On January 25, 2022, DOE published in the Federal Register a request for information (RFI) Regarding Test Procedures and Energy Conservation Standards for Consumer Air Cleaners. The RFI provided an opportunity for submitting written comments, data, and information on the proposal by February 24, 2022. 87 FR 3702 DOE is seeking comment from interested parties on the RFI.

On February 10, 2022, DOE received a comment extension request from the Joint Commenters arguing that further time is needed because they are actively engaged in a negotiation regarding the scope, test procedure, and energy efficiency standards for consumer air cleaners and are working to develop substantive comments to the RFI consistent with their discussions. 1 (Joint Commenters, No. 1 at p. 1)

DOE has reviewed the request and is reopening the comment period to allow additional time for interested parties to submit comments. The RFI was published in the Federal Register on January 25, 2022, and a 30-day comment period was provided from the date of publication. In light of the submitted request, DOE believes that additional time is warranted, and that reopening the comment period until April 10, 2022 is sufficient. Therefore, DOE is reopening the comment period until April 10, 2022.

This document of the Department of Energy was signed on February 22, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Table of Contents I. Introduction A. Authority B. Rulemaking Process C. Deviation From Appendix A II. Background A. Current Standards B. Current Process III. Summary of the Analyses Performed by DOE A. Engineering Analysis B. Mark-Ups Analysis C. Energy Use Analysis D. Life-Cycle Cost and Payback Period Analyses E. National Impact Analysis F. Other Analyses IV. Public Participation A. Participation in the Webinar B. Procedure for Submitting Prepared General Statements for Distribution C. Conduct of the Webinar D. Submission of Comments V. Approval of the Office of the Secretary I. Introduction A. Authority

The Energy Policy and Conservation Act, as amended (EPCA), 1 Public Law 94-163 (42 U.S.C. 6291-6317, as codified), authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) These products include consumer water heaters, the subject of this document. (42 U.S.C. 6292(a)(4))

EPCA prescribed energy conservation standards for these products (42 U.S.C. 6295(e)(1)), and the statute directed DOE to conduct two cycles of rulemakings to determine whether to amend these standards (42 U.S.C. 6295(e)(4)). EPCA further provides that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking (NOPR) including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) Not later than three years after issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B))

DOE completed the first of these rulemaking cycles on January 17, 2001, by publishing in the Federal Register a final rule amending the energy conservation standards for consumer water heaters. 66 FR 4474 ( establishing amended standards with a requirement for compliance starting on January 20, 2004) (January 2001 Final Rule). Subsequently, DOE completed the second rulemaking cycle to amend the standards for consumer water heaters by publishing a final rule in the Federal Register on April 16, 2010. 75 FR 20112 ( establishing amended consumer water heater standards with a requirement for compliance starting on April 16, 2015) (April 2010 Final Rule). As directed by later amendments to EPCA  3 ( see 42 U.S.C. 6295(e)(5)(B)), on July 11, 2014, DOE published in the Federal Register a final rule amending the test procedure for consumer water heaters to change the efficiency metric from energy factor (EF) to uniform energy factor (UEF). 79 FR 40542. The existing EF-based energy conservation standards were then translated from EF to UEF in a separate DOE conversion factor final rule published in the Federal Register on December 29, 2016, that established a method for converting EF to UEF for water heater basic models that were previously in existence. 81 FR 96204 (December 2016 Conversion Factor Final Rule). The current energy conservation standards for consumer water heaters are located in the Code of Federal Regulations (CFR) at 10 CFR 430.32(d) and are set forth in Table II.1 in section A of this document. The currently applicable DOE test procedures for consumer water heaters appear at 10 CFR part 430, subpart B, appendix E (Appendix E).

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

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

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

The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 4 For example, the United States rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing greenhouse gas (GHG) emissions in order to limit the rise in mean global temperature. As such, energy savings that reduce GHG emissions have taken on greater importance. Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the U.S. energy infrastructure can be more pronounced than those of products with relatively constant demand. In evaluating the significance of energy savings, DOE considers differences in not only site energy use, but also primary energy and full-fuel-cycle (FFC) effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and, thus, present a more complete picture of the impacts of energy conservation standards. 5 Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis.

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

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

Further, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))

EPCA also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if 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. (42 U.S.C. 6295(o)(4))

Additionally, EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. DOE must specify a different standard level for a type or class of product that has the same function or intended use, if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate. Id. Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))

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

Before proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE intends to use to evaluate potential standards for the product at issue and the results of preliminary analyses DOE performed for the product.

DOE is examining whether to amend the current energy conservation standards for consumer water heaters pursuant to its obligations under EPCA. This document announces the availability of the preliminary TSD, which details the preliminary analyses and summarizes the preliminary results of DOE's analyses. In addition, DOE is announcing a public meeting webinar to solicit feedback from interested parties on its analytical framework, models, and preliminary results.

In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), DOE notes that it is deviating from the provision in appendix A regarding the pre-NOPR stages for an energy conservation standards rulemaking. See 86 FR 70892 (Dec. 13, 2021) (effective January 12, 2022). Section 6(a)(2) of appendix A states that if the Department determines it is appropriate to proceed with a rulemaking, the preliminary stages of a rulemaking to issue or amend an energy conservation standard that DOE will undertake will be a framework document and preliminary analysis, or an advance notice of proposed rulemaking.

DOE is opting to deviate from this step by publishing a preliminary analysis without a framework document. A framework document is intended to introduce and summarize the various analyses DOE conducts during the rulemaking process and requests initial feedback from interested parties. As discussed further in section B, prior to this notification of the preliminary analysis DOE published a request for information (“RFI”) in which DOE identified and sought comment on the analyses conducted in support of the most recent energy conservation standards rulemakings. 85 FR 30853 (May 21, 2020; “May 2020 RFI”). Specifically, in the May 2020 RFI, DOE sought data and information as to whether any new or amended rule would be cost effective, economically justified, technologically feasible, or would result in a significant savings of energy. 85 FR 30853, 30855. DOE sought such data and information to assist in its consideration of whether (and if so, how) to amend the standards for consumer water heater. Id. Further, DOE provided an overview of the analysis it would use to evaluate new or amended energy conservation standards, including references to and requests for comment on the analyses conducted as part of the most recent energy conservation standards rulemakings. See 85 FR 30853, 30859-30877. As DOE is intending to rely on substantively the same analytical methods as in the most recent rulemaking, publication of a framework document would be largely redundant with the published May 2020 RFI. As such, DOE is not publishing a framework document.

Section 6(d)(2) of appendix A provides that the length of the public comment period for pre-NOPR rulemaking documents will vary depending upon the circumstances of the particular rulemaking, but will not be less than 75 calendar days. For this preliminary analysis, DOE has opted to provide a 60-day comment period. As stated, DOE requested comment in the May 2020 RFI on the previous energy conservation standards analyses. For this preliminary analysis, DOE has relied on many of the same analytical assumptions and approaches as used in the previous rulemaking and has determined that a 60-day comment period in conjunction with the prior comment period for the May 2020 RFI provides sufficient time for interested parties to review the preliminary analysis and develop comments.

In a final rule published in the Federal Register on April 16, 2010 (April 2010 Final Rule), DOE prescribed the current energy conservation standards for consumer water heaters, which are applicable to such products manufactured on and after April 16, 2015. 75 FR 20111, 20234.

As explained in section A of this document, DOE published the December 2016 Conversion Factor Final Rule in the Federal Register (81 FR 96204 (Dec. 29, 2016)) to convert standards based on EF to standards based on UEF, the metric produced by the amended test procedure established by the July 2014 Final Rule (79 FR 40542 (July 11, 2014)). These standards are set forth in DOE's regulations at 10 CFR 430.32(d) and are repeated here in Table II.1.

As stated in section A of this document, EPCA, as amended, prescribed initial energy conservation standards for consumer water heaters, as shown in Table II.2. (42 U.S.C. 6295(e)(1)) DOE notes that the statutory energy conservation standards apply to both storage and instantaneous consumer water heaters regardless of volume capacity. As such, the energy conservation standards shown in Table II.2 would cover the volume and input rate ranges not included in Table II.1.

As stated, on May 21, 2020, DOE published notice in the Federal Register through a request for information that it was initiating a review to determine whether any new or amended standards for consumer water heaters would satisfy the relevant requirements of EPCA. 85 FR 30853. Specifically, through the published notice and RFI, DOE sought data and information that could enable the agency to determine whether DOE should propose a “no new standard” determination because a more-stringent standard: (1) Would not result in a significant savings of energy; (2) is not technologically feasible; (3) is not economically justified; or (4) any combination of foregoing. Id. at 85 FR 30855.

Comments received to date as part of the current process have helped DOE identify and resolve issues related to development of the preliminary analyses. Chapter 2 of the preliminary TSD summarizes and addresses the comments received. Further comments are requested throughout the preliminary TSD and executive summary.

For the products covered in this preliminary analysis, DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) mark-ups to determine product price; (3) energy use; (4) life cycle cost (LCC) and payback period (PBP); and (5) national impacts. The preliminary TSD that presents the methodology and results of each of these analyses is available at: www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=32.

DOE also conducted, and has included in the preliminary TSD, several other analyses that support the major analyses or are preliminary analyses that will be expanded if DOE determines that a NOPR is warranted to propose new or amended energy conservation standards. These analyses include: (1) The market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the LCC and PBP analysis and the national impact analysis (NIA). In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and has identified the methods to be used for the consumer subgroup analysis, the emissions analysis, the employment impact analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the NOPR, should one be issued.

The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of consumer water heaters. There are two elements to consider in the engineering analysis: (1) The selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and (2) the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency products, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each product class, DOE estimates the baseline cost, as well as the incremental cost, for the product/equipment at efficiency levels above the baseline. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the LCC and PBP analyses and the NIA).

DOE converts the Manufacture Production Cost (MPC) to the manufacturer selling price (MSP) by applying a manufacturer mark-up. The MSP is the price the manufacturer charges its first customer, when selling into the consumer water heater distribution channels. The manufacturer mark-up accounts for manufacturer non-production costs and profit margin. DOE developed the manufacturer mark-up by examining publicly-available financial information for manufacturers of the covered product.

See Chapter 5 of the preliminary TSD for additional detail on the engineering analysis and Chapter 12 of the preliminary TSD for additional detail on the manufacturer mark-up.

The mark-ups analysis develops appropriate mark-ups ( e.g., retailer mark-ups, distributor mark-ups, contractor mark-ups) in the distribution chain and sales taxes to convert MSP estimates derived in the engineering analysis to consumer prices, which are then used in the LCC and PBP analysis. At each step in the distribution channel, companies mark up the price of the product to cover business costs and profit margin.

DOE developed baseline and incremental markups for each actor in the distribution chain for consumer water heaters. Baseline mark-ups are applied to the price of products with baseline efficiency, while incremental mark-ups are applied to the difference in price between baseline and higher-efficiency models (the incremental cost increase). The incremental mark-up is typically less than the baseline mark-up and is designed to maintain similar per-unit operating profit before and after new or amended standards. 7

Chapter 6 of the preliminary TSD provides details on DOE's development of mark-ups for consumer water heaters.

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

Chapter 7 of the preliminary TSD addresses the energy use analysis.

The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:

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

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

Chapter 8 of the preliminary TSD addresses the LCC and PBP analyses.

The NIA estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from amended standards at specific efficiency levels (referred to as candidate standard levels). 8 DOE calculates the NES and NPV for the potential standard levels considered based on projections of annual product shipments, along with the annual energy consumption and total installed cost data from the energy use and LCC analyses. For the present analysis, DOE projected the energy savings, operating cost savings, product costs, and NPV of consumer benefits over the lifetime of consumer water heaters sold from 2030 through 2059.

DOE evaluates the impacts of new or amended standards by comparing a case without such standards with standards-case projections. The no-new-standards case characterizes energy use and consumer costs for each product class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each product class if DOE adopted new or amended standards at specific energy efficiency levels for that class. For each efficiency level, DOE considers how a given standard would likely affect the market shares of product with efficiencies greater than the standard.

For the NIA, DOE uses a spreadsheet model to calculate the energy savings and the national consumer costs and savings from each efficiency level. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet. The NIA spreadsheet model uses typical values (as opposed to probability distributions) as inputs. Critical inputs to this analysis include shipments projections, estimated product lifetimes, product installed costs and operating costs, product annual energy consumption, the base-case efficiency projection, product switching parameters, and discount rates. Chapter 10 of the preliminary TSD addresses the NIA.

As stated in section A of this document, EPCA does not prescribe storage volume or minimum input rating limits within its definition of consumer “water heater.” However, DOE's energy conservation standards for consumer water heaters at 10 CFR 430.32(d) do not include certain storage volume and input rating ranges. The storage volume and input rating ranges currently covered by the statutory standards at 42 U.S.C. 6295(e)(1) but not included in the list of energy conservation standards in DOE's regulations at 10 CFR 430.32(d) are set forth in Table III.1.

In the December 2016 Conversion Factor Final Rule, DOE stated that it would not enforce the statutory standards ( i.e., those prescribed by EPCA but are not codified in the CFR) applicable to the consumer water heaters that did not have a standard within the CFR until some point after DOE finalizes the conversion factor and the converted standards applicable to those products. 81 FR 96204, 96211 (Dec. 29, 2016). DOE will consider and may establish energy conservation standards for these products in this rulemaking. See Chapter 5 of the preliminary TSD for additional detail on the conversion of the remaining EF-based standards established by EPCA to UEF-based standards.

On January 11, 2022, DOE published a test procedure NOPR in the Federal Register which proposed new definitions for certain types of consumer water heaters. 87 FR 1554 (January 2022 WH TP NOPR). These definitions included “circulating water heater”  9 and “low temperature water heater.”  10 These water heaters cannot be tested using the existing test procedure in Appendix E but can be tested using the proposed test procedures found in the January 2022 WH TP NOPR. See Chapter 5 of the preliminary TSD for additional detail on the product classes in which these products are covered and a discussion of the applicable energy conservation standards.

DOE invites public engagement in this process through participation in the webinar and submission of written comments, data, and information. After the webinar and the closing of the comment period, DOE will consider all timely-submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses. Following such consideration, the Department will publish either a determination that the energy conservation standards for consumer water heaters need not be amended or a NOPR proposing to amend those standards. The NOPR, should one be issued, would include proposed energy conservation standards for the products covered by this rulemaking, and members of the public would be given an opportunity to submit written and oral comments on the proposed standards.

The time and date of the webinar meeting are listed in the DATES section at the beginning of this document. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website: www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=32. Participants are responsible for ensuring their systems are compatible with the webinar software.

Any person who has an interest in the topics addressed in this document, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting webinar. Such persons may submit requests to speak via email to the Appliance and Equipment Standards Program at: ApplianceStandardsQuestions@ee.doe.gov. Persons who wish to speak should include with their request a computer file in Microsoft Word, PDF, or text (ASCII) file format that briefly describes the nature of their interest in this rulemaking and the topics they wish to discuss. Such persons should also provide a daytime telephone number where they can be reached.

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

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

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

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

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

DOE invites all interested parties, regardless of whether they participate in the public meeting webinar, to submit in writing no later than the date provided in the DATES section at the beginning of this document, comments, data, and information on matters addressed in this notification and on other matters relevant to DOE's consideration of potential amended energy conservations standards for consumer water heaters. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document.

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

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

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

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

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

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

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

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

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

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

The Secretary of Energy has approved publication of this notification of availability of the preliminary technical support document and request for comment.

This document of the Department of Energy was signed on February 13, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Title III, Part C  1 of the Energy Policy and Conservation Act, as amended (EPCA), 2 established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317) Such equipment includes small, large, and very large commercial package air conditioning and heating equipment, of which VRF multi-split systems, the subject of this rulemaking, are a category. (42 U.S.C. 6311(1)(B)-(D))

Pursuant to EPCA, DOE is required to consider amending the energy efficiency standards for certain types of covered commercial and industrial equipment, including the equipment at issue in this document, whenever the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) amends the standard levels or design requirements prescribed in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings,” (ASHRAE Standard 90.1), and at a minimum, every six 6 years. (42 U.S.C. 6313(a)(6)(A)-(B)) For each type of equipment, EPCA directs that if ASHRAE Standard 90.1 is amended, DOE must adopt amended energy conservation standards at the new efficiency level in ASHRAE Standard 90.1, unless clear and convincing evidence supports a determination that adoption of a more-stringent efficiency level would produce significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii); referred to as the “ASHRAE trigger”) If DOE adopts as a uniform national standard the efficiency level specified in the amended ASHRAE Standard 90.1, DOE must establish such standard not later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) If DOE determines that a more-stringent standard is appropriate under the statutory criteria, DOE must establish such more-stringent standard not later than 30 months after publication of the revised ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(B)(i))

Under EPCA, DOE must also review its energy conservation standards for VRF multi-split systems every six years and either: (1) Issue a notice of determination that the standards do not need to be amended, as adoption of a more-stringent level under the relevant statutory criteria is not supported by clear and convincing evidence; or (2) issue a notice of proposed rulemaking including new proposed standards based on certain criteria and procedures in subparagraph (B). 3 (42 U.S.C. 6313(a)(6)(C)(i))

ASHRAE officially released ASHRAE Standard 90.1-2016 on October 26, 2016, thereby triggering DOE's previously referenced obligations pursuant to EPCA to determine for certain classes of VRF multi-split systems, whether: (1) The amended industry standard should be adopted; or (2) clear and convincing evidence exists to justify more-stringent standard levels. For any class where DOE was not triggered, the Department routinely considers those classes under the statute's 6-year-lookback provision at the same time, so as to address the subject equipment in a comprehensive fashion.

The current Federal energy conservation standards for air-cooled VRF multi-split systems with cooling capacity greater than or equal to 65,000 Btu/h and water-source VRF multi-split heat pumps are codified in DOE's regulations at 10 CFR 431.97. These standards are specified in terms of Energy Efficiency Ratio (EER) for cooling mode and Coefficient of Performance (COP) for heating mode based on the Federal test procedure at 10 CFR 431.96, which references American National Standards Institute (ANSI)/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) Standard 1230-2010, “ 2010 Standard for Performance Rating of Variable Refrigerant Flow (VRF) Multi-Split Air-Conditioning and Heat Pump Equipment,” approved August 2, 2010 and updated by Addendum 1 in March 2011 (ANSI/AHRI 1230-2010).

The current Federal energy conservation standards for air-cooled, three-phase VRF multi-split systems with cooling capacity less than 65,000 Btu/h are also codified in 10 CFR 431.97. These standards are specified in terms of Seasonal Energy Efficiency Ratio (SEER) for cooling mode and Heating Seasonal Performance Factor (HSPF) for heating mode based on the rating conditions in ANSI/AHRI 1230-2010. Although the current standards levels are based on the same test procedure as used for all other categories of VRF systems ( i.e., air-cooled VRF multi-split systems with cooling capacity greater than or equal to 65,000 Btu/h and water-source VRF multi-split systems), the organizations that maintain the industry consensus test procedures have recently updated their scope such that air-cooled, three-phase VRF multi-split systems with cooling capacity less than 65,000 Btu/h are now covered under AHRI 210/240-2023 instead of AHRI 1230-2021. Consequently, DOE is addressing test procedures for air-cooled, three-phase VRF multi-split systems with cooling capacity less than 65,000 Btu/h in a separate test procedure rulemaking for air-cooled, three-phase, small commercial package air conditioning and heating equipment with cooling capacity less than 65,000 Btu/h (86 FR 70316 (Dec. 9, 2021)) instead of in the test procedure rulemaking for VRF multi-split systems (86 FR 70644 (Dec. 10, 2021)). Accordingly, DOE is not evaluating the Federal energy conservation standards for such equipment in this notice and is instead addressing energy conservation standards for air-cooled, three-phase VRF multi-split systems with cooling capacity less than 65,000 Btu/h in a separate energy conservation standards rulemaking for air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h.

The efficiency levels set forth in ASHRAE Standard 90.1-2016 for VRF multi-split systems with cooling capacity 65,000 Btu/h or greater are specified in terms of both EER and Integrated Energy Efficiency Ratio (IEER) for cooling mode and COP for heating mode. These efficiency levels are based on the rating conditions of ANSI/AHRI Standard 1230-2014 with addendum 1 (ANSI/AHRI 1230-2014), which are identical rating conditions to those found in AHRI 1230-2010. The EER levels found in ASHRAE 90.1-2016 are unchanged from the current Federal EER requirements; however, for certain classes of water-source VRF multi-split heat pumps, the COP levels specified in ASHRAE Standard 90.1-2016 are more stringent. See additional discussion in section II.B.2 of this document.

On April 11, 2018, DOE published in the Federal Register a Notice of Intent to establish a negotiated rulemaking working group (Working Group) under the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) to negotiate a proposed test procedure and amended energy conservation standards for VRF multi-split systems. 83 FR 15514. The Working Group reached consensus on an energy conservation standards term sheet (VRF ECS Term Sheet) on November 5, 2019, outlining recommended amended energy conservation standards for all equipment classes of VRF multi-split systems. The standard levels recommended by the Working Group in the VRF ECS Term Sheet are in terms of the IEER and COP metrics and equivalent to the levels specified in ASHRAE Standard 90.1-2016. 4 However, the levels recommended by the working group are measured according to an amended industry test standard for VRF multi-split systems  5 —AHRI Standard 1230, “2021 Standard for Performance Rating of Variable Refrigerant Flow (VRF) Multi-Split Air-Conditioning and Heat Pump Equipment” (AHRI 1230-2021). See additional discussion in section II.B.3 of this NOPR.

As described in detail in section III.A of this document, DOE conducted a crosswalk analysis during the ASRAC negotiation meetings to validate the translation of the EER levels currently required by the DOE standards to IEER, as well as the IEER efficiency levels as recommended by the Working Group. DOE notes that IEER is a more comprehensive metric because it reflects the energy efficiency across a range of operating conditions, as opposed to the efficiency at a single condition. The crosswalk translates the current Federal EER standards (measured per the current DOE test procedure) to IEER levels of equivalent stringency (measured per the September 20, 2019 draft version of the AHRI 1230 standard). As described in section II.B.3 of this document, the recommended 2019 draft test procedure was later published as AHRI 1230-2021, and no substantive changes were made that impact crosswalk results. Differences in the metrics and test procedures cause the crosswalk analysis to yield a range of IEER values corresponding to a given EER value. DOE's translation of the current EER levels to IEER according to the updated test procedure shows that each value recommended by the Working Group is within the range resulting from DOE's evaluation. Given that the metric takes into account a wider breadth of energy consumption across a variety of operating conditions, DOE has tentatively determined that the recommended IEER values are at least equivalent in stringency to the current EER values. Further, given that IEER is a more comprehensive metric, DOE has tentatively determined that the recommended IEER values would not decrease the minimum required energy efficiency of VRF basic models.

Because the updates in AHRI 1230-2021 do not affect the measurement of COP, no crosswalk was required to evaluate the stringency of the COP levels proposed in the VRF ECS Term Sheet as compared to the existing Federal COP levels.

In this document, DOE proposes to adopt the energy conservation standard levels and the equipment class structure from ASHRAE 90.1-2016 for air-cooled VRF multi-split systems with cooling capacity greater than or equal to 65,000 Btu/h and for all water-source VRF multi-split heat pumps. The proposed standards, which are expressed in terms of IEER and COP, are presented in Table I-1. These proposed standards, if adopted, would apply to all VRF multi-split systems listed in Table I-1 manufactured in, or imported into, the United States starting on January 1, 2024. The proposed standard levels are equivalent to the standard levels recommended by the Working Group in the VRF ECS Term Sheet. The proposed equipment class structure differs from the existing DOE equipment class structure regarding capacity break points and designations based on heating type; however, DOE has tentatively concluded that none of the changes to the equipment class structure for VRF multi-split systems would constitute backsliding—see section III.B of this document for additional discussion.

For the reasons described in section IV of this document, DOE has tentatively determined that the potential energy savings associated with adopting the ASHRAE 90.1-2016 standard levels for the triggered classes are de minimis. Also, as described in section V of this document, DOE has tentatively determined that insufficient data are available to determine, based on clear and convincing evidence, that more-stringent standards would result in significant additional energy savings and be technologically feasible and economically justified. As such DOE has not conducted further analysis of more-stringent standard levels for this rulemaking. Consequently, DOE is proposing to adopt the levels specified in ASHRAE Standard 90.1-2016, as required by EPCA.

The following section briefly discusses the statutory authority underlying this proposed rule, as well as some of the relevant historical background related to the establishment of standards for VRF multi-split systems.

EPCA, among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C of EPCA, Public Law 94-163 (42 U.S.C. 6311-6317, as codified) added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This covered equipment includes small, large, and very large commercial package air conditioning and heating equipment, which includes the VRF multi-split systems that are the subject of this document. (42 U.S.C. 6311(1)(B)-(D)) Additionally, as discussed in further detail subsequently, the statute requires DOE to consider amending the energy efficiency standards for certain types of commercial and industrial equipment, including the equipment at issue in this document, whenever ASHRAE amends the efficiency levels or design requirements prescribed in ASHRAE Standard 90.1, and even in the absence of an ASHRAE trigger event, a separate provision of EPCA requires DOE to consider amended standards for such equipment, at a minimum, every six 6 years. (42 U.S.C. 6313(a)(6)(A)-(C))

The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6316(b)(2)(D))

Subject to certain statutory criteria and conditions, DOE is required to develop test procedures that are reasonably designed to produce test results which measure the energy efficiency, energy use, or estimated annual operating cost of covered equipment during a representative average use cycle and that are not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) Manufacturers of covered equipment must use the Federal test procedures as the basis for: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE uses these test procedures to determine whether the equipment complies with the relevant energy conservation standards promulgated under EPCA. The DOE test procedures for VRF multi-split systems appear at 10 CFR part 431, subpart F.

ASHRAE Standard 90.1 sets industry energy efficiency levels for small, large, and very large commercial package air-conditioning and heating equipment, packaged terminal air conditioners, packaged terminal heat pumps, warm air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and unfired hot water storage tanks (collectively referred to as “ASHRAE equipment”). For each type of listed covered equipment, EPCA directs that if ASHRAE amends ASHRAE Standard 90.1 with respect to the standard levels or design requirements applicable under that standard, DOE must adopt amended standards at the new ASHRAE efficiency levels, unless DOE determines, supported by clear and convincing evidence, that adoption of a more-stringent level would produce significant additional conservation of energy and would be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A))

Although EPCA does not explicitly define the term “amended” in the context of what type of revision to ASHRAE Standard 90.1 would trigger DOE's obligation, DOE's longstanding interpretation has been that the statutory trigger is an amendment to the standard applicable to that equipment under ASHRAE Standard 90.1 that increases the energy efficiency level for that equipment. See 72 FR 10038, 10042 (March 7, 2007). If the revised ASHRAE Standard 90.1 leaves the energy efficiency level unchanged (or lowers the energy efficiency level), as compared to the energy efficiency level specified by the uniform national standard adopted pursuant to EPCA, regardless of the other amendments made to the ASHRAE Standard 90.1 requirement ( e.g., the inclusion of an additional metric), DOE has stated that it does not have the authority to conduct a rulemaking to consider a higher standard for that equipment pursuant to 42 U.S.C. 6313(a)(6)(A). See 74 FR 36312, 36313 (July 22, 2009) and 77 FR 28928, 28937 (May 16, 2012). If an amendment to ASHRAE Standard 90.1 changes the metric for the standard on which the Federal requirement was based, DOE would perform a crosswalk analysis to determine whether the amended metric under ASHRAE Standard 90.1 resulted in an energy efficiency level that was more stringent than the current DOE standard.

Under EPCA, DOE must also review its energy conservation standards for VRF multi-split systems every six years and either: (1) Issue a notice of determination that the standards do not need to be amended, as adoption of a more-stringent level under the relevant statutory criteria is not supported by clear and convincing evidence; or (2) issue a notice of proposed rulemaking including new proposed standards based on certain criteria and procedures in subparagraph (B). 6 (42 U.S.C. 6313(a)(6)(C)(i))

In deciding whether a more-stringent standard is economically justified, under either the provisions of 42 U.S.C. 6313(a)(6)(A) or 42 U.S.C. 6313(a)(6)(C), DOE must determine whether the benefits of the standard exceed its burdens. DOE must make this determination after receiving comments on the proposed standard, and by considering, to the maximum extent practicable, the following seven factors:

EPCA also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6313(a)(6)(B)(iii)(I))) Also, the Secretary may not prescribe an amended or new standard if 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. (42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa))

EPCA defines “commercial package air conditioning and heating equipment” as air-cooled, water-cooled, evaporatively-cooled, or water-source (not including ground water source) electrically operated, unitary central air conditioners and central air conditioning heat pumps for commercial application. (42 U.S.C. 6311(8)(A); 10 CFR 431.92) EPCA further classifies “commercial package air conditioning and heating equipment” into categories based on cooling capacity ( i.e., small, large, and very large categories). (42 U.S.C. 6311(8)(B)-(D); 10 CFR 431.92) “Small commercial package air conditioning and heating equipment” means equipment rated below 135,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(B); 10 CFR 431.92) “Large commercial package air conditioning and heating equipment” means equipment rated: (i) At or above 135,000 Btu per hour; and (ii) below 240,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(C); 10 CFR 431.92) “Very large commercial package air conditioning and heating equipment” means equipment rated: (i) At or above 240,000 Btu per hour; and (ii) below 760,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(D); 10 CFR 431.92)

Pursuant to its authority under EPCA (42 U.S.C. 6313(a)(6)(A)) and in response to updates to ASHRAE Standard 90.1, DOE has established the category of VRF multi-split systems, which meets the EPCA definition of “commercial package air conditioning and heating equipment,” but which EPCA did not expressly identify. See 10 CFR 431.92 and 10 CFR 431.97.

DOE defines “variable refrigerant flow air conditioner” as a unit of commercial package air-conditioning and heating equipment that is configured as a split system air conditioner incorporating a single refrigerant circuit, with one or more outdoor units, at least one variable-speed compressor or an alternate compressor combination for varying the capacity of the system by three or more steps, and multiple indoor fan coil units, each of which is individually metered and individually controlled by an integral control device and common communications network and which can operate independently in response to multiple indoor thermostats. Variable refrigerant flow implies three or more steps of capacity control on common, inter-connecting piping. 10 CFR 431.92.

DOE defines “variable refrigerant flow multi-split heat pump” as a unit of commercial package air-conditioning and heating equipment that is configured as a split system heat pump that uses reverse cycle refrigeration as its primary heating source and which may include secondary supplemental heating by means of electrical resistance, steam, hot water, or gas. The equipment incorporates a single refrigerant circuit, with one or more outdoor units, at least one variable-speed compressor or an alternate compressor combination for varying the capacity of the system by three or more steps, and multiple indoor fan coil units, each of which is individually metered and individually controlled by a control device and common communications network and which can operate independently in response to multiple indoor thermostats. Variable refrigerant flow implies three or more steps of capacity control on common, inter-connecting piping. 10 CFR 431.92.

DOE adopted energy conservation standards for VRF multi-split systems in a final rule published on May 16, 2012 (May 2012 Final Rule). 77 FR 28928, 28995. DOE's initial standards for VRF multi-split systems were prompted by ASHRAE's decision to include minimum efficiency levels for VRF multi-split systems for the first time in the 2010 edition of ASHRAE Standard 90.1 (ASHRAE Standard 90.1-2010). For four of the VRF water-source heat pump classes (including VRF water-source heat pumps with cooling capacity less than 17,000 Btu/h and VRF water- source heat pumps with cooling capacity greater than or equal to 135,000 Btu/h and less than 760,000 Btu/h), DOE adopted the standard levels in ASHRAE Standard 90.1-2010, having determined that the updates to ASHRAE Standard 90.1-2010 either raised the energy efficiency levels above the existing Federal energy conservation standards or set standards for equipment for which DOE did not previously have standards. 77 FR 28928, 28938 (May 16, 2012). For all other equipment classes of VRF multi-split systems, DOE maintained the standards from the equipment class under which the corresponding VRF multi-split system equipment class was previously regulated ( i.e., air-cooled VRF multi-split systems had previously been covered as small, large, and very large air-cooled central air-conditioning heat pumps with electric resistance heating, while water-source VRF multi-split heat pumps had previously been covered as water-source heat pumps).

For the equipment addressed in this NOPR, DOE's current equipment classes for VRF multi-split systems are differentiated by refrigeration cycle (air conditioners or heat pumps), condenser heat rejection medium (air-cooled or water-source), cooling capacity, and heating type (for air-cooled: “No heating or electric resistance heating” or “all other types of heating”; for water-source: “Without heat recovery,” “with heat recovery,” or “all”). DOE's current standards for VRF multi-split systems are set forth at Table 13 to 10 CFR 431.97 and repeated in Table II-1 of this document.

ASHRAE released the 2016 version of ASHRAE Standard 90.1 (ASHRAE Standard 90.1-2016) on October 26, 2016, which increased the heating mode efficiency level (in terms of COP) for six of the current DOE VRF multi-split system equipment classes:

(1) VRF Multi-Split Heat Pumps, Water-source <17,000 Btu/h, Without Heat Recovery;

(2) VRF Multi-Split Heat Pumps, Water-source <17,000 Btu/h, With Heat Recovery;

(3) VRF Multi-Split Heat Pumps, Water-source ≥17,000 Btu/h and <65,000 Btu/h;

(4) VRF Multi-Split Heat Pumps. Water-source ≥65,000 Btu/h and <135,000 Btu/h;

(5) VRF Multi-Split Heat Pumps, Water-source ≥135,000 Btu/h and <760,000 Btu/h, Without Heat Recovery; and

(6) VRF Multi-Split Heat Pumps, Water-source ≥135,000 Btu/h and <760,000 Btu/h, With Heat Recovery.

ASHRAE Standard 90.1-2016 left unchanged the heating mode efficiency level for the remaining six DOE equipment classes of VRF multi-split heat pump systems with cooling capacity greater than or equal to 65,000 Btu/h and left unchanged the cooling mode efficiency levels in terms of EER for all DOE equipment classes.

DOE published a notice of data availability and request for information (NODA/RFI) in response to the amendments to ASHRAE Standard 90.1-2016 in the Federal Register on July 8, 2019 (July 2019 NODA/RFI). 84 FR 32328. In the July 2019 NODA/RFI, DOE compared the current Federal standards for VRF multi-split systems (in terms of EER and COP) to the levels in ASHRAE Standard 90.1-2016 and requested comment on its preliminary findings. 84 FR 32328, 32333-32334 (July 8, 2019). In addition to evaluating amended energy conservation standards for the six equipment classes triggered by the updated levels in ASHRAE Standard 90.1-2016, DOE also examined the other 14 equipment classes of VRF multi-split systems under its 6-year lookback authority (42 U.S.C. 6313(a)(6)(C)) and solicited data from stakeholders. 84 FR 32328, 32334 (July 8, 2019). DOE received comments in response to the July 2019 NODA/RFI from the interested parties listed in Table II-2.

DOE discusses comments received in response to the July 2019 NODA/RFI in the following sections of this document. A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 7

On October 24, 2019, ASHRAE officially released for distribution and made public ASHRAE Standard 90.1-2019. ASHRAE Standard 90.1-2019 maintained the equipment class structure for VRF multi-split systems from ASHRAE Standard 90.1-2016 and did not update efficiency levels for any VRF equipment classes.

On April 11, 2018, DOE published in the Federal Register a notice of its intent to establish a negotiated rulemaking working group (Working Group) under the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC), in accordance with the Federal Advisory Committee Act  8 and the Negotiated Rulemaking Act, 9 to negotiate an amended test procedure and amended energy conservation standards for VRF multi-split systems. 83 FR 15514. The purpose of the Working Group was to discuss and, if possible, reach consensus on a proposed rule regarding the test procedure and energy conservation standards for VRF multi-split systems, as authorized by EPCA. Id. The Working Group comprised 21 voting members including manufacturers, energy efficiency advocates, utilities, and trade organizations. 10

On October 1, 2019, the Working Group reached consensus on a test procedure term sheet (VRF TP Term Sheet; Docket No. EERE-2018-BT-STD-0003-0044) that includes several recommendations. The following list includes the most substantial recommendations:

(1) VRF multi-split systems should be rated with the Integrated Energy Efficiency Ratio (IEER) metric to allow consumers to make consistent comparisons with other equipment using the IEER metric ( e.g., rooftop air conditioner ratings).

(2) Use of the amended test procedure should not be required until the compliance date of amended energy conservation standards.

(3) The Federal test procedure for VRF multi-split systems should be consistent with the September 20, 2019 draft version of AHRI 1230, with additional recommended amendments to be implemented after the conclusion of ASRAC negotiations.

Following completion of the VRF TP Term Sheet, the Working Group proceeded to negotiate recommended revised energy conservation standards for VRF multi-split systems that accounted for the translation from the EER metric to the IEER metric, as well as the changes between the Federal test procedure that references AHRI 1230-2010 and the recommended 2019 draft test procedure AHRI 1230 (which was later published as AHRI 1230-2021). As described in greater detail in section III.A of this document, DOE conducted a crosswalk analysis to inform the development of standard levels for VRF multi-split systems in terms of the new test procedure and metric. DOE presented the results of its crosswalk analysis on November 5, 2019 (Docket No. EERE-2018-BT-STD-0003-0061 at p. 45), and subsequently, the Working Group reached consensus on an energy conservation standards term sheet (VRF ECS Term Sheet; Docket No. EERE-2018-BT-STD-0003-0055) recommending:

(1) Amendments to the Federal minimum efficiency standards for VRF multi-split systems (as presented in Table II-3 of this NOPR) and per the test procedure recommended in the VRF TP Term Sheet.

(2) The compliance date of the recommended energy conservation standards should be January 1, 2024 for all VRF multi-split system equipment classes included in this proposed rulemaking.

DOE notes that there are minor differences in equipment class structure (related to cooling capacity, supplementary heating type, and presence of heat recovery) between the VRF ECS Term Sheet, ASHRAE Standard 90.1-2019, and the current Federal energy conservation standards for VRF multi-split systems. This topic is discussed in greater detail in section III.B of this document.

On May 18, 2021, AHRI published an updated industry test standard for VRF multi-split systems AHRI 1230-2021. Subsequently, on December 10, 2021, DOE published in the Federal Register the VRF TP NOPR (December 2021 VRF TP NOPR), in which DOE proposed an amended test procedure for VRF multi-split systems that incorporates by reference AHRI 1230-2021 and proposed to adopt IEER as the test metric for VRF multi-split systems. 86 FR 70644, 70652. In the December 2021 VRF TP NOPR, DOE tentatively determined that the proposed amendments to the test procedure, if made final, would alter the measured efficiency of VRF multi-split systems, as compared to ratings using the current Federal regulated metric, EER ( see 10 CFR 431.97). In that document, DOE stated that were the proposed test procedure to be made final ( i.e., were DOE to adopt IEER as the metric for VRF multi-split systems), testing pursuant to the amended test procedure would not be required until such time as manufacturers were required to comply with amended energy conservation standards that are denominated in terms of IEER, should such standards be adopted. 86 FR 70644, 70652 (Dec. 10, 2021).

Consistent with the recommendation of the Working Group, DOE is proposing to amend the energy conservation standards for VRF multi-split systems to rely on the IEER metric for cooling efficiency. DOE is not proposing to amend the metric for heating efficiency ( i.e., COP). The Department has tentatively concluded that a change of metrics would be beneficial for a number of reasons. The current Federal metric for cooling efficiency, EER, captures the system performance at a single, full-load operating point ( i.e., single outdoor air temperatures for air-cooled systems and single entering water temperatures for water-source systems). EER does not provide a seasonal or load-weighted measure of energy efficiency. In contrast, the IEER metric factors in the efficiency of operating at full-load conditions as well as part-load conditions of 75-percent, 50-percent, and 25-percent of full-load capacity. Under part-load conditions, air conditioning and heating equipment may cycle off/on or may modulate down the capacity in order to match the imposed load. DOE has tentatively determined that the IEER metric provides a more representative measure of field performance of VRF multi-split systems by weighting the full-load and part-load efficiencies by the average amount of time equipment spends operating at each load.

As stated, EPCA prohibits DOE from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6313(a)(6)(B)(iii)(I)); commonly referred to as EPCA's “anti-backsliding provision”) In consideration of the IEER metric and to ensure any potential amendment would not violate EPCA's “anti-backsliding” provision, DOE conducted a crosswalk analysis to validate the translation of the EER levels currently required by the DOE standards to IEER, as well as the IEER efficiency levels as recommended by the Working Group. The crosswalk analysis translates the current Federal EER standards (measured per the current DOE test procedure) to IEER levels of equivalent stringency (measured per the updated AHRI Standard 1230). (Docket No. EERE-2018-BT-STD-0003-0056).

The proposed energy conservation standards presented in this document were developed based on an update to the relevant industry test standard ( i.e., the 2019 draft test procedure AHRI 1230 that was finalized as ASHRAE 1230-2021). Compared to the current Federal test procedure (which references ANSI/AHRI 1230-2010), AHRI 1230-2021 included two substantive changes that impact the translation of standards in EER to standards using IEER. Specifically, DOE considered in its crosswalk analysis in addition to the metric change from EER to IEER:

(1) Maximum sensible heat ratio (SHR) limits of 0.82 and 0.85 were added for full-load and 75-percent, part-load conditions, respectively. SHR represents the ratio of sensible cooling capacity ( i.e., the ability to change the temperature of indoor air) to the total cooling capacity, which also includes latent cooling capacity ( i.e., the ability to remove moisture from indoor air). For example, an SHR of 0.80 indicates that 80 percent of the capacity of a system reduces the temperature of the air and the remaining 20 percent dehumidifies the air.

(2) A controls verification procedure (CVP) was added that verifies that the values provided by manufacturers in the supplemental test instruction (STI) for setting critical parameters during steady-state testing are within the range of critical parameters that would be used by the system's native controls at the same conditions.

On November 5, 2019, DOE presented its crosswalk findings to the Working Group to inform the development of recommended standards levels for VRF multi-split systems in terms of the new test procedure and cooling metric. (Docket No. EERE-2018-BT-STD-0003-0056). To validate the relative equivalency of the IEER standard levels as recommended by the Working Group and the current Federal EER standards, DOE analyzed a minimally-compliant model from a high-sales-volume equipment class (with a current Federal standard of 10.6 EER) to ensure that translation of the current EER standards to the recommended IEER values would not decrease the minimum required energy efficiency of VRF multi-split systems. As discussed, because of the change in metric and changes in the test procedure, DOE cannot translate the current EER to a single IEER value (further discussed in section III.A.3 of this NOPR). DOE identified the resulting crosswalked efficiency of the minimally-compliant model from the selected class ranged from 13 to 16 IEER.

DOE also presented to the Working Group anonymized and aggregated data provided by VRF multi-split system manufacturers. These data showed a preliminary translation of ratings to the IEER metric in terms of the updated test procedure for a collection of VRF multi-split systems spanning four equipment classes. The sample data were mostly composed of systems above the current Federal baseline efficiency levels in terms of EER and, thus, were not instructive as to a crosswalk of minimum energy efficiency levels. (Docket No. EERE-2018-BT-STD-0003-0056). The IEER efficiency level specified in the VRF ECS Term Sheet for the selected class was 13.9 IEER, which was within the range of crosswalked results.

Given that translating the current EER levels to IEER according to the updated test procedure does not provide for a single point answer (as would thereby allow for a direct comparison), DOE believes it is reasonable to ensure that the recommended value lies within the range resulting from DOE's evaluation as a proxy for understanding whether there is a potential for backsliding. Consequently, DOE has tentatively determined that the recommended IEER levels are at least equivalent in stringency to the current EER levels. Further, given that IEER is a more comprehensive metric (reflecting energy efficiency across a range of operating conditions, as opposed to the efficiency at a single condition), DOE has tentatively determined that the recommended IEER levels would not decrease the minimum required energy efficiency of a VRF multi-split system.

In its analysis to crosswalk the current DOE energy conservation standards for VRF cooling efficiency, DOE sought to account for the translation from EER to IEER, as well as changes in the updated industry test standard—namely the addition of SHR limits and the introduction of the CVP. Because these three factors have interacting effects on the measured cooling performance of VRF multi-split systems, DOE modeled their interaction holistically and did not examine incremental changes in performance due to any one factor.

As discussed, DOE is not proposing to change the heating efficiency metric ( i.e., COP), because both ASHRAE 90.1-2016 and the Working Group VRF ECS Term Sheet define heating mode efficiency in terms of COP. Additionally, the changes to the test procedure for VRF multi-split systems did not impact measured efficiency in heating mode. Therefore, DOE did not conduct a crosswalk analysis for VRF heating mode efficiency.

The following paragraphs describe DOE's crosswalk methodology to translate the current cooling efficiency standards for VRF multi-split systems that rely on the EER metric to standards using IEER that are of equivalent efficiency. DOE also identifies the various factors that limit the ability to strictly translate standards that rely on EER to standards that standards that rely on IEER.

In order to develop a crosswalk approach that is applicable to all equipment classes of VRF multi-split systems, DOE analyzed a basic model representative of equipment classes with high sales volume. 11 Specifically, DOE selected an air-cooled VRF multi-split heat pump system in the cooling capacity range greater than 135,000 Btu/h and less than or equal to 240,000 Btu/h without heat recovery. The selected basic model had an EER rating within 0.2 points of the Federal standard for the applicable equipment class ( i.e., a 10.8 rating vs 10.6 EER minimum required), and 0.4 points above the Federal standard for the corresponding equipment class equipped with heat recovery ( i.e., a 10.8 rating vs 10.4 EER minimum required).

In support of the Working Group DOE, along with several manufacturers, DOE conducted investigative testing on VRF multi-split systems operating under native controls. Included in this testing was the basic model selected to serve as the basis for the crosswalk analysis. DOE created a performance model using VapCyc and CoilDesigner software  12 to evaluate capacity and efficiency of the selected system per the updated industry test standard. DOE first modeled the system's behavior at the full-load cooling condition by selecting compressor speed, outdoor fan speed, indoor airflow rate, and superheat condition to match information that was available in STI and provided confidentially by the manufacturer to DOE contractors under a nondisclosure agreement (NDA). DOE then calibrated the system as modeled in VapCyc and CoilDesigner so that the predicted capacity and EER matched the rated capacity and efficiency for the system (at full-load conditions) as certified by the manufacturer. Specifically, in its investigative testing, DOE observed typical control strategies for unloading at part-load conditions, including turning individual indoor units off, modulating compressor and fan speeds, and increasing evaporating temperature. DOE also observed patterns in which compressor speed and outdoor fan speed tended to scale together at reduced load conditions. DOE used this information to adjust the model so as to project the performance of the selected VRF multi-split system at partial loads by decreasing the operating state of components according to load level.

As discussed, the capacity and EER rating for the basic model used in DOE's analysis were measured according to the current DOE test procedure, but DOE is seeking to translate the current EER standards to equivalent IEER standards when tested according to the updated industry test standard. As such, DOE also considered in its crosswalk analysis the maximum SHR limits that were added in the industry test procedure AHRI 1230-2021. By establishing upper limits on SHR, DOE understands AHRI 1230-2021 to create test conditions that are more representative of field applications for VRF multi-split systems, as compared to the current DOE test procedure. AHRI 1230-2021 sets SHR limits of 0.82 and 0.85 at the full-load cooling condition and the 75-percent part-load cooling condition, respectively, but does not include SHR limits for the 50-percent or 25-percent part-load cooling conditions. AHRI 1230-2021 also establishes a calculation method for the efficiency rating reduction for systems that exceed the SHR limits at the full-load and/or 75-percent part-load cooling conditions in the IEER test.

Because manufacturers do not currently certify or publicize any information about SHR at the full-load EER test condition, DOE was unable to precisely determine SHR values representative of a baseline EER VRF multi-split system. Also, because the current DOE test procedure does not include any part-load cooling test points, no information was available about SHR values that VRF multi-split systems would produce at the 75-percent part-load IEER test condition. Because SHR data was not publicly available, DOE instead examined data from its investigative testing to identify the typical range of SHR values for VRF multi-split systems when operating under native controls at the full-load and 75-percent part-load conditions. DOE observed several cases of basic models with native controls test data indicating SHR values above the AHRI 1230-2021 limits at the full-load and 75-percent part-load condition, and also observed some basic models testing below the SHR limits. The precision of the crosswalk from existing EER levels to IEER levels in terms of the updated industry test standard was limited by the lack of available data about representative SHR values at the full-load EER test condition and by the variation in SHR values observed in the native controls test data.

To account for the effect of the SHR limits in the updated industry test standard in its crosswalk analysis, DOE relied on the native controls test data to establish a range of potential initial SHR values observed at the full-load and 75-percent part-load IEER test conditions. DOE then adapted the VapCyc and CoilDesigner performance model to examine the effect of changing indoor airflow and evaporating temperature on SHR and the associated impacts on energy efficiency. Reducing the evaporating temperature increased the rate of dehumidification (thus reducing SHR), but also required more power input from the compressor, which reduced the measured efficiency. DOE also observed that at reduced airflow rates, the dehumidification capacity was higher, but the overall system capacity and efficiency were lower.

Ultimately, the crosswalked IEER values varied depending on modeling input assumptions, such as whether the initial SHR was below or above the new SHR limits (and by how much), as well as the different control strategies employed to reduce SHR. The crosswalked IEER values also depended on overlapping input assumptions related to the EER-to-IEER translation, such as the number of thermally-active indoor units at part-load conditions. Reducing the number of indoor units at partial loads (while keeping all else constant) increased the amount of refrigerant flow to each remaining indoor fan coil, which provided better dehumidification performance and, thus, reduced SHR at the 75-percent load condition.

As discussed, the updates in AHRI 1230-2021 include a CVP for verifying that the certified operational settings for critical parameters are representative of values that would be observed with the VRF multi-split system operating under its own native controls. As described in AHRI 1230-2021, critical parameters include compressor speed(s), outdoor fan speed(s) and outdoor variable valve position(s). As proposed in the December 2021 VRF TP NOPR, manufacturers would specify operational settings for each of these components in their STI to implement during steady-state tests for IEER and COP. 86 FR 70644, 70666 (Dec. 10, 2021). The CVP is not a part of rating tests for IEER, but rather, it serves as a validation method for cooling mode only.

DOE's ability to fully account for the potential changes to the measured performance of VRF multi-split systems as a result of the CVP was limited by the lack of available information regarding the control strategies employed by VRF system manufacturers—particularly at part-load conditions where manufacturers do not currently certify or make public any information about control settings. DOE was also limited by uncertainty about how these control strategies may change or how manufacturers may certify their critical parameter settings in response to the CVP.

As discussed, the CVP is intended to validate that the certified operational settings ( i.e., those used during IEER testing) for critical parameters are representative of controls behavior exhibited under the system's own controls at the same conditions. DOE used information about the ranges of operational settings observed during native controls testing to represent a future system that would pass the CVP ( i.e., a system for which the certified critical parameter settings would be validated by a CVP conducted with the system operating under native controls). Specifically, DOE selected inputs used in its VapCyc and CoilDesigner performance model for simulating IEER that were consistent with native controls testing observations, including the number of thermally-active indoor units at part-load conditions, compressor and fan speeds, expansion valve control strategy, and other refrigeration cycle parameters. DOE tentatively concluded that modelling IEER results using control settings observed during native controls testing was the most accurate approach for estimating how manufacturers would certify critical parameter control settings as part of testing to IEER as measured by AHRI 1230-2021.

As discussed, DOE conducted its crosswalk analysis on a high-sales-volume equipment class of VRF multi-split systems and selected a representative model with EER near the Federal baseline level (10.8 EER vs 10.6 EER baseline) in developing its VapCyc and CoilDesigner performance model. Based on the modeling conducted, the expected performance of the selected equipment class of VRF multi-split systems when tested according to AHRI 1230-2021 would be in the range of 13 to 16 IEER. Because of the wider range of operation conditions captured in IEER as well as the various strategies that manufacturers may employ to respond to the test procedure changes, a single EER baseline value inherently translates to a range of IEER values.

As discussed, the IEER metric captures performance at additional part-load operating conditions not considered by the EER metric; therefore, a single EER value translates to a range of potential IEER values. 13 IEER captures the impacts of design features and control strategies that may not affect full-load operation but do affect part-load operation. For example, VRF multi-split systems may use different strategies for reducing capacity at part loads like reducing the number of thermally active indoor units or slowing compressor speeds, which may result in differential impacts on measured IEER, but which would not have any impact on the measured full-load performance EER. DOE also recognizes that there are a variety of paths that manufacturers may take to account for the new test procedure, and that the crosswalk analysis approximates how manufacturers in the aggregate may respond to test procedure changes. For example, some manufacturers may elect to meet the new SHR limitations by reducing evaporating temperatures, while other manufacturers may meet the new SHR limitations by reducing indoor airflow and decreasing the number of thermally-active indoor units. Each strategy may have different tradeoffs in terms of overall system performance and measured energy efficiency.

As described in section II.B.3 of this document, the Working Group recommended efficiency levels for VRF multi-split systems that align with the efficiency levels specified in ASHRAE 90.1-2016 in terms of IEER and COP. While DOE's crosswalk analysis showed that a single EER baseline could result in a range of IEER values (as discussed, due to the wider range of operation conditions captured in IEER, as well as the various strategies that manufacturers may employ to respond to the test procedure changes), the IEER levels included in the VRF ECS Term Sheet (which the Working Group recommended as an appropriate crosswalk of current Federal EER standards) are within the range of DOE's crosswalked results. As explained previously, DOE has tentatively determined that the recommended IEER levels are at least equivalent in stringency to the current EER levels. Further, given that IEER is a more comprehensive metric (reflecting energy efficiency across a range of operating conditions, as opposed to the efficiency at a single condition), DOE has tentatively determined that the recommended IEER levels would not decrease the minimum required energy efficiency of a VRF multi-split system, thereby avoiding statutorily impermissible backsliding with respect to the current Federal standards in terms of EER. DOE has also tentatively determined that no changes to heating mode ratings in terms of COP are expected from the changes to the test procedure for VRF multi-split systems included in AHRI 1230-2021.

Issue 1: DOE requests comment on its crosswalk analysis methodology and crosswalk results.

In the July 2019 NODA/RFI, DOE discussed two areas where the equipment class structure for VRF multi-split systems differs between ASHRAE Standard 90.1 and the Federal standards. 84 FR 32328, 32334 (July 8, 2019). First, DOE noted that in ASHRAE Standard 90.1-2016 (as in previous versions of ASHRAE Standard 90.1), two water-source VRF multi-split heat pump equipment classes (greater than or equal to 17,000 Btu/h and less than 65,000 Btu/h; and greater than or equal to 65,000 Btu/h and less than 135,000 Btu/h) are disaggregated into equipment with heat recovery and equipment without heat recovery, with each ASHRAE equipment class having a separate minimum cooling efficiency. The current Federal standards do not disaggregate water-source VRF multi-split heat pumps in these capacity ranges based on the presence of heat recovery. ( See Table 13 to 10 CFR 431.97.) However, as DOE pointed out in the NODA/RFI, the cooling efficiency EER standard in ASHRAE Standard 90.1-2016 for these units with heat recovery is below the current Federal standard. Consequently, under EPCA, the Secretary cannot prescribe those levels due to anti-backsliding concerns, so those classes were not subdivided further. Id.

Second, DOE identified that ASHRAE Standard 90.1-2016 disaggregates and sets distinct standards for VRF water-source heat pumps by cooling capacity above and below 240,000 Btu/h ( i.e., separate equipment classes with cooling capacities greater than or equal to 135,000 Btu/h and less than 240,000 Btu/h and greater than or equal to 240,000 Btu/h and less than 760,000 Btu/h). The DOE standards provide for VRF water-source heat pumps with a cooling capacity of greater than or equal to 135,000 Btu/h and less than 760,000 Btu/h. ( See table 13 to 10 CFR 431.97.) DOE sought feedback from stakeholders on whether to consider additional equipment classes for VRF water-source heat pumps between 135,000 and 760,000 Btu/h, which would align with the ASHRAE 90.1-2016 structure for those classes of equipment. Id.

In response to the July 2019 NODA/RFI, AHRI and the CA IOUs both commented that DOE should align its equipment class structure for all classes of VRF multi-split systems with the equipment structure found in ASHRAE 90.1-2016 ( i.e., not just for the specific equipment classes on which DOE requested comment). (AHRI, No. 42 at p. 3; CA IOUs, No. 41 at p. 3) AHRI commented that aligning with ASHRAE 90.1 would reflect the structure of other VRF classes, such as air-cooled heat pumps and air conditioners. (AHRI, No. 42 at p. 3) The CA IOUs commented that aligning with the equipment structure in ASHRAE 90.1-2016 would provide additional clarity regarding which standards apply to heat pumps versus units with heat recovery. (CA IOUs, No. 41 at pp. 3-4) The CA IOUs further commented that for air-source VRF multi-split heat pumps, in order to be more easily understood by the market, DOE should align with the convention from ASHRAE Standard 90.1 by adding a new column titled “subcategory” that specifies “heat pump” or “heat pump with heat recovery” and should remove its existing designation of “no heating or electric resistance heating” and “all other types of heating,” which is terminology more applicable to commercial unitary air conditioners than to VRF multi-split systems. (CA IOUs, No. 41 at p. 3) The CA IOUs also recommended that DOE should follow ASHRAE regarding breaking out the 135,000 Btu/h to 760,000 Btu/h categorization into two size categories, and that DOE should eliminate the 17,000 Btu/h cutoff for water-source equipment so as to align with ASHRAE. Id.

As stated, EPCA generally directs DOE to establish amended uniform national standards for the VRF multi-split systems at the minimum levels specified in ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) Consistent with EPCA, and in consideration of the comments received, DOE proposes to adopt the ASHRAE 90.1-2016 equipment class structure for VRF multi-split systems in its regulations at 10 CFR 431.97. By adopting the equipment class structure from ASHRAE Standard 90.1-2016, DOE would fulfill requests by stakeholders, utilize terminology that is more representative of distinctive features in the VRF market, and would better align the cooling capacity break points with those for other equipment categories ( e.g., the standards for commercial package air conditioning and heating equipment, which are subdivided by the same capacity boundaries. See Table 3 to 10 CFR 431.97). As noted previously, DOE has identified two areas for which the equipment class structure differs between the existing DOE standards and ASHRAE Standard 90.1.

These differences are presented in Table III-1:

In this document, DOE proposes to amend 10 CFR 431.97 to adopt the equipment class structure found in ASHRAE 90.1-2016 for VRF multi-split systems (which is identical to the most current version, ASHRAE Standard 90.1-2019). This proposal would amend the existing DOE class structure by expanding the number of VRF water-source heat pump classes, reducing the number of air-cooled VRF air conditioner classes, and amending the convention for heating type for heat pump systems with and without heat recovery. Additionally, DOE is proposing a minor clarification in the language used to describe the heating type for VRF multi-split system heat pumps—ASHRAE 90.1-2016 currently includes separate classes for systems with and without heat recovery, designated as “VRF multisplit systems” or “VRF multisplit system with heat recovery.” However, DOE proposes a minor clarification to revise these descriptions to explicitly state either “heat pump without heat recovery” or “heat pump with heat recovery.”

For VRF multi-split system air conditioners, ASHRAE 90.1-2016 only includes classes with the heating type designation of “Electric resistance (or none),” thus excluding any VRF multi-split air conditioners with “other” kinds of heating. As previously described, DOE received comment from stakeholders requesting that DOE align its equipment class structure with the structure from ASHRAE 90.1-2016. (AHRI, No. 42 at p. 3; CA IOUs, No. 41 at p. 3) However, because the current Federal standards include separate efficiency levels for VRF multi-split air conditioners having electric resistance (or no) heat vs. those having “all other types of heating,” DOE is proposing to label the condensed equipment classes for VRF multi-split air conditioners as having “All” types of heating, and to set IEER standards for the proposed condensed classes that are equivalent in stringency to the EER standards for the class with “electric resistance or none” heating type. DOE does not have any knowledge of VRF multi-split air conditioners on the market that have “all other types of heating” ( e.g., a furnace), and, thus, has tentatively concluded that setting IEER standards to cover “all” kinds of heating would not constitute an increase of stringency for any models currently in existence.

The ASRAC Working Group recommended IEER levels for VRF multi-split systems that utilized the equipment class structure of ASHRAE Standard 90.1-2016 (with limited exceptions as previously described). As discussed in section III.A of this document, DOE evaluated the IEER levels recommended by the ASRAC Working Group using a crosswalk analysis and determined that there is limited precision in translating the current EER levels to IEER according to the updated test procedure. In cases where DOE is proposing to subdivide or condense equipment classes relative to the existing DOE equipment class structure, the IEER levels recommended by the Working Group are within the limits of precision determined by DOE's crosswalk translation. For example, in cases where the current DOE equipment class only includes a single EER standard but ASHRAE Standard 90.1-2016 includes separate IEER standards for classes with and without heat recovery, both of the ASHRAE Standard 90.1 IEER levels fall within the crosswalk range determined by DOE to represent equivalent stringency to existing EER standard. Therefore, DOE has tentatively concluded that adopting the proposed class structure and efficiency levels would not result in a change in stringency for any classes.

Issue 2: DOE requests comment on its proposal to align equipment classes for VRF multi-split systems with the structure in ASHRAE Standard 90.1-2016, with additional clarification of heating type.

As required under 42 U.S.C. 6313(a)(6)(A)(i), for VRF multi-split system equipment classes for which ASHRAE Standard 90.1-2016 set levels more stringent than the current Federal standards, DOE performed an assessment to determine the energy-savings potential of amending Federal standard levels to reflect the efficiency levels specified in ASHRAE Standard 90.1-2016. In the July 2019 NODA/RFI, DOE presented the findings of the energy savings potential for the six considered equipment classes for which the Department was triggered. 84 FR 32328, 32335 (July 8, 2019). DOE tentatively determined, based on a report by Cadeo Group, 14 that four of the six affected classes—those with cooling capacities that are less than 17,000 Btu/h or greater than or equal to 135,000 Btu/h (with or without heat recovery), do not have any market share and, thus, no energy savings potential from amended standards. The Cadeo report showed that the remaining two affected classes, with cooling capacities greater than 17,000 Btu/h and less than 135,000 Btu/h, represented under 3 percent of the VRF multi-split system market. DOE tentatively concluded that potential energy savings for these equipment classes were de minimis. Id. DOE notes that in ASHRAE Standard 90.1-2016, the COP was raised by 0.1 on both of these equipment classes, and that most commercial buildings are cooling dominant. Given this information, and the small market share, in this NOPR DOE maintains its tentative conclusion that energy savings for these equipment classes are de minimis. Consideration of more-stringent efficiency levels than those specified in ASHRAE Standard 90.1 are discussed in section V.A of this document.

When triggered by an update to ASHRAE Standard 90.1, EPCA requires DOE to establish an amended uniform national standard for equipment classes at the minimum level specified in the amended ASHRAE Standard 90.1 unless DOE determines, by rule published in the Federal Register and supported by clear and convincing evidence, that adoption of a uniform national standard more stringent than the amended ASHRAE Standard 90.1 for the equipment class would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(I)-(II)). In the July 2019 NODA/RFI, DOE requested feedback on its proposal to adopt the levels in ASHRAE Standard 90.1-2016 as the Federal standards for the six VRF water-source classes for which DOE was triggered by ASHRAE Standard 90.1-2016. 84 FR 32328, 32335 (July 8, 2019). DOE also requested data and information that could help it determine whether standards levels more stringent than the levels in ASHRAE Standard 90.1-2016 for VRFs would result in significant additional energy savings for classes for the 14 classes where DOE was not triggered ( i.e., classes reviewed under the six-year-lookback provision). Id. at 84 FR 32335-32336.

AHRI supported DOE's proposal to adopt the energy efficiency levels for the six equipment classes triggered by ASHRAE Standard 90.1-2016. (AHRI, No. 42 at p. 3) AHRI added that the adoption of a more-stringent standard of the non-triggered classes is not economically justified at this time and that the stringency of any new standards need to account for all of the changes in the test procedure as a result of the Working Group negotiations (especially the CVP and SHR limits). (AHRI, No. 42 at p. 4) AHRI also provided information regarding the building types that are common applications for VRF. (AHRI, No. 42 at p. 4)

The CA IOUs recommended that the Working Group and DOE analyze a range of efficiency levels (including max-tech) for both water-source and air-source VRF systems. The CA IOUs also stressed that any changes to the energy conservation standards should account for the test procedure changes being discussed by the Working Group. The CA IOUs acknowledged that while DOE's data show limited sales on water-source VRF multi-split systems, they still believe that the Working Group should analyze trial standard levels for these classes. (CA IOUs, No. 41 at p. 4) The CA IOUs provided a set of historical VRF incentive program data to assist in the energy use analysis and recommended that DOE use Energy Plus  15 to analyze the energy use of VRF multi-split systems. (CA IOUs, No. 41 at pp. 6-12)

HIA-C commented that DOE should first ensure that VRF multi-split systems can actually meet the current ASHRAE Standard 90.1 efficiency levels before attempting to adopt new efficiency levels. (HIA-C, No. 40 at p. 4)

Policy Integrity commented on the emissions analysis, suggesting that DOE should monetize the full benefits of emissions reductions and use the global estimate of the social cost of greenhouse gases. (Policy Integrity, No. 39 at p. 2) In response, DOE considers the monetary benefits likely to result from the reduced emissions of greenhouse gases when analyzing efficiency levels more stringent than the ASHRAE Standard 90.1 levels. DOE uses the social cost of greenhouse gases from the most recent update of the Interagency Working Group on Social Cost of Greenhouse Gases, United States Government (IWG) working group, which are available in the Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive Order 13990. 16 The IWG recommended global values be used for regulatory analysis. Because DOE is not conducting an economic analysis of levels more stringent than the ASHRAE Standard 90.1 levels in this notice, there is no corresponding consideration of emission reductions or the associated monetary benefits. As DOE is required by EPCA to adopt the levels set forth in ASHRAE Standard 90.1, DOE did not conduct an economic analysis or corresponding emissions analysis for the levels in ASHRAE Standard 90.1-2019.

As discussed in section II.B.3 of this NOPR, following publication of the July 2019 NODA/RFI, the Working Group (which included AHRI and the CA IOUs) reached consensus on two term sheets containing recommendations regarding the test procedure and energy conservation standards for VRF multi-split systems. As discussed in section III.A of this document, the recommended standards are consistent with the crosswalk conducted by DOE to translate the existing Federal standards in terms of EER to equivalent levels in terms of IEER, measured per AHRI 1230-2021. These recommended efficiency levels also align with the IEER and COP levels in ASHRAE Standard 90.1-2016. The Working Group did not consider more-stringent efficiency levels.

DOE considered but did not estimate potential energy savings that would occur from more-stringent standards. To assess the magnitude of potential energy savings from amended standards and determine which level, if any, of more-stringent standards would be economically justified, DOE must be able to properly represent the no-new-standards case—the case without amended standards—and must be able to properly characterize the technology options and costs associated with specific levels of efficiency. With regards to VRF multi-split systems, this would require developing efficiency data for the entire market in terms of IEER measured per AHRI 1230-2021.

DOE considered two approaches for developing market-wide performance data in terms of IEER measured per AHRI 1230-2021: (1) DOE examined whether any such data exist in publicly-available sources, and (2) DOE considered whether existing performance data (in terms of EER, measured per the current Federal test procedure) could be effectively translated to IEER, measured per AHRI 1230-2021.

On the first approach, DOE found that public data in terms of IEER measured per AHRI 1230-2021 are not available, as the rating of VRF multi-split systems using the updated metric and test procedure is not currently required. 17 While DOE acknowledges that IEER performance data are widely represented by VRF manufacturers, all such data are measured per an earlier version of the industry test standard (AHRI 1230-2014) and, thus, not directly comparable. DOE also found that the AHRI Directory does not yet require IEER representations measured per AHRI 1230-2021.

On the second approach, DOE considered the results of its crosswalk analysis to determine whether a market-wide translation of existing EER data to IEER data (measured per AHRI 1230-2021) was possible. As discussed in section III.A of this document, the combined effect of translating the Federal cooling efficiency metric from EER to IEER and the effect of test procedure changes between the current DOE test procedure (which references AHRI 1230-2010) and the proposed DOE test procedure (which would reference AHRI 1230-2021) is likely to produce different impacts on measured efficiency across different manufacturers and different models. As DOE's crosswalk analysis has shown, a minimally-compliant VRF multi-split system with 10.8 EER can result in a range of crosswalked IEER levels from 13 to 16, depending on control inputs selected by the manufacturer. Additionally, an estimation of energy savings potentials of more-stringent energy efficiency levels would require developing efficiency data for the entire VRF multi-split system market, which would be a much broader analysis than that conducted for the crosswalk. The crosswalk analysis conducted to support the Working Group recommendations and presented in this NOPR only translated the baseline efficiency level between the metrics for a single class of VRF multi-split system, and did not translate all efficiency levels currently represented in the market. As noted, there are insufficient market data regarding the performance of VRF multi-split systems measured in terms of IEER per AHRI 1230-2021. As such, DOE has preliminarily determined that it lacks clear and convincing evidence to adopt more-stringent standard levels.

Regardless of whether DOE preliminarily determined that more-stringent standards would be technologically feasible and economically justified, DOE would be unable to adopt such standards absent a determination, supported by clear and convincing evidence, that more-stringent standards would result in significant additional energy savings. (42 U.S.C. 6313(a)(6)(A)(ii)(II)) Therefore, having preliminarily determined that it lacks clear and convincing evidence as to the energy savings that would result from more-stringent standards, DOE has not conducted analysis as to the technological feasibility or economic justification of such standards for VRF multi-split systems.

As discussed, DOE is required to conduct an evaluation of each class of covered equipment in ASHRAE Standard 90.1 every six years. (42 U.S.C. 6313(a)(6)(C)(i)) Accordingly, DOE is evaluating 12 of the Federal VRF equipment classes for which ASHRAE Standard 90.1-2016 did not increase the stringency of the standards. Energy conservation standards for the two remaining classes of VRF multi-split systems ( i.e., three-phase, air-cooled VRF multi-split systems with cooling capacity less than 65,000 Btu/h) are not addressed in this NOPR and instead will be addressed in a separate energy conservation standards rulemaking. DOE may only adopt more-stringent standards pursuant to the six-year look-back review if the Secretary determines, by rule published in the Federal Register and supported by clear and convincing evidence, that the adoption of more-stringent standards would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(C)(i)(II); 42 U.S.C. 6313(a)(6)(B); 42 U.S.C. 6313(a)(6)(A)(ii)(II))

For the reasons presented in the prior section, DOE has preliminarily determined that it lacks clear and convincing evidence that more-stringent standards for these 12 equipment classes would result in significant additional energy savings. Because DOE does not have sufficient data to meet the “clear and convincing” threshold for these 12 classes, DOE did not conduct an analysis of standard levels more stringent than the current Federal standard levels for VRF multi-split systems that were not amended in ASHRAE Standard 90.1-2016. See section V.A of this document for further discussion of the consideration of energy efficiency levels more stringent than the ASHRAE Standard 90.1-2016 levels.

Based on the foregoing, DOE proposes amended energy conservation standards for VRF multi-split systems in terms of IEER and COP equivalent to those specified for VRF multi-split systems in ASHRAE Standard 90.1-2016, which align with the levels recommended in the VRF ECS Term Sheet. The proposed standards are presented in Table I-1. Compliance with the proposed standards, if adopted, would be required for VRF multi-split systems manufactured in, or imported into, the United States starting January 1, 2024. which aligns with the Working Group's recommendation in the VRF ECS Term Sheet.

As discussed, ASHRAE Standard 90.1-2016 includes more-stringent COP standards for six water-source VRF multi-split heat pump classes. If DOE were to prescribe COP standards at the efficiency levels contained in ASHRAE Standard 90.1-2016 for these classes, EPCA provides that the compliance date shall be on or after a date that is two or three years (depending on the equipment type or size) after the effective date of the applicable minimum energy efficiency requirement in the amended ASHRAE standard. (42 U.S.C. 6313(a)(6)(D)). The effective date for amended COP standards in ASHRAE Standard 90.1-2016 was January 1, 2017. DOE acknowledges that the statute originally tied calculation of a compliance date to either two or three years after the effective date of amended ASHRAE Standard 90.1. However, because these dates have passed, DOE is proposing the date recommended in the VRF ECS Term Sheet ( i.e., January 1, 2024) as a reasonable amount of lead time supported by a broad array of interested stakeholders. If DOE receives comments in response to this notice that recommend alternative compliance date(s) later than January 1, 2024, DOE will consider adopting alternative compliance date(s) in the final rule.

Section 1(b)(1) of Executive Order (E.O.) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems that the proposed standards for VRF multi-split systems set forth in this NOPR are intended to address are as follows:

(1) Insufficient information and the high costs of gathering and analyzing relevant information leads some consumers to miss opportunities to make cost-effective investments in energy efficiency.

(2) In some cases, the benefits of more-efficient equipment are not realized due to misaligned incentives between purchasers and users. An example of such a case is when the equipment purchase decision is made by a building contractor or building owner who does not pay the energy costs.

(3) There are external benefits resulting from improved energy efficiency of appliances and equipment that are not captured by the users of such products. These benefits include externalities related to public health, environmental protection, and national energy security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming. DOE attempts to quantify some of the external benefits through use of social cost of carbon values.

The Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has determined that this regulatory action is not a significant regulatory action under section 3(f) of E.O. 12866. Accordingly, DOE has not prepared a regulatory impact analysis for this rule, and OIRA in the OMB has not reviewed this proposed rule.

DOE has also reviewed this regulation pursuant to E.O. 13563, issued on January 18, 2011. 76 FR 3821 (Jan. 21, 2011). E.O. 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in E.O. 12866. To the extent permitted by law, agencies are required by E.O. 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, OIRA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.

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

DOE reviewed this proposed rule to amend the Federal energy conservation standards for VRF multi-split systems under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the proposed rule, if adopted, would not have significant economic impact on a substantial number of small entities. The factual basis of this certification is set forth in the following paragraphs.

DOE is proposing to amend the existing Federal minimum energy conservation standards for VRF multi-split systems under EPCA's ASHRAE trigger requirement and the six-year lookback provision. Under the trigger, EPCA directs that if ASHRAE amends ASHRAE Standard 90.1, DOE must adopt uniform national amended standards at the new ASHRAE efficiency level, unless DOE determines, by rule published in the Federal Register and supported by clear and convincing evidence, that adoption of a more-stringent level would produce significant additional conservation of energy and would be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)) Under the six-year-lookback, DOE must also review energy efficiency standards for VRF multi-split systems every six years and either: (1) Issue a notice of determination that the standards do not need to be amended based upon the criteria in 42 U.S.C. 6313(a)(6)(A) ( i.e., that there is clear and convincing evidence to show that adoption of a more-stringent level would save significant additional energy and would be technologically feasible and economically justified); or (2) issue a notice of proposed rulemaking including new proposed standards based on certain criteria and procedures in 42 U.S.C. 6313(a)(6)(B). (42 U.S.C. 6313(a)(6)(C))

In this NOPR, DOE proposes to update the standards for VRF multi-split systems at 10 CFR 431.97 to align with the most recent version of ASHRAE Standard 90.1, including the updated COP levels for the six classes of VRF multi-split water-source heat pumps on which DOE was triggered. DOE is also proposing to express cooling efficiency standards in terms of the IEER metric, as measured according to the amended industry test procedure AHRI 1230-2021, and to remove standard levels in terms of the EER metric, as measured according to the current DOE test procedure. Finally, DOE is proposing to amend the equipment class structure for VRF multi-split systems to align with the equipment class structure present in ASHRAE Standard 90.1, with regards to capacity break points, supplementary heating type, and presence of heat recovery. The proposed standard levels, if adopted, would have a compliance date applying to all VRF multi-split systems manufactured on or after January 1, 2024. The proposed Table 14 to 10 CFR 431.97 accounts for all changes between the previous Federal VRF multi-split system standards and those outlined in ASHRAE Standard 90.1-2016 (as reaffirmed in ASHRAE Standard 90.1-2019).

DOE uses the Small Business Administration (SBA) small business size standards to determine whether manufacturers qualify as small businesses, which are listed by the North American Industry Classification System (NAICS). 18 The SBA considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121.

VRF multi-split system manufacturers are classified under NAICS code 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” The SBA sets a threshold of 1,250 employees or fewer for an entity to be considered as a small business for this category. This employee threshold includes all employees in a business's parent company and any other subsidiaries.

DOE has recently conducted a focused inquiry into small business manufacturers of the equipment covered by this rulemaking. DOE used available public information to identify potential small manufacturers that manufacture domestically. DOE identified manufacturers using DOE's Compliance Certification Database  19 and the AHRI Directory database. 20 DOE used this publicly-available information to identify ten distinct original equipment manufacturers (OEMs) of the covered VRF multi-split system equipment. In reviewing the ten OEMs, DOE did not identify any companies that met the SBA criteria for a small entity.

Issue 3: DOE requests comment on its tentative conclusions that no small business OEMs of VRF multi-split systems, that adoption of the prevailing industry standard levels would not result in any significant economic impact, and, accordingly, that the proposed rule would not have significant impacts on a substantial number of small manufacturers.

Therefore, DOE tentatively concludes that this proposed rule, if finalized, would not have “a significant impact on a substantial number of small entities” and that preparation of an IRFA is not warranted. Additional information about this proposal is addressed elsewhere in this document. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

Manufacturers of VRF multi-split systems must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for VRF multi-split systems, 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 VRF multi-split systems. See generally 10 CFR part 429. The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

This NOPR is not proposing changes to the certification and reporting requirements for VRF multi-split system manufacturers.

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

DOE is analyzing this proposed regulation in accordance with the National Environmental Policy Act of 1969 (NEPA) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings that establish energy conservation standards for consumer products or industrial equipment. 10 CFR part 1021, subpart D, appendix B5.1. DOE anticipates that this rulemaking qualifies for categorical exclusion B5.1 because it is a rulemaking that establishes amended energy conservation standards for consumer products or industrial equipment, none of the exceptions identified in categorical exclusion B5.1(b) apply, no extraordinary circumstances exist that require further environmental analysis, and it otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. DOE will complete its NEPA review before issuing the final rule.

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

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 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 sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed 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 proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

DOE examined this proposed rule according to UMRA and its statement of policy and determined that this proposed rule contains neither a Federal intergovernmental mandate, nor a mandate that may result in the expenditures of $100 million or more in any one year. As a result, the analytical requirements of UMRA do not apply.

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

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

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, “Improving Implementation of the Information Quality Act” (April 24, 2019), DOE published updated guidelines which are available at: https://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has reviewed this NOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

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

DOE has tentatively concluded that this regulatory action, which proposes amended energy conservation standards for VRF multi-split systems, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this proposed rule.

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

In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a report describing that peer review. 21 Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. DOE has determined that the peer-reviewed analytical process continues to reflect current practice, and the Department followed that process for developing energy conservation standards in the case of the present rulemaking.

The time and date of the webinar meeting are listed in the DATES section at the beginning of this document. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website: www.energy.gov/eere/buildings/public-meetings-and-comment-deadlines. Participants are responsible for ensuring their systems are compatible with the webinar software.

Any person who has an interest in the topics addressed in this proposed rule, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting webinar. Such persons may submit requests to speak via email to the Appliance and Equipment Standards Program at: ApplianceStandardsQuestions@ee.doe.gov. Persons who wish to speak should include with their request a computer file in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format that briefly describes the nature of their interest in this rulemaking and the topics they wish to discuss. Such persons should also provide a daytime telephone number where they can be reached.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Issue 1: DOE requests comment on its crosswalk analysis methodology and crosswalk results.

Issue 2: DOE requests comment on its proposal to align equipment classes for VRF multi-split systems with the structure in ASHRAE Standard 90.1-2016, with additional clarification for heating type.

Issue 3: DOE requests comment on its tentative conclusions that there are no small businesses that are OEMs of VRF multi-split systems, that adoption of the prevailing industry standard levels would not result in any significant economic impact, and accordingly, that the proposed rule would not have significant impacts on a substantial number of small manufacturers.

Additionally, DOE welcomes comments on other issues relevant to the conduct of this rulemaking that may not specifically be identified in this document.

The Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.

This document of the Department of Energy was signed on February 9, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set forth in the preamble, DOE proposes to amend part 431 of title 10 of the Code of Federal Regulations, as set forth below:

The revisions and addition read as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0150; Project Identifier MCAI-2021-00839-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0169, dated July 19, 2021 (EASA AD 2021-0169), to address an unsafe condition for all RRD Trent 7000-72 and Trent 7000-72C model turbofan engines.

This proposed AD was prompted by in-service experience showing that certain HPT blades may prematurely deteriorate to an unacceptable condition when managed in accordance with the inspection intervals in the TLM. The manufacturer has issued Rolls-Royce (RR) Alert Non-Modification Service Bulletin (NMSB) Trent 1000 72-AK449, Revision 2, dated July 5, 2021 (the Alert NMSB) specifying procedures for performing initial and repetitive on-wing BSIs of the HPT blades to detect axial cracking. The Alert NMSB also specifies procedures for removing the engine from service to replace the HPT blade set before exceeding a specified number of flight cycles. The compliance time for the initial and repetitive BSIs of the HPT blades proposed by this AD meet the TLM inspection intervals for HPT blade, part number KH64485. The FAA is proposing this AD to prevent failure of the HPT blades. This condition, if not addressed, could result in failure of the engine, in-flight shutdown, and loss of the airplane. See EASA AD 2021-0169 for additional background information.

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

The FAA reviewed EASA AD 2021-0169. EASA AD 2021-0169 specifies instructions for performing initial and repetitive on-wing BSIs of the HPT blades to detect axial cracking and, depending on the results of the inspections, removal from service of the engine for in-shop replacement of the HPT blade set. EASA AD 2021-0169 also specifies instructions for replacing HPT blades with a new HPT blade set before exceeding a specified number of flight cycles.

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

The FAA reviewed RR Alert NMSB Trent 1000 72-AK449, Revision 2, dated July 5, 2021. This Alert NMSB specifies procedures for performing initial and repetitive on-wing BSIs of the HPT blades to detect axial cracking. The Alert NMSB also specifies procedures for removing the engine to replace the HPT blade set before exceeding a specified number of flight cycles.

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0169, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, the FAA proposes to incorporate by reference EASA AD 2021-0169 in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0169 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0169 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0169. Service information specified by EASA AD 2021-0169 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0150 after the FAA final rule is published.

Where EASA AD 2021-0169 requires compliance from its effective date, this proposed AD would require using the effective date of this AD. This proposed AD does not mandate compliance with the “Remarks” section of EASA AD 2021-0169.

The FAA considers that this proposed AD would be an interim action. If final action is later identified, the FAA might consider additional rulemaking.

The FAA estimates that this AD, if adopted as proposed, would affect 16 engines installed on airplanes of U.S. Registry.

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

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need this replacement:

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

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

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

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-0129/Airspace Docket No. 22-AGL-8.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface to within a 6.3-mile (decreased from a 6.5-mile) radius of Brooks Field, Marshall, MI; removing the city associated with the airport in the header to comply with changes to FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; and removing the exclusionary language from the airspace legal description as it is not required.

This action is due to an airspace review conducted as part of the decommissioning of the Litchfield VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

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

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-0128/Airspace Docket No. 22-AGL-7.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

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

Amending the Class E surface airspace to within a 4.1-mile (decreased from a 7-mile) radius of Worthington Municipal Airport, Worthington, MN; updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and updating the outdated term “Airport/Facility Directory” with “Chart Supplement”;

And amending the Class E airspace extending upward from 700 feet above the surface to within a 6.6-mile (decreased from a 7-mile) radius of Worthington Municipal Airport; amending the extension to the north to extending from the 6.6-mile (decreased from a 7-mile) radius of the airport to 10.8 (decrease from 11.6) miles north of the airport; and amending the extension to the south to 1 (decreased from 2) mile each side of the 180° (previously 176°) bearing from the airport extending from the 6.6-mile (decreased from 7-mile) radius of the airport to 11.2 (increased from 11.1) miles south of the airport.

This action is due to an airspace review conducted as part of the decommissioning of the Worthington VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.

Class E airspace designations are published in paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

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

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-0132/Airspace Docket No. 22-ACE-5.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above within a 6.5-mile radius of Ellsworth Municipal Airport, Ellsworth, KS.

This action is necessary due to the development of new public instrument procedures at Ellsworth Municipal Airport.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

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

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-0131/Airspace Docket No. 22-ACE-4.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

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

Amending the Class D airspace at Joplin Regional Airport, Joplin, MO, by updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and updating the outdated term “Airport/Facility Directory” with “Chart Supplement”;

Amending the Class E surface airspace at Joplin Regional Airport by updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and updating the outdated term “Airport/Facility Directory” with “Chart Supplement”;

And amending the Class E airspace extending upward from 700 feet above the at Joplin Regional Airport by removing the LUNNS LOM and associated extension from the airspace legal description as they are no longer required; adding an extension 2.4 miles each side of the 182° bearing from the airport extending from the 6.8-mile radius of the airport to 7.1 miles south of the airport; adding an extension 3.8 miles each side of the 318° bearing from the airport extending from the 6.8-mile radius of the airport to 12.5 miles northwest of the airport; and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is necessary due to an airspace review as part of the decommissioning of the Neosho VOR, which provided navigation information for the instrument procedures this airport, as part of the VOR MON Program.

Class D and E airspace designations are published in paragraphs 5000, 6002, and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11. FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-0130/Airspace Docket No. 22-AGL-9.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface at Northeast Ohio Regional Airport, Ashtabula, OH, by adding an extension 2 miles each side of the 259° bearing from the airport extending from the 6.5-mile radius of the airport to 9.6 miles west of the airport; removing the city associated with Ashtabula County Medical Center, contained within the airspace legal description, in the header to comply with changes to FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; and updating the name (previously Ashtabula County Airport), state, and geographic coordinates of Northeast Ohio Regional Airport to coincide with the FAA's aeronautical database.

This action is due to an airspace review conducted as part of the decommissioning of the Jefferson VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

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

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

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

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

On February 3, 2022, the Commission published an NPR in the Federal Register , proposing to issue a safety standard for CSUs under the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089), and seeking written comments. 87 FR 6246. The proposed rule seeks to address the risk of injuries and death, particularly to children, associated with CSUs tipping over, by requiring CSUs to be tested for stability and to exceed minimum stability requirements; to be marked and labeled with safety information; and to bear a hang tag providing performance and technical data about the stability of the CSU. The proposed rule would apply to “clothing storage units,” which the NPR proposes to define as follows:

The NPR proposes to exempt clothes lockers and portable storage closets from the standard. The NPR is available at: https://www.govinfo.gov/content/pkg/FR-2022-02-03/pdf/2022-01689.pdf, and CPSC staff's briefing package for the NPR is available at: https://www.cpsc.gov/s3fs-public/Proposed%20Rule-%20Safety%20Standard%20for%20Clothing%20Storage%20Units.pdf.

The Administrative Procedure Act (5 U.S.C. 551-562) and section 9 of the CPSA require the Commission to provide interested parties with an opportunity to submit “written data, views, or arguments” regarding a proposed rule. 5 U.S.C. 553(c); 15 U.S.C. 2058(d)(2). The NPR invited such written comments. In addition, section 9 of the CPSA requires the Commission to provide interested parties “an opportunity for oral presentation of data, views, or arguments.” 15 U.S.C. 2058(d)(2). The Commission must keep a transcript of such oral presentations. Id. In accordance with this requirement, the Commission is providing a forum for oral presentations concerning the proposed standard for CSUs.

To request the opportunity to make an oral presentation, see the information under the DATES and ADDRESSES sections of this notice. Participants should limit their presentations to approximately 10 minutes, excluding time for questioning by the Commissioners or CPSC staff. To avoid duplicate presentations, groups should designate a spokesperson, and the Commission reserves the right to limit presentation times or impose further restrictions, as necessary.

Background and Explanation of Provisions

This document contains proposed amendments to 26 CFR part 300 regarding user fees.

Section 330 of Title 31 of the United States Code authorizes the Secretary of the Treasury to regulate the practice of representatives before the Department of the Treasury (Treasury Department) and requires that an individual seeking to practice demonstrate the necessary qualifications, competency, and good character, and reputation. The rules governing practice before the IRS are published in 31 CFR, Subtitle A, part 10, and reprinted as Treasury Department Circular No. 230 (Circular 230).

Section 10.4(a) of Circular 230 authorizes the IRS to grant enrollment as enrolled agents to individuals who demonstrate special competence in tax matters by passing a written examination, the Enrolled Agent Special Enrollment Examination (EA SEE), and who have not engaged in any conduct that would justify suspension or disbarment under Circular 230.

Section 10.4(b) of Circular 230 authorizes the IRS to grant status as enrolled retirement plan agents to individuals who demonstrate special competence in qualified retirement plan matters by passing a written examination, the Enrolled Retirement Plan Agent Special Enrollment Examination (ERPA SEE), and who have not engaged in any conduct that would justify suspension or disbarment under Circular 230. The IRS stopped offering the ERPA SEE as of February 12, 2016, and no longer accepts applications for new enrollment as an enrolled retirement plan agent. Individuals who were already enrolled as enrolled retirement plan agents may continue to apply for renewal of their status.

Section 10.4(d) also authorizes the IRS to grant enrollment as an enrolled agent or an enrolled retirement plan agent to a qualifying former IRS employee by virtue of past IRS service and technical experience if the former employee has not engaged in any conduct that would justify suspension or disbarment under the provisions of Circular 230 and meets certain other requirements. Application for enrollment as an enrolled agent based on former employment with the IRS must be made within three years from the date of separation from that employment and does not require passing the EA-SEE. When the IRS discontinued offering the ERPA-SEE necessary for enrollment as an enrolled retirement plan agent for individuals without IRS work experience, effective February 12, 2016, the IRS stopped granting individuals enrollment as enrolled retirement plan agents by virtue of past service and technical experience in the IRS.

Once eligible for enrollment as an enrolled agent, whether by examination or former employment with the IRS, an individual must file an application for enrollment with the IRS and currently pay a $67 nonrefundable user fee. To maintain active enrollment and practice before the IRS, an individual who has been enrolled as an enrolled agent or enrolled retirement plan agent must file an application to renew enrollment every three years and currently pay a $67 nonrefundable user fee. 31 CFR 10.6(d).

The IRS Return Preparer Office (RPO) is responsible for certain matters related to authority to practice before the IRS, including acting on applications for enrollment and renewal of enrolled agents and for renewal of enrolled retirement plan agents. 31 CFR 10.1. As a condition for enrollment as an enrolled agent, the RPO may conduct a federal tax-compliance check to determine whether an applicant has filed all required tax returns and has no outstanding federal tax debts and a suitability check to determine whether an applicant has engaged in any conduct that would justify suspending or disbarring any practitioner under Circular 230. 31 CFR 10.5(d). As a condition for renewal, enrolled agents and enrolled retirement plan agents must certify completion of the continuing education requirements. 31 CFR 10.6(e).

As part of its responsibility for administering the enrollment and renewal program, RPO determines whether applicants have met the above requirements. 31 CFR 10.6(j)(1). An applicant who is denied enrollment as an enrolled agent for failure to pass a tax-compliance check may reapply if the applicant becomes current with respect to the applicant's tax liabilities. 31 CFR 10.5(d)(2). Applicants who fail to meet the continuing education and fee payment requirements for renewal receive from RPO a notice that states the basis for RPO's determination of noncompliance and provides an opportunity to cure the failure. 31 CFR 10.6(j)(1).

The Independent Offices Appropriation Act of 1952 (IOAA) (31 U.S.C. 9701) authorizes each agency to promulgate regulations establishing the charge for services provided by the agency. The IOAA states that the services provided by an agency should be self-sustaining to the extent possible. 31 U.S.C. 9701(a). The IOAA provides that user fee regulations are subject to policies prescribed by the President, which are currently set forth in the Office of Management and Budget (OMB) Circular A-25 (OMB Circular), 58 FR 38142 (July 15, 1993).

Section 6a(1) of OMB Circular A-25 states that when a service offered by an agency provides special benefits to identifiable recipients beyond those accruing to the general public, the agency is to charge a user fee to recover the full cost of providing the service. Section 8e of OMB Circular A-25 requires agencies to review user fees biennially and update the fees as necessary to reflect changes in the cost of providing the underlying services. During the biennial review, an agency must calculate the full cost of providing each service, taking into account all direct and indirect costs to any part of the U.S. government. Under section 6d(1) of OMB Circular A-25, the full cost of providing a service includes, but is not limited to, an appropriate share of salaries, medical insurance and retirement benefits, management costs, and physical overhead and other indirect costs, including rents, utilities, and travel, associated with providing the service.

An agency should set the user fee at an amount that recovers the full cost of providing the service unless the agency requests, and the OMB grants, an exception to the full-cost requirement. Under section 6c(2) of OMB Circular A-25, the OMB may grant exceptions when the cost of collecting the fees would represent an unduly large part of the fee for the activity or when any other condition exists that, in the opinion of the agency head, justifies an exception. When the OMB grants an exception, the agency does not collect the full cost of providing the service and must fund the remaining cost of providing the service from other available funding sources. Consequently, the agency subsidizes the cost of the service to the recipients of reduced-fee services even though the service confers a special benefit on those recipients who would otherwise be required to pay the full cost of receiving the benefit as provided for by the IOAA and OMB Circular A-25.

As discussed in section A of this preamble, an individual who has been granted enrollment as an enrolled agent or an enrolled retirement plan agent may practice before the IRS. The IRS confers benefits on individuals who are enrolled agents or enrolled retirement plan agents beyond those that accrue to the general public by allowing them to practice before the IRS. Because the ability to practice before the IRS is a special benefit, the IRS charges a user fee to recover the full cost associated with administering the program for enrollment and renewal of enrolled agents and renewal of enrolled retirement plan agents. Final regulations (TD 9858) published in the Federal Register (84 FR 20801-01) on May 13, 2019, established the current $67 fee per enrollment or renewal of enrollment. At that time the Treasury Department and the IRS determined that a $67 user fee would recover the full direct and indirect costs the government would incur to administer the enrollment and renewal program.

As required by the IOAA and the OMB Circular, the RPO completed its 2021 biennial review of the enrollment and renewal user fees associated with enrolled agents and enrolled retirement plan agents. As discussed in section D of this preamble, during its review the RPO took into account the increase in labor, benefits, and overhead costs incurred in connection with providing services to individuals who enroll or renew enrollment as enrolled agents and enrolled retirement plan agents since the user fee was last changed in 2019. The increase took into account additional staffing that allows RPO to provide a higher quality of service to individuals seeking to enroll or renew enrollment. The RPO also took into account a re-allocation of certain labor costs in their methodology. The RPO determined that the full cost of administering the program for enrolled agents and enrolled retirement plan agents has increased from $67 to $140 per application for enrollment or renewal. The proposed fee complies with the directive in the OMB Circular to recover the full cost of providing a service that confers special benefits on identifiable recipients beyond those accruing to the general public.

The IRS follows generally accepted accounting principles (GAAP) in calculating the full cost of processing an application for enrollment or renewal. The Federal Accounting Standards Advisory Board (FASAB) is the body that establishes GAAP that apply for federal reporting entities, such as the IRS. FASAB publishes the FASAB Handbook of Accounting Standards and Other Pronouncements, as Amended (Current Handbook), which is available at http://files.fasab.gov/pdffiles/2017_fasab_handbook.pdf. The Current Handbook includes the Statement of Federal Financial Accounting Standards (SFFAS) No. 4: Managerial Cost Accounting Concepts and Standards for the Federal Government. SFFAS No. 4 establishes internal costing standards under GAAP to accurately measure and manage the full cost of federal programs, and the methodology below is in accordance with SFFAS No. 4.

The IRS determines the cost of its services and the activities involved in producing them through a cost-accounting system that tracks costs to organizational units. The lowest organizational unit in the IRS's cost-accounting system is called a cost center. Cost centers are usually separate offices that are distinguished by subject-matter area of responsibility or geographic region. All costs of operating a cost center are recorded in the IRS's cost-accounting system and allocated to that cost center. The costs allocated to a cost center are the direct costs for the cost center's activities in addition to allocated overhead. Some cost centers work on different services across the IRS and are not fully devoted to the services for which the IRS charges user fees.

The IRS uses various cost-measurement techniques to estimate the cost attributable to administering the program for enrollment and renewal of enrolled agents and renewal of enrolled retirement plan agents. These techniques include using various timekeeping systems to measure the time required to accomplish activities, or using information provided by subject-matter experts on the time devoted to a service or activity. To determine the labor and benefits costs incurred to administer the enrollment and renewal program, the IRS estimated the number of full-time employees required to conduct activities related to administering the program. The number of full-time employees is based on both current employment numbers and future hiring estimates. Direct costs are incurred by the RPO and include direct costs for enrollment and renewal submission processing; tax compliance and background checks; continuing education and testing-related activities; communications, which include a toll-free helpline; and other oversight and support costs. Other direct costs associated with administering the program include travel, training and supplies.

When the indirect cost of a service or activity is not specifically identified from the cost accounting system, an overhead rate is added to the identifiable direct cost to arrive at full cost. Overhead is an indirect cost of operating an organization that cannot be immediately associated with an activity. Overhead includes costs of resources that are jointly or commonly consumed by one or more organizational unit's activities but are not specifically identifiable to a single activity.

These costs can include:

• General management and administrative services of sustaining and supporting organizations.

• Facilities management and ground maintenance services (security, rent, utilities, and building maintenance).

• Procurement and contracting services.

• Financial management and accounting services.

• Information technology services.

• Services to acquire and operate property, plants and equipment.

• Publication, reproduction, and graphics and video services.

• Research, analytical, and statistical services.

• Human resources/personnel services.

• Library and legal services.

To calculate the overhead allocable to a service, the IRS multiplies an overhead rate by the labor and benefits costs. The IRS calculates the overhead rate annually based on cost elements underlying the Statement of Net Cost included in the IRS annual financial statements. The financial statements are audited by the Government Accountability Office. The overhead rate is the ratio of the IRS's indirect costs divided by the direct costs of its organizational units. Indirect costs are labor, benefits, and non-labor costs (excluding IT related to taxpayer services, enforcement, and business system modernization) from the supporting and sustaining organizational units. Direct costs are the labor, benefits, and non-labor costs for the IRS's organizational units that interact directly with taxpayers.

For this program user fee review, the Fiscal Year (FY) 2021 rate of 58.83 percent was used. The rate was calculated based on the FY 2020 Statement of Net Cost as follows:

The IRS projected the estimated costs of direct labor and benefits based on the actual salary and benefits of employees who administer the enrollment and renewal program, reduced to reflect the percentage of time each individual spends administering the program. RPO's managers estimated the percentage of time these employees devote to administering the program based on their knowledge of actual program assignments. Fourteen employees work full-time on administering enrollment and renewal program-related activities. Additional staffing costs include oversight and support associated with these functions.

The baseline for the labor and benefits was the actual salary and benefits for FY 2021. From this baseline, the IRS estimated the direct labor and benefits costs over the next three years using an inflation factor for FYs 2022, 2023, and 2024. The IRS used a three-year projection because the increase in future labor and benefits costs are reliably predictable representations of the actual costs that will be incurred by the RPO. These estimated labor and benefits costs were then reduced to reflect the percentage of time each individual devoted to the program and are set out in the following table:

The IRS estimated $15,000 in additional direct costs for each year for travel, training, and supplies.

The total estimated direct costs for the three years is $6,566,991. After estimating the total direct costs, the IRS applied the FY 2021 overhead rate of 58.83 percent to the estimated direct costs to calculate indirect costs of $3,863,360, for a total cost for the three-year period of $10,430,351.

The calculation of the total costs of the program for 2022 through 2024 is below:

The number of enrollments and renewals processed during FYs 2018, 2019, and 2020 were 22,703; 29,350; and 22,367, respectively. The total number for the three years was 74,420. The IRS used this historical three-year volume to estimate the number of applications it expects to process in FYs 2022, 2023, and 2024.

To arrive at the total cost per application, the IRS divided the estimated three-year total of program costs by the total volume of applications expected over the same three-year period to determine a unit cost per application of $140, as shown below:

This regulation is not significant and is not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget regarding review of tax regulations.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. Only individuals, not businesses, can be enrolled agents or enrolled retirement plan agents. Accordingly, the user fee primarily affects individuals who are enrolled agents, apply to become enrolled agents, or are enrolled retirement plan agents. The Treasury Department and the IRS estimate that approximately 24,807 individuals will apply annually for enrollment as an enrolled agent, renewal as an enrolled agent, or renewal as an enrolled retirement plan agent.

Since individuals are not “small entities” for purposes of the Regulatory Flexibility Act, any economic impact of the user fee on small entities generally will occur only when an enrolled agent or enrolled retirement plan agent owns a small business or when a small business employs enrolled agents or enrolled retirement plan agents and reimburses them for their renewal fees. Therefore, a substantial number of small entities is not likely to be affected. Further, the economic impact on any small entities affected would be limited to paying the $73 difference in cost between the $140 user fee and the previous $67 user fee (for each enrolled agent or enrolled retirement plan agent that a small entity employs and pays for), which is unlikely to present a significant economic impact. The total economic impact of this regulation is thus approximately $1,810,911 annually, which is the product of the approximately 24,807 individuals and the $73 increase in the fee. Accordingly, the rule is not expected to have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

Pursuant to section 7805(f), this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a state, local, or tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. This rule does not include any Federal mandate that may result in expenditures by state, local, or tribal governments, or by the private sector in excess of that threshold.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on state and local governments, and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. These proposed regulations do not have federalism implications and do not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in the preamble under the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. Any electronic comments submitted, and to the extent practicable, any paper comments submitted, will be made available at www.regulations.gov or upon request.

A public hearing is being held by teleconference on May 11, 2022, beginning at 10 a.m. EST unless no outlines are received by May 2, 2022.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to comment by telephone at the hearing must submit written or electronic comments and an outline of the topics to be discussed and the time to be devoted to each topic by May 2, 2022 as prescribed in the preamble under the ADDRESSES section.

A period of 10 minutes will be allocated to each person for making comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available at www.regulations.gov, search IRS and REG-114209-21. Copies of the agenda will also be available by emailing a request to publichearings@irs.gov. Please put “REG-114209-21 Agenda Request” in the subject line of the email.

Announcement 2020-4, 2020-17 I.R.B. 667 (April 20, 2020), provides that until further notice, public hearings conducted by the IRS will be held telephonically. Any telephonic hearing will be made accessible to people with disabilities.

The principal author of these regulations is Mark Shurtliff, Office of the Associate Chief Counsel (Procedure and Administration). Other personnel from the Treasury Department and the IRS participated in the development of the regulations.

Accordingly, 26 CFR part 300 is proposed to be amended as follows:

The Enviro-Sports Productions Inc. notified the Coast Guard that it will be conducting the Lady Liberty Sharkfest Swim on July 16, 2022, from 7:30 a.m. to 8:30 a.m. with approximately 200 participants and several support vessels. Participants will swim between Liberty Island, New York and Morris Canal, New Jersey. The Captain of the Port New York (COTP) has determined that swimming events in close proximity to marine traffic pose significant risk to public safety and property. The combination of increased numbers of recreation vessels, congested waterways, and large numbers of swimmers in the water has the potential to result in serious injuries or fatalities. In order to protect the safety of all waterway users including event participants and spectators, this proposed rule would establish temporary safety zones for the duration of the swim event.

This rule would prevent vessels from entering into, transiting through, mooring or anchoring within a 100-yard radius of each participating swimmer during the period of enforcement unless authorized by the COTP, or the designated representative.

The purpose of this rulemaking is to ensure the safety of vessels, event participants and the navigable waters within a 100 yard radius of swimmers until the conclusion of the scheduled swim event. The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The Coast Guard is proposing to establish a temporary safety zone within 100 yards of each participants for the swim event on the navigable waters of the Upper New York Bay located between Liberty Island, New York and Morris Canal, New Jersey. A portion of the navigable waters will be closed during the effective period to all vessel traffic except patrol crafts. The swim event will occur from approximately 7:30 a.m. until approximately 8:30 a.m. on July 16, 2022. In order to coordinate the safe movement of vessels within the area and to ensure that the area is clear of unauthorized persons and vessels before, during, and immediately after the swim event, this zone will be effective from approximately 7 a.m. until approximately 10 a.m. on July 16, 2022.

Vessels will still be able to transit the surrounding area and may be authorized to transit through the proposed safety zone with the permission from the COTP or the designated representative. The COTP does not anticipate any negative impact on vessel traffic due to this proposed safety zone. The regulatory text we are proposing appears at the end of this document.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The Coast Guard's enforcement of this proposed safety zone will be of short duration, lasting only 3 hours. The proposed safety zone will restrict access to only a small portion of the navigable waterways of the Upper New York Bay. Vessels will be able to navigate around the proposed safety zone. Furthermore, vessels may be authorized to transit through the proposed safety zone with the permission of the COTP. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the proposed rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone lasting approximately 3 hours that will prohibit entry within 100 yards of participating swimmers for the Lady Liberty Sharkfest Swim. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov . To do so, go to https://www.regulations.gov, type USCG-2022-0026 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

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

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

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

The proposed rule would amend existing regulations to charge a statutorily required annual programmatic administrative fee for new and existing communications use authorizations to cover the costs of administering the Agency's communications use program. To provide further opportunity for the public to comment, the Agency is reopening the comment period on the proposed rule for an additional 30 days.

The proposed rule can be found at https://www.federalregister.gov/documents/2021/12/22/2021-27681/land-uses-special-uses-annual-programmatic-administrative-fee-for-communications-use-authorizations. After the comment period closes, the Forest Service will consider timely and relevant comments in the development of the final rule.

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

Under the CAA, EPA is proposing to approve a Limited Maintenance Plan (LMP) for the Boston-Manchester-Portsmouth (Portsmouth) maintenance area for the 1997 ozone NAAQS, submitted as a revision to the New Hampshire State Implementation Plan (SIP) on July 29, 2021. The Portsmouth area 8-hour ozone nonattainment area includes 52 cities and towns with a combined population of 729,071 in Hillsborough, Merrimack, Rockingham and Strafford counties, in the southeastern-most portion of the state. On June 15, 2004, the Portsmouth area was designated as nonattainment for the 1997 ozone NAAQS. On March 4, 2013, the area was redesignated to attainment with that standard.

The Portsmouth area's LMP for the 1997 ozone NAAQS submitted by the New Hampshire Department of Environmental Services (DES) is designed to maintain the 1997 ozone NAAQS within these areas through the end of the second ten-year period of the maintenance period. We are proposing to approve the plan because it meets all applicable requirements under CAA sections 110 and 175A.

Ground-level ozone is formed when oxides of nitrogen (NO X ) and volatile organic compounds (VOC) react in the presence of sunlight. These two pollutants, referred to as ozone precursors, are emitted by many types of pollution sources, including on- and off-road motor vehicles and engines, power plants and industrial facilities, and smaller area sources such as lawn and garden equipment and paints. Scientific evidence indicates that adverse public health effects occur following exposure to ozone, particularly in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases.

Ozone exposure also has been associated with increased susceptibility to respiratory infections, medication use, doctor and emergency department visits and hospital admissions for individuals with lung disease. Ozone exposure also increases the risk of premature death from heart or lung disease. Children are at increased risk from exposure to ozone because their lungs are still developing and they are more likely to be active outdoors, which increases their exposure. 1

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997, EPA revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period. 62 FR 38856 (July 18, 1997). 2 The EPA set the 8-hour ozone NAAQS based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone NAAQS was set. EPA determined that the 8-hour standard would be more protective of human health, especially for children and adults who are active outdoors, and individuals with a preexisting respiratory disease, such as asthma.

Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 15, 2004, EPA designated the Southeast New Hampshire area as nonattainment for the 1997 ozone NAAQS, and the designations became effective on June 15, 2004. Under the CAA, states are also required to adopt and submit SIPs to implement, maintain, and enforce the NAAQS in designated nonattainment areas and throughout the state.

When a nonattainment area has three years of complete, certified air quality data that has been determined to attain the 1997 ozone NAAQS, and the area has met other required criteria described in section 107(d)(3)(E) of the CAA, the state can submit to the EPA a request to be redesignated to attainment, referred to as a “maintenance area”. 3 One of the criteria for redesignation is to have an approved maintenance plan under CAA section 175A. The maintenance plan must demonstrate that the area will continue to maintain the standard for the period extending 10 years after redesignation and must contain such additional measures as necessary to ensure maintenance and such contingency provisions as necessary to assure that violations of the standard will be promptly corrected. At the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional ten years. CAA section 175A.

EPA has published long-standing guidance for states on developing maintenance plans. 4 The Calcagni memo provides that states may generally demonstrate maintenance by either performing air quality modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that future emissions of a pollutant and its precursors will not exceed the level of emissions during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). EPA clarified in three subsequent guidance memoranda that certain nonattainment areas could meet the CAA section 175A requirement to provide for maintenance by demonstrating that the area's design value  5 was well below the NAAQS and that the historical stability of the area's air quality levels showed that the area was unlikely to violate the NAAQS in the future. 6 EPA refers to this streamlined demonstration of maintenance as a Limited Maintenance Plan (LMP). EPA has interpreted CAA section 175A as permitting this option because section 175A of the Act defines few specific content requirements for maintenance plans, and in EPA's experience implementing the various NAAQS, areas that qualify for an LMP, that have an approved LMP, have rarely, if ever, experienced subsequent violations of the NAAQS. As noted in the LMP guidance memoranda, states seeking an LMP must still submit the other maintenance plan elements outlined in the Calcagni memo, including: An attainment emissions inventory, provisions for the continued operation of the ambient air quality monitoring network, verification of continued attainment, and a contingency plan in the event of a future violation of the NAAQS. Moreover, states seeking an LMP must still submit their section 175A maintenance plan as a revision to their state implementation plan, with all attendant notice and comment procedures.

While the LMP guidance memoranda were originally written with respect to certain NAAQS, 7 EPA has extended the LMP interpretation of section 175A to other NAAQS and pollutants not specifically covered by the previous guidance memos. 8 In this case, EPA is proposing to approve New Hampshire's LMP because the State has made a showing, consistent with EPA's prior LMP guidance, that the area's ozone concentrations are well below the 1997 ozone NAAQS and have been historically stable. New Hampshire DES has submitted this LMP for the Southeast New Hampshire 1997 ozone NAAQS areas to fulfill the second maintenance plan requirement in the Act. Our evaluation of the Southeast New Hampshire area 1997 ozone NAAQS LMP is presented below.

On March 2, 2012, New Hampshire DES submitted to EPA a request to redesignate the Portsmouth nonattainment areas to attainment for the 1997 ozone NAAQS. New Hampshire DES also provided EPA with additional information on September 21, 2012. This submittal included a plan to provide for maintenance of the 1997 ozone NAAQS in the Portsmouth nonattainment area through 2012 as a revision to the New Hampshire SIP. EPA approved the maintenance plan for the Portsmouth nonattainment area and the State's request to redesignate the Portsmouth nonattainment area to attainment for the 1997 ozone NAAQS on January 31, 2013 (78 FR 6741).

In conjunction with our approval of the Portsmouth nonattainment areas 1997 ozone Maintenance Plan covering the first 10-year maintenance period, we approved various regulatory provisions adopted by the State providing for the continued implementation of the control measures relied upon for attainment, and for the authority for state agencies to implement contingency measures should the area violate the standard again during this period.

Under CAA section 175A(b), states must submit a revision to the first maintenance plan eight years after redesignation to provide for maintenance of the NAAQS for ten additional years following the end of the first 10-year period. EPA's final implementation rule for the 2008 ozone NAAQS revoked the 1997 ozone NAAQS and stated that one consequence of revocation was that areas that had been redesignated to attainment ( i.e., maintenance areas) for the 1997 standard no longer needed to submit second 10-year maintenance plans under CAA section 175A(b). 9 In South Coast Air Quality Management District v. EPA, the D.C. Circuit vacated EPA's interpretation that second maintenance plans were not required for 1997 NAAQS maintenance areas because of the revocation of that standard. South Coast, 882 F.3d 1138 (D.C. Cir. 2018). Thus, states with 1997 ozone NAAQS maintenance areas still must comply with the requirement to submit maintenance plans for the second maintenance period. Accordingly, on July 29, 2021, New Hampshire submitted second maintenance plans for the Portsmouth area that show that the area is expected to remain in attainment with the 1997 ozone NAAQS through the last year of the second 10-year maintenance period, i.e., through the end of the full 20-year maintenance period.

On July 29, 2021, New Hampshire DES submitted the Portsmouth area LMP to the EPA as a revision to the New Hampshire SIP. New Hampshire DES also provided additional information to EPA on December 23, 2021. The submittal includes the LMP and attachments. The plan and attachments include air quality data, emission inventory information, air quality monitoring information, and documentation of notice, hearing, and public participation.

CAA section 110(a)(2) and 110(l) require revisions to a SIP to be adopted by a state after reasonable notice and public hearing. EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of a notice by prominent advertisement in the relevant geographic area of the proposed SIP revisions, at least a 30-day public comment period, and an opportunity for a public hearing.

New Hampshire DES published a notice of a 30-day comment period and notice for a public hearing for the LMP for the Portsmouth maintenance areas on the State's website. New Hampshire DES received no public comments, either written or oral. New Hampshire DES then submitted the Portsmouth area 1997 Ozone NAAQS LMP to EPA as a revision to the New Hampshire SIP. The process followed by New Hampshire DES in adopting the Portsmouth area 1997 Ozone NAAQS LMP complies with the procedural requirements for SIP revisions under CAA section 110 and EPA's implementing regulations.

EPA has reviewed the Portsmouth maintenance area 1997 Ozone NAAQS LMP, which is designed to maintain the 1997 ozone NAAQS within the Portsmouth area through the end of the 20-year period beyond redesignation, as required under CAA section 175A(b). The following is a summary of EPA's interpretation of the requirements  10 and EPA's evaluation of how each requirement is met.

For maintenance plans, a state should develop a comprehensive, accurate inventory of actual emissions for an attainment year to identify the level of emissions which is sufficient to maintain the NAAQS. A state should develop this inventory consistent with EPA's most recent guidance on emissions inventory development. For ozone, the inventory should be based on emissions of VOCs and NO X , as these pollutants are precursors to ozone formation. The Portsmouth area LMP includes an ozone attainment inventory for the Portsmouth area that reflects total emissions for every National Emissions Inventory (NEI) from 1996-2017. Tables 1 and 2 below contain the NEI data submitted by the State. The NEI is updated every three years. Additionally, though not technically required for a LMP, the tables include modeled emissions projections for 2023 and 2028. EPA notes that the modeled VOC emission estimates show a slight increase compared to actual measured emissions from 2017 NEI data, with a 12% increase from 2017 to 2023 for area sources and a 7% increase in non-road mobile sources for this same time. These are modeled projections, not actual emissions, and do not interfere with the State demonstrating an overall downward trend in total emissions during the maintenance period which continues in 2028.

Based on our review of the methods, models, and assumptions used by New Hampshire DES to develop the VOC and NO X estimates, we find that the Portsmouth area 1997 8-Hour Ozone NAAQS LMP includes comprehensive, reasonably accurate inventories of actual ozone precursor emissions and conclude that the plan's inventories are acceptable for the purposes of a subsequent maintenance plan under CAA section 175A(b).

The maintenance plan demonstration requirement is considered to be satisfied in a LMP if the state can provide sufficient weight of evidence indicating that air quality in the area is well below the level of the standard, that past air quality trends have been shown to be stable, and that the probability of the area experiencing a violation over the second 10-year maintenance period is low. 11 These criteria are evaluated below with regard to the Portsmouth area.

a. Evaluation of ozone air quality levels.

To attain the 1997 ozone NAAQS, the three-year average of the fourth-highest daily maximum 8-hour average ozone concentrations (design value) at each monitor within an area must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. Consistent with prior guidance, EPA believes that if the most recent air quality design value for the area is at a level that is well below the NAAQS ( e.g., below 85% of the standard, or in this case below 0.071 ppm), then EPA considers the state to have met the section 175A requirement for a demonstration that the area will maintain the NAAQS for the requisite period. 12 Such a demonstration assumes continued applicability of PSD requirements, any control measures already in the SIP, and that Federal measures will remain in place through the end of the second 10-year maintenance period, absent a showing consistent with section 110(l) that such measures are not necessary to assure maintenance. 13

Table 3 presents the design values for each monitor in the Portsmouth area over the 2017-2019 period. As shown in Table 3, all sites have been well below the level of the 1997 ozone NAAQS and the most current design value is below the level of 85% of the NAAQS, consistent with prior LMP guidance.

Therefore, the Portsmouth area demonstration that the areas will maintain the NAAQS based on the long record of monitored ozone concentrations that attain the NAAQS, together with the continuation of existing VOC and NO X emissions control programs, adequately provide for the maintenance of the 1997 ozone NAAQS in the Portsmouth maintenance areas through the second 10-year maintenance period (and beyond).

b. Stability of ozone levels.

As discussed above, the Portsmouth area has maintained air quality well below the 1997 ozone NAAQS over the past ten years. Additionally, the design value data shown within Table 2 illustrates that ozone levels have been relatively stable over this timeframe, with a modest downward trend. This downward trend in ozone levels, coupled with the relatively small year-over-year variation in ozone design values, makes it reasonable to conclude that the Portsmouth area will not exceed the 1997 ozone NAAQS during the second 10-year maintenance period.

After New Hampshire completed the LMP for the Portsmouth area, EPA released the final 2018-2020 ozone design values. These values show a continued downward trend in ozone levels, with a 2018-2020 design value for the Portsmouth area of 0.063 ppm. 14

EPA periodically reviews the ozone monitoring network that New Hampshire DES operates and maintains, in accordance with 40 CFR part 58. This network is consistent with the ambient air monitoring network assessment and plan developed by New Hampshire DES that is submitted annually to EPA and that follows a public notification and review process. EPA has reviewed and approved the 2020 Ambient Air Monitoring Network Assessment and Plan.

To verify the attainment status of the area over the maintenance period, the maintenance plan should contain provisions for continued operation of an appropriate, EPA-approved monitoring network in accordance with 40 CFR part 58. As noted above, New Hampshire DES's monitoring network in the Portsmouth area has been approved by EPA in accordance with 40 CFR part 58, and the area has committed to continue to maintain a network in accordance with EPA requirements. For further details on monitoring, the reader is referred to the “2020/2021 New Hampshire DES's Annual Network Plan” found at https://www.des.nh.gov/sites/g/files/ehbemt341/files/documents/r-ard-20-03.pdf, as well as EPA's approval letter for the 2020/2021 Annual Network Plan, which can be found in the docket for today's action. We believe New Hampshire's monitoring network is adequate to verify continued attainment of the 1997 ozone NAAQS in the Portsmouth area.

Section 175A(d) of the Act requires that a maintenance plan include contingency provisions. The purpose of such contingency provisions is to prevent future violations of the NAAQS or promptly remedy any NAAQS violations that might occur during the maintenance period. These contingency measures do not have to be fully adopted regulations at the time of redesignation. However, the contingency plan is an enforceable part of the SIP and should ensure that the contingency measures are adopted expeditiously once they are triggered by a future violation of the NAAQS or some other trigger. The contingency plan should identify the measures to be expeditiously adopted and provide a schedule and procedure for adoption and implementation of the measures. The state should also identify specific triggers which will be used to determine when the contingency measures need to be implemented. While a violation of the NAAQS is an acceptable trigger, states may wish to choose a violation action level below the NAAQS as a trigger, such as an exceedance of the NAAQS. By taking action promptly after an exceedance occurs, a state may be able to prevent a violation of the NAAQS. In the unlikely event of a violation, New Hampshire would be required to adopt and enforce new measures to remedy the violation. Possible contingency measures identified by New Hampshire include the following:

• NO X controls for industrial, commercial, and institutional (ICI) boilers.

• VOC controls for emulsified and cutback asphalt paving.

• VOC controls for consumer products.

EPA proposes to find that New Hampshire's contingency measures, as well as the commitment to continue implementing any SIP requirements, satisfy the pertinent requirements of CAA section 175A.

Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's conformity rule at 40 CFR part 93 requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. The conformity rule generally requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with the motor vehicle emissions budget (MVEB) contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). A MVEB is defined as “that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions (40 CFR 93.101).

Under the conformity rule, LMP areas may demonstrate conformity without a regional emission analysis (40 CFR 93.109(e)).

All actions that would require transportation conformity determinations for the Portsmouth ozone maintenance areas under our transportation conformity rule provisions are considered to have already satisfied the regional emissions analysis and “budget test” requirements in 40 CFR 93.118 as a result of an adequacy finding for the LMP or approval of the LMP. (See 69 FR 40004, 40063 (July 1, 2004).)

However, because LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs and projects. Specifically, for such determinations, RTPs, TIPs and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108), meet the criteria for consultation (40 CFR 93.105 and 40 CFR 93.112) and Transportation Control Measure (TCM) implementation in the conformity rule provisions (40 CFR 93.113). Additionally, conformity determinations for RTPs and TIPs must be determined no less frequently than every four years, and conformity of plan and TIP amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104. In addition, in order for projects to be approved, they must come from a currently conforming RTP and TIP (40 CFR 93.114 and 93.115). EPA meets monthly with the New Hampshire Department of Transportation, New Hampshire DES, the Federal Highway Administration (FHWA), the Federal Transit Authority (FTA), and other partners to ensure the conformity guidelines in the New Hampshire SIP are followed (see 78 FR 71504 for EPA's most recent approval of New Hampshire's “Conformity” regulation).

Under sections 110(k) and 175A of the CAA and for the reasons set forth above, EPA is proposing to approve the second 10-year LMP for the Portsmouth maintenance areas for the 1997 Ozone NAAQS, submitted by New Hampshire DES on February 18, 2020, as a revision to the New Hampshire SIP. We are proposing to approve the Portsmouth area LMP because we find that it includes an acceptable update of the various elements of the 1997 ozone NAAQS Maintenance Plan approved by EPA for the first 10-year period (including emissions inventory, assurance of adequate monitoring and verification of continued attainment, and contingency provisions), and essentially carries forward all of the control measures and contingency provisions relied upon in the earlier plan.

We also find that ozone design value for the Portsmouth area is sufficiently below the 1997 ozone standard to allow the State to submit a LMP and that the Portsmouth area 1997 Ozone NAAQS LMP adequately demonstrates maintenance of the 1997 8-hour ozone NAAQS through documentation of monitoring data showing maximum 1997 8-hour ozone levels well below the NAAQS and continuation of existing control measures. We believe the Portsmouth area 1997 Ozone LMP to be sufficient to provide for maintenance of the 1997 ozone NAAQS in the Portsmouth area over the second 10-year maintenance period (though 2026) and to thereby satisfy the requirements for such a plan under CAA section 175A(b).

EPA is proposing to approve the Portsmouth Area's Second 10-Year Limited Maintenance Plan for 1997 Ozone NAAQS into the New Hampshire SIP. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

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 proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

In addition, 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).

This is a summary of the Auction 108 Revised Inventory Public Notice, AU Docket No. 20-429, DA 22-171, adopted on February 18, 2022 and released on February 18, 2022. The complete text of the Auction 108 Revised Inventory Comment Public Notice is available on the Commission's website at https://www.fcc.gov/auction/108 or by using the search function for AU Docket No. 20-429, DA 22-171, on the Commission's Electronic Comment Filing System (ECFS) web page at www.fcc.gov/ecfs. Alternative formats are available to persons with disabilities by sending an email to FCC504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. By the Auction 108 Revised Inventory Comment Public Notice, the Office of Economics and Analytics (OEA) and the Wireless Telecommunications Bureau (WTB) seek further comment on the procedures governing to be used for Auction 108. Specifically, OEA and WTB seek comment on whether any procedures need to be adjusted for all the licenses available in Auction 108 in light of additions to the initial license inventory. OEA and WTB also seek comment on minimum opening bids and upfront payment amounts for the additional licenses. OEA and WTB have updated the listing of county and channel block combinations potentially available for Auction 108 to add or remove certain licenses, and that updated Attachment A file is available at www.fcc.gov/auction/108.

2. On January 13, 2021, the Commission released the Auction 108 Comment Public Notice, 86 FR 12146, that sought comment on competitive bidding procedures and various other procedures to be used in Auction 108, in accordance with 47 U.S.C. 309(j)(3). That public notice also described the licenses to be offered in Auction 108 and made available a file listing all county and channel block combinations potentially available for bidding in Auction 108. The Commission noted that the results of the Rural Tribal Priority Window would determine the final inventory, which would be released in advance of the deadline for the submission of short-form applications to bid in Auction 108. On February 9, 2022, OEA and WTB released the Auction 108 Further Comment Public Notice, 87 FR 8764, seeking comment on the use of a particular clock auction format for Auction 108.

3. The Auction 108 Revised Inventory Comment Public Notice seeks focused input on whether any bidding procedures for Auction 108 as described in those previous public notices should be adjusted or modified in light of the additions to the auction inventory. The Auction 108 Revised Inventory Comment Public Notice proposes no changes to the proposed upfront payments, minimum opening bids, or other procedures from those described in the Auction 108 Comment Public Notice and the Auction 108 Further Comment Public Notice. In light of the limited scope of the Auction 108 Revised Inventory Comment Public Notice and comments urging the Commission to move expeditiously to the start of bidding, OEA and WTB provide for a single round of comments by March 4, 2022, with no filing period for reply comments. A subsequent public notice will announce final procedures for Auction 108, including the procedures, terms, conditions, dates, and deadlines for applying to and participating in Auction 108, as well as provide an overview of the post-auction application and payment processes. An updated inventory for Auction 108 will be released prior to the short-form application deadline in Auction 108.

4. In light of the comments and ex parte filings made in this proceeding raising issues concerning the accuracy of the inventory, WTB staff performed additional geographic information systems (GIS) analysis of existing licenses and prepared a new inventory based on license service area data extracted from the Universal Licensing System (ULS) on February 2, 2022. For purposes of this analysis, a channel block/county combination is considered unavailable, and is therefore not included in the inventory, if more than 99.9999% of the area within the county is fully encumbered by an existing license for that channel block. In the 2.5 GHz Report and Order, 84 FR 57343, the Commission determined that any remaining unassigned EBS spectrum will be made available for commercial use via competitive bidding. In order to identify unassigned spectrum, WTB has treated as encumbered any areas calculated to be at least 99.9999% encumbered to avoid computational errors found to have been attributable to rounding when calculating areas as part of its GIS analysis. As a result of this further analysis, and taking into account the information provided by commenters, OEA and WTB have added 189 licenses in 130 counties and removed 370 licenses in 301 counties from the initial Auction 108 inventory. The majority of the changes to the inventory result from further review of the availability of the J guard band (2568-2572 MHz) in Channel Block 2 and further analysis of how canceled, terminated, or expired licenses modified the geographic service areas of active licenses.

5. In addition to reflecting further analysis of the incumbent licenses, the revised inventory also takes into account WTB's actions in the Rural Tribal Priority Window. The Commission established the Rural Tribal Priority Window to provide federally-recognized tribes with an opportunity to submit applications to obtain unassigned 2.5 GHz spectrum in order to foster communications networks in rural Tribal areas. The Rural Tribal Priority Window opened on February 3, 2020, and closed on September 2, 2020. The revised inventory reflects licenses issued based upon Rural Tribal Priority Window applications acted on to date. This inventory does not take into account Rural Tribal Priority Window applications that are pending ( i.e., counties that are requested in whole or in part by pending applications are included in this inventory). Potential bidders should be aware that there are counties that would become fully or partially encumbered if certain pending Rural Tribal Priority Window applications are granted.

6. OEA and WTB remind each potential bidder that it is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the potential uses of a license that it may seek in Auction 108, including the availability of unassigned white space in any particular market. In addition to the typical due diligence considerations encouraged of bidders in all auctions, OEA and WTB call particular attention in Auction 108 to potential encumbrances due to existing licenses and the Rural Tribal Priority Window issues, which may impact the licenses available in Auction 108. OEA and WTB note in particular that there will be a substantial number of licenses in inventory where the amount of unassigned area or frequency that is unassigned is very small. Each applicant should carefully consider these issues and the technical and economic implications for commercial use of the 2.5 GHz band. The Commission makes no representations or warranties about the use of this spectrum for particular services, or about the information in Commission databases that is furnished by outside parties. Each applicant should be aware that a Commission auction represents an opportunity to become a Commission licensee, subject to certain conditions and regulations. This includes the established authority of the Commission to alter the terms of existing licenses by rulemaking, which is equally applicable to licenses awarded by auction. A Commission auction does not constitute an endorsement by the Commission of any particular service, technology, or product, nor does a Commission license constitute a guarantee of business success.

7. The Auction 108 Comment Public Notice and the Auction 108 Further Comment Public Notice sought on procedures for Auction 108, including: Auction format; bidding credits for eligible small businesses and rural service providers; bidding credit caps; upfront payments and bidding eligibility; minimum opening bids and reserve prices; activity rules; activity rule waivers and reducing eligibility; and information procedures during the auction. In the Auction 108 Revised Inventory Comment Public Notice, OEA and WTB seek comment on whether these procedures need to be adjusted for all licenses in Auction 108 in light of additions to the initial license inventory. OEA and WTB also seek comment on minimum opening bids and upfront payment amounts for the additional licenses in the Auction 108 inventory

8. Digital Equity and Inclusion. As part of the Commission's continuing effort to advance digital equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality, OEA and WTB invite comment on any equity-related considerations and benefits (if any) that may be associated with the issues discussed in the Auction 108 Revised Inventory Comment Public Notice. Specifically, OEA and WTB seek comment on how any bidding procedures for Auction 108 as applied to the new licenses included in the revised inventory may promote or inhibit advances in diversity, equity, inclusion, and accessibility.

9. As required by the Regulatory Flexibility Act of 1980, as amended, OEA and WTB prepared a Third Supplemental Initial Regulatory Flexibility Analysis (Third Supplemental IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in the Auction 108 Revised Inventory Comment Public Notice to supplement the Regulatory Flexibility Analyses completed in the 2.5 GHz Report and Order, Auction 108 Comment Public Notice, Auction 108 Further Comment Public Notice, and other Commission orders pursuant to which Auction 108 will be conducted. Written public comments are requested on the Third Supplemental IRFA. Comments must be identified as responses to the Third Supplemental IRFA and must be filed by the same deadline for comments specified on the first page of the Auction 108 Revised Inventory Comment Public Notice. OEA and WTB will send a copy of the Auction 108 Revised Inventory Comment Public Notice, including the Third Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Auction 108 Revised Inventory Comment Public Notice and Third Supplemental IRFA (or summaries thereof) will be published in the Federal Register .

10. Need for, and Objectives of, the Proposed Rules. The Auction 108 Revised Inventory Comment Public Notice seeks comment on certain procedural rules that may be affected by the new licenses included in the revised inventory for Auction 108, which will auction geographic overlay licenses of unlicensed spectrum in the 2.5 GHz band (2496-2690 MHz). This process is intended to provide notice of and adequate time for potential applicants to comment on these auction procedures. To promote the efficient and fair administration of the competitive bidding process for all Auction 108 participants, the Auction 108 Revised Inventory Comment Public Notice seeks comment on the application of auction procedures detailed in the Auction 108 Comment Public Notice and the Auction 108 Further Comment Public Notice to the new licenses included in the revised inventory.

11. The procedures for the conduct of Auction 108 on which the Auction 108 Revised Inventory Comment Public Notice seeks comment constitute the more specific implementation of the competitive bidding rules contemplated by 47 CFR parts 1 and 27, the 2.5 GHz Report and Order, and relevant competitive bidding orders, and are fully consistent therewith.

12. Legal Basis. The Commission's statutory obligations to small businesses under the Communications Act of 1934, as amended, are found in 47 U.S.C. 309(j)(3)(B) and 309(j)(4)(D). The statutory basis for the Commission's competitive bidding rules is found in various provisions of the Communications Act of 1934, as amended, including 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), 303(r), 304, 307, and 309(j). The Commission has established a framework of competitive bidding rules, updated most recently in 2015, pursuant to which it has conducted auctions since the inception of the auctions program in 1994 and would conduct Auction 108.

13. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term small entity as having the same meaning as the terms small business, small organization, and small governmental jurisdiction. In addition, the term small business has the same meaning as the term small business concern under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

14. As noted above, Regulatory Flexibility Analyses were incorporated into the 2.5 GHz Report and Order, the Auction 108 Comment Public Notice, and the Auction 108 Further Comment Public Notice. Those analyses described in detail the small entities that might be significantly affected. In the Auction 108 Revised Inventory Comment Public Notice, OEA and WTB hereby incorporate by reference the descriptions and estimates of the number of small entities from the previous Regulatory Flexibility Analyses in the 2.5 GHz Report and Order, the Auction 108 Comment Public Notice, and the Auction 108 Further Comment Public Notice.

15. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. OEA and WTB do not expect the processes and procedures described in the Auction 108 Revised Inventory Comment Public Notice will require small entities to hire attorneys, engineers, consultants, or other professionals to participate in Auction 108 and comply with the procedures ultimately established because of the information, resources, and guidance the Commission makes available to potential and actual participants. For example, OEA intends to make information on the bidding system available and offer demonstrations and other educational opportunities for applicants in Auction 108 to familiarize themselves with the FCC auction application system and the auction bidding system, consistent with the previously detailed bidding procedures that may be affected by new licenses added to the inventory as described in the Auction 108 Revised Inventory Comment Public Notice. By providing these resources as well as the resources discussed below, OEA and WTB expect small entities that use the available resources to experience lower participation and compliance costs. Nevertheless, while WTB and OEA cannot quantify the cost of compliance with the procedures on which they seek comment, they do not believe that the costs of compliance will unduly burden small entities that choose to participate in the auction because the procedures for Auction 108 on which the Auction 108 Revised Inventory Comment Public Notice seeks comment are similar in many respects to the procedures in recent spectrum auctions conducted by the Commission.

16. Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.

17. OEA and WTB have taken steps to minimize any economic impact of the auction procedures on small entities through, among other things, the Commission's potential use of previously detailed auction procedures under the revised inventory. The Commission received comments noting discrepancies in the initial Auction 108 inventory that the Commission released with the Auction 108 Comment Pubic Notice. The revised inventory will allow all interested parties, including small entities, to further evaluate the potential procedures for Auction 108 in light of the new licenses included in the revised inventory and provide small entities with information about the available licenses essential to conducting their own due diligence.

18. OEA and WTB have also taken steps to minimize any economic impact of the auction procedures on small entities through, among other things, the many resources the Commission provides potential auction participants. These resources, which are described in detail in the Supplemental IRFA incorporated into the Auction 108 Comment Public Notice are provided at no cost and include, for example, access to an FCC Auctions Hotline for information about the auction process and procedures; an FCC Auctions Technical Support Hotline for technical assistance on issues such as access to or navigation within the electronic FCC Form 175 and use of the FCC's auction bidding system; a web-based, interactive online tutorial produced by Commission staff to familiarize applicants with auction procedures, filing requirements, bidding procedures, and other matters related to an auction; the opportunity to participate in a mock auction; and the opportunity to participate in Auction 108 electronically via the internet. Additionally, eligible small businesses and rural service providers will be able to participate in the bidding credit program for Auction 108, which may lower their relative costs of participation. In the Auction 108 Revised Inventory Comment Public Notice, OEA and WTB incorporate by reference the description of the additional steps taken to minimize the significant economic impact on small entities, and significant alternatives considered, from the Regulatory Flexibility Analysis in the Auction 108 Comment Public Notice and Auction 108 Further Comment Public Notice.

19. These procedures for the conduct of Auction 108 on which the Auction 108 Revised Inventory Comment Public Notice seeks comment constitute the more specific implementation of the competitive bidding rules contemplated by 47 CFR parts 1 and 27, the 2.5 GHz Report and Order, and relevant competitive bidding orders, and are fully consistent therewith.

20. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None.

21. Pursuant to 47 CFR 1.415(d) and 1.419, interested parties may file comments on or before the date indicated on the first page of the Auction 108 Revised Inventory Comment Public Notice, in AU Docket No. 20-429. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.

22. Ex Parte Requirements. This proceeding has been designated as a permit-but-disclose proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations must file a copy of any written presentations or memoranda summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine Period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to the Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 47 CFR 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

The Pacific Coast Groundfish Fishery Management Plan (FMP) specifies management measures for over 90 different groundfish species in Federal waters off the West Coast states. Target species in the commercial fishery include Pacific whiting (hake), sablefish, dover sole, and rockfish, which are harvested by vessels primarily using midwater trawl and bottom trawl gear, and to a lesser extent “fixed gear” fish pots and longline. The trawl fishery is managed under the West Coast Groundfish Trawl Catch Share Program (Catch Share Program), which was implemented through Amendment 20 to the FMP in January 2011. The Catch Share Program consists of an individual fishing quota (IFQ) program for the shorebased trawl fishery (including whiting and non-whiting sectors), and cooperatives for the at-sea mothership (MS) and catcher/processor (C/P) trawl fisheries (whiting only). The Catch Share Program requires 100 percent monitoring of vessels at-sea, and dockside when offloading, to ensure accountability for all landings and discards of allocated IFQ species. The West Coast Groundfish Observer Program (WCGOP) is responsible for the training, briefing, and in-season support of at-sea observers in the Catch Share Program. WCGOP helps to manage and review the catch data collected by observers while at-sea.

Vessel owners and first receivers are responsible for obtaining and funding catch share observers and catch monitors as a condition of participating in the Catch Share Program. To provide a potential cost-saving alternative to human observers, the Pacific Fishery Management Council, NMFS, and groundfish stakeholders have been developing an electronic monitoring (EM) program as an option to meet at-sea monitoring requirements of the Catch Share Program. EM uses cameras and associated sensors to record and monitor fishing activities while a vessel is operating at sea. Video data is later reviewed by an analyst onshore to collect catch and effort information. EM can reduce monitoring costs for some vessels because it does not require deploying a human observer to the vessel, and associated, labor, travel, and logistical expenses.

On September 6, 2016, NMFS published the proposed rule providing a regulatory framework for EM in the Pacific Coast groundfish fisheries, and specific regulations for EM use with whiting midwater trawl gear and fixed gear (81 FR 61161). As discussed in that proposed rule, the Council originally contemplated including regulations for all gear types used in the Catch Share Program (whiting, non-whiting midwater, bottom trawl, and fixed gear) in one regulatory amendment. However, at the time, additional information was needed to finalize protocols for the use of EM on trips using bottom-trawl and non-whiting midwater gear. In April, September, and November 2017, the Council discussed various aspects of the EM program and took final action to recommend the use of EM with bottom trawl and non-whiting midwater trawl gear.

On June 28, 2019, NMFS published the final rule to allow the use of EM on whiting and fixed gear trips (84 FR 31146). The final rule established the overall EM program requirements, including an application process and responsibilities for participating vessel owners and operators and EM service providers, requirements for first receivers receiving catch from EM trips, and detailed gear-specific protocols for the use of EM on whiting and fixed gear trips. The final rule also set the implementation of third party EM service provider data services to January 1, 2021, to provide additional time to prepare for implementation.

At the April and June 2020 meetings, the Council considered and ultimately recommended other minor regulatory changes to existing EM program regulations implemented under the June 2019 final rule (84 FR 31146; June 28, 2019). These regulatory changes were identified and developed from information collected through exempted fishing permits (EFPs) used to test EM systems and protocols, and are intended to clarify and streamline EM program requirements. These proposed regulatory changes are included under this proposed rule, and are described in the following sections of this preamble.

At its April and June 2020 meetings the Council also recommended a delay in program implementation until January 1, 2022. NMFS approved the recommendation, to strengthen Council and industry support for the EM program, and to increase participation when the program is implemented. NMFS published a subsequent proposed rule (85 FR 53313; August 28, 2020) and final rule (85 FR 74614; November 23, 2020) that delayed implementation of the EM program by one year until January 1, 2022, to provide additional time for industry and prospective service providers to prepare for implementation.

At the June 2021 meeting, the Council again discussed delaying implementation of all EM program regulations, and took action at the September 2021 meeting to recommend that NMFS delay implementation of the entire EM program until January 1, 2024. NMFS published an interim final rule on October 6, 2021 (86 FR 55525) that changed effective dates in regulations in order to delay all other EM program regulations until at least January 1, 2024, and only after NMFS issues a public notice at least 90 calendar days before it will begin accepting applications for EM Authorizations for the first year of the Program. The Council and the industry have expressed the need to further develop a mechanism for the industry to fund video review and storage by Pacific States Marine Fishery Commission (PSMFC). The Council and members of the fishing industry would like PSMFC to continue participating as a NMFS-certified, sole-source service provider under the EM regulatory program. They assert that PSMFC can provide video review services at lower cost than private sector service provider companies. Consistent with the existing regulations implemented under the October 6, 2021 interim final rule (86 FR 55525), these proposed regulations would similarly not be implemented before January 1, 2024.

Despite the delay in implementation of the EM program, NMFS is proceeding with this proposed rule that would allow the use of EM on trips with bottom-trawl and non-whiting midwater trawl gear. Should the Council take action to change EM service provider regulations to allow PSMFC to function as a sole-source EM service provider, NMFS would need to initiate a separate proposed and final rulemaking to make necessary changes to the existing regulations for EM service providers that were finalized under the June 2019 final rule (84 FR 31146; June 28, 2019). Whether the Council chooses to take action to change EM service provider regulations, or not, completing the rulemaking process for the use of EM on bottom-trawl and non-whiting midwater trawl trips will ensure all regulations are in place for vessels to use EM with any legal groundfish gear type in advance of EM program implementation.

In the October 2021 interim final rule, NMFS acknowledged that some permit applications had already been received at the time of the rulemaking. NMFS will consider and review these applications in advance of the date the program is fully implemented. Upon review NMFS will make a determination regarding the status of the applicant and may request updated information.

The Council deemed the proposed regulations necessary and appropriate to implement this action in a January 20, 2022, letter from Council Executive Director, Merrick Burden, to Regional Administrator Barry Thom. Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is required to publish proposed rules for comment after preliminarily determining whether they are consistent with applicable law. We are seeking comment on the proposed regulations in this action and whether they are consistent with the Pacific Coast Groundfish FMP, the Magnuson-Stevens Act and its National Standards, and other applicable laws.

The June 2019 final rule (84 FR 31146; June 28, 2019) implemented the overall framework and general requirements for the EM Program, including an application process for vessel owners and EM service providers and responsibilities for all program participants. This rule proposes to allow vessels participating in the EM Program to use bottom trawl gear or midwater trawl gear targeting non-whiting species, under the same general program requirements already in place for trips targeting whiting or using fixed gear. Vessel owners would be able to apply to NMFS to use EM in place of human observers to meet the 100-percent at-sea monitoring requirements of the Catch Share Program for bottom trawl or non-whiting midwater trawl trips. As is currently required under the EM Program regulations, vessel owners intending to use EM for bottom trawl or non-whiting midwater trawl trips would be required to develop a vessel monitoring plan (VMP) which documents installation of EM systems, including specific plans and procedures for system operation, maintenance, and catch handling. This information would be submitted to NMFS for review as part of the vessel's application for authorization to use EM. The vessel operator would be required to record discards of IFQ species on a logbook, which would initially be used to debit quota pounds from the vessel's account. The EM video data would then be reviewed by the vessel's EM provider and used to validate the discards reported in the logbook. The amount of video reviewed to audit the logbook would be as specified by NMFS in consultation with the Council and based on performance.

A detailed description of EM program requirements is contained in the September 2016 proposed rule (81 FR 61161; September 6, 2016) and June 2019 final rule (84 FR 31146; June 28, 2019) and is not repeated here. This proposed rule revises the gear-specific requirements of the EM Program to add requirements for trips using bottom trawl and non-whiting midwater trawl gear, and are described in the following sections of this preamble.

Under this proposed rule, two different discard and catch retention rules could be used with EM on bottom trawl, and non-whiting midwater trawl trips: “maximized” or “optimized” retention. Vessel operators would be able choose the preferred retention rule under which they would plan to operate for a fishing trip using EM. As part of the required declaration report, prior to departing on a fishing trip, vessel operators would declare whether they intend to use maximized or optimized retention rules for the trip. Declaration reports are described in additional detail in following sections of this preamble.

Under proposed “maximized” retention requirements, vessels on bottom trawl and non-whiting midwater trawl trips would not sort or discard catch at-sea, and would be required to retain all catch until landing, with exceptions for prohibited and protected species.

Under “optimized” retention, EM vessel operators would be allowed to discard species that can be differentiated on camera, and retain those species that cannot be easily distinguished in video data. Some groundfish species are difficult to distinguish from each other without close inspection of certain physical features which cannot be easily viewed using video data. Species easily differentiated that may be discarded would be listed in § 660.604(p).

Vessel operators using EM on bottom trawl and non-whiting midwater trawl trips would be responsible for ensuring all discarded catch would be discarded following catch handling instructions in the NMFS-accepted VMP. This proposed rule would allow NMFS to specify alternate retention requirements in a NMFS-accepted VMP through the process described at § 660.604(f), after consultation with the Council and issuance of a public notice notifying the public of the changes.

Both retention rules have trade-offs, depending on the target species and gear type used. “Maximized” retention would simplify catch handling at sea, and video review as only prohibited and protected species discards would need to be differentiated on camera. “Optimized” retention would allow vessel operators to discard catch that can be differentiated on camera, and would reduce the burden of having to store and later dispose of unmarketable or otherwise undesirable fish. The Council originally recommended “optimized” retention rules as the preferred alternative for bottom trawl and non-whiting midwater EM trips because the Council considered “maximized” retention too restrictive. However, some EFP vessel operators on non-whiting midwater trawl trips targeting rockfish expressed a preference for “maximized” retention as it simplified catch handling in a manner consistent with vessel operation on midwater whiting trips. The Council determined that allowing vessel operators to choose the retention rules that best fit the operation of gear and vessel, as well as the characteristics of the target species, would provide operational flexibility and ensure the reliability of EM video data for discard accounting.

This proposed rule would also expand the definition of prohibited species for the purposes of retention requirements under EM regulations at § 660.601. California Department of Fish and Wildlife (CDFW) recommended this proposed regulatory change to ensure state-managed species would be treated in the same manner as prohibited species if the vessel operator, or first-receiver, does not have the appropriate state permit to land and sell these particular species of fish. Because the retention/discard species list can change through time, CDFW recommended to the Council regulatory language that would cover any state-managed species to eliminate the need for further revisions should other state-managed species be added or removed from the lists.

Under the proposed rule, vessels on bottom trawl and non-whiting midwater trawl trips would be allowed to switch between using EM systems on some trips and human observers on others. Current West Coast fisheries regulations at § 660.13(d) require vessel operators to declare the fishery sector in which they will participate, the area to be fished, and the gear and monitoring type (EM or observers) they intend to use prior to leaving port, with limited exemptions. The gear types or sectors, and monitoring types that must be declared are listed in regulations at § 660.13(d)(4)(iv)(A). These declarations are sent to the NMFS Office of Law Enforcement (OLE), and are binding for the duration of the fishing trip for which they have been made. This proposed rule would modify the list of declarations to include EM as a monitoring type that may be selected and declared on trips with bottom trawl and non-whiting midwater trawl gear.

Under current regulations at § 660.604(e)(3)(ii), EM vessel operators are required to submit annual tentative fishing plans to NMFS. Tentative fishing plans are used by WCGOP and observer providers to plan training and deployment of observers. Tentative fishing plans are a description of the vessel owner's fishing plans for the year, including which fishery the vessel owner plans to participate in, from what ports, and when the vessel owner intends to use EM and observers. The information provided in tentative fishing plans is for purposes of planning observer training and deployments, and is not binding.

Under this proposed rule, vessel owners and operators taking bottom trawl and non-whiting midwater trawl trips would not be restricted on the number of times they could switch between EM and observers during the year. Vessel operators are required to communicate their intent to use either monitoring type before fishing through declarations to NMFS OLE. The Council determined that by using tentative fishing plans, disruption to observer training and deployment would be mitigated should vessel operators choose to switch monitoring types, therefore eliminating the need to require limits on switching monitoring types. The option to switch between EM and observers provides vessel operators flexibility to use the best monitoring strategy when considering efficiency, cost, or other operational factors of their individual fishing and business plans at a given time. There would be no limit on switching between observers and EM for non-whiting midwater trawl and groundfish bottom trawl vessels.

Under existing regulations at § 660.604(n), as described above, a vessel operator must declare their intent to use either EM or observers 48 hours prior to leaving port. Under proposed regulations for “maximized” and “optimized” retention, the operator would also be required to include the retention rules they intend to use in their declaration to WCGOP 48 hours prior to leaving port on a trip using EM with bottom trawl or non-whiting midwater trawl gear. This timeframe and declaration allows for the planning of observer deployment. “Optimized” retention EM trips would continue to require partial observer coverage for the purpose of collecting biological samples of discarded catch. Biological samples include age, sex, and length specimen data which cannot be obtained through EM systems. Requiring the vessel operator to notify WCGOP of their intended retention type will ensure optimized retention trips can be selected for biological sampling. WCGOP does not require partial observer coverage on maximized retention EM trips for biological sampling at this time, but could potentially in the future.

Under the proposed regulations, a group of eligible vessel owners participating in the shorebased IFQ sector, including those that take bottom trawl and non-whiting midwater trawl trips, may obtain a group EM authorization through a self-enforcing agreement. Through a private, contractual arrangement, a self-enforcing agreement allows a co-signed group of vessels, owners, operators, and other interested parties to cooperatively encourage, and enforce, compliance of EM program requirements by members. To be considered for a group EM authorization, a group of vessel owners must submit a complete initial EM authorization application package to NMFS for review and approval. The package must include a copy of the self-enforcing agreement to be eligible to receive a group EM authorization. Participating vessel owners would be required to agree to conduct fishing operations according to the terms of the self-enforcing agreement. NMFS would still bear the ultimate responsibility for enforcing the EM regulations.

The self-enforcing agreement would need to include a description of participating members, responsibilities, procedures for communication with members and NMFS, equipment performance standards, provisions for the use and protection of confidential data, measures to enforce compliance, procedures for addressing non-compliance of members, and annual reports to the Council.

Under these proposed regulations, NMFS would have the authority to invalidate a group EM authorization if determined that any of the vessels, owners, and/or operators no longer meet the eligibility criteria for the self-enforcing agreement. NMFS would first notify the members of the group EM authorization of the deficiencies in writing, providing instructions, for members to correct the deficiencies. If the deficiencies are not resolved upon review of the first trip following the notification, NMFS will notify the members in writing that the group EM authorization is invalid and that the members are no longer exempt from observer coverage at §§ 660.140(h)(1)(i) and 660.150(j)(1)(i)(B) for that authorization period. After the invalidation of a group EM authorization, individual vessels would be able to apply for individual authorizations.

The Council recommended the allowance of self-enforcing cooperative agreements for shorebased IFQ vessels in the EM program based on prior participation in EM EFPs by fishing cooperatives. Under proposed regulations, a fishing collective that has operated under a cooperative self-enforcing agreement to test EM under EFPs would be able to apply for authorization to continue self-enforced compliance with the EM program. This proposed rule would allow additional groups of shorebased IFQ vessels applying for EM authorization to enter in the self-enforcing cooperative agreements. These agreements would help to encourage compliance with the many day-to-day responsibilities for EM system maintenance and catch handling requirements of the EM program.

In June 2019, NMFS published the final rule to implement an EM program for whiting and fixed gear vessels operating within the trawl fishery (84 FR 31146; June 28, 2019), establishing responsibility requirements for vessel operators using EM systems, and for EM service providers. These responsibilities are detailed in the final rule, and include declaration of EM system use by vessel operators, protocols for transferring and handling EM data, logbook processing requirements, and technical reports by EM service providers. Minor changes necessary to clarify these regulations were identified after the publication of the 2019 final rule. The regulatory changes described below were developed through Council discussion with NMFS and members of industry at the Council's April and June 2020 meetings. The Council's intent in developing these regulatory changes is to refine and clarify certain EM program requirements and improve the effectiveness of the EM program overall in meeting its intended monitoring goals for the Trawl Catch Share Program.

This proposed regulatory change would increase the hard drive submission deadline to 72 hours from the beginning of the offload following a fishing trip in which EM was used. Under current EM program regulations at § 660.604(s)(3), vessels using EM systems are required to submit hard drives storing EM video data within 24 hours of beginning an offload after a fishing trip. Increasing this deadline to 72 hours would align it with the hard drive submission requirements used under EM EFPs. This change would provide additional time for vessel operators to comply with hard drive submission requirements with minimal impact to the timeliness of data. This change would also ensure a smooth transition for vessels operating under EFPs to the full EM program regulations when they become effective.

This proposed regulatory change would require the scrubbing of EM hard drives only if end-to-end encryption is not used. Current EM regulations at § 660.603(m)(3) require service providers to remove all EM data before hard drives can be reused in the field. This requirement was intended to ensure protection of confidential information for vessel owners and operators. However, regular scrubbing of hard drives can shorten their functional life, and require their replacement more frequently, increasing operational costs for EM users. NMFS and the Council determined that the use of end-to-end encryption would sufficiently protect sensitive information and extend the life of EM hard drives. End-to-end encryption protects information encrypted by the sender, allowing only recipients with the encryption key to decrypt and access the information. Third parties without the encryption key would not have the means to read the files. Starting in 2017, NMFS stopped requiring scrubbing of hard drives that use end-to-end encryption in the EM EFP, which is consistent with practices in other regions. This regulatory change would reduce program costs, and still allow vessel owners to work with service providers to develop more strict requirements for the treatment of hard drives.

The Council is recommending removing the limit on switching between observers and EM for whiting trips. Current regulations at § 660.604(m) restrict vessel operators on whiting trips from revising a monitoring declaration more than twice per calendar year, except in the case of an EM system malfunction. The limit was intended to prevent frequent switching that could disrupt deployment planning and affect the availability of observers. As NMFS described in the September 2016 proposed rule (81 FR 61161; September 6, 2016), and finalized in the June 2019 final rule (84 FR 31146; June 28, 2019), NMFS may waive the limit on switching between monitoring types if it is not necessary for planning observer deployment. After the final rule published, NMFS and the Council determined that a regulatory restriction on how many times a vessel taking whiting trips can switch between observers and EM was unnecessary. Under current regulations, vessels owners are required to provide a tentative fishing plan when they apply for their annual EM Authorization, in which the vessel owner gives NMFS advance notice of their plans to use EM and observers for the upcoming fishing year. WCGOP and observer providers then can use this information for planning purposes. This information negates the need for restrictions on switching between observers and EM. Therefore, the Council recommended, and NMFS proposes eliminating the limit on switching between EM and observers for whiting trips under this proposed rule. This proposed change would align the flexibility in moving between EM and observer coverage for all trip types (bottom trawl, whiting midwater, non-whiting midwater, and fixed gear).

Current EM regulations at § 660.604(e)(1)(iii) require a vessel applying to use EM in the mothership sector to have a valid mothership/catcher vessel (MS/CV) endorsement to qualify for authorization. This requirement was initially included for vessels testing EM under EFPs, as having valid permits for all intended fishing activities is a standard requirement for EFP eligibility. However, the regulations governing Mothership cooperatives at § 660.150(g)(1) allow for a vessel without an MS/CV endorsement, but that is enrolled in the mothership cooperative to deliver to a mothership. It was not the Council's and NMFS's intent to restrict participation in EM to only those vessels with MS/CV endorsement. Including this eligibility criterion was a holdover from the EFP terms and conditions and is not consistent with Council intent. Therefore, this proposed rule would remove the eligibility requirement at § 660.604(e)(1)(iii) for an MS/CV endorsement to be eligible to use EM on MS/CV trips.

This proposed regulatory change would require all vessel owners to submit discard logbooks directly to their EM service providers following a fishing trip in which EM was used. EM service providers would receive and process discard logbooks by entering data, performing quality assurance and control, and subsequently submit logbook data to NMFS for review. Service providers would be required to submit initial logbook data to NMFS within two business days of receipt from vessel operators.

Current EM regulations at § 660.604(s) assume vessel operators would submit discard logbooks directly to NMFS or its agent for processing. Under this model, NMFS would data enter, and check logbooks for accuracy and issues, which would then be used to initially debit discarded catch from vessel IFQ accounts. EM service providers review video data separately, with WCGOP providing some logbook data to EM service providers that is necessary for completing the video review, such as trawl gear codend capacity, but with most identifying logbook data withheld to ensure video review is done blind.

Under current regulations, having NMFS process logbooks directly would require back-and-forth with EM service providers to accurately match logbooks with EM trips, select trips or hauls for review, compare logbook and EM discard estimates, and investigate any discrepancies. Vessel owners must submit logbooks directly to NMFS via a secure transmission method to comply with confidentiality and data security requirements, limiting the methods by which NMFS can receive logbooks.

At the November 2020 Groundfish Electronic Monitoring Program Advisory Committee (GEMPAC) meeting, GEMPAC members proposed an alternative procedure in which EM service providers would receive, complete data entry, review logbook data, and submit results to NMFS. NMFS and the Council determined it would be more efficient and cost effective to have EM service providers receive both logbooks and EM data directly from vessel owners for initial processing, entry, and quality control, and simply report final data to NMFS. NMFS would also receive logbooks, and use its debriefing procedures to carry out quality control on the logbook data and to check for potential bias in the video review. Having EM service providers process logbooks would also allow individual vessel operators to develop optimal submission methods for discard logbooks with their respective EM service providers. NMFS supports the Council recommendation and therefore proposes the change through this proposed rule.

Under current regulations at § 660.603, EM service providers are responsible for providing various feedback reports to vessel operators, and summaries to NMFS. These reports include logbook data, technical assistance, vessel operator feedback, EM summary data, and compliance reports. Submission of this information by service providers has been required in regulations as of June 2019, however, deadlines for the submission of these reports were not originally specified in regulation. Under this proposed rule, NMFS would establish submission deadlines for these required EM service providers' reports. This proposed change would allow NMFS to enforce timely submission of EM data. The submission deadlines for each report are specified below.

As described previously in this proposed rule, vessel operators would submit discard logbooks directly to EM service providers for processing. The Council recommended, and NMFS is proposing, that service providers would submit the initial logbook data to NMFS within two days of receipt from vessel operators. This deadline would help to ensure timely debiting of discards from vessel IFQ accounts, and is consistent with submission timelines used for EM EFPs, and WCGOP observer data. Setting the deadline based on the receipt of initial, rather than final, logbook data would ensure service providers are not held responsible for late or incomplete submissions from vessel operators. After initial logbook submission, the EM service provider would work with the vessel operator to review data and, if necessary, revise and submit updated logbook data. Under these proposed regulatory changes, requiring concrete deadlines for these reports in the regulations would ensure the timely submission of discard estimates from logbook data, which is essential for discard accounting in the Catch Share program, and to provide clear expectations for all participants.

Under current regulations at § 660.603(k), EM service providers are required to submit reports to NMFS when technical assistance is requested by vessels on EM trips. These reports of technical assistance allow NMFS to monitor the performance of EM systems and field services, and follow up should any potential enforcement issues arise. Under this proposed rule, NMFS would require technical assistance reports to be submitted within 24 hours of the EM service provider being notified by the vessel operator. This change would be consistent with how these notifications have occurred in the EM EFP.

Under current regulations at § 660.603(m)(4), EM service providers are required to provide feedback reports to vessel operators and field services staff. Feedback is required on EM systems, crew responsibilities, and any other information that would improve the quality and effectiveness of data collection on the vessel. Through this proposed rule, NMFS would require feedback to be submitted to vessels within three weeks of the date EM data is received from the vessel operator for processing by the service provider. Prospective service providers, EFP vessel operators, and industry members have provided feedback through the Council process that three weeks is a reasonable timeline for the submission vessel feedback reports. Specifically, a submission deadline of three weeks after the service provider receives the hard drive from a vessel would ensure that EM service providers are not held responsible for late submissions by vessel operators. A shorter timeline may be more difficult for EM service providers to meet if they receive several hard drives at once, such as during busy times of the year. However, a longer timeline may not provide timely feedback to vessel operators and updates to discard data. Concrete and enforceable deadlines are necessary to ensure service providers submit feedback reports in a timely manner, and establish the data processing procedures to meet these deadlines. It is critically important to provide timely feedback to vessel captains and crew on catch handling, EM system care, and other aspects of operations that affect data quality. Timely feedback to vessels would help to ensure the quality of EM data, and reliability of the EM program in meeting monitoring goals of the Catch Share program.

Current regulations at § 660.603(m)(5) require service providers to submit EM summary data and compliance reports to NMFS following completion of video review. EM summary data includes discard estimates, fishing activity information, and trip metadata. This proposed rule would require EM summary data and compliance reports to be submitted to NMFS three weeks from the date the vessel operator submits EM data for processing. EM summary data and compliance reports are used by NMFS to debit vessel accounts, monitor program and vessel performance, and enforce requirements of the EM program. Trip metadata is an essential record of when and where EM data were created by the vessel, submission time, date and location of review, and point of contacts for reviewers. Trip metadata ensures fishing data can be accurately corroborated with logbook data and is necessary for a complete chain of custody and accountability between the vessel, service provider, and NMFS. Catch discards would initially be debited from vessel accounts in the IFQ database using logbook data, as described previously; discards would largely be accounted for following logbook processing, and audited using EM data. If there are large discrepancies between the logbook and EM summary data, then a longer reporting timeline may result in vessel account owners experiencing unexpected debits, or being unable to “close-out” an account for a fishing trip until the EM data are received. In the EM EFP, reporting timelines have ranged from one to two weeks after receipt of the hard drive in 2015 to one to two months during periods of higher fishing activity in 2019. Feedback from prospective EM service providers is that three weeks after receipt of the hard drive may be a reasonable timeline for completion of the video review and submission of reports. NMFS recommended three weeks, with support from the Council's GEMPAC and Groundfish Management Team, as being a reasonable amount of time for service providers to complete review and subsequently prepare summary data and compliance reports.

This proposed rule would change the minimum length of time service providers are required to retain EM data records. Under current regulations, service providers must maintain all of a vessel's EM data, reports, and other records specified in regulations at § 660.603(m) Data services for a period of not less than three years after the date of landing for that trip. The rationale for originally adopting a three-year minimum retention period for EM data is detailed in the June 2019 final rule (84 FR 31146; June 28, 2019). Since that final rule, NMFS evaluated the feasibility and cost effectiveness of a shorter retention period, and has developed a national policy on the minimum time that EM data must be retained.

Under this proposed rule, EM service providers would be required to maintain EM data for a period of not less than 12 months starting after NMFS has officially completed end-of-year account reconciliation and catch monitoring. This proposed regulatory change would align with the 12-month minimum data retention period in the NMFS Procedural Directive 04-115-03 (see ADDRESSES ) for third-party minimum data retention in EM programs for federally managed U.S. fisheries. Review of catch monitoring data, including EM data, usually extends beyond the close of the fishery at the end of the calendar year. Starting the clock for the minimum retention period following end-of-the-year data reconciliation would best meet the recommendations of the procedural directive.

This proposed change would revise regulations at § 660.603(h) defining limitations on conflicts of interest for EM service providers to exclude providing other types of technical and equipment services to fishing companies. The definition in regulations currently excludes “the provision of observer, catch monitor, EM or other biological sampling services, in any Federal or state-managed fisheries” from the definition of a “direct financial interest.” After the final rule was published, an EM service provider brought to the Council's attention that many EM vendors provide a range of other services to fishing companies, including vessel monitoring systems (VMS), automatic identification system (AIS) transponders, telemetry (such as product temperature monitoring for seafood safety), buoy and gear monitoring, sonar systems, and mandatory safety services. Under the current regulatory definition, such EM vendors would be ineligible to provide EM services. The EM service provider noted that there is no evidence to suggest that providing such technical services to fishing companies creates any greater conflict of interest than providing biological sampling services, and requested that the definition be revised. Therefore, the Council recommended, and NMFS is proposing, revising the definition of a conflict of interest at § 660.603(h) to exclude providing other types of technical and equipment services to fishing companies.

In addition to the proposed regulatory changes already described, the Council also recommended two clarifying corrections to language in the EM program regulations. The first correction is technical and would change the reference to “a NMFS-accepted EM Service Plan” under § 660.603(a)(1) to correctly refer to paragraph § 660.603(b)(1)(vii). The second correction would change a reference to “owner or operator” to instead be “authorized representative of the vessel” in § 660.603(n)(3), which is consistent with language in other regulations in 50 CFR 660—Fisheries Off West Coast States. This correction would clarify that a representative designated by the vessel owner, rather than solely the vessel owner or operator, is allowed to transfer EM data to service providers for review. NMFS supports these changes, and is proposing these changes through this proposed rule.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Coast Groundfish FMP, Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment. In making the final determination, NMFS will take into account the complete record, including the data, views, and comments received during the comment period.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the Pacific Coast Groundfish FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.