The following section briefly discusses the statutory authority underlying this final rule, as well as the relevant historical background related to showerheads, the subject of this final rule.

Title III of Energy Policy and Conservation Act, as amended (“EPCA”), (42 U.S.C. 6291 et seq. ) sets forth a variety of provisions designed to improve energy efficiency and, for certain products, water efficiency. 1 Part B of Title III  2 establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles,” which includes showerheads (with the exception of safety shower showerheads)—the subject of this rulemaking. (42 U.S.C. 6292(a)(15)) Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures.

EPCA defines a showerhead as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” (42 U.S.C. 6291(31)(D)) In addition to defining “showerhead,” Congress established a maximum water use threshold of 2.5 gpm applicable to “any showerhead.” (42 U.S.C. 6295(j)(1)). The definition of “showerhead” and the water conservation standard for showerheads were added to EPCA by the Energy Policy Act of 1992 (Pub. L. 102-486 (Oct. 24, 1992)) (“EPAct 1992”).

Until 2013, DOE regulations did not contain a separate definition for “showerhead.” ( See 78 FR 62970) (Oct. 23, 2013) On May 19, 2010, DOE published in the Federal Register a Notice of Availability of a proposed interpretive rule regarding the definition of “showerhead.” 75 FR 27926 (“2010 Draft Interpretive Rule”) In the 2010 Draft Interpretive Rule, 3 DOE discussed how there was uncertainty about how the EPCA definition of “showerhead” applies to the diversified showerhead product offerings. Id. at 1. To address this uncertainty, DOE proposed to define a “showerhead” as “any plumbing fitting that is designed to direct water onto a bather.” Id. at 2 (footnote omitted). As such, DOE stated it would “find a showerhead to be noncompliant with EPCA's maximum water use standard if the showerhead's standard components, operating in their maximum design flow configuration, taken together use in excess of 2.5 gpm.” Id. at 3.

On March 4, 2011, DOE formally withdrew the draft interpretive rule and issued showerhead enforcement guidance. 4 (“2011 Enforcement Guidance”) In the 2011 Enforcement Guidance, DOE explained that it had received several complaints alleging that certain showerhead products exceeded EPCA's 2.5 gpm standard. DOE stated that it had learned that some had come to believe that a showerhead that expels water from multiple nozzles constituted not a single showerhead, but rather multiple showerheads and thus could exceed the maximum permitted water use by a multiple equal to the number of nozzles on the showerhead. Id. at 1. Following a review of the record from the 2010 Draft Interpretive Rule, DOE concluded that the term “any showerhead” has been and continues to be sufficiently clear such that no interpretive rule was needed. Id. at 2. Specifically, DOE stated that “multiple spraying components sold together as a single unit designed to spray water onto a single bather constitutes a single showerhead for the purpose of the maximum water use standard.” Id. DOE used its discretion and addressed the misunderstanding of how to measure compliance with the standard by providing a two-year enforcement grace period to allow manufacturers to sell any remaining noncompliant products. Id. at 2-3.

On May 30, 2012, DOE proposed to revise the test procedure for showerheads and other products and to change the regulatory definition of showerheads. 77 FR 31742 (“May 2012 NOPR”). DOE proposed to adopt definitions for four terms related to showerheads—“fitting”, “accessory”, “body spray”, and “showerhead”—in order to address certain provisions of the revised American Society of Mechanical Engineers/American National Standards Institute (“ASME/ANSI”) test procedures that were not contemplated in the versions referenced by the existing DOE test procedure, and to establish greater clarity with respect to product coverage. 77 FR 31742, 31747. 5 Specifically, DOE proposed to define “showerhead” as “an accessory, or set of accessories, to a supply fitting distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, including body sprays and hand-held showerheads, but excluding safety shower showerheads.” 77 FR 31742. 31755. The proposed definition clarified that DOE considered a “body spray” to be a showerhead for the purposes of regulatory coverage. 77 FR 31742, 31747.

Responding to comments on the May 2012 NOPR, DOE issued on April 8, 2013 a supplemental notice of proposed rulemaking (“SNOPR”) in which DOE proposed a revised definition of “showerhead” and withdrew its proposal to include “body sprays” in the definition of “showerhead” in light of concerns raised by commenters and DOE's need to further study the issue. 78 FR 20832, 20834-20835, 20841 (“April 2013 SNOPR”). The SNOPR's modified definition of “showerhead” removed the term “accessory” from the definition based on comments about the use of the term. 78 FR 20832, 20834. Under the proposed modified definition, a “showerhead” is “a component of a supply fitting, or set of components distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, including hand-held showerheads, but excluding safety shower showerheads.” 78 FR 20832, 20834. DOE also requested comment on whether to define the term “safety shower showerhead” to address which products qualify for exclusion from coverage under EPCA and DOE regulations. 78 FR 20832, 20835, 20840.

On October 23, 2013, DOE issued a final rule amending test procedures for showerheads and other products and adopting definitions for products, including showerheads. 78 FR 62970 (“October 2013 Final Rule”). In this final rule, DOE adopted in substance the modified definition of “showerhead” proposed in the April 2013 SNOPR. 78 FR 62970, 62986. The October 2013 Final Rule defined “showerhead” as “a component or set of components distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, excluding safety shower showerheads.” Id. at 78 FR 62986. DOE did not finalize the definition of “body spray” proposed in the May 2012 NOPR. Id. at 78 FR 62973. DOE also declined to adopt a definition of “safety shower showerhead”, and explained that it was unable to identify a definition that would clearly distinguish these products from the showerheads covered under EPCA. Id. at 78 FR 62974.

On August 13, 2020, DOE proposed revising the definition of a “showerhead” to be consistent with the most recent ASME standard. 85 FR 49284 (“August 2020 NOPR”). DOE also proposed to adopt definitions of “body spray” and “safety shower showerhead” and to clarify whether the current test procedure would apply to the proposed definitional changes. Id. at 85 FR 49285. In addition, DOE proposed to amend the test procedure for showerheads to address the testing of a single showerhead within a multiheaded showerhead. Id. at 85 FR 49292.

On December 16, 2020, DOE published a final rule amending the definition of “showerhead” and adopting definitions for “body spray” and “safety shower showerhead.” 85 FR 81341. Specifically, the December 2020 Final Rule amended the meaning of “showerhead” to restate the statutory definition and explicitly define the term through incorporation of the ASME definition to mean “an accessory to a supply fitting for spraying onto a bather, typically from an overhead position.” Id. at 85 FR 81342, 81359. In the December 2020 Final Rule's definition, DOE interpreted the new definition to mean that each “showerhead” included in a product with multiple showerheads would be considered separately for purposes of determining standards compliance. Id. at 85 FR 81342. In addition, DOE established a definition for “body spray”, citing the need to address ambiguity about whether body sprays were considered showerheads under the October 2013 Final Rule. Id. at 85 FR 81342, 81350. DOE defined the term “body spray” as “a shower device for spraying water onto a bather from other than the overhead position. A body spray is not a showerhead.” Id. at 85 FR 81359. Lastly, DOE defined the term “safety shower showerhead” by incorporating by reference the definition of “safety shower showerhead” from the ANSI/International Safety Equipment Association (“ISEA”) Z358.1-2014, 6 such that a “safety shower showerhead” is “a showerhead designed to meet the requirements of ISEA Z358.1.” Id. at 85 FR 81359. The December 2020 Final Rule determined that leaving the term “safety shower showerhead” undefined would cause confusion as to which products are excluded from the definition of “showerhead.” Id. at 85 FR 81351. DOE did not finalize the test procedure amendments that had been proposed in the August 2020 NOPR. Id. at 85 FR 81351.

On January 20, 2021, the President issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037 (Jan. 25, 2021) (“E.O. 13990”). Section 1 of that Order lists a number of policies related to the protection of public health and the environment, including reducing greenhouse gas (“GHG”) emissions and bolstering the Nation's resilience to the impacts of climate change. Id. at 86 FR 7041. Section 2 of the Order instructs all agencies to review “existing regulations, orders, guidance documents, policies, and any other similar 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 directed, as appropriate and consistent with applicable law, to consider suspending, revising, or rescinding these agency actions. Id.

While E.O. 13990 triggered the Department's re-evaluation of the December 2020 Final Rule, DOE relies upon the analysis presented below, based upon EPCA, to revise the definition “showerhead” and to withdraw the definition of “body spray” in the July 2021 NOPR and in this final rule. On July 22, 2021, DOE issued a NOPR (“July 2021 NOPR”) in which it proposed to revise the definition of “showerhead” adopted in the December 2020 Final Rule by reinstating the prior definition of “showerhead.” 86 FR 38594. Further, DOE tentatively determined that, in reinstating the prior definition of “showerhead,” all components attached to a single supply fitting ( i.e., all nozzles or spraying components within a product containing multiple nozzles or spraying components) would be considered part of a single showerhead for determining compliance with the 2.5 gpm standard. Id. In addition, DOE proposed to withdraw the current definition of “body spray” adopted in the December 2020 Final Rule. Id. Finally, DOE did not propose any changes to the definition of “safety shower showerhead” adopted in the December 2020 Final Rule. Id.

DOE invited comment on all aspects of July 2021 NOPR, including data and information to assist in evaluating whether the definition of “showerhead” from the October 2013 Final Rule should be reinstated. Id. at 86 FR 38594. On August 31, 2021, DOE held a webinar to present the substance of the July 2021 NOPR and afford interested parties an opportunity to present comments. 7

DOE received comments in response to the July 2021 NOPR from the interested parties listed in Table I.1.DOE received two comments that were not within the scope of the rulemaking. 8

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 9

Following a review of the December 2020 Final Rule and the comments received in response to the August 2020 NOPR, relevant authorities, and comments received in response to the July 2021 NOPR, DOE is withdrawing the December 2020 Final Rule's definition of “showerhead,” and is reinstating the October 2013 Final Rule's definition of “showerhead.” See 78 FR 62970, 62986. As such, DOE defines the term “showerhead” as “a component or set of components distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, excluding safety shower showerheads.” DOE is also withdrawing the December 2020 Final Rule's interpretation that each “showerhead” included in a product with multiple showerheads would be considered separately for purposes of determining standards compliance. Whereas in the December 2020 Final Rule DOE stated that while water conservation is obviously a purpose of EPCA, the definitional changes follow congressional reliance on the ASME standard. DOE has reconsidered this balance and has come to a different policy conclusion that water conservation is a more important EPCA purpose and should be weighed more heavily when amending the definition of a covered product than consistency with ASME (with which DOE has no statutory obligation to align its definition). The Department finds that the definition of “showerhead” as presented in this final rule better effectuates EPCA's water conservation purposes. This final action will also provide consumers the benefits derived from water savings that will accrue over time with this return to the definition of “showerhead” that existed prior to the December 2020 Final Rule.

DOE is also withdrawing the definition of “body spray” adopted in the December 2020 Final Rule. DOE finds that the current definition of “body spray” is inconsistent with the express purpose of EPCA to conserve water by improving the water efficiency of certain plumbing products and appliances as the current definition may lead to increased water use. Further, the definition of “body spray” does not best address the relationship between body sprays and showerheads. This is because the only difference between the definitions of “body spray” and “showerhead” is the installation location, as shown by the similar treatment of the two products in the marketplace. Finally, DOE is maintaining the definition of “safety shower showerhead,” as leaving the term undefined may cause confusion about what products are subject to the energy conservation standards.

In the July 2021 NOPR, DOE tentatively determined that EPCA's definition of showerhead is ambiguous and that the December 2020 Final Rule's definition of “showerhead” is not consistent with EPCA's purposes to conserve water by improving water efficiency of certain plumbing products and appliances and to improve energy efficiency of major appliances and consumer products. 86 FR 38594, 38597; ( See also 42 U.S.C. 6201) DOE also tentatively determined that: Congressional intent does not require DOE to adopt the ASME definition for “showerheads;” that the October 2013 Final Rule did not effectively ban multi-headed showerheads from the market; and that the December 2020 Final Rule's definition of “showerhead” is inconsistent with EPCA's purposes, and falls within the National Technology Transfer and Advancement Act of 1995 (“NTTAA”) and OMB Circular A-119 exception to the use of voluntary consensus standards. Id. As such, DOE proposed to withdraw the December 2020 Final Rule's definition of “showerhead” and to reinstate the definition of “showerhead” from the October 2013 Final Rule. Id.

Based on the discussion in the following sections and the analysis presented in the July 2021 NOPR, DOE is reinstating the pre-December 2020 Final Rule definition of “showerhead” as proposed in the July 2021 NOPR. In response to the July 2021 NOPR, PMI, the CA IOUs, the Joint Advocates, and CEC supported DOE's reevaluation of the December 2020 Final Rule and urged the finalization of the proposed rule. (PMI, No. 22 at pp.1-2; CA IOUs, No. 20 at p. 1; Joint Advocates, No. 23 at pp.1, 3; CEC, No. 19 at pp. 1-2; PMI, Public Meeting Transcript at p.6; CA IOUs, Public Meeting Transcript at p.4) AWE, et al., the District, and NPCC also supported DOE's proposal to reinstate the prior definition of “showerhead.” (AWE, et al., No. 21 at p. 1; the District, No. 16 at pp.1-2; NPCC, No. 12 at p. 1; AWE, Public Meeting Transcript at p.7) Additionally, Hekstra and ASAP commented in support of this rulemaking. (Hekstra, No. 17; ASAP, Public Meeting Transcript at p. 4) However, CEI et al. opposed re-instatement of the definition of showerhead as established in the October 2013 Final Rule on the grounds that it is incompatible with the law and detrimental to consumers. (CEI et al., No. 18 at p. 2)

In the July 2021 NOPR, DOE tentatively determined that the term “showerhead” is ambiguous. 86 FR 38594, 38597-38598. EPCA defines the term “showerhead” as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” (42 U.S.C. 6291(31)(D)) Congress adopted this definition of showerhead in 1992 as part of the Energy Policy Act. Thereafter, however, between 1992 and 2010, the designs of showerhead diversified into a myriad of products including waterfalls, shower towers, rainheads, and shower systems. 10 In the 2010 Draft Interpretive Rule, DOE noted that it had become aware of uncertainty in how the EPCA definition and standard applies to such products. Id. As such, DOE issued the draft interpretive rule to “make clear to all stakeholders” DOE's interpretation of the definition of “showerhead” with respect to the 2.5 gpm maximum water use requirement. Id. at 1-2.

Similarly, in the 2011 Enforcement Guidance, DOE explained that it had learned that some had come to believe that a showerhead that expels water from multiple nozzles constituted not a single showerhead, but rather multiple showerheads and thus could exceed the maximum permitted water use. 11 DOE further acknowledged that absence of enforcement could have contributed to that misunderstanding. Id. at 2. While DOE acknowledged such confusion, DOE withdrew the 2010 Draft Interpretive Rule in the 2011 Enforcement Guidance document based on its conclusion that the term “any showerhead” has been, and continues to be, sufficiently clear such that no interpretive rule is needed. Id. In the 2011 Enforcement Guidance, DOE stated that multiple spraying components sold together as a single unit designed to spray water onto a single bather constitute a single showerhead for purpose of the maximum water use standard. Id. DOE provided manufacturers a two-year grace period to sell any remaining noncompliant products and to adjust product designs for compliance with EPCA and DOE regulations. Id. at 3.

Consequently, the ambiguity of the word “showerhead” in EPCA is underscored by its history. DOE's statements in both the 2010 Draft Interpretive Rule and the 2011 Enforcement Guidance illustrate that confusion existed among manufacturers about what constituted a showerhead under the statutory definition. The diversification of the marketplace as it pertains to “showerheads” and the confusion about what products were considered a showerhead by manufacturers following inclusion of the term in EPCA, as amended by EPAct 1992, further illustrate that the statutory definition of “showerhead” is ambiguous. In the July 2021 NOPR, DOE stated that it believes that any ambiguity in the statutory meaning should be explicated by a regulatory definition that is consistent with EPCA's purposes. 86 FR 38594, 38598.

In response to the July 2021 NOPR, commenters highlighted the circular nature of the statutory definition of “showerhead.” CEI et al. commented that the statutory definition of showerhead is circular—the definition of the term includes the term being defined ( i.e., showerhead is a showerhead). Further, CEI et al. argued that the December 2020 Final Rule concluded that the statutory uncertainty was largely resolved when the per-showerhead approach was adopted by ASME, even though the July 2021 NOPR asserted ongoing doubt. (CEI et al., No. 18 at p. 2) And Hekstra agreed that consumers and manufacturers appreciate clarity and a circular definition is not clear. (Hekstra, No. 17 at p. 1).

DOE agrees that the statutory definition of “showerhead” is a circular definition, which further illustrates the ambiguity of a term that is defined by itself. Further, contrary to CEI et al.' s assertion that the statutory uncertainty was resolved in the December 2020 Final Rule, the December 2020 Final Rule stated that ambiguity exists regarding what is considered a “showerhead” under EPCA and, in that rule, DOE said it was clarifying what constitutes a “showerhead.” 85 FR 81341, 81344. As outlined in the previous discussion, DOE continues to find that the statutory definition of “showerhead” is ambiguous for the reasons presented in the July 2021 NOPR and in this final rule. Ambiguity in the statutory meaning is appropriately resolved by a regulatory definition that furthers EPCA's purposes consistent with that statute.

As outlined in the July 2021 NOPR, Congress included a statement of purpose in EPCA that sets forth seven purposes related to energy. Most relevant to the Energy Conservation Program, one of the primary purposes of EPCA is “to conserve energy supplies through energy conservation programs, and, where necessary, the regulation of certain energy uses.” (42 U.S.C. 6201(4); Pub. L. 94-163 (Dec. 22, 1975)); see 86 FR 38594, 38598. The EPAct 1992 amended EPCA by adding plumbing products, including showerheads, to the products covered by the Energy Conservation Program. (Pub. L. 102-486 (Oct. 24, 1992)) In doing so, EPAct 1992 also added to EPCA the purpose of conservation of water “by improving the water efficiency of certain plumbing products and appliances,” in addition to the purpose of energy savings. (42 U.S.C. 6201(8))

In the 2010 Draft Interpretive Rule, DOE explained that all components that are supplied together and function from one inlet form a single showerhead for purposes of the maximum water use standards under EPCA. 12 DOE stated that neither the statutory definition nor the test procedures for showerheads treat a showerhead differently based upon the shape, size, placement, or number of sprays or openings it may have. Id. at 2. Further, DOE highlighted that the test procedure contemplates that the regulated showerhead fitting may have additional “accessory” water outlets and specifies that all standard accessories must be attached and set at maximum flow during testing. Id. DOE clarified that a showerhead is determined to be noncompliant if the standard components, operating in their maximum design flow configuration taken together use in excess of 2.5 gpm. Id. at 3. (emphasis omitted) DOE stated that this approach furthers the goal of EPCA to “conserve water by improving the water efficiency” of showerheads. Id. In DOE's 2011 Enforcement Guidance, DOE articulated a modified interpretation of the statutory definition of “showerhead” from the definition proposed in the 2010 Draft Interpretive Rule. DOE stated that multi spraying units sold together as a single unit designed to spray water onto one bather are considered a single showerhead. 13 DOE explained that all sprays and nozzles should be turned onto the maximum flow setting to determine water use. Id. DOE found this approach is consistent with the industry standard, the statutory language, and Congressional intent to establish a maximum water use requirement. Id. These previous statements by DOE illustrate that a definition of “showerhead” that includes a multi-headed showerhead is consistent with EPCA's purpose of water conservation.

While the 2020 rulemaking acknowledged that water conservation is among EPCA's purposes, it did not fully account for how its definition of “showerhead” would comport with this purpose of EPCA. 85 FR 81341, 81353. In the July 2021 NOPR, DOE stated that the definition of “showerhead” established in the December 2020 Final Rule allows each nozzle within a showerhead with multiple nozzles to be separately subject to the standard, and thereby allows water flow at a multiple of that standard and the related increase of energy for water heating. 86 FR 38594, 38598.

As discussed in the July 2021 NOPR, the contemplated treatment of showerheads in the 2010 Draft Interpretive Rule, the articulated interpretation in the 2011 Enforcement Guidance, and the regulatory definition established in the October 2013 Final Rule ( i.e., all components attached to a single supply fitting/inlet are a single showerhead) further the goal of EPCA to “conserve water by improving the water efficiency” of showerheads. 86 FR 38594, 38598. In treating all components attached to a single supply fitting/inlet as a shower head, the 2.5 gpm standard applies to the combined water flow of all such attached components.

In response to the July 2021 NOPR, commenters discussed the statutory interpretation of the term “showerhead.” AWE et al. quoted the definition of the term “showerhead” from Merriam-Websters.com, which defines the term as “a fixture for directing the spray of water in a bathroom shower.” AWE et al. stated that the definition of showerhead in the 2013 Rule appropriately aligns with this understanding. AWE et al. further stated that the December 2020 Final Rule meant that a person taking a shower from a multi-nozzle product would be using multiple showerheads at once—a concept that is awkward under the common, ordinary usage of the word showerhead. (AWE et al., No. 21 at p. 2) AWE et al. explained that objects that are sold as a set together, installed together, and used together constitute a single product from the consumer's point of view and the usage of these objects simultaneously for the function of showering demonstrates the collection of them—the nozzles all together—is the single product known as a showerhead. (AWE et al., No. 21 at p. 3) CEC stated that the October 2013 definition more clearly defines the term showerhead to mean any showerhead, other than a safety showerhead, must meet the maximum flow rate of 2.5 gpm. Specifically, CEC explained that DOE's interpretation of the term in the December 2020 final rule is not justified or a permissible construction of the statute and measuring the water flow of all sprayers on a multi-nozzle device at the same time is the only meaningful interpretation of the statutory and regulatory structure of showerhead. (CEC, No. 19 at p. 3)

Conversely, CEI et al. argued that the most likely intent of the statutory definition is that the 2.5 gpm restriction is applicable to each individual showerhead, otherwise the statute would have used the term shower instead. (CEI et al., No. 18 at p. 2)

AWE et al. and CEC's comments discussing the general understanding of the term “showerhead” further confirm DOE's positions outlined in the 2010 Draft Interpretive Rule and the 2011 Enforcement Guidance that all components/units sold together as a single unit are considered a single showerhead. CEI et al. suggests that the term “showerhead” applies to each individual showerhead, while the term “shower” applies to a collection of showerheads. The term “shower” is generally understood to mean the location in which plumbing fixtures ( e.g., showerhead, tub faucet, body spray) are installed to allow for the act of showering. These comments further illustrate that the term “showerhead” is ambiguous, as discussed in section III.A.1. As these comments and statements illustrate that the term “showerhead” can comprise a multi-headed showerhead and is consistent with EPCA's purpose of water conservation.

In response to the July 2021 NOPR, commenters discussed the impacts of the current definition of “showerhead.” NPCC stated that the definitions of “showerhead” adopted in the December 2020 Final Rule provide two significant loopholes to compliance with the standard inconsistent with the purposes of EPCA, with real significant consequences for energy and water conservation. (NPCC, No. 12 at pp.1-2) NPCC estimated that the December 2020 Final Rule definition of “showerhead” could significantly increase water use per shower and significantly impact consumption of electricity as well as natural gas. (NPCC, No. 12 at p. 2) The Joint Advocates stated that the definition of “showerhead” that was finalized in the December 2020 Final Rule goes against the purposes of EPCA and allows for showerheads to use an unlimited amount of water. Additionally, the Joint Advocates stated that the current definition of “showerhead” would allow for excessive water use and result in increased costs for consumers. (Joint Advocates, No. 23 at p.1) The CA IOUs stated that the December 2020 Final Rule introduced the prospect of limitless water usage in many showerhead products. (CA IOUs, No. 20 at p.1) Hekstra commented that the 2020 definition created a loophole that needs to be closed to meet the goal of creating a system that reduces the amount of water used per minute by the average shower user. (Hekstra, No. 17)

CEC stated that the climate and environmental damages, such as harm from increased emissions, worse air quality, unnecessary energy demand, and water availability, resulting from the December 2020 Final Rule are felt across state lines. (CEC, No. 19 at p.2) CEC stated that the definition included in the December 2020 Final Rule results in an increase in water and energy use nationwide by allowing multi-sprayer devices to use more than the maximum flow rate, and is not a permissible construction of the statute. (CEC, No. 19 at p.3)

AWE et al. referenced its prior comments in which it estimated that the current definition could increase annual energy consumption by 25 trillion British thermal units for each gpm increase in shower flow rate, and together with the increased annual domestic water use, could increase annual water and energy bills for American consumers by an estimated $1.14 billion. (AWE et al., No. 21 at p. 4) AWE et al. explained that the U.S. is experiencing serious water shortages and the December 2020 Final Rule only serves to increase the consumption of drinking water that will have severe impacts on water supplies across the country. Further, AWE et al. stated that the December 2020 Final Rule could increase residential water consumption upwards of 160 gallons annually by allowing multiple showerhead systems to increase flows from the previous 2.5 gpm. AWE et al. also noted the pressure on water utilities will continue to grow, due to population increases in areas like the West, where water is scare, and climate change, which is causing long-term declines in rainfall in many regions. The increased water consumption under the December 2020 Final Rule will increase water utility costs as it becomes necessary to provide new water supplies, and therefore may increase customer bills, as the costs for procuring needed new water supplies is passed onto consumers. (AWE et al., No. 21 at pp.2-3) AWE stated that the December 2020 Final Rule would potentially waste billions of gallons of water, increase energy use and power plant emissions, and raise consumer water bills. Further, with much of the country struggling with drought, these 2020 changes could further compromise water supply availability. (AWE, Public Meeting Transcript at p. 7)

CEI et al. asserted that EPCA requires DOE to balance energy and/or water conservation against other factors important to consumers, including costs and other consumer protections. (CEI et al., No. 18 at p. 3) CEI et al. argued that the proposed rule did not provide evidence that it would result in significant water savings as required by statute. CEI et al. further stated that without evidence of widespread adoption of multi-head showers with a maximum flow rate above 2.5 gpm, the agency has not shown that reimposing the restrictions on them would result in significant water savings. CEI et al. also argued that showers are adjustable and even with models that have maximum flow rate above 2.5 gpm, users will not necessarily use that level of water flow for every shower—the highest settings in such showerhead would only be used occasionally and such use would likely be shorter in duration. CEI et al. continued that the insignificance of the water savings undercuts the climate change rationale for the Proposed Rule. (CEI et al., No. 18 at p. 5) Finally, CEI et al. stated that the July 2021 NOPR's critique of the December 2020 Final Rule is based on the misleading belief that the statutory provisions prioritize efficiency above everything else. (CEI et al., No. 18 at p.6)

Anonymous suggested that if less water is coming out of their shower per minute, a consumer may take longer showers. (Anonymous, No. 5 at p. 1) Similarly, Southerland argued that restricting the water flow from a showerhead will not “save” water because if water flow is restricted, a person will take a longer shower defeating the purpose of the limited water flow. (Southerland, No. 2)

DOE has considered these comments in this rulemaking as they relate to the December 2020 Final Rule's definition of “showerhead.” DOE continues to believe that EPCA's purpose should be considered when amending the definition of a covered product. As this rulemaking does not amend the water conservation standards for showerheads, DOE is not required to conduct the analysis required by 42 U.S.C. 6295(o) suggested by CEI et al. Further, DOE continues to consider all relevant statutory provisions, including those related to consumer protection, which are discussed in section IV.4. DOE agrees with commenters that if maintained, the December 2020 Final Rule “showerhead” definition will likely increase water usage and increase associated energy use. These increases would be contrary to EPCA's purposes of reducing water and energy consumption. As such, DOE has determined that the December 2020 Final Rule's definition of “showerhead” should be withdrawn.

Also, in response to the July 2021 NOPR, DOE received comments about the prior 2013 definition of “showerhead.” The NPCC stated that the reinstated definition of “showerhead” would return stability to the consumption and efficiency aspects of the showerhead standard. Further, NPCC explained that the Northwest has about 10 million showerheads, and reinstating this definition will ensure significant electricity, natural gas, and water savings are not lost. (NPCC, No. 12 at p. 2) The District stated that the proposed withdrawal better fits with the purpose of the EPCA by improving the energy efficiency and water efficiency of consumer products. Further, the District commented that efficient shower fixtures reduce water usage not only per household, but also on a regional scale. This reduction in demand helps conservation efforts especially in regions experiencing frequent droughts and other water-conscious communities that would be detrimentally impacted by unnecessary additional use of water. (The District, No. 16 at pp.1-2) The Joint Advocates stated that the October 2013 definition will not result in excessive water use and with several regions across the country facing droughts and water shortages, it is important now more than ever to reduce water demand and conserve energy. (Joint Advocates, No. 23 at p. 1) Hekstra stated that the 2013 definition will reduce the amount of water used by those that wish to have multiple showerheads in one shower. (Hekstra, No. 17)

AWE et al. commented that DOE's proposal to reinstate the definition from the 2013 Rule will better effectuate EPCA's water conservation purposes. (AWE et al., No. 21 at p.2) AWE et al. reiterated the significant water and energy savings from the existing definition of “showerhead” and that the cumulative savings over 10 years from 2.5 gpm showerheads could supply up to 1 million homes with water and 670,000 homes with energy for a year. AWE et al. also stated that the replacement of older, high-flow showerheads provides 11 billion gallons per year in water savings and 5 trillion Btu per year in energy savings in the United States. (AWE et al., No. 21 at p. 4)

CEC explained that conserving water is especially important because 90 percent of the Western United States is experiencing drought conditions and 54 percent is in “extreme drought.” CEC also noted that California has seen more than 7,200 fire incidents and more than 2 million acres burned, including devastating fires such and that it is imperative to use every available tool to address the unnecessary and inefficient use of energy and water, including and especially improving energy and water conservation standards. (CEC, No. 19 at pp.1-2) The CA IOUs stated that over 95 percent of California's landmass is currently impacted by severe drought, so it is critical for its state that DOE ensure showerhead water efficiency is protected and strengthened. (CA IOUs, Public Meeting Transcript at p.3) And Kelley noted the importance of conserving valuable resources. (Kelley, No. 11)

DOE has considered the comments received in response to the July 2021 NOPR and agrees with the commenters that the definition of “showerhead” from the October 2013 Final Rule and the associated interpretation provided water and energy savings and protected the environment. As discussed above in this section, DOE continues to find that the history of the definition of “showerhead” and the comments in response to July 2021 NOPR illustrate that the term “showerhead” can comprise a multi-headed showerhead and is consistent with EPCA's purpose of water conservation. Further, DOE has determined that if maintained, the December 2020 Final Rule “showerhead” definition will likely increase water usage and increase associated energy use and as such the current definition of “showerhead” should be withdrawn.

As such, DOE is withdrawing the definition of showerhead finalized in the December 2020 Final Rule and re-instating the definition established in the October 2013 Final Rule, which as discussed, appropriately addresses the water conservation purpose of EPCA.

In the July 2021 NOPR, DOE explained that it tentatively departed from the view expressed in the December 2020 Final Rule that it would be more consistent with Congressional intent to rely on ASME for the definition of “showerhead.” 86 FR 38594, 38600. DOE stated that DOE does not believe Congress required reliance on the ASME definition. Id.

As discussed previously in this document, Congress established the definition of “showerhead” in EPAct 1992, along with the provisions related to definitions, standards, test procedures, and labeling requirements for plumbing products. (Pub. L. 102-486; Oct. 24, 1992 Sec. 123) EPAct 1992 and EPCA define the term “showerhead” as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” (42 U.S.C. 6291(31)(D)) In the same paragraph, Congress provided explicit direction to define the terms “water closet” and “urinal” in accordance with ASME A112.19.2M, but did not provide such instructions with respect to “showerhead.” ( Cf. Sec. 123(b)(5) of Pub. L. 102-486) DOE has learned since the July 2021 NOPR that ASME A112.18.1M-1989 did not contain a definition for showerheads, but it did contain requirements for showerheads. Congress adopted the ASME standards only for the water conservation standards, test procedures, and labeling requirements, specified ASME A112.18.1M-1989 as the applicable standard, and required DOE to adopt the revised version of the standard, unless it conflicted with the other requirements of EPCA. (42 U.S.C. 6295(j)(1) and (3); 42 U.S.C. 6293(b)(7); 42 U.S.C. 6294(a)(2)(E)) While Congress could not rely on a definition of “showerhead” in ASME A112.18.1M-1989 in defining the term, Congress could have required DOE to adopt a definition of “showerhead” as defined in any revised version of the ASME A112.18.1M-1989 as it did with requirements for standards and test procedures related to standards. Congress defined “showerhead” and did not explicitly require DOE to amend the definition of “showerhead” in conformity with the applicable ASME standard.

Further, the mere fact that the terms immediately preceding showerhead are “ASME” and “ANSI” does not suggest that Congress intended for DOE to rely on the ASME definition. EPCA directly references ASME A112.18.1M-1989, or a revised version of the standard approved by ANSI, for showerhead test procedures, energy conservation standards, and labeling requirements, but noticeably does not direct DOE to adopt a definition of “showerhead” from an amended version of the industry standard. Had Congress intended for DOE to apply the definition of “showerheads” from the industry standard, it would have provided the necessary reference. DOE received a comment only from CEC on this issue. CEC stated that DOE correctly concludes that Congress did not require DOE to rely on ASME for the definition of showerheads. (CEC, No. 19 at p. 3).

Based on the discussion in the preceding paragraphs and presented in the July 2021 NOPR, DOE maintains its decision that it is not required to define “showerhead” according to the ASME definition and that Congress intended DOE to have flexibility to define the term.

As discussed in the July 2021 NOPR, EPCA provides that the Secretary is prohibited from prescribing an amended or new standard if the Secretary finds 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)); 86 FR 38594, 38601.

In the August 2020 NOPR, DOE proposed to adopt an amended definition of “showerhead” that complies with the Congressional directive to preserve performance characteristics and features that were available on the market at the time DOE originally acted to eliminate them. 85 FR 49298, 49291. DOE explained that it cannot regulate or otherwise act to remove products with certain performance characteristics and features from the market given the prohibition in 42 U.S.C. 6295(o)(4). 85 FR 49282, 49290. In the December 2020 Final Rule, DOE further explained that considering two, three, or eight showerheads in a given product to be a “feature” is consistent with DOE's previous rulemakings and determinations of what constitutes a feature. 85 FR 81341, 81347. DOE further stated that following the 2011 Enforcement Guidance, which DOE stated appeared to effectively ban the vast majority of products with multiple “showerheads” from the market, DOE codified in DOE regulations its effective ban on products with multiple showerheads from the market. 85 FR 49284, 49291. DOE acknowledged, as is the case with the August 2020 definitional proposed rule, that the October 2013 Final Rule was not a standards rulemaking and did not comply with the statutory requirements of a standards rulemaking. 85 FR 81341, 81347. DOE stated, however, that the effect was the same in that multi-headed showerhead products, while not entirely eliminated from the market, were significantly reduced in availability as a result of the 2011 Enforcement Guidance. Id.

In the July 2021 NOPR, DOE revisited its application of section 6295(o)(4) of EPCA in the context of the “showerhead” definition. 86 FR 38594, 38601. As discussed in the July 2021 NOPR, the “unavailability” provision of section 6295(o)(4) of EPCA applies to the establishment and amendment of standards. Further, assuming arguendo that DOE did amend the water conservation standard or that the rule had the effect of a water conservation standard, the October 2013 Final Rule did not eliminate multi-headed showerheads from the market. DOE reviewed its certification database and found that currently there are 7,704 basic models of showerheads, with multi-headed showerheads continuing to account for 3% of all basic models. Therefore, 42 U.SC. 6295(o)(4) was not applicable in the October 2013 Final Rule as DOE did not amend the standard for showerheads, nor did the rule eliminate multi-headed showerheads from the market as there are currently over 231 basic models on the market. Further, as multi-headed showerheads have not been eliminated from the market, DOE is not determining whether multi-headed showerheads provide a functionality/performance characteristic. Id. at 86 FR 38602.

CEI et al. stated that EPCA forbids any standard that compromises product features and performance. (CEI et al., No. 18 at p. 3) CEI et al. argued that the law only requires a showing that at least one model including such feature was generally available at the time the standard was promulgated, and that Congress could have explicitly overridden the consumer protections in the law and categorically outlawed any and all shower configurations that allow more than 2.5 gpm in total, and that the statute did not clearly do so. (CEI et al., No. 18 at p. 4) Finally, CEI et al. further stated that although DOE reasserted that any changes to the definition of showerhead are not a new or amended standards rulemaking, the reinterpretation has the effect of changing the standard and as such must comply with the pro-consumer provisions in the statute. (CEI et al., No. 18 at p. 4) CEI et al. also stated that while multi-showerhead units can be manufactured as long as they do not use more than 2.5 gpm in total, such models are unlikely to deliver desired performance and thus would not meet the statutory requirements of being “substantially the same”. (CEI et al., No. 18 at pp. 4-5)

In support of the July 2021 NOPR, PMI explained that its members have spent millions of dollars on research and development, manufacturing, third-party certification, packaging, marketing, and distribution of water-efficient showerheads to meet the October 2013 Final Rule definition and that such-products are high-performing plumbing products. (PMI, No. 22 at p. 2) PMI further stated that its member companies did not produce, sell or distribute modified showerheads to meet the new definition of showerhead that was put in place in the December 2020 Final Rule. ( Id. )

As explained in the December 2020 Final Rule and the July 2021 NOPR, DOE's previous definitional changes and rulemakings for showerheads were not standards rulemakings nor is DOE establishing or amending standards for showerheads. Therefore DOE is not determining whether multi-headed showerheads provide a functionality/performance characteristic. ( See 42 U.S.C. 6295(o)(4)) Even assuming arguendo, as in the July 2021 NOPR (86 FR 38594, 53602), that DOE did amend the water conservation standard or that the rule had the effect of a water conservation standard, the definition established in the October 2013 Final Rule did not eliminate multi-headed showerheads from the market. A review of the market prior to the December 2020 Final Rule illustrated that three percent of the 7,221 basic models of showerheads are multi-headed showerheads. See 85 FR 49284, 49293. While the information DOE used to determine the number of multi-headed showerheads in the July 2021 NOPR is no longer available, 14 DOE has conducted a general review of models currently on the retail market, which indicates that showerheads with multiple nozzles/spray components, continue to be available. Given that multi-headed showerheads continue to be available in the market, this action does not reduce performance nor remove any features from the market as asserted by CEI.

CEI et al. also expressed concern about the performance quality of multi-headed showerheads required to meet the 2.5 gpm standard for the whole system. ( See CEI, No. 18 at pp. 4-5) PMI explained that that its members have been able to produce high-performing showerheads consistent with the October 2013 Final Rule. ( See PMI, No. 22 at p. 2) If the provision at 42 U.S.C. 6295(o)(4) were applicable to this rulemaking, which as discussed it is not, CEI et al. have not established by a preponderance of evidence the unavailability of showerheads with multiple nozzles/spray components, as required by EPCA. The October 2013 Final Rule definition, i.e., the definition reinstated by this final rule, did not eliminate multi-head shower heads from the market. As such, the definition adopted in this final rule is consistent with the Congressional directive to preserve performance characteristics and features.

Section 12(d)(1) of the NTTAA requires that Federal departments “use technical standards that are developed or adopted by voluntary consensus standards bodies, except when the use of the technical standards is inconsistent with applicable law or otherwise impractical.” (Pub. L. 104-113, 110 Stat. 783 (Mar. 7, 1996), as amended by Public Law 107-107, Div. A, Title XI, section 115, 115 Stat. 1241 ((Dec. 28, 2001) (codified at 15 U.S.C. 272 note)). Similarly, OMB Circular A-119 directs Federal agencies to use voluntary consensus standards unless inconsistent with applicable law or otherwise impractical. (Section 1 of OMB Circular A-119; www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf. )

In the December 2020 Final Rule, DOE stated that the definition of “showerhead” adopted in that final rule is consistent with the requirements of the NTTAA and the associated OMB Circular A-119. 85 FR 81341, 81342. DOE explained that EPCA does not preclude DOE from using industry standards and that the statutory text of EPCA does not make compliance with OMB Circular A-119 inconsistent with applicable law or otherwise impracticable. Id. at 85 FR 81348. DOE further stated that it disagrees that the ASME definition frustrates and is inconsistent with the requirements of EPCA. Id.

As part of DOE's reconsideration of the December 2020 Final Rule, DOE tentatively determined in the July 2021 NOPR, in light of the comments provided during the rulemaking for the December 2020 Final Rule, that it is not appropriate to rely on the consensus industry standards as they relate to showerheads in accordance with the NTTAA and OMB Circular A-119 because the December 2020 Final Rule definition of “showerhead” based on ASME consensus industry standards is inconsistent with EPCA and is impractical. 86 FR 38594, 38602-38632. DOE did not receive comment to the July 2021 NOPR regarding the NTTAA and OMB Circular A-119 exception.

For the reasons set forth in the July 2021 NOPR, DOE finds that it should not adopt an industry standard here, as it would conflict with EPCA's requirements and be impractical. ( See 15 U.S.C. 272 note; OMB Circular A-119 section 5.c. 15 ) DOE's determination in the December 2020 Final Rule did not properly weigh the ASME definition of “showerhead” in the context of the purposes of EPCA, as it pertains to the NTTAA and OMB Circular A-119. Upon reconsideration, adopting the ASME industry standards for the definition of “showerhead” in the present context conflicts with EPCA and is impractical because it does not serve the purposes of water and energy conservation. And the “showerhead” definition and interpretation in the December 2020 Final Rule is inconsistent with EPCA and is impractical because it would permit increased water usage and increased associated energy use, directly contrary to EPCA's purposes. As such, the definition of “showerhead” is within the exception of NTTAA and OMB Circular A-119.

DOE received a comment regarding the applicability of EPCA's anti-backsliding provision. AWE et al. stated that on its face, the December 2020 Final Rule change amended the standard applicable to showerheads, and did so in a way that increased the “maximum allowable water use” of showerheads. They argue therefore that the 2020 Rule thus violated EPCA's “anti-backsliding” rule, 42 U.S.C. 6295(o)(1). (AWE et al., No. 21 at p. 1) AWE et al. further argued that the December 2020 Final Rule rationalized that DOE had not established the previous interpretation through a standards rulemaking. AWE asserted that the anti-backsliding rule does not require, as a predicate, that there was a previous standards-setting rulemaking. Instead, AWE stated that the 2.5-gpm standard was established by Congress, just as EPCA establishes many other initial conservation standards, and DOE established the pre-2020 status quo in an appropriate way—explaining its interpretation through a guidance document, reiterating that interpretation in the 2013 rulemaking, and confirming it in a regulatory definition. AWE further stated that regardless of whether the process involved a standards-setting rule, the outcome was certain: Until December 2020, a multiple-nozzle product was allowed to flow only at a maximum rate of 2.5 gpm. AWE et al. suggested that DOE is therefore obligated to revoke the 2020 Rule, because that Rule is simply contrary to EPCA and unlawful. (AWE et al., No. 21 at p.2)

DOE agrees with AWE, et al. that the December 2020 Final Rule amendment of the definition of “showerhead” could lead to increased water use. As discussed in section III.2., DOE also agrees with AWE, et al. that the definition of “showerhead” in the December 2020 Final Rule is inconsistent with EPCA's purposes of energy and water conservation. Further, DOE is withdrawing the definition of 'showerhead' adopted in the December 2020 Final Rule and returning to the definition from the October 2013 Final Rule. However, EPCA's anti-backsliding provision prohibits DOE from prescribing “any amended standard which increases the maximum allowable energy use, or, in the case of showerheads, faucets, water closets, or urinals, water use, or decreases the minimum required energy efficiency, of a covered product.” (42 U.S.C. 6295(o)(1)) The adoption of new or revised definitions for products, including “showerheads”, does not implicate the anti-backsliding provisions because it is not a standard nor does it alter the current standard. This final rule only amends the definition of “showerhead” and does not amend the standards for showerheads, which were established by Congress in EPCA. ( See 42 U.S.C. 6295(j)(1))

DOE also received comments generally opposed to the regulation of the water flow of showerheads. ( See Doty, No. 3 at p. 1; Southerland, No. 2 at p. 1; Walters, No. 4 at p. 1) Ramer commented that the proposed definition will place a higher cost, due to testing, for showerhead manufacturers and consumers. (Ramer, No. 10 at p. 1) Halligan asked whether a grace period would be provided to allow businesses and building owners to retrofit existing models. (Halligan, No. 8 at p. 1) As discussed in section II.B., Congress established the definition of “showerhead” in EPAct 1992 and tasked DOE with implementing the provisions related to definitions, standards, and test procedure requirements for plumbing products. (Pub. L. 102-486; Oct. 24, 1992 Sec. 123) Further, the definition adopted in this final rule and the statutory standard apply to products as manufactured, not products already installed. ( See generally 42 U.S.C. 6302)

A commenter also questioned whether the December 2020 Final Rule's definition of “showerhead” really limited DOE's capabilities in the water conservation effort. (Johnston, No. 7 at p. 1) As discussed in section IV.A.II, the December 2020 Final Rule's definition for “showerhead” would increase water and energy use.

DOE adopted a definition for “body spray” in the December 2020 Final Rule, concluding that the definition of “showerhead” in the October 2013 Final Rule did not specifically include or exclude body sprays and that this omission may have introduced uncertainty for regulated parties and that therefore it is appropriate to clarify that body sprays are not showerheads. 85 FR 81341, 81350. DOE defined the term “body spray” as “a shower device for spraying water onto a bather from other than the overhead position. A body spray is not a showerhead.” 85 FR 81341, 81359. DOE also stated that leaving the scope of products not subject to EPCA's energy conservation standard undefined, and potentially subjecting manufacturers of body sprays to DOE standards, causes more confusion than establishing a regulatory definition. 85 FR 81341, 81350.

In the July 2021 NOPR, DOE revisited the definition of “body spray,” including the comments received in the rulemaking to the December 2020 Final Rule. In the July 2021 NOPR, DOE tentatively determined that the definition of “body spray” and the interpretation that body sprays are not a showerhead does not effectively address the relationship between these two products. 86 FR 38594, 38603. The 2018 ASME standard, as well as the 2012 ASME standard, treat the products similarly, and the only difference between the definitions of “showerhead” and “body spray” is the installation location. Further, the market review conducted by the CA IOUs during the rulemaking for the December 2020 Final Rule indicates that these two products are not treated differently in the marketplace. 16 Given the similar treatment by the industry standard and the market, as well as the lack of discernable differences between the products, DOE tentatively determined that the current definition does not best address the relationship between these two products. Id. In addition, DOE stated that the current definition of “body spray” may result in excessive water use that is inconsistent with EPCA's purposes. Id. While DOE explained in the December 2020 Final Rule that leaving the term “body sprays” undefined introduced uncertainty into the market about whether those products needed to comply with the 2.5 gpm standard, the research done by CA IOUs shows that products with body sprays complied with the energy conservation standard. Id. As such, DOE tentatively determined that the current definition of “body spray” should be withdrawn. Id.

In response to the July 2021 NOPR, DOE received comments expressing support for the withdrawal of the recently codified definition of “body spray” from the ASAP, CEC, NPCC, CA IOUs, AWE et al., the District, and the Joint Advocates. (CEC, No. 19 at p. 3; NPCC, No. 12 at p. 2; CA IOUs, No. 20 at p. 1; AWE et al., No. 21 at p. 3; the District, No. 16 at p. 2; Joint Advocates, No. 23 at p. 2; ASAP, Public Meeting Transcript at p. 5)

Specifically, CEC stated that the December 2020 Final Rule established an ambiguous definition for “body spray” that relies solely on manufacturer intent and consumer installation decisions, rather than discernable technical differences between the products. (CEC, No. 19 at p. 3) CEC added that this change to how DOE treats body sprays created a significant loophole for manufacturers to develop and sell devices that perform the same function as a showerhead, but are not required to meet the maximum 2.5 gpm flow rate simply because of “manufacturer intent” or device placement. ( Id. at pp. 3-4) AWE et al. stated that withdrawing the definition of “body spray” is consistent with the purposes of the EPCA and will comply with current ASME A112.18.1/CSA B125.1 standard. (AWE et al., No. 21 at p.3) AWE et al. also explained that the body spray exclusion constitutes a significant loophole, allowing a product to be sold, installed, and used with water flow far in excess of the statutory standard, just because the water approaches the bather from a different angle. ( Id. ) Further, the Joint Advocates explained that industry standards and market research show that body spray and showerhead products are technically comparable and are often treated similarly in the market, with the only difference being the location of installation and as such, body spray products should not be explicitly excluded from meeting the 2.5 gpm standard. (Joint Advocates, No. 23 at p. 2) ASAP also stated that the definition of “body spray” would result in a loophole since a body spray could be installed in pretty much any orientation. (ASAP, Public Meeting Transcript at p. 6)

Commenters also discussed the impacts of the current “body spray” definition on energy and water conservation. CEC also stated that by realigning its definition with the October 2013 Final Rule, DOE will reduce confusion and uncertainty in the market, resulting in energy and water conservation nationwide. (CEC, No. 19 at p. 4) The Joint Advocates explained that the current definition of “body spray” has the potential to result in excessive water use by allowing products that meet this definition to be exempt from any energy conservation standards. (Joint Advocates, No. 23 at p. 2)

As described in the July 2021 NOPR and reiterated by commenters in response to the July 2021 NOPR, industry standards and the marketplace treat “showerheads” and “body sprays” similarly with the only difference being in the installation location. Further, DOE continues to agree with the commenters' concerns about the increased water and energy use of the existing definition of “body spray.” Having considered the comments received and based on the discussion presented in the preceding paragraphs and in July 2021 NOPR, DOE is withdrawing the current definition of “body spray.”

In the December 2020 Final Rule, DOE established a definition for the term “safety shower showerhead.” 85 FR 81341, 81351. Specifically, DOE defined “safety shower showerhead” to mean “a showerhead designed to meet the requirements of ANSI/ISEA Z358.1 (incorporated by reference, see § 430.3).” 85 FR 81341, 81352; see also 10 CFR 430.2.

In the July 2021 NOPR, DOE did not propose to amend the definition of “safety shower showerhead” and continued to find that leaving the scope of products not subject to EPCA's energy conservation standard undefined causes confusion and is inappropriate. 86 FR 38594, 38603. Further, DOE continued to find that: What is meant by a “safety shower showerhead” or emergency shower is understood in the regulated industry; that it is unlikely that manufacturers of showerheads intended for use by residential consumers would design a showerhead to meet the specifications of the ANSI standard in order to avoid compliance with DOE standards; and that the definition and performance criteria in the definition of “safety shower showerhead” addressed concerns noted by the commenters in the 2020 rulemaking and distinguish a showerhead from a safety shower showerhead. Id. at 86 FR 38603-38604. Accordingly, DOE tentatively determined that retaining the definition of “safety shower showerhead” was necessary and appropriate. Id. at 86 FR 38604.

In response to the July 2021 NOPR, DOE received comments expressing support for maintaining its definition of a “safety shower showerhead” as codified by the 2020 Final Rule from CA IOUs, CEC, ASAP, AWE et al., and PMI. (CA IOUs, No. 20 at p. 1; CEC, No. 19 at p. 4; ASAP, Public Meeting Transcript at p.4; AWE et al., No. 21 at p. 3; PMI, No. 22 at p. 2; PMI, Public Meeting Transcript at p. 6) Hekstra requested that there is a definition of “safety shower showerhead.” Hekstra explained that a manufacturer cannot ensure they are within or without the exception of a safety shower showerhead if they do not know what one is. (Hekstra, No. 17) Glucksman asked whether the definition of “showerhead” applies to work and eye wash safety stations or if the July 2021 NOPR applies only to consumer-based showers. (Glucksman, No. 06 at p. 1)

CEC supported the retention of the definition of “safety shower showerheads,” but commented that that the definition for “safety shower showerheads” presents a potential loophole in that the ANSI/ISEA Z358.1-2014 specifications do not prohibit these devices from operating in a “partially on” state, and therefore manufacturers could develop products that meet the requirements of ANSI/ISEA Z358.1-2014, but that could also operate in a “partially on” state that resembles a non-compliant showerhead. (CEC, No. 19 at p. 4) CEC stated that it has not identified any such products on the market, but CEC recommended that DOE monitor sales to ensure manufacturers are not exploiting this potential loophole and consider amendments to the definition. ( Id. ) The Joint Advocates recommended that DOE further improve the definition of “safety shower showerhead” to eliminate the possibility of circumvention of federal water efficiency requirements by exploiting perceived ambiguities in the federal definition of showerhead. The Joint Advocates commented future products could conceivably be designed to both meet the ANSI/ISEA standard's requirements and be capable of providing a shower for bathing at flow rates well above the federal standard. (Joint Advocates, No. 23 at p. 2) The Joint Advocates recommended that DOE require that safety shower showerheads both meet the ANSI/ISEA standard's requirements and also be “designed and marketed exclusively for emergency shower applications.” ( Id. )

The comments by Glucksman and Hekstra illustrated the continuing need to have a definition for the term “safety shower showerhead.” Consistent with the CEC and the Joint Advocates' observations, DOE is not aware of products on the market certified to ANSI/ISEA Z358.1-2014 that allow for operation at a reduced flowrate appropriate for normal bathing. Section 4.2 of ANSI/ISEA Z358.1-2014 specifies that the valve for a safety shower showerhead “shall be simple to operate and shall go from `off' to `on' in 1 second or less.” The specification for the “off” to “on” operation of the valve makes it unlikely that a value with an intermediate setting that provides reduced flow ( i.e., reducing the flowrate from 20 gpm specified in the industry standard to a flowrate acceptable for normal bathing) would comply with the definition of “safety shower showerhead.” Further, the testing procedures for ANSI/ISEA certification of emergency showers in Section 4.4.1 of ANSI/ISEA Z358.1-2014 also requires verification that the valve “fully opens in one second or less and that it stays open,” indicating that valve must be open for the duration of the operation, in turn not allowing for any reduced flow rates. Therefore, DOE finds it unlikely that manufacturers would introduce safety shower showerheads that allow for operation at a reduced flow due to the risk of inadvertent operation of the product at a reduce flow in an emergency situation. As such, DOE is not amending the definition of “safety shower showerhead.”

The Office of Management and Budget (OMB) has determined that this final rule constitutes a “significant regulatory action” under section 3(f) of Executive Order (E.O.) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was subject to review under E.O. 12866 by the Office of Information and Regulatory Affairs (OIRA) at OMB.

This rule provides important benefits to consumers, producers, and society. Clear definitions, as finalized in this rule, are beneficial to resolve ambiguity for manufacturers and consumers. And because returning to the October 2013 definition of “showerhead,” withdrawing the current definition of “body spray,” and maintaining the current definition of “safety shower showerhead” better effectuate EPCA's water and energy conservation purposes, this rule also reinforces to manufacturers and the public that DOE's overarching goal in implementing EPCA is water and energy conservation.

By returning to the definition of “showerhead” and to the interpretation of “body spray” that existed prior to the December 2020 Final Rule, the rule provides consumers and society the benefits derived from the water and energy savings of DOE's previous approach to these terms. Consumers have access in the market to high-performing showerheads, including multi-headed showerheads, that meet the definitions finalized here, and so this action does not reduce performance or remove from the market any features that are currently available. DOE expects that these benefits to consumers and society will materialize over the long term as DOE believes that manufacturers have no near-term plans to produce, sell, or distribute modified showerheads that would use more water in ways inconsistent with the definitions being re-adopted in this rule.

DOE has weighed the benefits (decreased water usage, increased clarity, and consumer energy savings) against the potential costs, and has determined that the benefits of adopting this definition change outweigh the costs, and that achieving these benefits for consumers and society effectuates the purposes of EPCA.

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

DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the final rule will not have significant economic impact on a substantial number of small entities. The factual basis for this certification is set forth in the following paragraphs.

The Small Business Administration (“SBA”) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers or earns less than the average annual receipts specified in 13 CFR part 121. The threshold values set forth in these regulation use size standards codes established by the North American Industry Classification System (“NAICS”) that are available at: www.sba.gov/document/support--table-size-standards. Plumbing equipment manufacturers are classified under NAICS 332913 “Plumbing Fixture Fitting and Trim Manufacturing,” and NAICS 327110 “Pottery, Ceramics, and Plumbing Fixture Manufacturing.” The SBA sets a threshold of 1,000 employees or fewer for an entity to be considered a small business within these categories.

This final rule withdraws the current definition of showerhead and reinstates the prior definition of showerhead. It also withdraws the definition of body sprays. Finally, this final rule retains the definition of safety shower showerhead. DOE has not found any showerheads that have been introduced into the market by any manufacturers, large or small, since the December 2020 Final Rule became effective that certified compliance on the basis of the revised definitions in the December 2020 Final Rule, as compared to the definition established in the October 2013 Final Rule. All certified showerheads in DOE's Compliance Certification Database  17 (“CCMS”) have flow rates no greater than 2.5 gpm and would meet the definition established in the October 2013 Final Rule. Additionally, in response to the July 2021 NOPR, PMI stated that its member companies did not produce, sell, or distribute modified showerheads to meet the new definition of showerhead that was put in place in the December 2020 Final Rule. (PMI, No. 22 at p. 2) As such, DOE has not found any evidence that any manufacturer, large or small, has introduced any showerhead model that relied on the definition of showerhead that was put in place in the December 2020 Final Rule. Based on the foregoing, DOE certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

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

This final rule withdraws the current definition of showerhead and reinstates the prior definition of showerhead. It also withdraws the definition of body sprays. Finally, this final rule retains the definition of safety shower showerhead. It does not amend the reporting requirement. Further as noted, DOE has not identified any showerheads that have been introduced into the market since the December 2020 Final Rule became effective for which certification is on the basis of the revised definitions in the December 2020 Final Rule, as compared to the definition established in the October 2013 Final Rule. Specifically, all certified showerheads in the CCMS have flow rates no greater than 2.5 gpm and PMI stated in their comments that its member companies, which comprises over 90 percent plumbing product, did not produce, sell or distribute modified showerheads based on the December 2020 Final Rule. (PMI, No. 22 at p. 2) Showerheads will not be required to recertify based solely on the amendment to the definitional amendments adopted in this final rule.

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

Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has analyzed this final action in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE has determined that this rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix A5 because it is an interpretive rulemaking that does not change the environmental effect of the rule and meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. Therefore, DOE has determined that promulgation of this rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an environmental assessment or an environmental impact statement.

E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this final rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is required by Executive Order 13132.

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

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, section 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

DOE has concluded that this final rule contains neither an intergovernmental mandate nor a mandate that may result in the expenditures of $100 million or more in any one year, so these requirements under the Unfunded Mandates Reform Act do not apply.

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

Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this final rule will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

The Credit Risk Retention Regulations are codified at 12 CFR part 43; 12 CFR part 244; 12 CFR part 373; 17 CFR part 246; 12 CFR part 1234; and 24 CFR part 267 (the Credit Risk Retention Regulations). The Credit Risk Retention Regulations require the OCC, Board, FDIC and Commission, in consultation with the FHFA and HUD, to commence a review of the following provisions of the Credit Risk Retention Regulations no later than December 24, 2019: (1) The definition of qualified residential mortgage (QRM) in section _.13 of the Credit Risk Retention Regulations; (2) the community-focused residential mortgage exemption in section _.19(f) of the Credit Risk Retention Regulations; and (3) the exemption for qualifying three-to-four unit residential mortgage loans in section _.19(g) of the Credit Risk Retention Regulations (collectively, the subject residential mortgage provisions).

Notification announcing the commencement of the review was published in the Federal Register on December 20, 2019 (84 FR 70073). Notification announcing the agencies' decision to extend to June 20, 2021, the period for completion of the review and publication of notification disclosing determination of the review was published in the Federal Register on June 30, 2020 (85 FR 39099). On July 22, 2021, the agencies published another notification in the Federal Register , announcing their decision to extend the period to complete the review further to December 20, 2021 (86 FR 38607).

The agencies have completed their review of the subject residential mortgage provisions and this notification discloses the agencies' determination as a result of the review.

Section 15G of the Securities Exchange Act, as added by section 941(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), required the Board, FDIC, OCC (collectively, the Federal banking agencies) and the Commission, together with, in the case of the securitization of any “residential mortgage asset,” HUD and FHFA, to jointly prescribe regulations that (i) require a securitizer to retain not less than five percent of the credit risk of any asset that the securitizer, through the issuance of an asset-backed security (ABS), transfers, sells, or conveys to a third party, and (ii) prohibit a securitizer from directly or indirectly hedging or otherwise transferring the credit risk that the securitizer is required to retain under section 15G and the agencies' implementing rules. 1 Section 941 of the Dodd-Frank Act also provides that a securitizer shall not be required to retain any part of the credit risk for an asset that is transferred, sold, or conveyed through the issuance of ABS interests by the securitizer, if all of the assets that collateralize the ABS interests are QRMs, as that term is jointly defined by the agencies. Section 941 provides that the definition of QRM can be “no broader than” the definition of a “qualified mortgage” (QM) as that term is defined under section 129C of the Truth in Lending Act (TILA), 2 as amended by the Dodd-Frank Act, and regulations adopted thereunder. 3 The agencies decided to align the definition of QRM with the definition of QM. 4 The Credit Risk Retention Regulations define QRM to mean a QM, as defined under section 129C of TILA and Regulation Z issued thereunder at 12 CFR part 1026, as amended from time to time.

As part of the Credit Risk Retention Regulations, the agencies are required to review the definition of QRM periodically to assess developments in the residential mortgage market, including the results of the statutorily required five-year review by the Consumer Financial Protection Bureau (CFPB) of the ability-to-repay rules and the QM definition. In conducting the review (the commencement of which was announced on December 20, 2019) and reaching their conclusions, the agencies considered what has been learned since 2014 about whether the loan and borrower characteristics specified in the QRM definition are predictive of a lower risk of default and also assessed how mortgage credit access conditions have changed since 2014, using data from the date on which the Credit Risk Retention Regulations were announced, October 22, 2014, through December 31, 2019 (the review period). Among other things, the agencies analyzed Fannie Mae and Freddie Mac (the Enterprises) and non-Enterprise loan-level mortgage origination and performance data (including data on originations, defaults, and loan and borrower characteristics), held discussions with market participants, and reviewed academic research, policy research prepared by research and advocacy organizations, and the results of the CFPB's Ability-to-Repay and Qualified Mortgage Rule Assessment Report issued in 2019. 5 The analysis also considered the effects on default risk of additional loan and borrower characteristics not included in the QRM definition.

The analysis confirmed that the loan and borrower characteristics specified in the QM definition in effect during the review period were predictive of a lower risk of default. In addition, the agencies found that, while credit conditions have improved since 2014, they remain tight relative to longer-term norms. 6

After analyzing those data, reviewing those analyses and considering the importance of maintaining broad access to credit, the agencies have decided, at this time, not to propose to amend the definition of QRM, the community-focused residential mortgage exemption, or the exemption for qualifying three-to-four unit residential mortgage loans. 7

In response to the notification of commencement of the review, which included a request for comment, the agencies received one comment (on behalf of 37 organizations) prior to the end of the comment period. The comment requested that the agencies defer the review until after the CFPB completed its then-proposed rulemaking to make changes to the QM definition, which would automatically modify the QRM definition to the extent no changes are made to the definition. 8

In response, the agencies note that the review is intended to consider the definition of QRM in light of changes in mortgage and securitization market conditions and practices and how the QRM definition has affected residential mortgage underwriting and securitization of residential mortgage loans under evolving market conditions during the review period. The CFPB did not issue the final QM changes until December 10, 2020, well after the review period. 9

In June 2021, the agencies received a second comment letter (on behalf of six organizations), expressing support for the continued alignment of the definitions of QRM and QM. 10

The agencies' decision in 2014 to equate the QRM and QM definitions in the Credit Risk Retention Regulations was based on two main factors. First, the Dodd-Frank Act mandated that the definition of QRM “tak[e] into consideration underwriting and product features that historical loan performance data indicate result in a lower risk of default.”  11 Second, the Dodd-Frank Act specified that the QRM definition could not be broader than the QM definition, and the agencies were concerned that a QRM definition that was narrower than the QM definition could exacerbate already-tight mortgage credit conditions existing at that time.

In the current review of the definition of QRM, the agencies considered whether the loan and borrower characteristics specified in the QM definition are predictive of a lower risk of default and how mortgage credit conditions have changed since 2014. The agencies confirmed that the QRM definition that was in effect for the review period—with the requirement that debt-to-income (DTI) ratios generally not exceed 43 percent—was predictive of lower default rates.

The agencies used loan-level mortgage origination and performance data on Enterprise and non-Enterprise loans in the review. 12 The agencies followed the performance of loans originated between 2012 and 2015 and found that, after four years, loans with a DTI ratio greater than 43 percent were more likely to have become 90-days delinquent than loans with lower DTI ratios. The review also confirmed that the measurement of DTI had improved from when the analysis was last conducted, with a greater proportion of full documentation mortgage loans in the dataset in 2019 than in 2014. In the review, the agencies also considered the effects of additional loan and borrower characteristics on default risk. 13

The agencies also considered whether the QRM definition, as aligned with the QM definition, affected the availability of credit. While credit conditions had improved since 2014, they remained tight during the review period relative to longer-term norms. 14 However, the agencies determined that the QRM definition did not appear to be a material factor in credit conditions during the review period, in part because so much of the market was funded through Enterprise and Ginnie Mae securitizations. 15 More generally, the agencies concluded from the review that risk retention remains an effective tool for aligning the interests of securitizers, originators, and investors, and reducing default risk on certain loans. In addition, the Credit Risk Retention Regulations do not appear to be weighing materially on mortgage credit availability.

Finally, the agencies considered whether the QRM definition, as aligned with the QM definition, affected the securitization market. As the agencies anticipated, the QRM definition contributed to the bifurcation of the private-label securitization market between securitizations of “prime/jumbo” loans  16 which typically meet the characteristics of QM and are, therefore, exempt from risk retention as QRM, and securitizations of “non-QM” loans that are not QRM and, therefore, generally not exempt from risk retention. However, according to industry sources, the market for securitizations of non-QM loans was quite competitive through the end of 2019, which suggests that risk retention did not materially affect the ability of issuers in this market to obtain capital needed for mortgage originations. 17

In light of the foregoing, the agencies are not proposing to amend the definition of QRM at this time.

Community-focused residential mortgages are mortgages made by community development financial institutions (CDFIs), community housing development organizations, certain non-profits, or certain secondary financing providers, or through a state housing finance agency (HFA) program. These entities frequently make mortgage loans using flexible underwriting criteria that are not compatible with the TILA ability-to-repay requirements. To ensure continued borrower access to these loan programs, the CFPB exempted these loans from the TILA ability-to-repay requirement and, as a result, such loans are unable to be made as QMs. Similarly, the agencies provided a separate exemption for these loans from the risk retention requirement. The agencies justified this exemption by citing the “strong underwriting procedures to maximize affordability and borrower success in keeping their homes” and noted that the exemption “serve[s] the public interest because these entities have stated public mission purposes to make safe, sustainable loans available primarily to [low-to moderate-income] communities.”  18 In the years since adoption of the Credit Risk Retention Regulations, only a few CDFIs have used this exemption. 19 While HFAs have not used this exemption, discussions with market participants revealed that private securitization could become a more attractive option if a state HFA needed to issue bonds in excess of its tax-exempt allotment. Therefore, the agencies, at this time, are not proposing to amend the exemption for community-focused residential mortgages.

Mortgages that are collateralized by three-to-four-unit properties are defined as “business purpose” loans rather than consumer credit transactions under TILA, and as such are not subject to the ability-to-repay requirement, and are unable to qualify as QMs. The agencies recognized that securitization markets typically pool mortgages collateralizing three-to-four-unit residential mortgages with other residential mortgage loans. The agencies also provided an exemption for three-to-four-unit residential mortgages that otherwise would qualify as QMs to ensure that credit did not contract to this part of the market. The number of mortgages collateralized by three-to-four-unit properties, and the percentage of such mortgages funded through private-label securitizations, is small. 20 The exemption also does not appear to be spurring any significant speculative activity in the securitization market and, at the same time, these properties are a source of affordable housing. Therefore, the agencies are not proposing to amend this exemption at this time.

The Agencies' CRA regulations establish CRA performance standards for small and intermediate small banks. The CRA regulations define small and intermediate small banks by reference to asset-size criteria expressed in dollar amounts, and they further require the Agencies to publish annual adjustments to these dollar figures based on the year-to-year change in the average of the CPI-W, not seasonally adjusted, for each 12-month period ending in November, with rounding to the nearest million. 12 CFR 228.12(u)(2) and 345.12(u)(2). This adjustment formula was first adopted for CRA purposes by the Board, the Office of the Comptroller of the Currency (OCC), and the FDIC on August 2, 2005, effective September 1, 2005. 70 FR 44256 (Aug. 2, 2005). At that time, the Agencies noted that the CPI-W is also used in connection with other federal laws, such as the Home Mortgage Disclosure Act. See 12 U.S.C. 2808; 12 CFR 1003.2. On March 22, 2007, and effective July 1, 2007, the former Office of Thrift Supervision (OTS), the agency then responsible for regulating savings associations, adopted an annual adjustment formula consistent with that of the other federal banking agencies in its CRA rule previously set forth at 12 CFR part 563e. 72 FR 13429 (Mar. 22, 2007).

Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), 1 effective July 21, 2011, CRA rulemaking authority for federal and state savings associations was transferred from the OTS to the OCC, and the OCC subsequently republished, at 12 CFR part 195, the CRA regulations applicable to those institutions. 2 In addition, the Dodd-Frank Act transferred responsibility for supervision of savings and loan holding companies and their non-depository subsidiaries from the OTS to the Board, and the Board subsequently amended its CRA regulation to reflect this transfer of supervisory authority. 3

The OCC has determined that it will adjust the asset-size criteria for institutions that are subject to OCC-issued CRA regulations, including national banks and federal and state savings associations, by a means separate from this rulemaking process.

The threshold for small banks was revised most recently in December 2020 and became effective January 1, 2021. 85 FR 83747 (Dec. 23, 2020). The current CRA regulations provide that banks that, as of December 31 of either of the prior two calendar years, had assets of less than $1.322 billion are small banks. Small banks with assets of at least $330 million as of December 31 of both of the prior two calendar years and less than $1.322 billion as of December 31 of either of the prior two calendar years are intermediate small banks. 12 CFR 228.12(u)(1) and 345.12(u)(1). This joint final rule revises these thresholds.

During the 12-month period ending November 2021, the CPI-W increased by 4.73 percent. As a result, the Agencies are revising 12 CFR 228.12(u)(1) and 345.12(u)(1) to make this annual adjustment. Beginning January 1, 2022, banks that, as of December 31 of either of the prior two calendar years, had assets of less than $1.384 billion are small banks. Small banks with assets of at least $346 million as of December 31 of both of the prior two calendar years and less than $1.384 billion as of December 31 of either of the prior two calendar years are intermediate small banks. The Agencies also publish current and historical asset-size thresholds on the website of the Federal Financial Institutions Examination Council at http://www.ffiec.gov/cra/.

Under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (APA), an agency may, for good cause, find (and incorporate the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

The amendments to the regulations to adjust the asset-size thresholds for small and intermediate small banks result from the application of a formula established by a provision in the respective CRA regulations that the Agencies previously published for comment. See 70 FR 12148 (Mar. 11, 2005), 70 FR 44256 (Aug. 2, 2005), 71 FR 67826 (Nov. 24, 2006), and 72 FR 13429 (Mar. 22, 2007). As a result, §§ 228.12(u)(1) and 345.12(u)(1) of the Agencies' respective CRA regulations are amended by adjusting the asset-size thresholds as provided for in §§ 228.12(u)(2) and 345.12(u)(2).

Accordingly, the Agencies' rules provide no discretion as to the computation or timing of the revisions to the asset-size criteria. For this reason, the Agencies have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. The effective date of this joint final rule is January 1, 2022. Under 5 U.S.C. 553(d)(3) of the APA, the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except, among other things, as provided by the agency for good cause found and published with the rule. Because this rule adjusts asset-size thresholds consistent with the procedural requirements of the CRA rules, the Agencies conclude that it is not substantive within the meaning of the APA's delayed effective date provision. Moreover, the Agencies find that there is good cause for dispensing with the delayed effective date requirement, even if it applied, because their current rules already provide notice that the small and intermediate small asset-size thresholds will be adjusted as of December 31 based on 12-month data as of the end of November each year.

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking when a general notice of proposed rulemaking is not required. 5 U.S.C. 603 and 604. As noted previously, the Agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Agencies have determined that this final rule does not create any new, or revise any existing, collections of information pursuant to the Paperwork Reduction Act. Consequently, no information collection request will be submitted to the OMB for review.

Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA) (12 U.S.C. 4802) requires that each Federal banking agency, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. 4 In addition, new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally must take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. 5

Because the final rule does not impose additional reporting, disclosure, or other requirements on IDIs, section 302 of RCDRIA does not apply. Nevertheless, the requirements of section 302 of RCDRIA, and the administrative burdens and benefits of the final rule, were considered as part of the overall rulemaking process.

For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule. 6 If a rule is deemed a “major rule” by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication. 7

The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 8 As required by the Congressional Review Act, the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.

For the reasons set forth in the common preamble, the Board of Governors of the Federal Reserve System amends part 228 of chapter II of title 12 of the Code of Federal Regulations as follows:

For the reasons set forth in the common preamble, the Board of Directors of the Federal Deposit Insurance Corporation amends part 345 of chapter III of title 12 of the Code of Federal Regulations to read as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Viking Air Limited Model DHC-3 airplanes. The NPRM published in the Federal Register on June 28, 2021 (86 FR 33916). The NPRM was prompted by MCAI originated by Transport Canada, which is the aviation authority for Canada. Transport Canada has issued AD CF-2017-29, dated August 24, 2017 (referred to after this as “the MCAI”), to correct an unsafe condition for Viking Air Limited Model DHC-3 airplanes. The MCAI states:

This condition, if not addressed, could result in cracking and failure of the structural integrity of the wing or the tie-bar.

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0214.

In the NPRM, the FAA proposed to require determining service life limits for the wing strut fitting on the main spar and for the tie-bar and following instructions for removal and replacement of affected parts. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from two commenters. The commenters were Talkeetna Air Taxi Inc. (Talkeetna Air) and Rust's Flying Service/K2 Aviation (Rust's Flying Service). The following presents the comments received on the NPRM and the FAA's response to each comment.

Both commenters requested the FAA change the proposed method of calculating equivalent air time by doubling the total hours on each component. Talkeetna Air requested the FAA allow increased visual and non-destructive testing inspections instead. Talkeetna Air and Rust's Flying Service suggested the FAA allow operators to calculate by using the formula and estimating the altitudes at which an airplane has operated, as provided in the service information, instead of by assuming all operations occur below 2,000 feet. Rust's Flying Service stated it has data to verify the operating altitudes of its aircraft.

As the FAA explained in the NPRM, there is no regulatory requirement for owners or operators to record or maintain the operating altitude history of an airplane. As a result, this AD requires calculating the compliance time by assuming all operations occurred below 2,000 feet AGL (and therefore doubling the total hours). However, operators may request approval to determine equivalent air time differently as an alternative method of compliance under the provisions of paragraph (g)(1) of this AD. The FAA did not change this AD based on this comment.

Talkeetna Air requested that the FAA adjust its estimated costs of compliance. The commenter stated that the hourly rate and number of estimated labor hours is too low for what would be required.

The FAA obtained the 300-hour labor time estimated in the NPRM from Viking Air Limited DHC-3 Otter Service Bulletin Number V3/0008, Revision NC, dated February 9, 2017. The FAA verified this number with Viking Air Limited and confirmed it is valid.

The FAA Office of Aviation Policy and Plans provides the labor rate of $85 per work-hour for the FAA to use when estimating the labor costs of complying with AD requirements.

The FAA did not change this AD based on this comment.

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 referenced above. The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. This AD is adopted as proposed in the NPRM.

The FAA reviewed Viking DHC-3 Otter Service Bulletin Number V3/0008, Revision NC, dated February 9, 2017. The service information specifies determining service life limits for the wing strut fitting on the main spar and for the tie-bar and contains instructions for removal and replacement. The FAA also reviewed De Havilland Aircraft of Canada, Limited DHC-3 Otter Service Bulletin Number 3/37, Revision B, dated October 8, 1982. The service information specifies instructions for removing and replacing the fuselage to wing strut attachment tie-bar. 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 MCAI requires calculating the compliance time by using a formula and estimating the altitudes at which an airplane has operated. The MCAI also instructs operators to assume operations below 2,000 feet AGL when the operating altitude of the airplane is unknown. Because the FAA has no regulatory requirement for owners or operators to record or maintain the operating altitude history of an airplane, this AD requires calculating the compliance time by assuming all operations occurred below 2,000 feel AGL.

The FAA estimates that this AD affects 41 airplanes of U.S. registry.

The FAA also estimates that it would take about 300 work-hours per airplane to replace both the wing strut fitting and the tie-bar. The average labor rate is $85 per work-hour. Required parts would cost about $5,599 per airplane.

Based on these figures, the FAA estimates the cost of this AD on U.S. operators to be $1,275,059 or $31,099 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.

This AD will not have federalism implications under Executive Order 13132. This AD will 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 this AD:

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0065, dated March 8, 2021 (EASA AD 2021-0065), to correct an unsafe condition for certain serial-numbered Leonardo S.p.A. Helicopters, formerly Finmeccanica S.p.A., AgustaWestland S.p.A., Agusta S.p.A., Model A109S and AW109SP helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Leonardo S.p.a. Model A109S and AW109SP helicopters as identified in EASA AD 2021-0065. The NPRM published in the Federal Register on September 30, 2021 (86 FR 54124). The NPRM was prompted by the discovery that rubber protection of certain electrical wiring had not been installed in the baggage avionics bay during production. The NPRM proposed to require installing protective rubber borders on the edge of the baggage avionics bay frames, as specified in EASA AD 2021-0065.

The FAA is issuing this AD to prevent chafing of electrical wiring, which if not addressed, could result in fire ignition and smoke in the baggage compartment and subsequent loss of control of the helicopter. See EASA AD 2021-0065 for additional background information.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

EASA AD 2021-0065 requires installing rubber protections on the electrical wiring in the baggage/avionics compartment.

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

The FAA reviewed Leonardo Helicopters Alert Service Bulletin (ASB) No. 109S-100, dated February 2, 2021, for Model A109S helicopters, and Leonardo Helicopters ASB No. 109SP-142, also dated February 2, 2021, for Model AW109SP helicopters. This service information specifies procedures for installing protective rubber borders on the edge of the baggage avionics bay frames.

The FAA estimates that this AD affects 3 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 AD.

Installing protective rubber borders on the edge of the baggage avionics bay frames will take about 2 work-hours and parts will cost about $24 for an estimated cost of $194 per helicopter and $582 for the U.S. fleet.

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.

This AD will not have federalism implications under Executive Order 13132. This AD will 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 this AD:

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

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

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

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

The FAA received two reports of mechanical failure of an LCTA, the function of which is to constrain and control the non-rotating swashplate. In both failures, which occurred on Model CH-47D helicopters, the flight crew was forced to make an emergency landing as they had difficulty controlling the helicopter. Model 234 and Model CH-47D helicopters both have the same LCTA installed, with two installed on each rotorcraft. Investigation as to the root cause of these failures has determined that inadequate maintenance overhaul procedures and scheduled overhaul intervals for this critical flight component with a single structural load path likely contributed to this unsafe condition. One event occurred due to excessive wear of the acme screw threads from degradation or lack of lubrication. The other event was due to metal fatigue leading to the fracture of the fourth stage spur gear shaft (part of the acme screw) caused by repetitive abnormal loading. The repetitive abnormal loading occurred because of the incorrect installation of a travel limit switch, which rendered the switch ineffective in removing power from the electric motor at the designed travel limit, thus allowing the electric motor to repetitively overstroke the actuator into a mechanical stop. While the failure modes were different, the failure effects were the same: Loss of the constraint and control normally provided by the LCTA. Failure of the LCTA, if not prevented, could result in loss of control of the rotor blades and subsequent loss of control of the helicopter or the rotor blades striking the fuselage. The FAA is issuing this AD to address the unsafe condition on these products.

The type certificate (TC) holder for Model 234 helicopters is Columbia Helicopters Inc. (TC previously held by Boeing Defense & Space Group), and the TC holders for Model CH-47D helicopters currently include Columbia Helicopters, Inc., Billings Flying Service, Inc., Tandem Rotor, LLC, and Unical Aviation, Inc. (originally manufactured for military use). The FAA did not limit this AD to these TC holders because the FAA expects that additional TC holders of helicopters are subject to this same unsafe condition.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires, within 3 calendar days after the effective date of the AD, determining the hours TIS and lift cycles since last overhaul for each LCTA. If LCTA lift cycles cannot be determined, counting 6 lift cycles for each hour TIS is required. For purposes of this AD, a lift cycle is defined as takeoff from ground for flight, a lift of a new external load while in flight, or a lift of a new internal load while in flight ( e.g., fluid drawn into an internal tank).

If the last LCTA overhaul was not approved for return to service by a person that meets the requirements of 14 CFR part 43, or, if you are unable to establish hours TIS and lift cycles since last overhaul of an LCTA ( e.g., hours TIS and lift cycles for each LCTA were not tracked), this AD requires, within 10 calendar days after the effective date of the AD, and thereafter at intervals not to exceed 3,000 hours TIS or 18,000 lift cycles, whichever occurs first, overhauling that LCTA. For purposes of any overhaul required by this AD, the overhaul must include an inspection of each acme screw for wear and cracking, lubricating all drive threads and gears, and a test to ensure proper operation of the extend and retract travel limit switches.

If the last LCTA overhaul was approved for return to service by a person that meets the requirements of 14 CFR part 43, overhauling the LCTA as described in this AD is required within 500 hours TIS or 3,000 lift cycles since last overhaul, whichever occurs first; or within 90 days after the effective date of the AD, whichever occurs later. Thereafter, overhauling each LCTA at intervals not to exceed 3,000 hours TIS or 18,000 lift cycles, whichever occurs first, is required.

This AD also prohibits, as of the AD's effective date, installing any LCTA on any helicopter unless it has been approved for return to service by a person that meets the requirements of 14 CFR part 43 after an overhaul as described in this AD, and that LCTA has not been in service for more than 3,000 hours TIS or 18,000 lift cycles since that overhaul. Finally, this AD requires, within 10 calendar days after completing each LCTA overhaul required by this AD, reporting certain information to the FAA.

The FAA considers this AD to be an interim action. The FAA is currently considering requiring overhaul of the LCTA at different time intervals or takeoff and lift cycles. However, the planned compliance time for those actions would allow enough time to provide notice and opportunity for prior public comment on the merits of those actions. Additionally, the inspection reports that are required by this AD will enable the FAA to obtain better insight into the cause of the unsafe condition and to eventually develop final action to address the unsafe condition. Once final action has been identified, the FAA might consider further rulemaking.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the LCTAs are critical flight control components with design elements that must be properly and regularly maintained to ensure continued safe flight of the identified rotorcraft. The two reported in-service events evidence a deficiency in the maintenance of the LCTAs that must be resolved. Additionally, the compliance time for some of the required actions is within 3 calendar days after the effective date of this AD, which is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0951 and Project Identifier AD-2021-01047-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, 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 final rule 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 final rule.

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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to David Herron, Aerospace Engineer, Systems & Equipment Section, Seattle ACO Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: (206) 231-3554; email david.herron@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 requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 74 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 AD.

Removing and reinstalling both LCTAs on each helicopter will take about 4 work-hours, with no parts costs, for an estimated cost of about $340 per helicopter or $25,160 for the U.S. fleet.

Overhauling both LCTAs on each helicopter will take about 56 work-hours, and parts costs will be about $200, for an estimated cost of about $4,960 per overhaul.

Reporting information to the FAA will take about 1 work hour per helicopter, for an estimated cost of about $85 per report.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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.

This AD will not have federalism implications under Executive Order 13132. This AD will 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 this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Daher Model TBM 700 airplanes with certain oil cooler air induction ducts installed. The NPRM published in the Federal Register on August 18, 2021 (86 FR 46160). The NPRM was based on MCAI from the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD 2018-0133, dated June 22, 2018, and corrected June 25, 2018 (referred to after this as “the MCAI”), to address the unsafe condition on certain Daher Model TBM 700 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-2020-1069.

Although the unsafe condition statement in the MCAI identifies the cause as ice accumulation on the engine air induction fin, the FAA has determined that this does not accurately identify the affected air path. The affected area is the oil cooler air inlet duct fin.

In the NPRM, the FAA proposed to require modifying the oil cooler air induction duct. The FAA is issuing this AD to prevent ice from accumulating on the oil cooler air induction duct fins, which could lead to an increase in oil temperature, uncommanded engine inflight shutdown, and reduced airplane control.

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

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 referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. This AD is adopted as proposed in the NPRM.

The FAA reviewed Daher Aerospace Service Bulletin SB 70-254, dated April 2018. The service information specifies procedures for removing the four upper fins of the oil cooler air induction duct and for re-identifying the oil cooler air induction duct with a new part number. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA also reviewed Daher Aerospace Service Bulletin SB 70-231, Revision 1, dated July 2018; and Daher Aerospace Service Bulletin SB 70-219, Revision 2, dated July 2018. The service information identifies the kit number and installation procedures for replacing the oil cooler air induction duct.

The FAA estimates that this AD will affect up to 807 airplanes of U.S. registry. The FAA also estimates that it would take about 3 work-hours per airplane to comply with the requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $50 per airplane.

Based on these figures, the FAA estimates the total cost of this AD on U.S. operators to be $246,135 or $305 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.

This AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0078, dated March 17, 2021 (EASA AD 2021-0078) to correct an unsafe condition for certain Leonardo S.p.A. (formerly Finmeccanica S.p.A, AgustaWestland S.p.A., Agusta S.p.A.; and AgustaWestland Philadelphia Corporation, formerly Agusta Aerospace Corporation) Model AW189 helicopters.

EASA AD 2021-0078 was prompted by a design review which identified that fairing part number (P/N) 8G3340A12532 left-hand (LH) and P/N 8G3340A12632 right-hand (RH) used during icing trials activity conducted for the certification of Full Ice Protection System and Limited Ice Protection System kits had never been introduced in the MR tip light kit P/N 8G3340F00411 design definition. The MR tip light kit P/N 8G3340F00411 is currently composed of two other fairing part numbers, P/N 8G3340A12531 LH and P/N 8G3340A12631 RH installed in the vicinity of each engine air intake. EASA AD 2021-0078 advises the fairing part numbers that are currently installed could cause significant ice accretion during operations in icing conditions.

The FAA is issuing this AD to address ice shedding ingestion by the engines, which could lead to a double engine in-flight shut-down and consequent loss of control of the helicopter. See EASA AD 2021-0078 for additional background information.

EASA AD 2021-0078 specifies procedures for installation of rescue hoist kit removable parts (temporary actions) and replacement of affected parts with serviceable parts in accordance with the manufacturer's service information. EASA AD 2021-0078 prohibits installing any affected part after modification as required by the EASA AD. EASA AD 2021-0078 considers the modification a terminating action for the temporary actions required by the EASA AD.

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

The FAA reviewed Leonardo Helicopters Alert Service Bulletin No.189-265, dated March 4, 2021. This service information provides instructions to install the rescue hoist kit “removable” parts as a temporary action until modification of the helicopter. This service information also provides instructions to install the MR tip light fairing modification P/N 8G3340P02411.

These products have been approved by the aviation authority of another country, and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in EASA AD 2021-0078 referenced above. The FAA is issuing this AD after evaluating all pertinent information and determining that the unsafe condition exists and is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2021-0078, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and EASA AD 2021-0078.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities to use this process. As a result, EASA AD 2021-0078 is incorporated by reference in this AD. This AD, therefore, requires compliance with EASA AD 2021-0078 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2021-0078 that is required for compliance with EASA AD 2021-0078 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-1060.

Service information referenced in EASA AD 2021-0078 specifies sending compliance forms to the manufacturer; this AD does not. Paragraph (2) of EASA AD 2021-0078 specifies a compliance time of 400 flight hours or 12 months, whichever occurs first. However, this AD requires a compliance time of 400 hours time-in-service after the effective date of this AD. This AD does not require compliance with paragraph (1) or paragraph (4) of EASA AD 2021-0078. EASA AD 2021-0078 paragraph (4) considers modification of the helicopter a terminating action for installing the rescue hoist kit “removable” parts on the helicopter. As this AD does not require installing the rescue hoist kit “removable” parts, this AD does not provide a terminating action for installing the rescue hoist “removable” parts.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

There are currently no domestic operators of these products affected by the unsafe condition addressed by this AD. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reasons, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA- FAA-2021-1060; Project Identifier MCAI-2021-00340-R” at the beginning of your comments. The most helpful comments reference a specific portion of the AD, 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 AD 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 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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email andrea.jimenez@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

There are no costs of compliance with this AD because there are currently no helicopters with this type certificate on the U.S. Registry that are affected by the unsafe condition addressed by this 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 AD will not have federalism implications under Executive Order 13132. This AD will 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 regulation:

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

(2) Will not affect intrastate aviation in Alaska.

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

Based upon its experience with D.C. Code sentenced supervised releasees for over 20 years, the Commission is repealing its policy, codified at 28 CFR 2.218(e), of imposing the maximum permissible term of supervised release after revoking an earlier term of supervised release. On August 17, 2021, the Parole Commission published an interim rule with request for comments. 86 FR 45861. The Parole Commission has not received any comments and is publishing the final rule with no changes to the interim rule.

Under the revised regulation the Commission will retain the discretion to impose the maximum permissible term when it finds that the offender would benefit from a lengthier period of supervision, but there will no longer be a policy guiding that decision.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulation Planning and Review,” section 1(b), Principles of Regulation, and in accordance with Executive Order 13565, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation. The Commission has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

This rule will not have substantial direct effects 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. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

This rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

This rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and they will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

This rule is not a “major rule” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E-Congressional Review Act, now codified at 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies. Moreover, this is a rule of agency practice or procedure that does not substantially affect the rights or obligations of non-agency parties, and does not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

The Department of Labor published a final rule in the Federal Register on October 29, 2021 titled Tip Regulations Under the Fair Labor Standards Act (FLSA); Partial Withdrawal, 86 FR 60114. In that final rule, the Department finalized amendments to 29 CFR 10.28(b) and stated its intent to withdraw the 2020 Tip final rule's revisions to that section: “Withdrawal of the 2020 Tip final rule's revisions to . . . § 10.28(b) is necessary in order to finalize this rule's changes to . . . 10.28. Accordingly, the Department finalizes its withdrawal of the dual jobs portions of the 2020 Tip final rule.” 86 FR 60138. As published, however, the final rule contained an omission in the DATES section (86 FR 60114). Although the October 29, 2021 final rule was clear that the Department was finalizing its proposal to withdraw the 2020 Tip final rule amendments to both 29 CFR 531.56(e) and 29 CFR 10.28, the DATES section referred only to the withdrawal of the 2020 Tip final rule's amendments to § 531.56(e). This technical correction amends the DATES section of the October 29, 2021 final rule to reflect the Department's intent to also withdraw the 2020 Tip final rule's amendments to § 10.28. This action makes the necessary corrections in the DATES section of that final rule. The correction clarifies that, consistent with its statements in the October 29, 2021 final rule, the Department is withdrawing the 2020 revisions in amendatory instructions to both 29 CFR 531.56(e) and 10.28(b)(2). The DATES section contained in the Federal Register at 86 FR 60114 is hereby corrected.

Section 553(b)(3) of the Administrative Procedure Act (APA) provides that an agency is not required to publish a notice of proposed rulemaking and solicit public comments when the agency has good cause to find that doing so would be “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3). The Department finds that good cause exists to dispense with the notice and public comment procedures for this correction to its regulations, as it concludes that such procedures are unnecessary because this rule is not substantive and merely corrects a technical error in the October 29, 2021 final rule's DATES section. Section 553(d) of the APA also provides that substantive rules should take effect not less than 30 days after the date they are published in the Federal Register unless “otherwise provided by the agency for good cause found[.]” 5 U.S.C. 553(d)(3). Since this rule merely corrects a technical error in the October 29, 2021 final rule's DATES section and does not change the substance of the Department's regulations, the Department finds that it is unnecessary to delay the effective date of the rule. Therefore, it is effective December 28, 2021 (the effective date of the rule being corrected).

The Congressional Review Act (CRA) generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. See 5 U.S.C. 801(a)(1)(A)-(B). Notwithstanding this requirement, section 808 of the CRA provides throughout that a rule shall take effect at the time determined by the promulgating agency when the agency for good cause finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 808(2). As noted above, the Department has found that good cause exists to dispense with notice and public procedure for this final rule, as it concludes that such procedures are unnecessary. Therefore, the Department finds that good cause exists to make this correction to its regulations. See 5 U.S.C. 808(2). However, consistent with the CRA, the Department will submit to Congress and the Comptroller General the reports required by the Act. 5 U.S.C. 801(a)(1)(A)-(B).

In Fr. Doc. 2021-23446, at 86 FR 60114 in the issue of Friday, October 29, 2021, on page 60114, in the first column, DATES is corrected to read as follows:

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

On August 30, 2021, EPA published a Notice of Proposed Rulemaking (NPRM) for the State of Connecticut. See 86 FR 48357. The NPRM proposed approval of a Connecticut SIP revision that addresses the CAA requirement prohibiting emissions from the state that significantly contribute to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in other states. See CAA section 110(a)(2)(D)(i)(I) (the “good neighbor provision”). The SIP revision was submitted to EPA by Connecticut on December 6, 2018. The rationale for EPA's proposed action is given in the NPRM and will not be repeated here. EPA received no public comments on the NPRM.

EPA is approving a Connecticut SIP revision, which was submitted on December 6, 2018. This submission is approved as meeting CAA section 110(a)(2)(D)(i)(I) requirements that Connecticut's SIP includes adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts that will contribute significantly to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 18, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

You may be potentially affected by this action if you are a federal, state, territory, or tribal agency who administers a certification program for pesticides applicators. You may also be potentially affected by this action if you are: A registrant of RUP products; a person who applies RUPs, including those under the direct supervision of a certified applicator; a person who relies upon the availability of RUPs; someone who hires a certified applicator to apply an RUP; a pesticide safety educator; or other person who provides pesticide safety training for pesticide applicator certification or recertification. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Agricultural Establishments (Crop Production) (NAICS code 111);

• Nursery and Tree Production (NAICS code 111421);

• Agricultural Pest Control and Pesticide Handling on Farms (NAICS code 115112);

• Crop Advisors (NAICS codes 115112, 541690, 541712);

• Agricultural (Animal) Pest Control (Livestock Spraying) (NAICS code 115210);

• Forestry Pest Control (NAICS code 115310);

• Wood Preservation Pest Control (NAICS code 321114);

• Pesticide Registrants (NAICS code 325320);

• Pesticide Dealers (NAICS codes 424690, 424910, 444220);

• Industrial, Institutional, Structural & Health Related Pest Control (NAICS code 561710);

• Ornamental & Turf, Rights-of-Way Pest Control (NAICS code 561730);

• Environmental Protection Program Administrators (NAICS code 924110); and

• Governmental Pest Control Programs (NAICS code 926140).

This action is issued under the authority of FIFRA, 7 U.S.C. 136-136y, particularly sections 136a(d), 136i, and 136w.

The APA provides that when an agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. 5 U.S.C. 553(b)(3)(B).

EPA has determined that there is good cause for extending the expiration date for the existing certification plans without prior proposal and opportunity for comment for the following reasons:

• EPA's review and approval efforts, beginning in March 2020, were significantly hampered by the COVID-19 public health emergency, which created unforeseen circumstances that impacted EPA's ability to coordinate effectively with the state, territory, and tribal agencies and to provide early feedback to these certifying authorities during the two-year review and approval period. These impacts have also affected the state, territory, and tribal agencies' ability to respond to EPA's feedback and have significantly limited the amount of time these certifying authorities have to respond to such feedback. These issues resulted in EPA's review and approval process falling behind schedule. While slightly more than half of the 67 total plans have been reviewed by EPA to date, the Agency does not anticipate that all reviews will have been returned to the certifying authorities until February 2022. As a result, there is insufficient time for many of the certifying authorities to address all comments prior to March 4, 2022. See also the discussion in Unit II.B. and C.

• Even though EPA was aware that the review and approval process was falling behind schedule due to COVID-19 resource constraints at both the federal level and within the state, territory, and tribal agencies that develop, implement, and enforce these plans, EPA lacked the authority to develop changes to this regulatory deadline before October 1, 2021. Section 7(a)(2) of the Pesticide Registration Improvement Act of 2018 (PRIA 4) (Pub. L. 116-8; 133 Stat. 578), enacted on March 8, 2019, prohibited EPA from revising or developing revisions to the certification rule prior to October 1, 2021, thereby limiting EPA's ability to adjust the regulatory deadline until now. This extension provides EPA and the certifying authorities an opportunity to complete the review and approval process that was hampered by the COVID-19 pandemic and for certifying authorities to begin implementation of the modified certification plans without a lapse in coverage, ensuring that the increased protections required by the 2017 rule (Ref. 1) are fully realized. See also the discussion in Unit II.D.

• Rulemaking requirements, which in this case also include FIFRA rulemaking requirements that delay the effective dates of FIFRA rules and prescribe external reviews of the draft rulemaking within prescribed time periods, make it impracticable to complete a standard notice and comment rulemaking between the October 1, 2021 end of the PRIA 4 prohibition and the March 4, 2022 expiration date. See also the discussion in Unit II.D. and V.

• The expiration of state, territory, tribal, and federal agency certification programs would have significant adverse impacts on the certifying authorities, the economy, public health, and the environment. Applicator certifications under programs with expired plans would no longer be valid, significantly impairing access to and use of RUPs in many parts of the country, which in turn could pose potential risks to agriculture, commerce, and public health. Although difficult to quantify, the economy would be impacted by the shutdown of existing certification programs, including the potential economic impacts from limited availability of RUPs, and related limitations on training providers, certified individuals, and the program infrastructure established by the certifying agencies. Additionally, the Agency's ability to carry out its function of ensuring that applicators have been adequately trained and assessed for competency to use RUP products and the certifying authorities' ability to implement their certification programs within their jurisdiction will be significantly impacted should existing plans expire before EPA approves the revised certification plans. See also the discussion in Unit I.E.

• The extension of the regulatory deadline directly impacts those state, territory, tribal, and federal certifying agencies whose revised certification plans may not be approved by the regulatory deadline of March 4, 2022. While providing these entities a formal opportunity for comment on a proposed rule is impracticable for the reasons previously stated, certifying authorities have already expressed a need for more time to address EPA comments and have indicated their general support for the extension in communications with EPA. Given the urgent need for this rulemaking, EPA is issuing this rule as an interim final rule with post-promulgation public comment in order for the extension to be effective before the regulatory deadline of March 4, 2022.

In conclusion, for the reasons enumerated here, EPA is promulgating this interim final rule without a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b)(3)(B) because the Agency finds good cause that notice and public comment procedures are impracticable. In addition, EPA is also planning to issue a separate notice of proposed rulemaking (NPRM) in the near future to request comment on the potential need to further extend the regulatory deadline. EPA intends to address comments in response to this interim final rule and the NPRM concurrently and to publish a final rule.

This interim final rule is revising the expiration date for existing certification plans at 40 CFR 171.5(c) from March 4, 2022, to November 4, 2022. While EPA anticipates that all plans will have been reviewed and returned to the certifying authorities for further revision by February 2022, this revision will allow for certifying authorities that need more time to respond to EPA comments and prepare approvable certification plans, and more time for EPA to work with the certifying authorities to assure that their proposed certification plan modifications meet current federal standards. Although significant progress has been made in the development of revised plans and EPA's subsequent reviews, COVID-19 resource constraints have impacted the time certifying authorities have had to respond to EPA's comments and Agency's ability to work with certifying authorities to assure that their plans are approvable by the March 2022 deadline. Further collaboration is still needed between EPA and the certifying authorities to finalize and approve plans. EPA intends to work expeditiously toward approving and supporting the implementation of plans that meet the current federal standards during the extension and intends to provide periodic notifications to the public when those approvals have occurred. No other changes to the certification standards and requirements specified in 40 CFR part 171 are being made in this rulemaking.

In addition to this interim final rulemaking, EPA is planning to issue a separate notice of proposed rulemaking (NPRM) for public comment on the potential need to further extend the expiration date for existing plans beyond November 4, 2022. Any additional extension pursued by the Agency will be informed by both the progress on plan reviews and approvals made during this extension period and by the public comments on this interim final rule and the NPRM.

EPA finds that the deadline extension is an urgent need and necessary to assure that certified applicators will continue to be authorized to use RUPs without interruption and to provide certifying authorities with additional time to review and respond to EPA comments on their plans. The extension will also provide additional time for EPA to work more closely with the certifying authorities to address any remaining feedback and work toward approving their revisions. This extension also provides the Agency an opportunity to propose a longer-term extension through standard notice and comment rulemaking procedures. Without the deadline extension, modified certification programs that are not approved by the regulatory deadline of March 4, 2022, will expire, and applicators formerly trained and certified under such plans will no longer be allowed to use RUPs.

Incremental impacts of extending the regulatory deadline are generally positive because the extension provides certifying entities and EPA with more time to ensure that modified plans meeting the minimum federal requirements are in place, while failure to extend the regulatory deadline would likely have significant adverse impacts on the certifying authorities, the economy, public health, and the environment (see discussion in Unit I.B.2.).

EPA uses information from the 2017 certification rule (Ref. 1), which mandates the March 4, 2022 expiration of existing certification plans unless EPA approves revised certification plans, to assess the incremental economic impacts of this interim final rule which extends this deadline from March 4, 2022, to November 4, 2022. The impacts of the extension are that the implementation costs borne by the certifying authorities will be expended over an additional period of time and some of the costs to commercial and private applicators may be delayed. Some of the benefits of the rule ( e.g., reduction in acute illnesses from pesticide poisoning) are foregone as the implementation of some plans may be delayed while EPA works with the certifying authorities toward approval of their revised certification plans.

The 2017 rule provided a compliance period for certifying authorities to develop, obtain approval, and implement any new procedures, regulations, or statutes to meet the new federal standards. The 2017 rule further provided that existing plans could remain in effect after March 4, 2022, only to the extent specified in EPA's approval of a modified certification plan; EPA did not explicitly set a date for full implementation of the new programs. Certifying authorities can begin implementing their revisions to their programs when they are approved by EPA; portions of revised certification programs may be implemented in advance of plan approvals when in compliance with the 2017 rule requirements. All certifying authorities submitted their draft revised certification plans to EPA by the March 2020 deadline and the draft plans are presently undergoing review at EPA. Shortly after the March 2020 deadline, the COVID-19 public health emergency disrupted the normal progress of the EPA's review and approval of the draft plans. EPA and certifying authorities could not put the amount of effort into this part of the rule implementation that was originally anticipated, as they had to divert their resources to addressing pandemic-related issues. Thus, only part of the cost to certifying authorities estimated in the 2017 rule has presently been spent and some of the cost will be expended during the additional extension period. Therefore, this interim final rule is not expected to significantly change the costs to certifying authorities estimated in the 2017 Economic Analysis (EA) (Ref. 2).

The other sectors affected by the 2017 rule ( e.g., commercial and private applicators) are not incurring any costs until revised certification plans take effect. Once the revised plans take effect, the 2017 EA estimated that commercial applicators and private applicators would incur annualized costs of $16.2 million and $8.6 million, respectively, to meet the new certification standards. Some of these costs could be delayed as revised programs are approved and implemented over a longer period of time.

The delay in the approval of revised certification plans may also delay some benefits that would have otherwise accrued if certification plans were approved and implemented by the deadline established in the 2017 rule, as assessed in the 2017 EA. In 2017, EPA estimated that implementing the new federal certification requirements would reduce acute illness caused by exposure to RUPs, based on an analysis of pesticide incidents assuming that about 20% of poisonings are reported (a plausible estimate based on the available literature regarding occupational injuries or chemical poisoning incidents). Incidents may result in harms to applicators, persons in the vicinity, and the environment. Reported incidents most commonly cite exposure to the applicator or farmworkers in adjacent areas. Based on avoided medical costs and lost wages, the annualized benefits of the rule were estimated to be between $51.1 and $94.4 million. In addition, EPA expected that improved training would also reduce chronic illness among applicators from repeated RUP exposure and would benefit the public from better protections from RUP exposure when occupying treated buildings or outdoor spaces, consuming treated food products, and reducing the impact on non-target plants and animals. To the extent that this rule delays implementation of the 2017 rule, it will delay accrual of some of those benefits.

Not all the benefits of certification program revisions will be delayed, however, since some programs have been or will be able to start implementing changes sooner. Certifying authorities can begin implementing their revisions to their programs as soon as they are approved by EPA, some of which are anticipated to be approved in early 2022. In some jurisdictions, portions of revised certification programs are presently being implemented and in compliance with or exceeding the 2017 rule requirements, such as imposing minimum age requirements and updating manuals and exam administration procedures, so some benefits are already being realized in advance of full plan approvals. Additionally, some certifying authorities were forced to make changes to their existing certification programs to accommodate COVID-19-related protocols. Any changes that were made to existing plans to make these accommodations were required to be consistent with the new requirements and standards established in the 2017 rule.

Without the extension, however, the benefits of the 2017 rule would not be fully realized. The impact of plans expiring absent EPA's approval of modified plans has far-reaching implications across many business sectors, including but not limited to the agricultural sector, importation and exportation business, and structural pest control ( e.g., termite control), and could potentially impact all communities and populations throughout the U.S. in various ways as discussed in Unit I.E.4. In addition to the potential delay of benefits that would result from this extension, EPA and certifying authorities have already invested significant resources in the preparation and review of plan modifications that would fully implement the 2017 rule. It is EPA's considered judgement that the sunk cost of these investments, taken together with the significant costs of not extending the deadline as discussed in Unit I.E.4., outweigh the delayed benefits. EPA will continue to work expeditiously with certifying authorities to review and approve plans on a rolling basis. EPA's ongoing collaboration with the certifying authorities, which was significantly impacted by the COVID-19 pandemic, will result in modified plans that are protective of the environment and human health, including the health of certified pesticide applicators and those under their direct supervision, and will ensure that certified applicators are trained to prevent bystander and worker exposures as contemplated in the 2017 rule.

If the regulatory deadline is not extended, it is likely that EPA will be unable to approve many of the state, territory, tribal, and other federal agency certification programs, resulting in termination of these programs. EPA would have to take responsibility for administering certification programs for much of the country. A gap in coverage will likely exist between when certification programs expire and when EPA can fully implement EPA-administered certification programs, resulting in RUPs being unavailable for use in many places during the 2022 growing season and potentially through the end of 2022 or longer. It is also unlikely that EPA's certification programs would offer the same availability and convenience as those offered by state, territorial, and tribal certifying authorities, so it is likely that some applicators would face higher costs or be unable to obtain certification to apply RUPs. Additionally, once the EPA-administered certification plans are in place, they may in some cases be less protective than state plans would be, as many state plans include requirements that are more protective than the EPA requirements and these benefits will be lost if the deadline is not extended and EPA takes over many of the country's certification programs.

Additionally, EPA would be forced to expend time and resources in establishing the infrastructure to administer these certification programs, which would further delay coordination with certifying authorities whose plans were either approved and would be in the process of being implemented, or are awaiting approval. This is likely to cause significant disruption for agricultural, commercial, and governmental users of RUPs, and could have consequences for pest control in a broad variety of areas, including but not limited to the control of public health pests ( e.g., mosquito control programs), pests that impact agriculture and livestock operations, structural pests ( e.g., termites), pests that threaten state and national forests, and pests in containerized cargo. Applicators could lose work and income. Further, the expiration of certification plans could lead to confusion and potential enforcement issues when certifications that were formerly valid suddenly expire. It is also unlikely that EPA's certification programs could offer the depth of specialization found in many state, territorial and tribal certifying programs, which may be tailored to the particular pest control and human health needs commonly found in these localities. Thus, applicators certified under EPA programs would only be assessed for competency at the minimum federal standards and may not receive the specialized training that state, territorial, and tribal certifying authorities often provide. In addition, many states require professional applicators to be trained and licensed to apply general use pesticides and it is unclear to what extent states would be able to support those programs if they were to lose authority to certify RUP applicators.

The Agency invites certifying authorities, certified applicators, and the public to provide their views on the extension of the expiration date to November 4, 2022. Additionally, in advance of the planned NPRM seeking further extension of this deadline, commenters are encouraged to provide feedback on the need for, or concerns over, further extending the expiration date of existing plans and the appropriate length of a longer extension if warranted. Comments on this interim final rule will also be considered in the development of that rulemaking.

1. Submitting CBI. Do not submit this information to EPA through https://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.

In January 2017, EPA finalized a rule that revised the Certification of Pesticide Applicators regulations at 40 CFR part 171 (certification or CPA rule) (Ref. 1). The certification rule sets standards of competency for persons who use RUPs and establishes a framework for certifying authorities to administer pesticide applicator certification programs. One of the stated purposes of the 2017 rule is to ensure that persons using RUPs are competent to use these products without causing unreasonable adverse effects to themselves, the public, or the environment.

In updating the CPA regulations, EPA revised the regulation to enhance the following: Commercial and private applicator competency standards, exam and training security standards, standards for noncertified applicators working under the direct supervision of a certified applicator, tribal applicator certifications, and the requirements for submission, approval, and maintenance of state, tribal, territory, federal agency, and EPA-administered certification plans. The final rule also revised the regulation by adding categories of certification for commercial and private applicators, adding a recertification interval and criteria for recertification programs administered by certifying authorities, and establishing a minimum age for both certified applicators and noncertified applicators who use RUPs under direct supervision of certified applicators.

For federal agency plans, the final rule deleted the section on Government Agency Plans (GAP) in the old 40 CFR 171 and codified the existing policy on review and approval of federal agency certification plans prior to the 2017 rule. For tribal agency plans, the final rule offered tribal governments three options not previously provided for certifying applicators in Indian country. A tribe may choose to allow persons holding currently valid certifications issued under one or more specified state, tribal, or federal agency certification plans to apply RUPs within the tribe's Indian country, develop its own certification plan for certifying private and commercial applicators, or take no action, in which case EPA may, in consultation with the tribe(s) affected, implement an EPA-administered certification plan within the tribe's Indian country. EPA currently administers (Ref. 3), and has proposed updates to (Ref. 4), a federal certification program covering Indian country not otherwise covered by an individual tribal certification plan.

Under the 2017 rule, existing certification plans approved by EPA before the effective date of the rule (March 6, 2017) would remain in effect until March 4, 2020. If a certifying authority submitted an amended certification plan to EPA for approval by the March 2020 deadline, the existing certification plan would continue to remain in effect until EPA has reviewed and responded to the amended certification plan, but not beyond March 4, 2022, unless EPA authorizes further extension in its approval of an amended certification plan. EPA will specify in its approval of a plan how long the existing plan may remain in effect while the certifying authority prepares and completes implementation of its amended certification plan. EPA will base each certifying authority's implementation period on the circumstances of that jurisdiction.

In a series of Federal Register notices published in 2017 (Refs. 5, 6, and 7), EPA attempted to delay the effective date of the 2017 rule until May 22, 2018 in order to reconsider the merits of the rule. Litigation over the effective date resulted in the delay rules being vacated and the original effective date of March 4, 2017, being restored (Ref. 8). While efforts to begin outreach and implementation of the certification rule continued during this process, such as EPA's course for regulatory agencies in April 2017 (Ref. 9), some of the Agency's efforts to develop and provide guidance and support materials on the Agency's expectations regarding the revised certification plans slowed down, and some certifying authorities delayed efforts to update their certification plans under the expectation that the three-year window to revise and submit modified certification plans was not going to start until May 22, 2018, if at all. The uncertainty about whether the rule was effective and its potential fate upon reconsideration caused EPA and the certifying authorities to lose some of the time the rule had allotted for collaboration in advance of the March 2020 submission deadline.

Despite some of the early delays, EPA and the certifying authorities were productive during the remaining two years, with significant collaborative efforts on an individual level between the certifying authorities and EPA Regional Offices, as well as in-person group settings with the certifying authorities and EPA staff (Ref. 10). These efforts resulted in all certifying authorities submitting their draft certification plan revisions to EPA by the March 2020 deadline established in regulation. As a result, all plans that were approved by EPA prior to March 6, 2017, continue to remain in effect while EPA reviews and works with the certifying authorities toward approval of their certification plans. These existing certifications plans are set to expire on March 4, 2022, unless the modified plans are approved by EPA and the approved plan specifies the time needed to fully implement the revisions identified.

When EPA selected a two-year period from March 2020 to March 2022 for evaluating and approving modified plans in the 2017 rule, the Agency had anticipated that significant engagement would continue with the certifying authorities during the review period to ensure that their draft certification plans meet or exceed the minimum requirements. EPA also expected that the proposed plans would need further modification before they could be approved by EPA. Additionally, EPA expected in 2017 that a number of plans would have been submitted earlier than the regulatory deadline for submission, thereby resulting in the reviews being spread out over a longer period of time instead of the two-review review period. However, due in part to the loss of early collaboration time and delays as described in Unit II.B., most of the plans were submitted on or shortly before the regulatory deadline, and some of the work that would have been done by EPA and certifying authorities before plan submission was shifted into EPA's review period, thereby increasing the level of effort for both EPA and certifying authorities during this two-year period. Despite these issues, EPA anticipated and planned for much of the additional work after submission to be completed by May 2021, with final review and approvals to follow shortly thereafter.

However, while EPA was prepared for this influx of plans, shortly after the March 2020 submission deadline, the COVID-19 public health emergency arose. This significantly impacted the certifying authorities' resources and ability to address EPA comments in a timely manner, as resources shifted to address pressing public health needs related to COVID-19. Additionally, EPA necessarily redirected some of the staff and resources dedicated to certification plan reviews to address emerging COVID-19 related issues. Examples include providing support to the existing certification programs to adapt to the COVID-19 crisis (Ref. 11), as well as addressing a number of COVID-19-related issues impacting farmworker pesticide safety under the Agricultural Worker Protection Standard (WPS) at 40 CFR 170 such as health concerns around in-person training and reduced availability of respiratory protection equipment (Ref. 12, 13, 14, and 15). EPA staff involved in plan reviews also spent considerable time early in the pandemic to help respond to public inquiries (both in Spanish and English) regarding COVID-19 and pesticide products that may be effective at killing the virus, among other support efforts within the Agency at the time.

COVID-19 also drew certifying authorities' resources away from pursuing compliance with the 2017 rule in various ways, such as the need to accommodate social distancing in their applicator training and testing procedures. To support these efforts, EPA staff frequently met with state and regional staff and issued guidance (Ref. 11) to ensure that these program changes were consistent with the new federal requirements while meeting their needs during the pandemic. This resulted in delayed reviews and EPA feedback on the new certification plans. While EPA anticipates that all plans will have been reviewed and returned to the certifying authorities with comments by February 2022, the early impacts of COVID-19 on available resources and plan reviews have significantly limited the amount of time that many certifying authorities have had to address EPA's comments prior to the March 2022 deadline.

In 2017, EPA published a document in the Federal Register stating that the Agency had initiated rulemaking to reconsider the minimum age requirements under 40 CFR 171 (Ref. 16). As indicated in Unit I.B.2., negotiations around the PRIA 4 reauthorization resulted in the mandate requiring EPA to carry out and implement the 2017 rule as finalized and prohibited the Agency from revising or developing revisions to the CPA regulations prior to October 1, 2021, thereby halting the reconsideration of the minimum age requirements and any other potential changes to the certification rule until that date. In accordance with PRIA 4, EPA has been working with the certifying authorities to revise and complete the review and approval process of their certification plans by the deadlines established in 40 CFR 171.5.

However, the COVID-19 public health emergency has negatively impacted both the Agency's ability to review and approve plans in a timely manner and has impacted the certifying authorities' ability to respond to Agency comments quickly and effectively as discussed in Unit II.C. While EPA has been aware that the review and approval of plans was behind schedule for the reasons previously described, EPA was prohibited from undertaking any effort to amend the certification rule to extend the expiration date for the existing plans until October 1, 2021, when the PRIA 4 prohibition against revising or developing revisions expired.

FIFRA imposes additional requirements that add to the complexity of rulemaking. One requirement, 7 U.S.C. 136w(a)(2)(A) and (B), requires up to 60 days of review by the Secretary of Agriculture for proposed rules and 30 days for final rules (see Unit V). Another requirement, 7 U.S.C. 136w(a)(4), provides that a rule does not become effective until 60 days after it has been promulgated. When FIFRA rulemaking requirements and the PRIA 4 prohibition are considered together, EPA did not have sufficient time to comply with conventional notice and comment rulemaking procedures and applicable executive orders.

An extension of the expiration date for existing certification plans is needed to ensure that federal, state, territory, and tribal agencies have sufficient time to revise their certification plans in response to EPA's feedback on their draft certification plans. Absent an extension of this deadline, it is likely that a significant number of state, territory, tribal, and other federal agency certification programs will terminate, causing severe disruption for agricultural, commercial, and governmental users of RUPs. Failure to extend the regulatory deadline, and the resulting expiration of many certification programs, would significantly limit access to certification, thereby limiting access to RUPs that are necessary for various industries that rely upon pest control.

If EPA is unable to act expeditiously to extend the regulatory deadline, many existing certification plans that remain in effect pending EPA's review of submitted certification plan modifications will expire on March 4, 2022, in which case 7 U.S.C. 136i(a) requires that EPA provide RUP applicator certification programs in states (including territories) where a state certification plan is not approved. If EPA were to take on the burden of administering certification programs for much of the country, it would draw resources away from other important Agency priorities, including implementation of certification plans that are approved before the March 2022 deadline. In addition, it would take significant time and resources to set up the infrastructure for such federal certification programs and to train, test, and certify applicators, which would likely result in RUP use being curtailed in affected states. It is unlikely that EPA would be able to establish these federal certification programs before the start of the 2022 growing season, which would have potentially devastating impacts on the agricultural sector in many parts of the country. Moreover, once EPA-administered state certification programs are established, it is unlikely that they would operate at the same capacity as existing state programs, but rather, would provide fewer and less localized opportunities for applicators to satisfy certification requirements. As a result, significant adverse effects are expected on the pest control industry if current plans expire, as existing certifications will no longer be valid and will need to be replaced with federal certifications, likely creating economic and public health ramifications in a wide range of sectors such as agricultural commodity production, public health pest control, and industrial, institutional, and structural pest control. RUP access in this scenario would be minimal for most, if not all, of the 2022 growing season, and significant disruptions could extend even further.

Under this interim final rule, the deadline for amended certification plans to be approved without interruption of the existing certification plans provided in 40 CFR 171.5(c) is being changed from March 4, 2022, to November 4, 2022. This additional time is necessary to assure that all the certifying authorities have enough time to present approvable certification plans, and for EPA to work more closely with the state, territory, and tribal agencies on necessary modifications, and ultimately approve their certification plans. As some certifying authorities are close to completing their revisions and receiving EPA approval on their plans, EPA anticipates that some certification plan approvals will begin in early 2022 and will continue through the revised November 4, 2022 deadline. EPA anticipates that notice of certification plan approvals will be periodically provided to the public in batched notices in the Federal Register and on EPA's website as they are approved.

The extension in this interim final rule will also provide EPA with additional time to issue a separate NPRM seeking further extension of the deadline, providing stakeholders an opportunity to submit comments on the need for an additional extension to the expiration date for existing plans, and to include in their comments specific information detailing the necessity for or concerns over such an extension. EPA will be seeking this additional comment, because EPA did not have sufficient time to propose an extension prior to the regulatory deadline and is interested in seeking additional information to determine an appropriate length of time for such an extension. During this upcoming comment period in the following proposed rule, EPA expects that certifying authorities and other interested stakeholders will be able to provide more information on the efforts, issues, and concerns within each certifying authorities' jurisdiction and the potential impacts of delayed certification plans should plans require additional review time beyond November 4, 2022.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

In accordance with FIFRA section 25(a), EPA submitted a draft of this interim final rule to the United States Department of Agriculture (USDA) and to the appropriate Congressional Committees.

USDA responded without comments. The FIFRA Scientific Advisory Panel (SAP) waived review of this interim final rule, concluding that the interim final rule does not contain issues that warrant scientific review by the SAP.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is a significant regulatory action under Executive Order 12866 (58 FR 51735, October 4, 1993) and was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been reflected in the docket for this action.

This action does not impose any new information collection activities or burden subject to OMB review and approval under the PRA, 44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 1320.3(b). OMB has previously approved the information collection activities contained in the existing regulations and associated burden under OMB Control Numbers 2070-0029 (EPA ICR No. 0155) and 2070-0196 (EPA ICR No. 2499). An agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements, because the Agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b). See Unit I.B.2. for additional discussion about the “good cause” finding for this action.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects 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.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This interim final rule will not impose substantial direct compliance costs on Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045, because it does not concern an environmental health risk or safety risk.

This is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

This action does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

In accordance with Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive Order 14008 (86 FR 7619, January 27, 2021), EPA finds that this action will not result in disproportionately high and adverse human health, environmental, climate-related, or other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts during this administrative action to extend the expiration date. This extension will provide EPA and the certifying authorities an opportunity to finalize the revised certification plans, ensuring that the increased protections identified in the 2017 rule are realized for all affected populations. EPA will continue to work expeditiously with certification authorities to review and approve plans on a rolling basis. This engagement, which was impacted by the COVID-19 pandemic, will ensure the modified plans are appropriately protective of certified pesticide applicators and those under their direct supervision, and will ensure that certified applicators are trained to prevent bystander and worker exposures.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons set forth in the preamble, EPA amends 40 CFR part 171 as follows:

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102 and final 2021 allocations were published on December 21, 2020 (85 FR 82946).

The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan (FMP), as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider three criteria in the evaluation of requests for quota transfers or combinations: The transfer or combinations would not preclude the overall annual quota from being fully harvested; the transfer addresses an unforeseen variation or contingency in the fishery; and the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act. The Regional Administrator has determined these three criteria have been met for the transfer approved in this notification.

Virginia is transferring 25,016 lb (11,347 kg) to Rhode Island through mutual agreement of the states. This transfer was requested to repay landings made by an out-of-state permitted vessel under a safe harbor agreement. The revised summer flounder quotas for 2021 are: Virginia, 2,349,045 lb (1,065,509 kg) and Rhode Island, 1,886,566 lb (855,732 kg).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.162(e)(1)(i) through (iii), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.