Title III, Part C  1 of EPCA, 2 established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317) Such equipment includes CWAFs, which are the subject of this NOPD. 3 (42 U.S.C. 6311(J))

Pursuant to EPCA, DOE is triggered to consider amending the energy efficiency standards for certain types of 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”). Under a separate provision of EPCA, DOE is required to review the existing energy conservation standards for those types of covered equipment subject to ASHRAE Standard 90.1, at a minimum, every 6 years after issuance of any final rule establishing or amending a standard (42 U.S.C. 6313(a)(6)(A)-(C)). DOE is conducting this review of the energy conservation standards for CWAFs under EPCA's six-year-lookback authority. (42 U.S.C. 6313(a)(6)(C))

For this proposed determination, DOE considered CWAFs subject to the current Federal energy conservation standards specified in the Code of Federal Regulations (CFR) at 10 CFR 431.77. In a direct final rule published in the Federal Register on January 15, 2016 (“January 2016 final rule”), DOE, in relevant part, established amended standards for CWAFs, including energy conservation standards for which compliance is required beginning on January 1, 2023. 81 FR 2420. DOE has tentatively determined that there is significant uncertainty regarding whether more-stringent standards would be economically justified at this time, a matter which the Department discusses in more detail in section III.F of this document. Therefore, DOE has preliminarily determined that the energy conservation standards for CWAFs do not need to be amended because there is not clear and convincing evidence that amended standards would be economically justified, as required by EPCA to establish a more-stringent standard. (42 U.S.C. 6313(a)(6)(A)(ii)(II))

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

EPCA, Public Law 94-163 (42 U.S.C. 6291-6317, as codified), among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C of EPCA, added by Public Law 95-619, Title IV, section 441(a) (42 U.S.C. 6311-6317, as codified), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes CWAFs, the subject of this document. (42 U.S.C. 6311(J))

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 conservation 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 42 U.S.C. 6316(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), which incorporates the preemption waiver provisions of 42 U.S.C. 6297(d))

EPCA prescribed initial mandatory energy conservation standards for CWAFs. (42 U.S.C. 6313(a)(4)) In doing so, EPCA established Federal energy conservation standards that generally corresponded to the levels in the ASHRAE Standards 90.1 in effect on October 24, 1992 ( i.e., ASHRAE Standard 90.1-1989).

In overview, if ASHRAE Standard 90.1 is amended with respect to the standard levels or design requirements applicable under that standard for certain commercial equipment, including CWAFs, not later than 180 days after the amendment of the standard, DOE must publish in the Federal Register for public comment an analysis of the energy savings potential of amended energy efficiency standards. (42 U.S.C. 6313(a)(6)(A)(i)) DOE must adopt amended energy conservation standards at the new efficiency level in ASHRAE Standard 90.1, unless DOE determines that there is clear and convincing evidence to support a determination that the adoption of a more stringent efficiency level as a uniform national standard would produce significant additional energy savings and be technologically feasible and economically justified. 4 (42 U.S.C. 6313(a)(6)(A)(ii))

If DOE decides to adopt, as a uniform national standard, the efficiency levels 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)) However, if DOE determines, supported by clear and convincing evidence, that a more-stringent uniform national standard would result in significant additional conservation of energy and is technologically feasible and economically justified, then DOE must establish the more-stringent standard not later than 30 months after publication of the amended ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(A)(ii)(II) and (B)(i))

EPCA also requires that every six years DOE shall evaluate the energy conservation standards for each class of certain covered commercial equipment, including CWAFs, and publish either a notice of determination that the standards do not need to be amended, or a notice of proposed rulemaking (“NOPR”) that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(i)) EPCA further provides that, not later than three years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(iii)(II))

A determination of whether amended energy conservation standards are needed must be based on the same considerations as if it were adopting a standard that is more stringent than an amendment to ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(C)(i)(II); 42 U.S.C. 6313(a)(6)(A)-(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6313(a)(6)(C)(ii)) Further, there must be clear and convincing evidence that a determination that more-stringent standards would (1) result in significant additional conservation of energy, (2) be technologically feasible and (3) be economically justified. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A))

DOE is publishing this NOPD in satisfaction of the six-year-lookback review requirement in EPCA, having initially determined that DOE lacks clear and convincing evidence that amended standards for CWAFs would be economically justified.

In a final rule published in the Federal Register on October 21, 2004 (“October 2004 final rule”), DOE codified energy conservation standards for CWAFs equal to those established in EPCA ( i.e., a thermal efficiency of 80 percent for gas-fired CWAFs, and a thermal efficiency of 81 percent for oil-fired CWAFs). 69 FR 61916, 61941. The standards established in the October 2004 final rule are the same as DOE's current CWAF standards for CWAFs manufactured before January 1, 2023. 10 CFR 431.77.

As noted previously, DOE most recently amended the energy conservation standards for CWAFs in the January 2016 final rule, which requires compliance beginning on January 1, 2023. 81 FR 2420 (Jan. 15, 2016).

Since publication of the January 2016 final rule, ASHRAE published two updated versions of ASHRAE Standard 90.1, one in 2016 (“ASHRAE Standard 90.1-2016”) and another in 2019 (“ASHRAE Standard 90.1-2019”). The CWAF standards adopted in the January 2016 final rule ( i.e., the standards which take effect on and after the January 1, 2023 compliance date) are more stringent than the minimum efficiency levels for CWAFs in ASHRAE Standard 90.1-2016. ASHRAE 90.1-2019 updated the minimum efficiency levels for CWAFs to align with those adopted by DOE in the January 2016 final rule. 5 Because neither ASHRAE Standard 90.1-2016 nor ASHRAE Standard 90.1-2019 contained minimum efficiency levels more stringent than the current Federal standards for CWAFs, DOE was not triggered to examine amended standards for this equipment under 42 U.S.C. 6313(a)(6)(A). 6 As a result, despite these intervening ASHRAE actions, the Federal standards for CWAFs are those set forth in the January 2016 final rule and codified in DOE's regulations at 10 CFR 431.77.

More specifically, for gas-fired CWAFs manufactured starting on January 1, 1994, until January 1, 2023, the thermal efficiency (“TE”) at the maximum rated capacity ( i.e., rated maximum input) must be not less than 80 percent. For gas-fired CWAFs manufactured starting on January 1, 2023, the TE at the maximum rated capacity must be not less than 81 percent. For oil-fired CWAFs manufactured starting on January 1, 1994, until January 1, 2023, the TE at the maximum rated capacity must be not less than 81 percent. For oil-fired CWAFs manufactured starting on January 1, 2023, the TE at the maximum rated capacity must be not less than 82 percent. 10 CFR 431.77

In the January 2016 final rule, DOE rejected more-stringent standards on the basis that benefits of energy savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on many consumers, negative net present value (“NPV”) of consumer benefits, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in industry net present value (“INPV”). 81 FR 2420, 2522 (Jan. 15, 2016).

In support of its present review of the CWAF energy conservation standards, DOE published in the Federal Register a request for information (RFI) on May 12, 2020 (May 2020 RFI), which identified various issues on which DOE sought comment, data, and information to inform its determination of whether the current Federal standards need to be amended. (It is again noted that the May 2020 RFI addressed ACUACs and ACUHPs, in addition to CWAFs.) 85 FR 27941.

DOE received numerous comments in response to the May 2020 RFI from interested parties, as listed in Table II-1. While Table II-1 includes all parties that commented in response to the May 2020 RFI, only those comments relevant to CWAFs are summarized and addressed in this NOPD. 7 As previously mentioned, DOE will consider ACUACs and ACUHPs in a separate proceeding, in which the Department will address comments received in response to the May 2020 RFI related to ACUACs and ACUHPs.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 8

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 comment period for a notice of proposed rulemaking. Section 6(f)(2) of appendix A specifies that the length of the public comment period for a NOPR will not be less than 75 days. For this proposed determination, DOE has opted to instead provide a 60-day comment period. As stated previously, DOE requested comment in the May 2020 RFI on the technical and economic analyses that would be used to determine whether, based on clear and convincing evidence, a more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. DOE has determined that a 60-day comment period, in conjunction with the prior May 2020 RFI, provides sufficient time for interested parties to review the proposed rule and develop comments.

DOE developed this proposed determination after a review of the CWAF market, including product literature and product listings in the DOE Compliance Certification Management System (CCMS) database. DOE also considered comments, data, and information from interested parties that represent a variety of interests. This notice addresses issues raised by these commenters.

DOE received multiple comments from stakeholders stating generally that DOE should not amend the current Federal standards for CWAFs. (AHRI, No. 14 at p. 3; Carrier, No. 13 at pp. 4-5, 18-19; Lennox, No. 15 at pp. 1, 3; Trane, No. 16 at p. 2; APGA, No. 19 at pp. 1-3; Spire, No. 21 at pp. 2-3) More specifically, AHRI, Carrier, Lennox, and Trane argued that the current Federal standards should not be amended because of the regulatory burdens manufacturers already face. (AHRI, No. 14 at p. 2; Carrier, No. 13 at pp. 18-19; Lennox, No. 15 at p. 4; Trane, No. 16 at p. 2) Commenters also asserted that the impacts associated with the 2023 standards cannot be assessed at this time because the standards have yet to take effect, and, therefore, considering new standards prior to 2023 would be premature. (Lennox, No. 15 at pp. 2-3; AHRI, No. 14 at p. 3; Carrier, No. 13 at p. 8; Trane, No. 16 at p. 2)

DOE also received comments from several other stakeholders generally expressing support for DOE evaluating and amending the current energy conservation standards for CWAFs. (Joint Advocates, No. 23 at p. 1; CA IOUs No. 20 at pp. 1-7; NEEA, No. 24 at pp. 1-10) More specifically, the Joint Advocates stated that very large energy savings could result from amended standards for CWAFs, citing the max-tech efficiency levels analyzed in the January 2016 final rule, as well as the range of efficiencies in the current market. (Joint Advocates, No. 23 at pp. 1-2) NEEA and the CA IOUs similarly commented as to the potential for energy savings. (CA IOUs No. 20 at pp. 1-7; NEEA, No. 24 at pp. 1, 5-7)

In response to the May 2020 RFI, AHRI asserted that DOE is not statutorily required to review amended standards under the six-year-lookback rulemaking for CWAFs, based on the fact that the 2023 standards adopted in the January 2016 final rule have not yet come into effect. (AHRI, No. 14 at p. 3) DOE disagrees with AHRI's reading of the statute. The statute does not reference compliance dates from previous rulemakings in setting the timing for DOE's required review, but instead, the language of EPCA simply requires DOE to evaluate amended standards for CWAFs every 6 years, which DOE has interpreted as running from publication of the last final rule to amend the applicable standards. ( see 42 U.S.C. 6313(a)(6)(C)(i)) However, DOE acknowledges that if it were to set standards under EPCA's six-year-lookback provision, the statute would require DOE to set a compliance date that is the later of: (1) The date three years after publication of the final rule establishing the amended standard or (2) the date that is six years after the effective date of the current standard for a covered product (in this case 2029). ( see 42 U.S.C. 6313(a)(6)(C)(iv))

Therefore, pursuant to its statutory obligations (particularly EPCA's required six-year-lookback review under 42 U.S.C. 6313(a)(6)(C)) and as discussed in this NOPD, DOE has considered the potential for amended standards for CWAFs. Such review is necessary for DOE to determine whether potential amended energy conservation standards for CWAFs would meet the applicable statutory criteria. DOE's analyses in this proceeding also allow it to evaluate the opposing view of the comments previously discussed regarding the appropriateness of amended CWAF standards.

For CWAFs, the current energy conservation standards specified in 10 CFR 431.77 are based on two equipment classes determined according to fuel type: Gas-fired CWAFs and oil-fired CWAFs. The current standards are consistent with the equipment class structure in the current version of ASHRAE Standard 90.1.

In response to the May 2020 RFI, NEEA recommended that DOE should consider dividing the gas-fired CWAF equipment class into two or more classes by capacity. NEEA argued that smaller units are more prominent in commercial buildings, that analyzing them as a separate equipment class would help identify their unique characteristics and challenges, and that the cost-effectiveness of efficiency features for smaller units will be different than those of larger units. (NEEA, No. 24 at p. 3)

DOE declines to make NEEA's recommended changes to the CWAF class structure for the reasons that follow. First, as discussed in section III.F of this document, DOE has tentatively determined that it lacks clear and convincing evidence that amended standards for CWAFs would be economically justified. As explained in that section, DOE has tentatively determined that the market for CWAFs has not yet fully responded to the pending 2023 energy conservation standards. This uncertainty extends to the energy characteristics of the market against which any alternate equipment class scheme would be compared. However, more importantly, DOE has determined that it lacks statutory authority to make the changes NEEA requests, as explained subsequently.

As a general rule, for covered consumer products, EPCA requires that a rule prescribing an energy conservation standard for a type (or class) of covered products shall specify a different level of energy use or efficiency (either higher or lower) than that which applies (or would apply) to any group of covered products that have the same function or intended use, if the Secretary determines that covered products within such group either: (1) Consume a different kind of energy; or (2) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a different standard from that which applies (or will apply) to other products within such type (or class). (42 U.S.C. 6295(q)(1)) These provisions also apply to covered commercial and industrial equipment—other than ASHRAE equipment—through the statutory crosswalk provision at 42 U.S.C. 6316(a). In contrast, ASHRAE equipment, which includes CWAFs, has its own separate statutory scheme under EPCA, as described in section II.A of this document. For ASHRAE equipment, there is neither a companion provision nor crosswalk to 42 U.S.C. 6295(q)(1). Therefore, EPCA in essence requires DOE to establish energy conservation standards for CWAFs at the minimum efficiencies set forth in ASHRAE Standard 90.1 (unless DOE has clear and convincing evidence to adopt more-stringent standards), consistent with the equipment class structure in ASHRAE Standard 90.1. ( See 42 U.S.C. 6313(a)(6)(A)) Consequently, DOE is not considering amendments to the equipment classes for CWAFs.

EPCA defines a “warm air furnace” as a self-contained oil- or gas-fired furnace designed to supply heated air through ducts to spaces that require it and includes combination warm air furnace/electric air conditioning units but does not include unit heaters and duct furnaces. (42 U.S.C. 6311(11)(A)) A “commercial warm air furnace” is further defined in DOE's regulations as a warm air furnace that is industrial equipment, and that has a capacity (rated maximum input) of 225,000 British thermal units (“Btu”) per hour or more. 10 CFR 431.72. In the May 2020 RFI, DOE requested comment on whether the Department's regulatory definition for “commercial warm air furnace,” or related definitions, require any revisions, and if so, how those definitions should be revised. 85 FR 27941, 27945 (May 12, 2020).

Trane stated that it does not see the need for any changes to the definition of CWAF. (Trane, No. 16 at p. 3) Conversely, NEEA recommended that DOE should consider updating its definition for CWAF to account for different operating characteristics, different functions, or use cases in order to reduce uncertainty as to the applicable standard and test procedure and to provide more comprehensive coverage. (NEEA, No. 24 at p. 5)

In response, DOE reviewed the definition of “commercial warm air furnace.” The codified definition of “warm air furnace” at 10 CFR 431.72 matches EPCA's definition of a “warm air furnace” at 42 U.S.C 6311(11)(A). A CWAF is defined at 10 CFR 431.72 as a warm air furnace with the additional requirements that it be industrial equipment having a capacity (rated maximum input) of 225,000 Btu per hour (“Btu/h”) or more, which picks up where the upper limit of consumer furnace input capacity for consumer furnaces leaves off ( see 42 U.S.C. 6291(23)(D)). After careful review, DOE considers this definition to be appropriately aligned with the definition in EPCA and to adequately cover commercial furnaces. (As discussed later in this section, DOE identified a small number of furnace models that are not covered by either the consumer furnace definition or the CWAF definition, but tentatively concludes that amending the CWAF definition in the CFR to cover those models is unnecessary because it would be duplicative, and would provide little opportunity for energy savings.) Therefore, DOE has tentatively determined that no amendments to the regulatory definitions for “commercial warm air furnace” or “warm air furnace” are needed.

AHRI and Carrier suggested modifying the definition of “commercial warm air furnace” to introduce an upper limit to the input capacity of covered CWAFs. (AHRI, No. 14 at p. 4; Carrier, No. 13 at p. 3) DOE notes that the topic of an upper capacity limit was discussed previously in a NOPR published in the Federal Register on February 4, 2015 (“February 2015 NOPR”). 80 FR 6182, 6192-6193. In the February 2015 NOPR, DOE noted that neither EPCA nor DOE's existing regulations for CWAFs specify an upper limit to the input rating of covered equipment, and that establishing an upper limit would potentially remove coverage of models that would have otherwise been covered by DOE regulations. Because of this, DOE did not propose an upper limit on the input capacity of covered CWAF. Id. DOE tentatively maintains its position taken in the February 2015 NOPR and, therefore, is not proposing an upper limit on the input capacity of covered CWAFs.

Carrier stated that there are gaps in coverage between the consumer furnace and CWAF definitions, so the commenter recommended that the CWAF definition should be modified to address those gaps. Specifically, Carrier stated that three-phase furnaces with input ratings less than 225,000 Btu/h, as well as single-phase furnaces with input ratings less than 225,000 Btu/h that are installed within the same cabinet as an air conditioner with a cooling capacity greater than 65,000 Btu/h, are not covered by either definition. Carrier recommended that the CWAF definition be expanded to classify furnaces that are currently unregulated as CWAFs, with the option of rating either with annual fuel utilization efficiency (“AFUE”) or TE, as allowed in ASHRAE Standard 90.1. (Carrier, No. 13 at pp. 2-3)

As previously stated, DOE defines a “commercial warm air furnace” as a warm air furnace that is industrial equipment, and that has a capacity (rated maximum input) of 225,000 Btu per hour or more. 10 CFR 431.72. DOE defines a consumer “furnace” as a product which utilizes only single-phase electric current, or single-phase electric current or DC current in conjunction with natural gas, propane, or home heating oil, and which: (1) Is designed to be the principal heating source for the living space of a residence; (2) is not contained within the same cabinet with a central air conditioner whose rated cooling capacity is above 65,000 Btu per hour; (3) is an electric central furnace, electric boiler, forced-air central furnace, gravity central furnace, or low-pressure steam or hot water boiler; and (4) has a heat input rate of less than 300,000 Btu per hour for electric boilers and low-pressure steam or hot water boilers and less than 225,000 Btu per hour for forced-air central furnaces, gravity central furnaces, and electric central furnaces. 10 CFR 430.2. This potential gap in coverage was addressed in the February 2015 NOPR, in which DOE did not propose to extend CWAF coverage to three-phase, less than 225,000 Btu/h equipment. 80 FR 6182, 6192 (Feb. 4, 2015). In the February 2015 NOPR, DOE agreed with commenters that there is limited potential for energy savings from coverage of such units due to the fact that equipment with these characteristics are already meeting efficiency levels specified by ASHRAE Standard 90.1. In its review of the market at the time, DOE did not identify any equipment with an efficiency level below that specified in ASHRAE Standard 90.1 levels for analogous equipment, and thus, tentatively determined that a separate equipment class and standard for this equipment may be unnecessarily duplicative and provide little opportunity for energy savings. Id.

For this notice, DOE reexamined this matter, and the agency once again reviewed the market and found a small number of gas-fired furnace models that are three-phase with an input rating less than 225,000 Btu/h. The Department found that for all of these models, manufacturers provide efficiency ratings, and the models meet or exceed the current gas-fired CWAF standards. Further, a majority of models identified also meet or exceed the 2023 gas-fired CWAF standards. In addition, DOE notes that these individual models make up a very small portion (roughly 2 percent) of the total CWAF market. Therefore, DOE tentatively maintains its previous conclusion that there is limited potential for energy savings from extending the “commercial warm air furnace” definition to cover this equipment due to the small size of the market and the fact that these products appear to meet or exceed the minimum energy conservation standards despite falling in a coverage gap. DOE also was unable to identify any models currently on the market with input ratings less than 225,000 Btu/h and that are contained within the same cabinet as a central air conditioner with a cooling capacity greater than 65,000 Btu/h, indicating that there would likely be no potential for additional energy savings from covering this equipment. Therefore, DOE has tentatively determined that amending the CWAF definition to cover such equipment would provide little opportunity for energy savings and is not proposing to do so in this notice.

EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6314(a)) As a general matter, manufacturers of covered ASHRAE equipment must use these test procedures to certify to DOE that their equipment complies with energy conservation standards and to quantify the efficiency of their equipment. (42 U.S.C. 6316(b); 42 U.S.C. 6296) DOE's current energy conservation standards for CWAFs are expressed in terms of a minimum thermal efficiency in percent. ( See 10 CFR 431.77) The applicable test procedure for CWAFs is found at 10 CFR 431.76, “Uniform Test Method for Measurement of Energy Efficiency of Commercial Warm Air Furnaces.”

In commenting on the May 2020 RFI, DOE received input from multiple stakeholders regarding DOE's CWAF test procedure, particularly as relates to jacket loss. (Joint Advocates, No. 23 at pp. 3-4; NEEA, No. 24 at pp. 6-7; CA IOUs, No. 20 at p. 4; AHRI, No. 14 at p. 4; Carrier, No. 13. at p. 5; Goodman, No. 17 at p. 2) DOE also received comments from stakeholders regarding DOE's CWAF test procedure relating to auxiliary electrical consumption. (Joint Advocates, No. 23 at pp. 2-3) However, on May 5, 2020, DOE published a test procedure RFI for CWAFs (“May 2020 CWAF TP RFI”) in the Federal Register to initiate its review of the CWAF test procedure. DOE notes that the May 2020 CWAF TP RFI specifically requested comment on jacket loss and auxiliary electrical consumption. 85 FR 26626, 26631, 26332 (May 5, 2020). DOE reasons that it is most appropriate to consider issues related to the CWAF test procedure as part of a separate, dedicated test procedure rulemaking for such equipment. Consequently, DOE will address comments received in response to both the May 2020 RFI and May 2020 CWAF TP RFI regarding these topics as part of the CWAF test procedure proceeding.

In the May 2020 RFI, DOE requested comment on topics related to performing a market and technology assessment, screening analysis, and engineering analysis. 85 FR 27941, 27945-27950 (May 12, 2020). More specifically, DOE requested comment on: (1) Technology options that should be considered in a potential market and technology assessment; (2) the representative designs and characteristics of models that would be expected to be on the market after the 2023 compliance date; (3) the screening criteria used to determine whether technologies are included in the engineering analysis; (4) baseline efficiency levels; (5) max-tech efficiency levels; (6) manufacturer production costs; and (7) manufacturer selling prices. Id.

Regarding CWAF technology options, Carrier and Lennox stated that the technology options considered in the analysis for the January 2016 final rule and presented in the May 2020 RFI for CWAFs are appropriate. (Lennox, No. 15 at p. 5; Carrier, No. 13 at p. 4) Trane asserted that pre-mixed burners  9 do not provide benefits, that burner de-rating  10 may result in oversizing burners for CWAF applications, and that concentric venting may not be appliable to rooftop applications due to the length of the vent. (Trane, No. 16 at p. 4) NEEA and the Joint Advocates suggested that DOE should consider additional technology options for CWAFs that are were not listed in the May 2020 RFI. (NEEA, No. 24 at p. 6; Joint Advocates, No. 23 at p. 4) More specifically, NEEA recommended that increased jacket insulation, decreased casing leakage, heat recovery equipment, high- efficiency fans, variable-speed motors, low-leak dampers, modulating heat or cooling, and advanced controls such as demand control ventilation should be considered, and the Joint Advocates recommended DOE should consider insulation improvements and any technology options that may reduce the auxiliary electrical consumption of CWAFs. Id. Harkins recommended DOE consider all technologies that increase efficiency. (Harkins, No. 25 at p. 1)

Regarding the designs and characteristics of the CWAF markets after the 2023 compliance date of the current set of standards, DOE received comments from multiple stakeholders asserting that the current CWAF markets are not representative of the models that would be expected to be on the market after the 2023 standards take effect. (Carrier, No. 13 at pp. 7-8; Trane, No. 16 at p. 7) AHRI commented that it is impossible to forecast the market impact of the 2023 standards on CWAFs. (AHRI, No. 14 at p. 3) Carrier asserted that manufacturers will be working to optimize efficiencies, lower cost, and implement new entry-level products, and that the upcoming 2023 standards are causing manufacturers to further optimize their higher-efficiency equipment. (Carrier, No. 13 at pp. 7-8) According to Trane, the furnaces currently on the market will need to be redesigned to meet the 2023 standards. (Trane, No. 16 at p. 7) In contrast, Lennox commented that the CWAF models on the market are representative of designs and characteristics of models that would be expected to be on the market after the 2023 compliance date, although Lennox acknowledged that the market impacts of the 2023 standards are unknown because of uncertainties in assessing the evolving market, including uncertainties in future shipments, the economic impact on manufacturers and consumers, and the total projected energy savings. (Lennox, No. 15 at pp. 5-6)

In response to these comments, DOE explains that it conducted a preliminary market assessment based on the current CWAF market. DOE found that the characteristics of the current CWAF market are largely the same as when DOE assessed the CWAF market in the context of the proceeding culminating in the January 2016 final rule. However, unlike the market at that time, there are currently no condensing CWAFs (which typically have a TE of 90 percent or greater) or gas-fired CWAFs with a TE of 82 percent certified to DOE through the CCMS. 11 Furthermore, DOE's review of the market indicates that the available technologies used to achieve the 2023 baseline efficiency level, as compared to the technologies that could be used to achieve higher levels of thermal efficiency ( i.e., condensing technology) under the existing test procedure, have not changed significantly. Although NEEA and the Joint Advocates suggest analyzing numerous technologies ( e.g., increased jacket insulation, decreased jacket leakage, heat recovery equipment, high-efficiency fans, variable-speed motors, low-leak dampers, modulating heat or cooling, advanced controls such as demand control ventilation, and any technology options that may reduce the auxiliary electrical consumption of CWAFs), none of the technologies identified by these commenters would improve thermal efficiency as it is measured today. More specifically, these technology options are not currently incorporated into the DOE CWAF test procedure, or the measurement of CWAF performance, because the current DOE test method does not require measurement of jacket losses and accounts for operation only when operating at the maximum input rating at steady state. DOE initially decided to exclude jacket loss from the calculation of TE in a NOPR published on December 13, 1999. 64 FR 69598, 69601 (December 1999 NOPR). 12 Therefore, because the technologies would not impact the regulatory metric (TE), it would not be appropriate to consider them as potential technologies for improving CWAF efficiency at this time.

Regarding the screening criteria and analysis, AHRI and Carrier supported screening out CWAF technology options along the lines presented in the May 2020 RFI (which were the same technology options screened out in the January 2016 final rule). (AHRI, No. 14 at p. 5; Carrier, No. 13 at p. 7) Carrier also recommended that an additional screening criterion be added to address the cost of the technology option. (Carrier, No. 13 at pp. 6-7)

In response to Carrier's suggestion that DOE include an additional screening criterion to address cost of the technology option, DOE notes that the current screening criteria are included in 10 CFR part 430, subpart C, Appendix A, “Procedures, Interpretations, and Policies for Consideration of New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Certain Commercial/Industrial Equipment.” See sections 6(b)(3) and 7(b). These criteria do not include an evaluation of the cost of a technology option, which is instead evaluated in the engineering analysis and subsequently in the consumer economic analyses. Thus, DOE asserts that it would be inappropriate to exclude a technology option from consideration based solely on incremental technology cost increases, because changes in the cost of equipment are more appropriately considered as part of the consumer economic analyses.

Regarding baseline efficiency levels, multiple commenters stated that the 2023 CWAF standards would be the correct baseline efficiency to be used in a future DOE analysis. (AHRI, No. 14 at p. 6; Lennox, No. 15 at p. 6; Goodman, No. 17 at p. 3; Carrier, No. 13 at pp. 8-9)

Regarding the max-tech levels, multiple stakeholders asserted that the 2023 CWAF standards are the highest possible for non-condensing equipment and recommended that a higher standard requiring condensing operation should not be considered. (AHRI, No. 14 at p. 7; Trane, No. 16 at pp. 4, 7; Carrier, No. 13 at pp. 4-5, 10; Goodman, No. 17 at p. 3; Spire, No. 21 at p. 2; Lennox, No. 15 at p. 5) Carrier, Trane, and Lennox cautioned that increasing the baseline efficiency past the 2023 standards by utilizing improvements in these technology options would result in condensing operation, thereby imposing additional burden on manufacturers. (Lennox, No. 15 at p. 5; Carrier, No. 13 at pp. 4-5; Trane, No. 16 at p. 4) Commenters citied technological problems associated with implementing CWAF standards at a level that would require condensing operation, including issues related to condensate disposal. Such issues included high costs, as well as practicality and the ability to dispose of condensate properly. Id. In contrast, the Joint Advocates and NEEA recommended that DOE should consider a condensing standard because of the potential for energy savings. (Joint Advocates, No. 23 at p. 4, NEEA, No. 24 at p. 7). DOE discusses the merits of establishing a condensing standard in section III.F of this document.

Regarding manufacturer production costs, manufacturer selling price, and how manufacturers would incorporate technology options to increase energy efficiency above the baseline, Carrier and Trane stated that the technology options listed in the May 2020 RFI (which were the options considered in the January 2016 final rule) are used to increase efficiency. (Carrier, No. 13 at p. 11; Trane, No. 16 at p. 8) AHRI stated that generally, the engineering analysis in the January 2016 final rule was accurate at the time. (AHRI, No. 14 at p. 7)

DOE considered how the manufacturer production cost and selling price of CWAFs have changed since the January 2016 final rule. As discussed previously, the designs and technologies used in equipment on the market are generally the same as those on the market at the time of the January 2016 final rule. DOE, therefore, has tentatively determined that relevant factors such as manufacturing processes, materials, and components are the same as or similar to those in use in January 2016. However, a review of the producer price index (PPI)  13 for furnaces found that it has increased significantly, and DOE has tentatively determined such an increase would apply to technologies used to improve CWAF efficiency as well. 14 These factors indicate that to the extent that the cost of CWAFs (and in particular the cost of improving CWAF efficiency) has changed since the engineering analysis was conducted for the January 2016 final rule, it has increased. Thus, DOE does not expect that conducting additional engineering analysis would provide clear and convincing evidence that would lead DOE to differ in its conclusions from the January 2016 final rule regarding economic justification of adopting levels more stringent than those adopted in the January 2016 final rule. DOE notes that other factors also contribute to the economic justification of potential standards, and additional discussion of those factors is included in section III.E of this document.

In summary, DOE considered the preliminary market assessment conducted for this rulemaking, as well as comments received that are relevant to the market and technology assessment, screening, and engineering analysis. For the reasons discussed previously, DOE has tentatively determined that the current CWAF market conditions (including issues in meeting more-stringent standards that would require use of condensing technology) are largely the same as those analyzed in the January 2016 final rule.

In the May 2020 RFI, DOE requested comment on a number of issues related to mark-ups and distribution channels, the energy use analysis, the life-cycle cost analysis, repair and maintenance costs, the shipments analysis, and the national impact analysis. 85 FR 27941, 27950-27953 (May 12, 2020). DOE specifically requested information to describe how equipment moves from the manufacturer to the customer, the relative sales volume through each channel, data to estimate the mark-ups at each segment in the distribution channel, the energy use methodology, inputs to the life-cycle-cost model such as equipment lifetime, installation, repair, and maintenance costs, energy prices, the no-new-standards efficiency distribution, historical shipments, and future efficiency trends. Id.

Regarding mark-ups and distribution channels, DOE received comments from AHRI and Carrier. AHRI commented that it is researching distribution channels; however, it had no feedback at the time the comment was provided. AHRI disagreed with DOE's use of incremental mark-ups and recommended that DOE revert to using the baseline mark-up for both baseline and incremental costs. (AHRI, No. 14 at p. 8) Carrier commented that it has not observed large shifts in the distribution channels, as the industry remains mature in the United States. (Carrier, No. 13 at p. 12)

In response, DOE notes that in the January 2016 final rule, the efficiency levels above the amended standard level were not economically justified. As DOE has received no feedback to indicate the distribution channels have changed and no feedback that markups have decreased (which would reduce the incremental costs of higher-efficiency products), DOE does not expect the outcome to change from the January 2016 final rule.

Regarding the energy use analysis, DOE received comments from the CA IOUs, AHRI, Carrier, Trane, Goodman, and NEEA. The CA IOUs commented that DOE should update the weather data used in the energy use analysis to reflect the temperatures recorded in the United States in recent years. Along these lines, the CA IOUs recommended that DOE should consider the methodology used by the California Energy Commission to update weather files to analyze Title 24 of the Building Energy Efficiency Standard. 15 (CA IOUs, No. 20 at p. 5) AHRI expressed concern that use of the 2003 Commercial Building Energy Consumption Survey (CBECS 2003) and estimating the energy consumption using an equivalent full-load hour approach does not accurately reflect equipment that is optimized for part-load performance (AHRI, No. 14 at p. 9). Trane commented that a more up-to-date building inventory analysis should be used to measure CWAF energy use. (Trane, No. 16 at p. 9) Carrier and Goodman commented that the previous analysis, from the January 2016 final rule, was based on perimeter conditions ( i.e., outdoor air conditions). (Carrier, No. 13 at p. 14; Goodman, No. 17 at p. 4) Carrier commented that CWAFs do not run very often due to the internal loads on the building, and Goodman commented that CWAFs normally only provide morning warm up and night set back heating. (Carrier, No. 13 at p. 14; Goodman, No. 17 at p. 4) NEEA recommended that DOE should account for part-load operation, staged systems, and varying percentages of outside air. (NEEA, No. 24 at p. 9)

In response, DOE notes that while the previous analysis relied on CBECS 2003, the CWAF energy consumption was adjusted for projected decreases in heating degree days between CBECS 2003 and the compliance year. 16 Furthermore, DOE notes that the main driver of CWAF energy consumption in the January 2016 final rule is the building heating load, which is based on the reported space heating energy consumption of buildings with a furnace in CBECS 2003. 17 The previous analysis was not based on full-load hours or perimeter conditions. Finally, as stated in section III.D of this document, the Department's research suggests that the characteristics of the CWAF market are largely the same as when analyzed for the January 2016 final rule and that none of the technology options presented would improve thermal efficiency as measured in the current test procedure. Given the similar market, DOE does not anticipate the energy use to have changed sufficiently to drive a different outcome, as compared to that in the January 2016 final rule.

Regarding equipment lifetime, DOE received comments from AHRI, Carrier, and Trane. AHRI disagreed with the Weibull approach to lifetimes and stated its understanding that service lifetimes are in the range of 12 to 15 years. (AHRI, No. 14 at p. 10) In contrast, Trane stated that the Weibull approach is appropriate and that equipment lifetime should be the same as in the January 2016 final rule. (Trane, No. 16 at p. 10) Carrier likewise stated that the lifetimes determined by DOE's proposed approach seem reasonable. (Carrier, No. 13 at p. 14) AHRI and Carrier both stated that location is an important determinant of lifetime. (AHRI, No. 14 at p. 10; Carrier, No. 13 at p. 14)

In response, DOE notes that the CWAF lifetime was developed based on the lifetime model for ACUACs as nearly all CWAFs are packaged with an ACUAC. The ACUAC lifetime model was calibrated based on historical shipments data. 18 Given the similar market characteristics to the January 2016 final rule, DOE does not expect that equipment lifetime has changed significantly, and, therefore, it would not warrant changes to the findings regarding CWAF lifetimes presented in the January 2016 final rule.

Regarding repair and maintenance costs, DOE received comments from AHRI, Trane, Carrier, and Goodman. AHRI stated that the costs used in previous analyses do not reflect actual repair and maintenance costs and that typical maintenance costs are double the values reported in RS Means. 19 (AHRI, No. 14 at p. 10) Trane stated that the methodology used in the January 2016 final rule for repair and maintenance costs is adequate, although an update to a more recent version of RS Means is appropriate. (Trane, No. 16 at p. 10) Carrier stated that the higher efficiency standards in 2023 will include more costly components, and, therefore, an increased cost of equipment which could lead end users to opt for repair instead of replacement. As the higher efficiency levels require more advanced components, it will increase overall cost. Carrier also commented that the impact of A2L refrigerants and low global warming potential (GWP) regulations on repair and maintenance costs is still unknown; however, the commenter believes that equipment with A2L refrigerants will inherently have increased repair and maintenance costs due to additional safety components in the equipment. (Carrier, No. 13 at p. 16) Goodman stated that repair and maintenance costs will be higher for products using alternative refrigerants. In addition, Goodman commented that DOE's modeling on repair and maintenance costs should be appropriately revised to account for the baseline technologies that will be required to meet the amended standards beginning on January 1, 2023. (Goodman, No. 17 at p. 4)

In response, DOE notes that the increased repair and maintenance costs presented in the January 2016 analysis for higher-efficiency products reflects the increased cost of more advanced components. Moreover, the Department has tentatively concluded that an update to the most current RS Means would not reduce the incremental difference in repair and maintenance costs by efficiency level, and, therefore, it would not be expected to change the outcome as compared to the January 2016 final rule.

Regarding energy prices, DOE received comments from Spire and APGA. Spire commented that the gas prices used in developing the January 2016 final rule for amended CWAF energy conservation standards were overstated and that gas prices have decreased since 2016. Spire also asserted that DOE did not properly measure the marginal gas rates when calculating the energy savings for CWAFs in the January 2016 final rule. (Spire, No. 21 at pp. 3-6) APGA commented that the natural gas supply has increased, allowing for stable or declining prices in some markets. APGA also stated that DOE should be utilizing marginal consumption-based prices, as they more accurately determine the impact of efficiency savings for an end-user. (APGA, No. 19 at p. 2)

In response, DOE notes that the majority of CWAFs use natural gas. The Department uses the Annual Energy Outlook (“ AEO” ) to project future natural gas prices. In the January 2016 final rule, DOE used the natural gas price projections from AEO 2015. 20 The most current AEO is AEO 2021, 21 and the natural gas price projections of AEO 2021 are indeed lower than for AEO 2015, in real dollars. With similar CWAF products and lower natural gas price projections, DOE does not expect the annual energy costs to rise compared to the January 2016 final rule.

Regarding the no-new-standards efficiency distribution and future efficiency trends, DOE received comments from Carrier and Trane. Carrier commented that it expects most shipments in 2023 to be near the standards level. (Carrier, No. 13 at p. 15) Trane asserted that the majority of shipments (60-80 percent) will be at the minimum standard level in 2023. (Trane, No. 16 at p. 10) Carrier and Trane further commented that they expect the efficiency trends to remain close to the Federal standard level after 2023. (Carrier, No. 13 at p. 17; Trane, No. 16 at p. 11)

Regarding historical shipments, Carrier, Goodman, and Trane commented that historical shipments would not accurately portray the market for CWAFs, as the impacts of COVID-19 on the heating, ventilation, and air-conditioning (“HVAC”) industry are not yet known. (Carrier, No. 13 at p. 16; Goodman, No. 17 at p. 4; Trane, No. 16 at p. 11) Goodman argued that the CWAF market and shipments will be negatively impacted by future electrification trends and regulations. (Goodman, No. 17 at p. 4)

In response, DOE did not receive any historical shipments data in response to the May 2020 RFI. However, the CWAF market is mature, and in the January 2016 final rule, shipments were projected to grow approximately 1 percent per year, with the large majority of shipments going to the replacement market. 22 The no-new-standards distribution projected that in 2023, nearly all shipments would be at or near the baseline level analyzed in the January 2016 final rule. 23 As to comments on impacts related to the COVID-19 pandemic, it is too soon to tell what long-term effects that event may have on CWAF shipment trends, if any. Likewise, DOE cannot adequately account for future statutory or regulatory efforts to promote electrification until they are finalized. At this point, DOE finds these factors to be too speculative to account for in the present analysis for CWAFs. Accordingly, given the mature market, the expectation that most shipments will be at the baseline level in 2023, and no anticipated increase in equipment lifetime, DOE does not expect the shipments estimates and no-new-standards distributions from the January 2016 final rule to change significantly for CWAFs.

DOE also received comments from Policy Integrity regarding the social cost of carbon used in the emissions monetization analysis. Policy Integrity urged DOE to account for the benefits of greenhouse gas emissions reductions from the use of higher-efficiency equipment using the global estimate of the social cost of greenhouse gases, and the commenter added that the values developed by the interagency working group for the social cost of greenhouse gases are the best available. (Policy Integrity, No. 7, at pp. 2-3, 5)

On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the Federal government's emergency motion for a stay pending appeal of the February 11, 2022, preliminary injunction in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the preliminary injunction is no longer in effect, pending resolution of the Federal government's appeal of that injunction or a further court order. Among other things, the preliminary injunction enjoined the defendants in that case from “adopting, employing, treating as binding, or relying upon” the interim estimates of the social cost of greenhouse gases—which were issued by the Interagency Working Group on the Social Cost of Greenhouse Gases on February 26, 2021—to monetize the benefits of reducing greenhouse gas emissions. In the absence of further intervening court orders, DOE will revert to its approach prior to the injunction and present monetized benefits where appropriate and permissible under law. However, in this NOPD, the Department will not be monetizing the cost of greenhouse gas emissions, as DOE is not proposing any amended standards. Should DOE follow this NOPD with a final determination that amended standards for CWAFs would not meet the applicable statutory criteria, no change in greenhouse gas emissions would be expected to result from this proceeding.

Finally, DOE received a comment from Lennox asserting that DOE lacks clear and convincing evidence to support a finding that implementing amended standards above the levels scheduled for compliance in 2023 would be economically justified. (Lennox, No. 15 at p. 8)

DOE considered the comments provided on the economic and energy use analyses and reviewed the inputs used in the life-cycle-cost, shipments, and national impact analysis from the January 2016 final rule. As discussed above, DOE has tentatively determined that there have not been any significant changes to the mark-ups and distribution channels, energy use, equipment lifetimes, repair and maintenance costs, energy prices, the no-new-standards efficiency distributions, and shipments that would lead to higher life-cycle-cost savings, increased national energy savings, and increased net present value of consumer benefits from the analysis that was conducted for the January 2016 final rule. Therefore, as discussed in section III.F of this document, DOE has tentatively determined that the analyses conducted for the January 2016 final rule are appropriate for the present determination.

After carefully considering the comments on the May 2020 RFI and the available data and information, DOE has tentatively determined that the energy conservation standards for CWAFs do not need to be amended, for the reasons explained in the paragraphs immediately following. DOE will consider all comments received on this proposed determination prior to issuing the next document in this rulemaking proceeding.

As previously discussed, EPCA specifies that for any commercial and industrial equipment addressed under 42 U.S.C. 6313(a)(6)(A)(i), including CWAFs, DOE may prescribe an energy conservation standard more stringent than the level for such equipment in ASHRAE Standard 90.1 only if “clear and convincing evidence” shows that a more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II)) The “clear and convincing” evidentiary threshold applies both when DOE is triggered by ASHRAE action and when DOE conducts a six-year-lookback rulemaking, with the latter being the basis for the current proceeding. DOE addresses each of these statutory criteria in turn.

EPCA mandates that DOE consider whether amended energy conservation standards for CWAFs would result in significant additional conservation of energy. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II))

DOE acknowledges that more-stringent standards for CWAFs have the potential to result in significant additional conservation of energy. In the January 2016 final rule, DOE estimated that establishing a condensing standard ( i.e., 92-percent thermal efficiency) for gas-fired and oil-fired CWAFs would result in 2.1 quads of primary energy savings compared to a no-new-standards case over the lifetime of the CWAF (2019 through 2048). 81 FR 2420, 2508 (Jan. 15, 2016). However, as discussed in section III.F.3 of this document, DOE has preliminarily determined that it lacks clear and convincing evidence to show that the potential amended standard levels considered would be economically justified.

EPCA mandates that DOE consider whether amended energy conservation standards for CWAFs would be technologically feasible. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II)) As previously discussed, establishing more-stringent standards for CWAFs would likely require condensing operation, 24 and DOE previously analyzed levels requiring condensing operation ( i.e., 92-percent thermal efficiency) for the January 2016 final rule. 81 FR 2420 (Jan. 15, 2016). In the analysis for the January 2016 final rule, DOE identified a small number of condensing gas-fired CWAF models (four models at 90-percent thermal efficiency and four models at 92-percent thermal efficiency) and one condensing oil-fired CWAF model, 25 indicating that the market for condensing CWAFs is still very small, and DOE's subsequent review suggests that it is now potentially smaller than it was at the time of the analysis for the January 2016 final rule. Although there is some uncertainty in how the market will respond once compliance is required with the 2023 energy conservation standards, DOE does not expect that the upcoming standards would spur significant development of condensing CWAFs, as there are certain technological and implementational challenges associated with use of condensing CWAFs, including condensate disposal and freezing in many commercial buildings/applications. In addition, DOE notes that the amended standards in the January 2016 final rule implemented a 1-percent increase in standard level for both gas-fired and oil-fired CWAFs, which can be achieved without use of condensing technology, and are levels at which models currently exist using non-condensing technology. However, DOE is not aware of any models on the market currently with an efficiency above the amended standards from the January 2016 final rule and that are non-condensing. Additionally, there are currently no condensing CWAFs certified to DOE through the compliance certification management system at this time. 26

In the January 2016 final rule, DOE concluded that energy conservation standards at levels requiring condensing operation would not be economically justified, due to the economic burden on most consumers, the negative NPV of consumer benefits using a 7-percent discount rate, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. Id. at 81 FR 2522 (Jan. 15, 2016). In examining the current market, DOE has found that market conditions are largely the same as at the time of the January 2016 final rule.

Given the similar market size, DOE has tentatively determined that the manufacturing costs and manufacturer impacts would not be significantly different now than projected in the January 2016 final rule. In addition, DOE has tentatively determined that installation costs, which for condensing levels included costs for condensate removal, would be similar to those estimated in the previous analysis, and that energy cost savings would not increase as compared to the previous analysis, as updated AEO projections of energy prices show declining prices. For these reasons, DOE has tentatively determined that any analysis of a condensing level for CWAFs would not result in a significantly different economic outcome from the January 2016 final rule, and that as such, it lacks clear and convincing evidence that more-stringent standard levels for CWAFs would be economically justified.

DOE notes that the tentative determination, that it lacks clear and convincing evidence, is specific to this rulemaking. DOE will evaluate its ability to reach clear and convincing evidence on a case-by-case basis.

DOE requests comment on its proposed determination that the existing energy conservation standards for CWAFs do not need to be amended.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, 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, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) 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 proposed regulatory action is consistent with these principles.

OMB has determined that this proposed determination does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not subject to review under E.O. 12866 by OIRA at OMB.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis (“IRFA”) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by 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 rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website ( energy.gov/gc/office-general-counsel ).

The Small Business Administration (SBA) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. The equipment covered by this rule are classified under North American Industry Classification System (“NAICS”) code 333415, 27 “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” In 13 CFR 121.201, the SBA sets a threshold of 1,250 employees or fewer for an entity to be considered as a small business for this category.

DOE has conducted a focused inquiry into small business manufacturers of the equipment covered by this rulemaking. The Department used available public information to identify potential small manufacturers. DOE accessed its Compliance Certification Database (“CCD”)  28 to identify a list of companies that manufacture the CWAFs covered by this proposal. Using these sources, DOE identified a total of eight distinct manufacturers of CWAFs. DOE screened out companies that do not meet the definition of a “small business” or are foreign-owned and operated. Of these manufacturers, DOE identified one small, domestic manufacturer as a potential small business.

DOE reviewed this proposed determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. Because DOE is not proposing to amend standards for CWAFs, the determination, if adopted, would not amend any energy conservation standards. On the basis of the foregoing, DOE certifies that the proposed determination, if adopted, would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared an IRFA for this proposed determination. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

This proposed determination, which proposes to determine that amended energy conservation standards for CWAFs are unneeded under the applicable statutory criteria, would impose no new informational or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq. )

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

E.O. 13132, “Federalism,” 64 FR 43255 (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 determination and has tentatively determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that is the subject of this proposed determination. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) As this proposed determination would not amend the standards for CWAFs, there is no impact on the policymaking discretion of the States. Therefore, no further action is required by E.O. 13132.

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

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

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

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

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

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

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

This proposed determination, which does not propose to amend energy conservation standards for CWAFs, is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Therefore, it is not a significant energy action, and accordingly, DOE has not prepared a Statement of Energy Effects.

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

In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared Peer Review report pertaining to the energy conservation standards rulemaking analyses. 29 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. Because available data, models, and technological understanding have changed since 2007, DOE has engaged with the National Academy of Sciences (NAS) to review DOE's analytical methodologies to ascertain whether modifications are needed to improve the Department's analyses. DOE is in the process of evaluating the resulting December 2021 NAS report. 30

The time and date of the webinar 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=49. 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 NOPD, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. Such persons may submit requests to speak by email to the Appliance and Equipment Standards Program, 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 proposed determination and the topics they wish to discuss. Such persons should also provide a daytime telephone number where they can be reached.

DOE requests persons selected to make an oral presentation to submit an advance copy of their statements at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.

DOE will designate a DOE official to preside at the webinar 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. 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 and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the proposed determination.

The webinar will be conducted in an informal, conference style. DOE will present a summary of the proposed determination, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this proposed determination. 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 proposed determination. The official conducting the webinar meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the webinar.

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 NOPD. In addition, any person may buy a copy of the transcript from the transcribing reporter.

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

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

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

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

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

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

Include contact information each time you submit comments, data, documents, and other information to DOE. No 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 proposed determination and request for comment.

This document of the Department of Energy was signed on April 20, 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 .

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 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 B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include refrigerated bottled or canned beverage vending machine (“BVM”) equipment, the subject of this document. (42 U.S.C. 6295(v))  3 EPCA directed DOE to prescribe energy conservation standards for beverage vending machines not later than 4 years after August 8, 2005. (42 U.S.C 6295(v)(1))

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 products 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 3 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))

Under EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 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 beverage vending machines. 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 the 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 has now 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. 5 As such, energy savings that reduce GHG emission 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 energy infrastructure can be more pronounced than products with relatively constant demand. In evaluating the significance of energy savings, DOE considers differences in primary energy and full-fuel-cycle (“FFC”) effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a more complete picture of the impacts of energy conservation standards. Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis, taking into account the significance of cumulative FFC national energy savings, the cumulative FFC emissions reductions, and the need to confront the global climate crisis, among other factors.

DOE has initially determined the energy savings estimated for the candidate standard levels considered in this preliminary analysis are “significant” within the meaning of 42 U.S.C. 6295(o)(3)(B).

To determine whether a 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:

(1) The economic impact of the standard on the manufacturers and consumers of the products subject to the standard;

(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;

(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary considers relevant.

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 a 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 a higher or lower level was established. (42 U.S.C. 6295(q)(2))

Finally, pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE reviewed the operating modes available for beverage vending machines and determined that this equipment does not have operating modes that meet the definition of standby mode or off mode, as established at 42 U.S.C. 6295(gg)(3). Specifically, beverage vending machines are typically always providing at least one main function—refrigeration. (42 U.S.C. 6295(gg)(1)(A)) DOE recognizes that in a unique equipment design, the low power mode includes disabling the refrigeration system, while for other equipment the low power mode controls only elevate the thermostat set point. Because low power modes still include some amount of refrigeration for most equipment for the vast majority of equipment, DOE believes that such a mode does not constitute a “standby mode,” as defined by EPCA, for beverage vending machines. Therefore, DOE believes that beverage vending machines do not operate under standby and off mode conditions as defined in EPCA, and that the energy use of a beverage vending machine would be captured in any standard established for active mode energy use. This preliminary analysis does not specifically address standby and off mode energy consumption for the equipment.

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

DOE is examining whether to amend the current standards pursuant to its obligations under EPCA. This notification 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 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”), applicable to BVM equipment under 10 CFR 431.4, DOE notes that it is deviating from the provision in appendix A regarding the pre-NOPR stages for an energy conservation standards rulemaking. Section 6(a)(2) of appendix A states that if the Department determines it is appropriate to proceed with a rulemaking (after initiating the rulemaking process through an early assessment), 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 (“ANOPR”). 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 the following section, prior to this notification of the preliminary analysis, DOE issued an early assessment request for information (“RFI”) in which DOE identified and sought comment on the analyses conducted in support of the most recent energy conservation standards rulemaking ( i.e., 81 FR 1028; January 8, 2016 (the “January 2016 Final Rule”)). 85 FR 35394 (June 10, 2020) (the “June 2020 RFI”). DOE provided a 60-day comment period for the early assessment RFI. 85 FR 35394. 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 early assessment RFI. As such, DOE is not publishing a framework document.

Section 6(d)(2) of appendix A specifies 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 instead provide a 60-day comment period. As stated, DOE requested comment in the June 2020 RFI on the analysis conducted in support of the January 2016 Final Rule and provided stakeholders a 60-day comment period. 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 60-day comment period provides sufficient time for interested parties to review the preliminary analysis and develop comments.

In the January 2016 Final Rule, DOE prescribed the current energy conservation standards for BVM equipment manufactured on and after January 8, 2019. 81 FR 1028. These standards are set forth in DOE's regulations at 10 CFR 431.296 and are repeated in Table II.1.

In the June 2020 RFI, DOE published a notification that it was initiating an early assessment review to determine whether any new or amended standards would satisfy the relevant requirements of EPCA for a new or amended energy conservation standard for BVM equipment as well as a request for information. 85 FR 35394.

Comments received to date as part of the current process have helped DOE identify and resolve issues related to the preliminary analyses. Chapter 2 of the preliminary TSD summarizes and addresses the comments received.

For the equipment covered in this preliminary analysis, DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) markups to determine equipment 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 www.regulations.gov/docket/EERE-2020-BT-STD-0014.

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 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.

DOE develops information in the market and technology assessment that provides an overall picture of the market for the equipment concerned, including general characteristics of the equipment, the industry structure, manufacturers, market characteristics, and technologies used in the equipment. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment include the following: (1) A determination of the scope of the rulemaking and equipment classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends, and (6) technologies or design options that could improve the energy efficiency of the equipment.

See chapter 3 of the preliminary TSD for further discussion of the market and technology assessment.

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

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

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

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

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

(5) Unique-pathway proprietary technologies. If a design option utilizes proprietary technology that represents a unique pathway to achieving a given efficiency level, that technology will not be considered further due to the potential for monopolistic concerns.

10 CFR 431.4; 10 CFR part 430, subpart C, appendix A, sections 6(b)(3) and 7(b).

If DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis.

See chapter 4 of the preliminary TSD for further discussion of the screening analysis.

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

DOE converts the MPC to the manufacturer selling price (“MSP”) by applying a manufacturer markup. The MSP is the price the manufacturer charges its first customer, when selling into the equipment distribution channels. The manufacturer markup accounts for manufacturer non-production costs and profit margin. DOE developed the manufacturer markup by examining publicly available financial information for manufacturers of the covered equipment.

See chapter 5 of the preliminary TSD for additional detail on the engineering analysis. See chapter 12 of the preliminary TSD for additional detail on the manufacturer markup.

The markups analysis develops appropriate markups ( e.g., wholesaler markups) 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 equipment to cover business costs and profit margin.

DOE developed baseline and incremental markups for each actor in the distribution chain. Baseline markups are applied to the price of equipment with baseline efficiency, while incremental markups are applied to the difference in price between baseline and higher-efficiency models (the incremental cost increase). The incremental markup is typically less than the baseline markup 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 markups for BVM equipment.

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

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 markups, sales tax, and installation costs) plus operating costs (expenses for energy use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.

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

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 equipment 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, equipment costs, and NPV of consumer benefits over the lifetime of BVM equipment sold from 2028 through 2057.

DOE evaluates the impacts of new or amended standards by comparing a case without such standards with standards-case projections (“no-new-standards case”). The no-new-standards case characterizes energy use and consumer costs for each equipment 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 equipment 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 equipment with efficiencies greater than the standard.

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 equipment lifetimes, equipment installed costs and operating costs, equipment annual energy consumption, the no-new-standards-case efficiency projection, discount rates, electricity price projection, and equipment type market share distribution projection.

DOE estimates a combined total of 0.152 quads of FFC energy savings over the analysis period at the max-tech efficiency levels for BVM equipment. Combined FFC energy savings at Efficiency Level 1 for all equipment classes are estimated to be 0.021 quads.

Chapter 10 of the preliminary TSD addresses the NIA.

DOE invites public engagement in this process through participation in the webinar and submission of written comments and data. 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 BVM equipment 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 equipment 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 for 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 document, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the webinar. 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.

DOE will designate a DOE official to preside at the webinar 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. 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 and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.

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

A transcript of the 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 and information on matters addressed in this notification and on other matters relevant to DOE's consideration of potential amended energy conservations standards for BVM equipment. 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 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 the availability of the preliminary technical support document and request for comment.

This document of the Department of Energy was signed on April 20, 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 .

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-2022-0470; Project Identifier MCAI-2021-01002-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2021-30, dated September 7, 2021 (TCCA AD CF-2021-30) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0470.

This proposed AD was prompted by reports that some passenger oxygen box dual manifold assemblies had their piston ejected during the mask deployment test due to a non-conformity in manufacturing. The FAA is proposing this AD to address a possible in-service piston ejection when used for emergency descent, smoke, or fire that may result in a high rate of oxygen leakage, which could prematurely deplete the oxygen for all passengers. See the MCAI for additional background information.

Bombardier, Inc., has issued the following service information.

• Service Bulletin 700-35-5004, Revision 02, dated August 27, 2021.

• Service Bulletin 700-35-5502, dated August 27, 2021.

• Service Bulletin 700-35-6004, Revision 05, dated August 27, 2021.

• Service Bulletin 700-35-6502, dated August 27, 2021.

This service information describes procedures for inspecting each passenger oxygen box dual manifold assembly to find affected parts, and replacing affected parts. These documents are distinct because they apply to different airplane configurations.

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

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

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

The FAA estimates that this AD, if adopted as proposed, would affect 308 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessoning the dependency on ground based navigation.

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

Communications should identify both docket numbers (FAA Docket No. FAA-2022-0440; Airspace Docket No. 19-AAL-45) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0440; Airspace Docket No. 19-AAL-45.” The postcard will be date/time stamped and returned to the commenter.

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

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also 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 ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

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.

In 2003, Congress enacted the Vision 100—Century of Aviation Reauthorization Act (Pub L., 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensiveT-route modernization project in the state of Alaska. The project's mission statement is “to modernize Alaska's Air Traffic Service route structure using satellite based navigation. Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide enroute continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored airway structure for: (1) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum Enroute Altitude (MEA) or Global Navigation Satellite System Minimum Enroute Altitude (GNSS MEA); (2) the replacement of the Colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (3) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA considers this transition as time sensitive, given the increasing number of NDBs that are currently and/or scheduled out of service, and the lack of an NDB acquisition, maintenance, or sustainment program. This forces pilots flying under Instrument Flight Rules (IFR), with aircraft not equipped with de-icing protection, to fly at higher than normal MEAs, increasing the risk to flight safety. The Iliamna, AK, (ILI) NDB and the Kacehmak, AK, (ACE) NDB are two of the many NDBs scheduled for decommissioning. The proposal to establish RNAV route, T-376, would support the decommissioning of both ILI and ACE. Additionally, the proposed T-376 would support en route operations for Iliamna Airport (PAIL), Alaska. Finally, the proposed RNAV route would provide an alternative for, and eventually replace, the Colored airways Green 8 and Red 99.

The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route, T-376, in the vicinity of Iliamna, AK, in support of a large and comprehensive T-route modernization project in the state of Alaska. The proposed RNAV T-route is described below.

T-376: T-376 is a new RNAV T-route that would extend between the FAGIN, AK, waypoint (WP) and the Homer, AK, VHF Omnidirectional Radar/Distance Measuring Equipment (VOR/DME).

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route listed in this document would 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 proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessoning the dependency on ground based navigation.

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

Communications should identify both docket numbers (FAA Docket No. FAA-2022-0429; Airspace Docket No. 21-AAL-40) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0429; Airspace Docket No. 21-AAL-40.” The postcard will be date/time stamped and returned to the commenter.

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

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also 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 ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

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.

In 2003, Congress enacted the Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project's mission statement is “To modernize Alaska's Air Traffic Service route structure using satellite based navigation. Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide enroute continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored airway structure for: (1) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum Enroute Altitude (MEA) or Global Navigation Satellite System Minimum Enroute Altitude (GNSS MEA); (2) the replacement of the Colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (3) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. The FAA considers this transition as time sensitive, given the increasing number of NDBs that are currently and/or scheduled out of service, and the lack of an NDB acquisition, maintenance, or sustainment program. This forces pilots flying under Instrument Flight Rules (IFR), with aircraft not equipped with de-icing protection, to fly at higher than normal MEAs, increasing the risk to flight safety. The Sitka, AK, NDB is one of the many NDBs scheduled for decommissioning. The proposal to establish RNAV route, T-719, would support the decommissioning of the Sitka, AK, NDB. Further, the proposed route would connect with a planned Canadian extension to their RNAV route T-719, thereby connecting the Sandspit, Canada (YZP) VHF Omnidirectional Range/Distance Measuring Equipment (VOR/DME) and the proposed new EEVER waypoint (WP). The Canadian extension will occur concurrently with the publication of the United States portion of the proposed RNAV T-route, T-719. Finally, the proposed RNAV route would overlie and eventually replace directly the Colored airway Amber 1.

The FAA is proposing an amendment to 14 CFR part 71 to establish RNAV route T-719, near Sitka, AK, in support of a large and comprehensive T-route modernization project in the state of Alaska. The proposed RNAV route establishment is described below.

T-719: T-719 is a new RNAV route that would extend between the new EEVER, AK, WP and the Biorka Island, AK, (BKA) VOR and Tactical Air Navigational System (VORTAC). The EEVER, AK, WP would replace the CFQBR computer navigation Fix to be located along the Sandspit, Canada (YZP), VOR/DME 312° radial and the US/Canada border.

Canadian Area Navigation Routes are published in paragraph 6013 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 RNAV route listed in this document would 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 proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessoning the dependency on ground based navigation.

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

Communications should identify both docket numbers (FAA Docket No. FAA-2022-0435; Airspace Docket No. 19-AAL-73) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0435; Airspace Docket No. 19-AAL-73.” The postcard will be date/time stamped and returned to the commenter.

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

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also 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 ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

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.

In 2003, Congress enacted the Vision 100—Century of Aviation Reauthorization Act (Pub L., 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive RNAV T-route modernization project in the state of Alaska. The project's mission statement is “to modernize Alaska's Air Traffic Service route structure using satellite based navigation. Development of newT-routes and optimization of existingT-routes will enhance safety, increase efficiency and access, and will provide enroute continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum Enroute Altitude (MEA) or Global Navigation Satellite System Minimum Enroute Altitude (GNSS MEA); (b) the replacement of the Colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

Industry and users have indicated a desire that the FAA transition the Alaskan enroute navigation structure away from any dependency on NDBs, and move to develop and improve the RNAV route structure. The FAA believes this request is time sensitive given the increasing number of NDBs that are currently and/or scheduled out of service, and the lack of an NDB acquisition, maintenance, or sustainment program, which forces aircraft flying under Instrument Flight Rules (IFR) that are without de-icing protection to fly at higher MEAs, with the potentially associated loss of safety.

The FAA is proposing to amend RNAV T-route T-270. This proposed action is necessary due to the planned decommissioning of the Norton Bay, AK, (OAY) NDB and the Shishmaref, AK, (SHH) NDB. Both NDBs will decommissioned as part of the RNAV modernization effort for the state of Alaska. The FAA proposes to replace the Norton Bay and Shishmaref, AK, NDBs with the HALUS and the HIPIV waypoints (WPs), respectively. The FAA also proposes to reverse the order of the RNAV T-route in the route description to comply with guidance in FAA Order JO 7400.2. Finally, the FAA proposes to remove the HEXOG, AK, WP from the legal description due to it having less than a 1 degree turn and is not required.

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV route T-270 in the vicinity of Shishmaref, AK in support of a large and comprehensive T-route modernization project in the state of Alaska.

The proposed RNAV T-route amendment is described below.

T-270: T-270 currently extends between the Norton Bay, AK, (OAY) NDB and the Shishmaref, AK, (SHH) VOR/DME. This FAA proposes to replace the OAY NDB and the SHH NDB with the HALUS, AK, WP and the HIPIV, AK, WP, respectively. Further, the FAA proposes to remove the HEXOG, AK, WP from the legal description. Finally, the order of theT-route would be reversed from the published legal description to comply with current guidance in FAA Order JO 7400.2. As a result, T-270 would extend between the HIPIV, AK, WP and the HALUS, AK, WP.

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route listed in this document would 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 proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessoning the dependency on ground based navigation.

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

Communications should identify both docket numbers (FAA Docket No. FAA-2022-0428; Airspace Docket No. 21-AAL-20) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0428; Airspace Docket No. 21-AAL-20.” The postcard will be date/time stamped and returned to the commenter.

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

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also 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 ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

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.

In 2003, Congress enacted the Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project's mission statement is “to modernize Alaska's Air Traffic Service route structure using satellite based navigation. Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide enroute continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum Enroute Altitude (MEA) or Global Navigation Satellite System Minimum Enroute Altitude (GNSS MEA); (b) the replacement of the Colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant. In support of this project, the FAA is proposing to amend RNAV route T-271, to improve the RNAV network in Alaska by planning for the future connectivity with future RNAV T-routes.

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV route T-271 in the vicinity of Iliamna, AK in support of a large and comprehensive T-route modernization project in the state of Alaska. The proposed RNAV T-route amendment is described below.

T-271: T-271 extends between the Cold Bay, AK, (CDB) VHF Omnidirectional Radar and Tactical Air Navigational System (VORTAC) and the AMOTT, AK, waypoint (WP). The FAA proposes to update the GPS coordinates for the Cold Bay, AK, (CBD) VORTAC, the King Salmon, AK, (AKN) VORTAC; and, the AMOTT, AK, WP because of more precise improvements in technology. The FAA also proposes to remove the BINAL, AK, Fix from the legal description due to it having less than a 1 degree turn and is not required. Although, the BINAL Fix would be removed, it will remain as a Fix to the airway. Finally, the FAA proposes to insert the ZINAM, AK, WP. The rest of the route would remain unchanged.

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route listed in this document would 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 proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The Coast Guard was notified by Indy Car of a proposed racing event that goes over the Cumberland River. The event would take place from August 5, 2022, to August 7, 2022. On August 5, 2022 the river closure would be from 2:00 p.m. to 6:30 p.m. On August 6, 2022, the river closure would be from 11:00 a.m. to 5:00 p.m. On August 7, 2022, the river closure would be from 2:00 p.m. to 4:30 p.m. The COTP has determined that there is a need to protect the river users while the Indy cars are on the track between MM 191.1 and MM 191.5 on the Cumberland River. This propsed rule is needed to protect life and the marine environment in the navigable waters within the temporary safety zone during the racing portion of the event.

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

The COTP is proposing to establish a safety zone that would be enforced from 2 p.m. to 6:30 p.m. on August 5, 2022, from 11 a.m. to 5 p.m. on August 6, 2022, and from 2 p.m. to 4:30 p.m. on August 7, 2022. The safety zone would cover all navigable waters within .4 miles of the Korean Veterans Bridge on the Cumberland River in Nashville, TN. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled Indy Car races. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The safety zone will be 13 hours spread over the course of 3 days during daylight hours in Nashville, TN. The safety zone will only encompass .4 miles of the Cumberland River. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Cumberland River before or after the time of the events on each day. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rulemaking would allow 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.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this propsed 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 proposed 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 effects of this propsed rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting 12 hours spread over the course of 3 days that would prohibit entry within .4 miles of the Korean Veterans Bridge. 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-2022-0275 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 supplementary information in this preamble is organized as follows:

Submit your comments identified by Docket ID No. EPA-HQ-OAR-2020-0556 at https://www.regulations.gov (our preferred method) or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov/ any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

Public visitors are allowed in the EPA Docket Center and Reading Room by making an appointment in advance. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov/ as there may be a delay in processing mail and faxes. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets. The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

The proposed amendments apply to industries that are subject to the current provisions of 40 CFR parts 51, 60, and 63. We did not list all of the specific affected industries or their North American Industry Classification System (NAICS) codes herein since there are many affected sources in numerous NAICS categories. If you have any questions regarding the applicability of this action to a particular entity, consult either the air permitting authority for the entity or your EPA Regional representative as listed in 40 CFR 63.13.

This action proposes corrections and revisions to source test methods, performance specifications (PS), and associated regulations. The corrections and revisions consist primarily of typographical errors, updates to testing procedures, and the addition of alternative equipment and methods the Agency has deemed acceptable to use.

The EPA catalogs errors and corrections, as well as necessary revisions to test methods, performance specifications, and associated regulations in 40 CFR parts 51, 60, and 63 and periodically updates and revises these provisions. The most recent updates and revisions were promulgated on October 7, 2020 (85 FR 63394). This proposed rule addresses necessary corrections and revisions identified after that final action, many of which were brought to our attention by regulated sources and end-users, such as environmental consultants and compliance professionals. These revisions will improve the quality of data obtained and give source testers the flexibility to use newly approved alternative procedures.

The EPA proposes to incorporate by reference two ASTM standards. Specifically, the EPA proposes to incorporate ASTM D6216-20, which covers the procedure for certifying continuous opacity monitors and includes design and performance specifications, test procedures, and QA requirements to ensure that continuous opacity monitors meet minimum design and calibration requirements necessary for accurate opacity monitoring measurements in regulatory environmental opacity monitoring applications subject to 10 percent or higher opacity standards. The EPA also proposes to update the incorporation by reference for ASTM D6784, a test method for elemental, oxidized, particle-bound, and total mercury in emissions from stationary sources, from the 2002 version to the 2016 version; this update would apply to incorporations by reference in 40 CFR part 60, appendix B, Performance Specification 12A for continuous monitoring of mercury emissions. Likewise, EPA proposes to update the incorporations by reference in 40 CFR part 63 for use of ASTM D6784 under table 5 and appendix A of Subpart UUUUU, for mercury emissions measurement and monitoring. Both the ASTM D6216-20 and ASTM D6784-16 standards were developed and adopted by ASTM. The ASTM standards may be obtained from www.astm.org or from the ASTM at 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959.

The EPA also proposes to incorporate by reference the American Public Health Association (APHA) Method 5210 Biochemical Oxygen Demand (BOD) from “Standard Methods for the Examination of Water and Wastewater.” This standard is acceptable as an alternative to Method 405.1 and is available from APHA at www.standardmethods.org or by telephone at (844) 232-3707.

The EPA is also proposing specific modifications to requirements in an existing incorporation by reference, the ASTM E2515-11 test method. The proposed stipulations would modify the post-test leak check procedures as well as add procedures for performing leak checks during a sampling run.

The following amendments are being proposed.

In Method 201A, the erroneous equation 25 in section 12.5 would be corrected.

In the General Provisions of part 60, § 60.17(h) would be revised to add American Society for Testing and Materials (ASTM) D6216-20 and D6784-16 to the list of incorporations by reference and to re-number the remaining consensus standards that are incorporated by reference in alpha-numeric order.

Subpart AAA would be amended to add stipulations for use of the ASTM E2515-11 test method. The stipulations would modify the post-test leak check procedures as well as add procedures for performing leak checks during a sampling run. The stipulations to ASTM E2515-11 are necessary as we have learned that the quality assurance/quality control (QA/QC) requirements for leak tests required by ASTM E2515-11, section 9.6.5.1 are not sufficient to provide assurance of the sampling system integrity. Additionally, the language of ASTM E2515-11, section 9.6.5.1 currently allows for averaging the PM results from a non-leaking sampling system with those from a leaking sampling system, which effectively reduces reported PM emissions by as much as half, rendering the test method inappropriate for compliance determination.

We would revise the language in § 60.534(c) and are proposing new language to replace ASTM E2515-11, section 9.6.5.1 by adding § 60.534(c)(1), which specifies appropriate post-test leak check procedures and in § 60.534(c)(2) by adding procedures for performing leak checks during a sampling run. We are proposing these modifications to bring appropriate QA/QC requirements to PM measurements required by the rule and to eliminate opportunity for emissions test results to be considered valid when a leaking sampling system allows dilution of the PM sample(s).

We are also proposing in § 60.534(d) that the first hour PM emissions measurements be conducted using a separate ASTM E2515-11 sampling train operated concurrently with the paired ASTM E2515-11 sampling trains used in compliance PM sampling. In this manner, the first hour PM emissions would be collected appropriately, and the compliance test measurements would not be impacted by a sampling pause for filter replacement at the 1-hour mark.

The regulatory language in § 60.539b(b) would be revised to include General Provisions that were added to § 60.8(f)(2) (81 FR 59801, August 30, 2016) and were inadvertently exempted from inclusion in subpart AAA as that rule, as promulgated in 2015, exempted § 60.8(f) in its entirety. The exemption promulgated in subpart AAA at § 60.539b(b) was intended to exempt those affected sources from § 60.8(f), which, at the time, consisted of what is now currently § 60.8(f)(1) and is specific to compliance testing results consisting of the arithmetic mean of three replicate tests. We are proposing these modifications to ensure that emissions test reporting includes all data necessary to assess and assure the quality of the reported emissions data and appropriately describes and identifies the specific unit covered by the emissions test report. Since compliance tests in this category consist of a single test, the original regulatory exemption to the General Provisions of § 60.8(f)(1) is retained.

The erroneous PM emission limits in g/MJ in §§ 60.5474(b)(2), (b)(3) and (b)(6) would be corrected.

In addition, subpart QQQQ would be amended to add stipulations for use of the ASTM E2515-11 test method. The stipulations would modify the post-test leak check procedures as well as add procedures for performing leak checks during a sampling run. The stipulations to ASTM E2515-11 are necessary as we have learned that the QA/QC requirements for leak tests required by ASTM E2515-11, section 9.6.5.1 are not sufficient to provide assurance of the sampling system integrity. Additionally, the language of ASTM E2515-11, section 9.6.5.1 currently allows for averaging the PM results from a non-leaking sampling system with those from a leaking sampling system, which effectively reduces reported PM emissions by as much as half, rendering the test method inappropriate for compliance determination. The language in § 60.5476(c)(5) and § 60.5476(c)(6) would be replaced with the word “reserved.”

We would revise language in § 60.5476(f) and are proposing new language to replace ASTM E2515-11, section 9.6.5.1 by adding § 60.5476(f)(1), which specifies appropriate post-test leak check procedures and in § 60.5476(f)(2) adding procedures for performing leak checks during a sampling run. We are proposing these modifications to bring appropriate QA/QC requirements to PM measurements required by the rule and eliminate opportunity for emissions test results to be considered valid when a leaking sampling system allows dilution of the PM sample(s).

We are also proposing in § 60.5476(f) that first hour PM emissions measurements should be conducted using a separate ASTM E2515-11 sampling train operated concurrently with the paired ASTM E2515-11 sampling trains used in compliance PM sampling. In this manner, the first hour PM emissions will be collected appropriately, and the compliance test measurements would not be impacted by a sampling pause for filter replacement at the one-hour mark. In § 60.5476(f), we would incorporate language about filter type and size acceptance currently in § 60.5476(c)(5). Additionally, we would remove text relating to EN 303-5 currently found in § 60.5476(f).

The regulatory language in § 60.5483(b) would be revised to include General Provisions that were added to § 60.8(f)(2) (81 FR 59801, August 30, 2016) and were inadvertently exempted from subpart QQQQ as that rule, as promulgated in 2015, exempted § 60.8(f) in its entirety. The exemption promulgated in subpart QQQQ at § 60.5483(b) was intended for those affected sources subject to § 60.8(f), which, at the time, consisted of what is currently § 60.8(f)(1) and is specific to compliance testing results consisting of the arithmetic mean of three replicate tests. We are proposing these modifications to ensure that emissions test reporting includes all data necessary to assess and assure the quality of the reported emissions data and appropriately describes and identifies the specific unit covered by the emissions test report. Since compliance tests in this category consist of a single test, the original regulatory exemption to the General Provisions of § 60.8(f)(1) is retained.

In subpart QQQQ, in Method 28WHH, in section 13.8, the erroneous CO calculation instructions for equation 23 would be corrected to include the summation of CO emissions over four instead of three test categories.

In Method 1, the heading in section 11.5.1 would be moved to 11.5, and the word “procedure” would be moved to the first sentence in section 11.5.1 for clarity. Section 11.5.2 would be revised to clearly specify the number of traverse points that must be used for sampling and velocity measurements once a directional flow-sensing probe procedure has been used to demonstrate that an alternative measurement site is acceptable. The last sentence of section 11.5.2, which appears unclear as to what “same traverse point number and locations” it is referring, would be revised to instead specify the “same minimum of 40 traverse points for circular ducts and 42 points for rectangular ducts” that are used in the alternative measurement procedure of section 11.5.3.

Also, Table 1-2 would be revised to correct the erroneous requirement that calls for 99.9 percent of stack diameter from the inside wall to the traverse point to 98.9 percent.

In Method 4, Table 4-3 would be formatted correctly.

In Method 7, section 10.1.3 would be revised to change the word “should” to “shall” in the last sentence because the difference between the calculated concentration values and the actual concentrations are required to be less than 7 percent for all standards.

In Method 19, the erroneous equation 19-5 would be corrected.

In Method 25, a record and report section (section 12.9) would be added to confirm that the quality control (QC) was successfully performed. Also, the erroneous Figure 25-6 would be corrected.

In Method 25C, the nomenclature in section 12.1 for C N2 and C mN2 would be revised to provide clarity.

In Method 26, erroneous equations 26-4 and 26-5 in sections 12.4 and 12.5, respectively, would be revised to be consistent with the nomenclature in section 12.1.

In Performance Specification 1, references to ASTM D6216-12 (in sections 2.1, 3.1, 6.1, 8.1(1), 8.1(2)(iii), 8.1(3)(ii), 8.2(1), 8.2(2), 8.2(3), 9.0, 12.1, 13.1, 13.2, and 16.0 reference 8) would be replaced with ASTM D6216-20. Note: If the initial certification of the continuous opacity monitoring system (COMS) has already occurred using D6216-98, D6216-03, D6216-07, or D6216-12, it will not be necessary to recertify using D6216-20.

Also, in Performance Specification 1, section 8.1(2)(iii) would be revised by removing the next to the last sentence, which reads, “The opacities of the two locations or paths may be measured at different times but must represent the same process operating conditions,” because the statement is confusing and unclear; furthermore, it is unlikely that one would achieve the same conditions at two different times.

In Performance Specification 2, in section 8.3.3, a sentence would be added to clarify that during a calibration, the reference gas is to be introduced into the sampling system prior to any sample conditioning or filtration equipment and must pass through as much of the probe as is practical. In section 12.5, minor revisions would be made to clarify that relative accuracy (RA) test results are expressed as a percent of emission rate or concentration (units of the applicable standard) and the definition of the average reference method (RM) value for Equation 2-6.

The entire Performance Specification 4B would be updated to the Environmental Monitoring Management Council (EMMC) methods format used for all other performance specifications.

In Performance Specification 6, section 13.2 would be revised to specifically state the relative accuracy criteria including significant figures. On October 7, 2020 (85 FR 63394), we revised section 13.2 of Performance Specification 6 to make the relative accuracy calculations and criteria consistent with Performance Specification 2 and offer an alternate calculation and criterion for low emission concentration/rate situations; however, we neglected to specifically cite the alternate relative accuracy criterion from Performance Specification 2 for low emission sources and to ensure consistency with Performance Specification 2 with regard to significant figures in the relative accuracy criteria.

We are proposing to revise the references (in sections 8.4.2, 8.4.4, 8.4.5, 8.4.6.1, and 17.5 and the footnote to Figure 12A-3) to ASTM D6784, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), to update them from the 2002 version to the latest version, which was authorized in 2016.

The capabilities of mercury CEMS have been improving since initially being deployed to support regulations over a decade ago. Therefore, we are proposing to revise section 13.3 to modify the alternative relative accuracy criterion such that: (1) It would apply only at mercury concentrations less than 2.5 µg/scm and (2) the difference between the average reference method and CEMS values added to the confidence coefficient would now be 0.5 µg/scm. This revised criterion is consistent with revisions that we made to the mercury monitoring requirements in 40 CFR 63, subpart UUUUU (81 FR 20172, April 6, 2016).

In Performance Specification 16, several corrections and modifications would be made to clarify the intent of the requirements. In section 1.1, we would correct the language to make it clear that if a PEMS (predictive emission monitoring system) contains a diluent component, then the diluent component must be tested as well. Also, in section 1.1, the language referring to PS-17 would be removed since PS-17 was never promulgated. In sections 3.11 and 3.12, language would be added to define commonly used acronyms, and in section 3.12, the language would be corrected to indicate that the relative accuracy test audit (RATA) is to be conducted as specified in section 8.2. In section 9.1, the QA/QC Summary chart would be corrected to reflect the language found in section 2.2, which indicates that the relative accuracy audit (RAA) is required on all PEMS and not just those classified as compliance PEMS. The QA/QC Summary Chart is also modified to align the criteria for a RAA with that found in section 13.5. In section 9.4, the language stating a RATA is to be conducted at the normal operating level would be corrected to indicate the RATA is to be conducted as specified in section 8.2 and to remove the statement that the statistical tests in section 8.3 are not required for the yearly RATA. In section 12.3.2, the alternative criteria language would be removed because it does not apply to F-factor determinations. In sections 13.1 and 13.5, the language would be modified to add the corresponding alternative criteria in units of lb/mmBtu.

In Procedure 1, in section 4.1, a sentence would be added to clarify that during a calibration, the reference gas is to be introduced into the sampling system prior to any sample conditioning or filtration equipment and must pass through as much of the probe as is practical. Section 5.2.3 (2) would be modified to refine the alternative cylinder gas audit (CGA) criteria in response to the use of analyzers with lower span values. In section 6.2, in order to provide clarity and clear up any confusion, we would remove the language referring to the relevant performance specification and insert the language referring to the use of Equation 1-1.

Regulated entities have pointed out that we did not include criteria for the system integrity check required in Procedure 5. In section 2.5, we would clarify that ongoing daily calibration of the Hg CEMS must be conducted using elemental mercury reference gas. This is consistent with revisions that we made to the Hg monitoring requirements in 40 CFR 63, subpart UUUUU (81 FR 20172, April 6, 2016). We would revise the title of section 4.0 and add section 4.4 to explain more explicitly the procedure for conducting the system integrity check as well as to provide the criteria for passing the check. In section 5.1.3, to add clarity we would insert language referring to Equation 1-1 of Procedure 1 for calculating relative accuracy.

In the General Provisions of part 63, § 63.14 would be revised to: (1) Add ASTM D6784-16 to redesignated paragraph (i) and (2) add “Standard Methods for the Examination of Water and Wastewater” Method 5210B to new paragraph (d).

In subpart S, the existing reference in 40 CFR 63.457(c)(4) to Method 405.1 of part 136 of chapter 40 for the measurement of biochemical oxygen demand (BOD) is no longer valid, as Method 405.1 was withdrawn in 2007. It was replaced with Biochemical Oxygen Demand Standard Methods 5210 B (72 FR 11199, March 12, 2007), which has been previously approved in test plans for measuring BOD to demonstrate compliance with the requirements of subpart S. In § 63.457(c)(4), Method 405.1 would be updated to reference Method 5210B. This method would also be incorporated by reference in 40 CFR 63.14.

In the appendix to subpart EEE, we would remove the erroneous language regarding an Interference Response Test in the introductory paragraph of section 5 and section 5.3 in its entirety.

In 2009, revisions were made to § 63.3360(e)(1)(viii) to clarify that the results of Method 25 or Method 25A were being used to determine “total organic volatile matter” (85 FR 41276). At the time, the use of the terminology “total gaseous non-methane organic volatile organic matter” in § 63.3360(e)(1)(vi) was overlooked. We are proposing to revise § 63.3360(e)(1)(vi) by removing the term “non-methane” to be consistent with § 63.3360(e)(1)(viii).

We have received multiple inquiries regarding the requirements in Table 4 of Subpart ZZZZ to measure the exhaust gas moisture when measuring the concentration of carbon monoxide (CO), formaldehyde, or THC to demonstrate compliance with the rule. It was first pointed out that it is not always necessary to measure that exhaust gas moisture when measuring CO. We would add language to all three sections of Table 4 stating that that the moisture measurement is only necessary when needed to correct the CO, formaldehyde, THC and/or O 2 measurements to a dry basis.

In subpart PPPPP, the existing erroneous statement in § 63.9306(d)(2)(iv) would be corrected to read, “Using a pressure sensor with measurement sensitivity of 0.002 inches water, check gauge calibration quarterly and transducer calibration monthly.” Also, in subpart PPPPP, the existing erroneous statement in § 63.9322(a)(1) would be corrected to read, “The capture system meets the criteria in Method 204 of appendix M to 40 CFR part 51 for a permanent total enclosure (PE) and directs all the exhaust gases from the enclosure to an add-on control device.”

We are proposing to revise the references in sections 4.1.1.5 and 4.1.1.5.1 in subpart UUUUU, appendix A to ASTM Method D6784, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), to update them from the 2002 version to the latest version, which was authorized in 2016. In table 5, we are proposing to add ASTM Method D6784-16 as a mercury testing option as it was inadvertently left out previously.

Section 16.2 is mislabeled as section 6.2 and would be corrected.

In Method 323, sections 10.1 and 10.3 would be revised to require best laboratory practices. The nomenclature in section 12.1 would be revised to include “b,” which is the intercept of the calibration curve at zero concentration and revise K c ; these additions are necessary because equation 323-5 in section 12.6 would be revised to reflect changes in calibration procedures for calculating the mass of formaldehyde.

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA. The amendments being proposed in this action to the test methods, performance specifications, and testing regulations only make corrections and minor updates to existing testing methodology. In addition, the proposed amendments clarify performance testing requirements.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This proposed rule will not impose emission measurement requirements beyond those specified in the current regulations, nor does it change any emission standard.

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

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175. This action would correct and update existing testing regulations. Thus, Executive Order 13175 does not apply to this action.

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

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This action involves technical standards. The EPA proposes to use ASTM D6216-20 for continuous opacity monitors in Performance Specification 1. The ASTM D6216-20 standard covers the procedure for certifying continuous opacity monitors and includes design and performance specifications, test procedures, and QA requirements to ensure that continuous opacity monitors meet minimum design and calibration requirements, necessary in part, for accurate opacity monitoring measurements in regulatory environmental opacity monitoring applications subject to 10 percent or higher opacity standards. The EPA also proposes to update the version of ASTM D6784, a test method for elemental, oxidized, particle-bound, and total mercury in emissions from stationary sources, from the 2002 to 2016 version in the references contained in 40 CFR part 60, appendix B, Performance Specification 12A for continuous monitoring of mercury emissions. Likewise, EPA proposes to update the version of ASTM D6784 referenced in table 5 and appendix A of Subpart UUUUU in 40 CFR part 63, for mercury emissions measurement and monitoring. The ASTM D6216-20 and D6784-16 standards were developed and adopted by the American Society for Testing and Materials. The standards may be obtained from http://www.astm.org or from the ASTM at 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959.

The EPA also proposes to use the APHA Method 5210 Biochemical Oxygen Demand (BOD) from “Standard Methods for the Examination of Water and Wastewater.” This standard is acceptable as an alternative to Method 405.1 and is available from APHA at www.standardmethods.org or by telephone at (844) 232-3707.

Additionally, the EPA proposes language intended to correct a portion of the ASTM E2515-11 test method. The stipulations would modify the post-test leak check procedures as well as add procedures for performing leak checks during a sampling run. The stipulations to ASTM E2515-11 are necessary as we have learned that the quality assurance/quality control (QA/QC) requirements for leak tests required by ASTM E2515-11, section 9.6.5.1 are not sufficient to provide assurance of the sampling system integrity. Additionally, the language of ASTM E2515-11, section 9.6.5.1 currently allows for averaging the PM results from a non-leaking sampling system with those from a leaking sampling system which effectively reduces reported PM emissions by as much as half, rendering the test method inappropriate for compliance determination.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action would correct and update existing testing regulations.

For the reasons set forth in the preamble, the Environmental Protection Agency proposes to amend title 40, chapter I of the Code of Federal Regulations as follows:

The additions and revisions read as follows:

The revision reads as follows:

The revisions and additions read as follows:

The revisions read as follows:

The revisions read as follows:

The revisions and addition read as follows: