed requirements in § 11.709(b)(1)-(3). The annual physical examination documentation and scope are unchanged and would remain the same under this proposed rule.

Moreover, we propose to clarify that the Coast Guard can request the results of the physical examination as part of marine casualty investigations, where more frequent monitoring of a medical condition is specified in a waiver, and in other cases that prompt further review.

As stated in § 11.701(d), the Coast Guard only issues FCP endorsements for tonnages of 1,600 GRT or more. Therefore, all FCPs serving under the authority of their FCP endorsement would continue to be required to undergo the statutorily required annual physical examinations and would be subject to the proposed submission requirements in § 11.709. However, as noted previously, masters and mates serving as pilot on vessels less than 1,600 GRT would not be subject to the physical examination and proposed submission requirements in § 11.709. The Coast Guard does not have data to determine whether there was a change in the number of marine incidents caused by medical issues in masters or mates serving as pilot on vessels less than 1,600 GRT when the medical certificates were issued with 5-year validity periods.

In § 11.709, we also propose to move the text specifying that each annual physical examination must meet the requirements in 46 CFR, part 10, subpart C, and be recorded on form CG-719K, from existing paragraph (c) into paragraph (b). We are proposing to move this requirement into paragraph (b) so that all the information on the annual physical examination requirements are in the same paragraph.

In conjunction with moving paragraph (c) into paragraph (b), this proposed rule would redesignate current § 11.709(d) as § 11.709(c), without change.

This proposed rule would add a new paragraph 11.709(d) to clarify that masters or mates serving as pilot on vessels of 1,600 GRT or more under § 15.812 may not serve on these vessels if they do not meet the annual physical examination and submission requirements specified in § 11.709(b). This new paragraph (d) would not change any of the current requirements or consequences for masters or mates serving as pilot on vessels of 1,600 GRT or more but, rather, would reiterate the annual physical examination requirements for masters or mates serving as pilot already required in § 15.812. Masters or mates serving as pilot on vessels of 1,600 GRT or more who fail to meet the physical examination requirements in § 11.709 may still operate under the authority of their master or mate endorsement, but would not be authorized to pilot a vessel of 1,600 GRT or more.

This proposed rule also aligns the employment requirements in § 15.401 with the proposed 5-year maximum period of validity of medical certificates for FCPs or masters or mates serving as pilot so that it reflects the proposed change made in § 10.301(b). Section 15.401(c) states that a person may not employ an individual if that individual does not hold a valid medical certificate. This section currently lists the maximum validity period of the medical certificate as 2 years for FCPs and masters or mates serving as a pilot. This proposed rule would amend this section to say that all mariners (including pilots), where the STCW Convention does not apply, will be issued a 5-year medical certificate unless otherwise noted on the certificate.

Additionally, throughout § 15.401, this proposed rule would remove obsolete terminology referring to licenses, certificates of registry, and Merchant Mariner's Documents (MMDs). The Coast Guard ceased issuing licenses, certificates of registry, and MMDs in 2009 when we transitioned to the streamlined MMC with the Consolidation of Merchant Mariner Qualification Credentials final rule (see 74 FR 11195, March 16, 2009). All mariners now hold an MMC.

We also propose revising § 15.401(c)(1) by removing the outdated grandfathering clause, “[a]fter January 1, 2017”, because the referenced date has passed and the section is now applicable to all medical certificates issued to individuals serving on vessels where the STCW Convention applies.

This proposed rule includes a correction to Table 1 to § 15.812(e)(1). Currently, § 15.812(b)(2) states the requirements for masters or mates to serve as pilot on vessels of not more than 1,600 GRT. There is no requirement in paragraph (b)(2) for these masters and mates serving on vessels less than 1,600 GRT to undergo an annual physical examination. This is consistent with § 11.709(a), which stipulates that the annual physical examination requirement only applies to individuals who pilot a vessel of 1,600 GRT or more. However, in Table 1 to § 15.812(e)(1), “Quick Reference Table for Federal Pilotage Requirements for U.S.-Inspected, Self-Propelled Vessels, Not Sailing on Register,” the requirement for a master or mate serving as pilot on vessels not more than 1,600 GRT to have an annual physical exam was added in error. This error was incorporated into the table with the implementation of the final rule, “Implementation of the Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, and Changes to National Endorsements” (78 FR 77796, Dec. 24, 2013), which took effect on March 24, 2014. We propose to remove the erroneous annual physical exam requirement in Table 1, under the third column, “Non-designated areas of pilotage waters (between the 3-mile limit and start of traditional pilotage routes).” This proposed removal of text would align the table with the corresponding regulatory text in section § 15.812(b)(2), as well as the applicability of the annual physical examination requirements in § 11.709(a). This correction to the table would not change the requirements for these mariners, because the Coast Guard has not required masters or mates serving as a pilot on vessels with less than 1,600 GRT to complete an annual physical examination.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. A summary of our analyses based on these statutes or Executive orders follows.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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 (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.

The Office of Management and Budget (OMB) has not designated this proposed rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. A regulatory analysis follows.

This proposed rule would extend the maximum period of validity of merchant mariner medical certificates issued to FCPs and masters or mates serving as pilot from 2 years to 5 years. This proposed rule would reduce the frequency of medical certification application submissions to the Coast Guard. First-class pilots and masters and mates who serve as pilot on vessels of 1,600 GRT or more would be required to submit the results of their annual physical examinations to the Coast Guard between medical certificate applications if: (1) The mariner does not meet the physical ability requirements; (2) the mariner has a condition that does not meet the medical, vision, or hearing requirements; (3) the mariner is deemed “not recommended” by a medical practitioner for a medical certificate; or (4) upon request by the Coast Guard.

The Merchant Mariner Licensing and Documentation (MMLD) database is used by the Coast Guard's National Maritime Center (NMC) to issue MMCs and maintain records of U.S. merchant mariners. Based on data obtained from the MMLD, we determined that a total of 3,897 mariners hold MMC endorsements as FCP. This proposed rule would not impact FCPs holding medical certificates issued with waivers requiring more frequent reporting of medical examination results to the Coast Guard. Based on MMLD data, this group currently consists of 195 mariners, which is 5 percent of the total affected population of 3,897 mariners. We reduced the total population (3,897 mariners) by this number (195) to obtain a net affected population of 3,702 mariners who would be impacted by this proposed rule.

Additionally, we determined that there are 89,713 (74,827 + 14,886) mariners who hold an MMC endorsement as master or mate, without holding an FCP endorsement, who could serve as pilot. Because there is no requirement to report when a master or mate serves as pilot, we are unable to determine how many masters or mates are serving as pilot; therefore, we limited the affected population in this analysis to mariners holding FCP endorsements and holding medical certificates without time-limited medical waivers. Table 2 presents these populations.

The proposed rule would reduce the frequency of mariner medical certificate applications to the Coast Guard, resulting in a cost savings to both mariners and the government. Industry cost savings would be the costs avoided by reducing the frequency with which FCPs and masters or mates serving as pilot would have to apply for a medical certificate. Subsequently, fewer applications would reduce the NMC's workload, generating cost savings for the government. The total 10-year discounted cost savings of this proposed rule would be $257,511 and the annualized total cost savings would be approximately $36,664, both discounted at 7 percent. This includes the 10-year industry and government savings of $146,847 and $110,664 respectively, discounted at 7 percent.

We did not factor mariner turnover into this analysis. “Mariner turnover” means the number or percentage of mariners leaving employment within a certain period of time, combined with the number or percentage of mariners obtaining employment within the same period of time. There are two reasons for not factoring in mariner turnover. First, the MMC serves as a certificate of mariner identity, service, and qualification. In order to serve under the authority of an endorsement on an MMC, a mariner must be physically and medically qualified for that endorsement, as evidenced by holding a valid medical certificate. Medical certification is not an endorsement of qualification on an MMC, but, instead, is a separate document certifying medical and physical fitness to serve in the capacity of an endorsement listed on the MMC.

The second reason mariner turnover is not factored into this analysis is because the FCP endorsement represents a maritime qualification that can lead to permanent employment with a pilot association. This career path is highly competitive, due to the rigorous, time-consuming, and highly specialized training required. As presented in table 3, data from MMLD indicates that the number of mariners holding an FCP endorsement has declined at an annual average rate of 0.48 percent in the last 11 years. We did not include mariner turnover because the Coast Guard believes it would have had a negligible effect in assessing the costs or cost savings for this regulatory analysis. The Coast Guard requests public comment on mariner turnover and, in particular, the number or percentage of retirements by mariners regulated by this proposed rule. Depending on data received by public comment, we may reconsider our approach to considering mariner turnover for the final rule.

The proposed rule would amend current requirements so the results of the annual physical examinations for pilots serving on vessels of 1,600 GRT or more would be submitted to the Coast Guard on form CG-719K (medical certificate application) every 5 years instead of every 2 years, unless one of the four conditions noted previously, and listed in § 11.709(b), is applicable. 1 Although mariners would still be required to complete an annual physical examination, the cost savings to industry would include the time savings of the affected population not having to submit an application for a merchant mariner medical certificate every 2 years, either by mail or in person, after the second year of the implementation of this proposed rule.

Mariners may submit medical certificate applications either directly to the NMC via email or to a Regional Examination Center (REC) via email, fax, or mail. Additionally, applications may be submitted in person if submitted to a REC. Cost savings to industry would include the time saved by mariners by faxing, emailing, mailing, or delivering in-person the form CG-719K to the Coast Guard on a less frequent basis. According to data obtained from MMLD, 95 percent of medical certificates issued to FCPs, or 3,702 (0.95 × 3,897), are renewed every 2 years. The remaining 5 percent are renewed annually, for those pilots with time-limited certificates due to medical waivers. Since the merchant mariner medical certificate for FCPs and masters or mates serving as pilot is only valid for 2 years under current regulations, half the total number of FCPs and masters or mates serving as pilot are currently applying for a new medical certificate each year.

Current data from MMLD indicates that 195 mariners from the affected population would not benefit directly under this proposed rule. This is the number of FCPs and masters or mates serving as pilot who have been issued medical certificates with a waiver, which require more frequent reporting of the results of their annual physical examinations to the Coast Guard. These mariners would still be required to submit the form CG-719K to the Coast Guard on an annual basis.

We analyzed the number of endorsed FCPs who would experience a reduction in burden from only needing to submit their medical certificate applications once every 5 years, after the second year of the implementation of this proposed rule, as opposed to once every 2 years under current regulations. We then analyzed the number of endorsed FCPs to estimate a population growth rate for mariners with MMCs who would become newly endorsed as FCPs. Using 11 years of data from MMLD, from 2010 to 2020, 2 which is presented in table 3, we found that the number of endorsed FCPs is declining at an average rate of 0.48 percent per year. The highest number of endorsed FCPs was observed in 2017, while the lowest number of endorsed FCPs was observed in 2020.

We used this estimated annual average decline of 0.48 percent as a constant when forecasting the endorsed FCP population for the next 10 years. This constant rate represents the average decline experienced by FCPs throughout a 10-year period of analysis. We applied this 0.48 percent rate of decline to both the affected population in current regulations (the baseline) and the affected population in this proposed rule to determine the number of medical certificate application submissions in a given year. Table 3 presents the MMLD data used to determine the estimated annual rate of decline for the endorsed FCP population.

Table 4 illustrates the following discussion of our baseline analysis. In order to calculate the cost savings of this rule, and to determine our baseline industry costs, we first estimated the number of endorsed FCPs who would be applying for a merchant mariner medical certificate in any given year for the next 10 years, excluding those with medical waivers. To obtain this number, we took the total number of endorsed FCPs holding a medical certificate with or without time-limited medical waivers, 3,897, as shown in table 2. We then subtracted the number of endorsed FCPs who submit medical certificate applications on an annual basis due to time-limited restrictions, 195. We obtained a population of 3,702 endorsed FCPs who will submit their medical certificate applications every 5 years under the proposed rule. We then divided this number (3,702) by 2, which is the application rate of FCPs who are issued medical certificates (1 application every 2 years) to obtain an annual estimate of 1,851 medical certificates issued (3,702 ÷ 2). However, the number of endorsed FCPs has decreased over time, at an average annual rate of 0.48 percent from 2011-2020. We incorporated this average annual rate of decline in order to obtain the expected number of endorsed FCPs in a 10-year period of analysis. Column (d) t in table 4, “Current Regulation Medical Certificate Applications With Decline,” captures the affected population after applying the annual average rate of decline in column (b) and the application rate in column (c)  t . The equation for column (d) t is represented as (d) t = (c) t + ([1 + (b)] t ) for all t, where t denotes the period of time, and t is discrete and positive. Table 4 presents the number of medical certificate applications under the baseline analysis.

Table 5 illustrates the following discussion of our methodology for estimating the number of medical certificate applications for the affected population under this proposed rule. This is similar to the previously discussed “Current Baseline” section. The population and the estimated rate of decline are assumed to be identical under both the baseline scenario and the proposed rule. The difference in the methodology for the proposed rule is reflected in the application frequency for FCPs. We calculated this by taking the number of FCPs expected to submit a medical certificate application in a given year, incorporating the rate of decline, and assume that each eligible remaining FCP will only submit a medical certificate application at intervals of five years, starting in year 1. Column (e) t reflects this periodicity; FCPs who submit a medical certificate applications in year 1 would not have to submit a new medical certificate application until year 6. FCP's who submit their medical certificate application in year 2 would not have to submit their medical certificate application until year 7. After accounting for the yearly attrition projected for this analysis, values for column (e) t will be equivalent to values of column (d) t for t = 1,2,6,7, and 0 for any other period. This periodicity holds true for any given 10 year interval into the future.

In contrast, column (f) t reflects the reduction in medical certificate applications under our proposed rule. For any given period t, the reduction in medical certificate applications is calculated as the difference between FCPs who would otherwise submit a medical certificate application every other year under current regulations, column (d) t , and the number of FCPs who no longer have to submit a medical certificate application during years 3,4,5,8,9,10. Hence, column (f) t = 0 for t = 1,2,6,7, and column (f) t = (d) t − (e) t for any other year. Finally, column (g) t reflects the number of FCPs lost to the industry on a given year due to the projected attrition.