I. Authority

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to issue a direct final rule establishing an energy conservation standard for a covered equipment on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates), as determined by the Secretary, that contains recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. (42 U.S.C. 6316(a); 42 U.S.C. 6295(p)(4))

The direct final rule must be published simultaneously with a notice of proposed rulemaking (“NOPR”) that proposes an energy or water conservation standard that is identical to the standard established in the direct final rule, and DOE must provide a public comment period of at least 110 days on this proposal. (42 U.S.C. 6295(p)(4)(A)-(B)) Not later than 120 days after issuance of the direct final rule, DOE shall withdraw the direct final rule if (1) DOE receives one or more adverse public comments relating to the direct final rule or any alternative joint recommendation; and (2) based on the rulemaking record relating to the direct final rule, DOE determines that such adverse public comments or alternative joint recommendation may provide a reasonable basis for withdrawing the direct final rule. (42 U.S.C. 6295(p)(4)(C)) If DOE makes such a determination, DOE must proceed with the NOPR published simultaneously with the direct final rule and publish in the Federal Register the reasons why the direct final rule was withdrawn. ( Id. )

After review of comments received, DOE has determined that it did receive adverse comments on the direct final rule. However, based on the rulemaking record, the comments did not provide a reasonable basis for withdrawing the direct final rule under the provisions in 42 U.S.C. 6295(p)(4)(C). As such, DOE did not withdraw this direct final rule and allowed it to become effective. Although not required under EPCA, DOE customarily publishes a summary of the comments received during the 110-day comment period and its responses to those comments. This document contains such a summary, as well as DOE's responses, for electric motors.

In a final rule published on May 29, 2014, DOE prescribed the current energy conservation standards for electric motors manufactured on and after June 1, 2016 (“May 2014 Final Rule”). 79 FR 30934. These standards are set forth in DOE's regulations at title 10 of the Code of Federal Regulations (“CFR”), § 431.25.

On May 21, 2020, DOE published an Early Assessment Review Request for Information, in which it stated 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 electric motors and sought information related to that effort. 85 FR 30878.

On March 2, 2022, DOE published the preliminary analysis for electric motors. 87 FR 11650 (“March 2022 Preliminary Analysis”). In conjunction with the March 2022 Preliminary Analysis, DOE published a technical support document (“TSD”) which presented the results of the 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 (“March 2022 Prelim TSD”). The results presented included the current scope of electric motors regulated at 10 CFR 431.25, in addition to electric motors above 500 horsepower, air-over electric motors, and additional expanded scope electric motors.

On November 16, 2022, DOE received a joint recommendation for amended energy conservation standards for electric motors (“November 2022 Joint Recommendation”). 2 The November 2022 Joint Recommendation represented the motors industry, energy efficiency organizations, and utilities (collectively, “the Electric Motors Working Group”). 3 The November 2022 Joint Recommendation addressed energy conservation standards for medium electric motors that are 1-750 hp and polyphase, and air-over medium electric motors. On December 9, 2022, DOE received a supplemental letter to the November 2022 Joint Recommendation from the Electric Motors Working Group. 4 The supplemental letter provided additional guidance on the recommended Super Premium/IE4 levels for open medium electric motors rated 100 hp to 250 hp, and a recommended compliance date for the November 2022 Joint Recommendation.

After carefully considering the November 2022 Joint Recommendation for amending energy conservation standards for electric motors submitted by the Electric Motors Working Group, DOE determined that these recommendations were in accordance with the statutory requirements of 42 U.S.C. 6295(p)(4) for the issuance of a direct final rule and published a direct final rule on June 1, 2023 (“June 2023 Direct Final Rule”). 88 FR 36066. DOE also evaluated whether the November 2022 Joint Recommendation satisfies 42 U.S.C. 6295(o), as applicable, and found that the recommended standard levels would result in significant energy savings and are technologically feasible and economically justified. 88 FR 36066, 36140-36144. Accordingly, the consensus-recommended efficiency levels for electric motors were adopted as the new and amended standard levels in the June 2023 Direct Final Rule. 88 FR 36066, 36144-36145.

These standards, which are expressed as nominal full-load efficiency values, apply to all equipment listed in Table II-1 through Table II-3 and manufactured in, or imported into, the United States starting on June 1, 2027. The June 2023 Direct Final Rule provides a detailed discussion of DOE's analysis of the benefits and burdens of the new and amended standards pursuant to the criteria set forth in EPCA. 88 FR 36066, 36140-36144.

As required by EPCA, DOE also simultaneously published a NOPR proposing the identical standard levels contained in the June 2023 Direct Final Rule. 88 FR 35765 (June 1, 2023). DOE considered whether any adverse comment received during the 110-day comment period following the publication of the June 2023 Direct Final Rule may have provided a reasonable basis for withdrawal of the direct final rule under the provisions in 42 U.S.C. 6295(p)(4)(C).

As discussed in section I of this document, not later than 120 days after publication of a direct final rule, DOE shall withdraw the direct final rule if (1) DOE receives one or more adverse public comments relating to the direct final rule or any alternative joint recommendation; and (2) based on the rulemaking record relating to the direct final rule, DOE determines that such adverse public comments or alternative joint recommendation may provide a reasonable basis for withdrawing the direct final rule. (42 U.S.C. 6295(p)(4)(C)(i))

DOE received comments in response to the June 2023 Direct Final Rule from the interested parties listed in Table III.1.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 5 The following sections discuss the substantive comments DOE received on the June 2023 Direct Final Rule as well as DOE's determination that the comments do not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

In comments submitted in response to the June 2023 Direct Final Rule, the CA IOUs, Faragasso, Spotts, and Ravnitzky expressed support for the energy conservation standard levels specified in the June 2023 Direct Final Rule. (CA IOUs, No. 51 at p. 1; Faragasso, No. 47 at p. 1; Spotts, No. 52 at p. 1; Ravnitzky, No. 49 at p. 1) DOE has determined that these comments are supportive of the standards adopted in the June 2023 Direct Final Rule.

AHRI and JCI opposed the June 2023 Direct Final Rule. (AHRI, No. 54 at pp. 1-9; JCI, No. 53 at p. 1-2) Specifically, AHRI opposed the energy conservation standards for air-over electric motors. AHRI further requested that DOE withdraw the June 2023 Direct Final Rule to comply with EPCA's requirements based on the lack of interested persons that are fairly representative of the relevant point of view and the receipt of their comments, which AHRI believes provides a reasonable basis for withdrawal. (AHRI, No. 54 at pp. 2-3, 7-8) However, as discussed in more details in the remainder of this document, DOE has determined that these comments do not provide a reasonable basis to withdraw the June 2023 Direct Final Rule.

Hogan did not support or oppose the rule and commented on inverter motors (Hogan, No. 50 at p. 1) and, as discussed in more details in the remainder of this document, DOE has determined that this comment is not adverse.

Under 42 U.S.C. 6295(p)(4), interested persons that are fairly representative of relevant points of view, as determined by DOE, may submit a joint recommendation to the Department for new or amended energy conservation standards. AHRI stated that EPCA defines those interested persons as representatives of manufacturers of covered products, States, and efficiency advocates. AHRI contends that the joint stakeholders that came together for the recommendation are not “fairly representative” of the relevant points of view required to publish a direct final rule according to EPCA's requirements in 42 U.S.C. 6295(p)(4)(A) because the list does not include manufacturers of covered products, nor any trade association that represent manufacturers of covered products. AHRI commented that, as a trade association representing manufacturers of covered products, its members should have been taken into consideration before the June 2023 Direct Fina Rule was issued. (AHRI, No. 54 at pp. 7-8)

In response, DOE first notes that the direct final rule authority in 42 U.S.C. 6295(p)(4) applies to electric motors through the crosswalk provision at 42 U.S.C. 6316(a). As part of that crosswalk provision, any reference to a covered “product” is replaced with a reference to covered “equipment.” (42 U.S.C. 6316(a)(3)) As a result, 42 U.S.C. 6295(p)(4) would read, in relevant part, “[o]n receipt of a statement that is submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered equipment, States, and efficiency advocates), as determined by the Secretary . . .” (42 U.S.C. 6316(a)(3); 42 U.S.C. 6295(p)) The November 2022 Joint Recommendation includes a trade association, NEMA, which represents more than 23 manufacturers of electric motors. The November 2022 Joint Recommendation also includes energy-efficiency advocacy organizations and utilities. Additionally, DOE notes that one of the parties to the November 2022 Joint Recommendation, NEEA, is an alliance of utilities and partners that pools resources and shares risks to transform the market for energy efficiency to the benefit of all consumers in the Northwest and whose 20-member Board consists of representatives from the Bonneville Power Administration, consumer- and investor-owned electric and natural gas utilities, state government, and public interest and efficiency industry organizations. Finally, DOE also notes that NYSERDA expressed support for the Joint Agreement. As a result, DOE has determined that the November 2022 Joint Recommendation was submitted by interested persons who are fairly representative of relevant points of view on this matter.

AHRI commented that component regulation imposes design constraints and limits innovation without guaranteeing energy savings because covered products are already regulated. AHRI stated that regardless of the efficiency of a given product's individual components, such products must ultimately meet an efficiency standard, and, therefore, little or no additional energy savings would be achieved. AHRI commented that component regulation would impose significant cost to manufacturers and consumers and the burden DOE would impose on manufacturers of covered products by expanding the scope of the electric motor test procedure, and ultimately standards, is not outweighed by any corresponding benefit to consumers or the nation. (AHRI, No. 54 at p. 2) AHRI added that DOE should apply a finished-product approach to energy efficiency regulations. Specifically, AHRI commented that it strongly opposes DOE's plan to expand the existing scope of coverage of electric motors to include air-over electric motors. AHRI added that embedded motor testing, and ultimately energy conservation standards, would save minimal, if any, energy and would create needless testing, paperwork, and record-keeping requirements that would raise costs for consumers. In addition, AHRI commented that the timing of the proposed changes would exacerbate supply chain disruption, further delaying products reaching U.S. consumers and inflating the cost of finished goods. AHRI commented also that component regulation imposes design constraints and limits innovation without guaranteeing energy savings and that covered products are already regulated. Further, AHRI asserted that OEMs already consider more efficient electric motors when identifying what design options to apply to meet new finished product standards. (AHRI, No. 54 at pp. 3, 8)

JCI commented that it remained opposed to DOE's revised definition and resulting scope expansion to mandate new test procedures to include special and definite purpose motors, which specifically includes air-over, inverter, synchronous motors as well as the newly defined category of “small non-small electric motors” (“SNEMs”) as such motors are already being regulated at the system level at 10 CFR 431.25 and for which there is a clear exemption as noted under 42 U.S.C. 6317(b)(3). JCI also stated its opposition to component level regulation for DOE covered products. JCI commented that “double regulation” of finished goods and the components embedded within the finished goods stifles innovation by reducing design engineers' ability to weigh trade-offs between different technologies. JCI asserted that, as a matter of practice, motors are typically not the least efficient component within an air-conditioner, heat pump, or associated furnace and by limiting the choices of system components, designers could be forced to forego greater total system benefits and add unnecessary cost due to the lack of design flexibility. JCI further commented that generic motor efficiency ratings will not result in significant savings benefits and will increase cost to consumers. JCI stated that consumers who purchase JCI equipment generally do not evaluate potential savings or performance features based on individual components ( i.e., motors) but rather on the overall system performance of the equipment. (JCI, No. 53 at pp. 1-2)

On the issue of energy savings resulting from regulating components, DOE received similar comments in response to the March 2022 Preliminary Analysis that were addressed in the June 2023 Direct Final Rule. Specifically, as highlighted in a previous DOE report, motor energy savings potential and opportunities for higher efficiency electric motors in commercial and residential equipment would result in overall energy savings. 6 In addition, some manufacturers advertise electric motors as resulting in energy savings in HVAC equipment. 7 88 FR 36066, 36103. Therefore, DOE disagrees with the notion that an increase in motor efficiency would not necessarily result in improved efficiency of the equipment the motor is incorporated into. In addition, when establishing any new or amended energy conservation standards for other covered equipment or products incorporating electric motors, DOE analyzes the current market to establish the baseline performance and would account for any improvements due to increased motor efficiency. As a result, any motor improvement would be later reflected in the covered equipment/product subsequent rulemakings. Therefore, DOE has determined that these comments do not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

Additionally, the June 2023 Direct Final Rule did not include inverter-only motors, synchronous motors, and SNEMs. Instead, the June 2023 Direct Final Rule retained the scope of the electric motors currently regulated at 10 CFR 431.25 and expanded the scope to electric motors that meet the same criteria as described at 10 CFR 431.25(g) but otherwise have a horsepower greater than 500 and less than or equal to 750 hp; and to those that otherwise have an air-over enclosure or a specialized frame size and an air-over enclosure. 88 FR 36066, 36079-36081. For these electric motors, the energy conservation standards adopted in the June 2023 Direct Final rule would preserve the technologies and frame sizes that exist today on the market ( i.e., AC induction polyphase designs in the same NEMA frame sizes). Id. at 88 FR 36097. Accordingly, DOE disagrees with the comments from AHRI and JCI that the adopted standards could limit innovation by imposing design constraints or reducing design engineers' ability to weigh trade-offs between different technologies.

Therefore, DOE has determined that these comments do not provide a reasonable basis for withdrawal of the June 2023 Direct Final.

AHRI commented that DOE declined to address industry's concerns in the electric motor test procedure final rule, citing that DOE stated comments related to any potential standards that DOE may consider for electric motors will be discussed in the separate energy conservation standards rulemaking docket (EERE-2020-BT-STD-0007). 8 AHRI noted that it had raised concerns specifically regarding air-over motors in response to the March 2022 Preliminary Analysis. 9 (AHRI, No. 54 at p. 2) Also in response to the March 2022 Preliminary Analysis, AHRI added that it filed joint comments with the Association of Home Appliance Manufacturers regarding the OEM certification compliance burden and increases to costs without increases to finished good efficiency. AHRI commented that DOE failed to address these comments in the June 2023 Direct Final Rule and accompanying NOPR because DOE assessed that the majority of the stakeholder concerns stemmed from regulating SNEMs and air-over SNEMs. AHRI asserted that even if a minority of the concerns was given to air-over motors, that would not absolve DOE of its statutory duty in determining whether a standard is economically justified. AHRI commented that DOE must consider the economic impact of the standard on the manufacturers and on the consumers of the products subject to such standard and, in the case of air-over motors, finished goods manufacturers can be either the manufacturer or the consumer, depending on how the component is purchased. ( Id. at pp. 2-3)

AHRI further commented that some OEMs purchase complete air-over motors for incorporation while other OEMs buy motor components and assemble the motor into the equipment. In the latter case, AHRI stated that the OEM would be considered a motor manufacturer and undergo the time and cost to certify that the motor meets any pertinent standards. AHRI added that the expanded scope of the June 2023 Direct Final Rule would redefine OEMs as electric motor manufacturers and that, for imported equipment, the expanded scope would impact OEMs who purchase air-over motor components and air-over motors that are not already sold on the U.S. market. However, AHRI commented that DOE did not include these manufacturer impacts in the standards June 2023 Direct Final Rule analysis. Specifically, AHRI commented that the shipments estimates used in the analysis are underestimated and questioned whether DOE included air-over motors included in OEM equipment. (AHRI, No. 54 at p. 4) In addition, AHRI commented that any OEMs that are considered a motor manufacturer would also be subject to new requirements for establishing or verifying performance in an independent laboratory. AHRI asserted that these air-over motor specific costs were not included. AHRI noted that the March 2022 Prelim TSD included minor increases in installation cost as efficiency levels rise attributed to the additional cost of an electrician ( Id. at p. 5) AHRI commented that such regulatory burdens have left manufacturers in an almost constant state of redesign and testing and that innovation was no longer as important as just modifying products to meet new and ever-changing regulatory burdens. ( Id. at p. 8)

Regarding the shipments estimate, as previously noted, the air-over motors that are subject to the June 2023 Direct Final Rule are limited to those meeting the same criteria as described at 10 CFR 431.25(g) but otherwise have an air-over enclosure or a specialized frame size and an air-over enclosure. Specifically, these are electric motors with horsepower greater than or equal to 1 hp, that are NEMA Design A or B and are built in standard NEMA frame size  10 or specialized frame size (or IEC equivalents). This excludes most electric motors included in heating, ventilation, air-conditioning, and refrigeration (“HVACR”) equipment manufactured by AHRI, which typically are not NEMA Design A or B, have different frame constructions, or are single phase motors. Therefore, DOE believes the shipments estimate used in the June 2023 Direct Final rule is correct as it is not intended to include the totality of the air-over electric motor market.

The manufacturer impact analysis (“MIA”) for this rulemaking specifically examines the conversion costs that electric motor manufacturers (including OEMs that also manufacture electric motors) would incur due to the analyzed energy conservation standards for electric motors in comparison to the revenue and free cash electric motor manufacturers receive. In addition, the MIA includes the additional testing costs for newly regulated equipment to comply with new efficiency standards. 11 Regarding OEMs who purchase components of an air-over motor, DOE notes that motors assembled this way are a minority of overall motors covered by the June 2023 Direct Final Rule. In addition, for motors that are assembled this way, the conversion costs associated with the new and amended energy conservation standards would not be significant as the OEM is not manufacturing the components that would have to be changed, and those conversion costs would be incurred by the component manufacturers, which are typical motor manufacturers ( i.e., included as NEMA members) and the focus of the manufacturer impact analysis conducted in the June 2023 Direct Final Rule. Therefore, DOE has determined that these comments do not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule. JCI commented that it understands DOE's authority to impose requirements on manufacturers of covered products, but does not agree with DOE's definition that equipment importers should be responsible for embedded electric motor test and certification requirements if indeed this is the case. JCI commented also that it was not clear if DOE's revised definition of “air-over” and “manufacturer,” which specifically includes importation and assembly, would result in importers of finished goods like JCI being responsible for embedded motor standards and testing. (JCI, No. 53 at p. 2)

In the June 2023 Direct Final Rule, DOE did not establish revised definitions for “air-over” and “manufacturer.” Therefore, DOE does not consider this comment to be an adverse comment. The definition of “air-over electric motor” was established by the test procedure final rule published on October 19, 2022. 87 FR 63588, 63609. The definition of “manufacture” and “manufacturer” can be found at 10 CFR 431.2 and were not revised by the June 2023 Direct Final Rule. Finally, DOE clarifies that any electric motor in scope that is imported into the United States would need to comply with the new and amended energy conservation standards adopted in the June 2023 Direct Final Rule.

AHRI commented that HVACR and water heating equipment are built, tested, and certified as a complete design and that slight changes to the motors can have significant and unexpected impacts on performance and efficiency. AHRI stated that there are a variety of safety standards affected by air flow in addition to the performance standards and that the testing of all legacy equipment because of a motor change would be cost and resource prohibitive. In addition, AHRI noted that testing could be impractical if the HVACR or water heating equipment was out of production because OEMs would be forced to rebuild an out-of-production unit for the purpose of testing the new motor or risk abandoning a reasonable repair path for consumers. AHRI asserted that some equipment may not be able to be retroactively designed with new motors due to new energy conservation standards or refrigerant changes. (AHRI, No. 54 at pp. 5-6)

JCI commented that DOE did not account for the cost burden of certifying replacement motors for legacy equipment, which it believes would be required per the revised scope definition. JCI stated that certifying replacement motors to new energy conservations standards for legacy equipment would likely require the building of at least partial, if not complete, prototypes as well as substantial investment in test time to cover dozens of different legacy applications for products still within their expected service life. JCI add that its legacy product offering ranges in size from 1 ton to over 120 tons (nominal cooling) for its rooftop and residential offerings and has dozens of unique electric motor applications still within their remaining service life. JCI commented also that in cases where a new energy conservation standard results in a new, larger NEMA frame size, it may not be possible to develop such a product and thus result in premature equipment replacement or a special one-off design which will greatly increase cost to consumers. JCI requested that DOE consider the negative impacts of the June 2023 Direct Final Rule and rescind the revised definition scope of covered motors. (JCI, No. 53 at p. 2)

While DOE conducts a MIA to address the industry burden on the manufacturer of the considered covered equipment, DOE typically does not include the impacts to other manufacturers. The MIA for this rulemaking specifically examined the conversion costs that electric motor manufacturers (including OEMs that also manufacture electric motors) would incur due to the analyzed energy conservation standards for electric motors in comparison to the revenue and free cash electric motor manufacturers receive. The OEM testing and certification costs were not included in the MIA, and neither were the OEM revenues and free cash flows, as these costs and revenue are not specific to electric motor manufacturers. However, as noted by the Electric Motors Working Group, the adopted standards for air-over electric motors  12 are not expected to cause broad market disruption. (Electric Motors Working Group, No. 35 at p. 4) In addition, as noted in in section IV.C of the June 2023 Direct Final rule, DOE fixed the frame size, which remained the same across efficiency levels. 88 FR 36066, 36097. As such, the energy conservation standards adopted in the June 2023 Direct Final Rule would preserve the frame sizes of electric motors on the market today. Consequently, although DOE did not include any OEM testing and certification costs in the June 2023 Direct Final Rule, DOE does not estimate these impacts to be significant. Therefore, DOE has determined that these comments do not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

AHRI commented that DOE used an average application lifetime of 15 years for applications driven by electric motors and came to an average lifetime of 11.8 years for the 5 hp air-over motor. AHRI noted that DOE has used much longer equipment lifetimes for some AHRI products, such as air-cooled commercial package air conditioners and heat pumps where DOE used a lifetime of 33.88 years for 30-ton equipment in a rulemaking. 13 AHRI asserted that such equipment could have two or three motor replacements during its lifetime and that if the replacement motor becomes unavailable, the entire OEM product would have to be replaced rather than repaired. In addition, AHRI commented that DOE did not account for the potential unavailability of the motors in use in today's HVACR equipment as well as the cost to OEMs, and ultimately to the consumer, of retroactively designing equipment in use today for motors that become unavailable upon new standards. (AHRI, No. 54 at p. 5)

DOE notes that the Electric Motors Working Group stated the adopted standards for air-over electric motors would avoid market disruption. (Electric Motors Working Group, No. 35 at p. 4) In addition, the adopted levels would preserve key criteria that are used to identify suitable replacement motors, 14 such as frame sizes, voltages, horsepower, pole configurations, enclosure constructions, and mountings, and DOE believes drop-in replacement motors would remain available and there would be no major market disruption, as highlighted by the Electric Motors Working Group. DOE further notes that OEM equipment can usually accommodate different models of motors and online cross-referencing tools  15 exist to help consumers identify motors that can be used as drop-in replacements. Therefore, DOE has determined that these comments do not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

AHRI stated that the burdens of the June 2023 Direct Final Rule would be added to an already large industry burden due to other regulatory bodies requiring redesign and recertification of products made by its members. AHRI described the regulatory actions that will impact its products: (1) UL 60335-2-40 will be required for all cooling equipment on January 1, 2024; (2) the American Innovation and Manufacturing Act requires the use of low global warming potential (“GWP”) refrigerants in residential and light commercial air conditioners, which AHRI expects to be required within two years and will require updated safety standards to address refrigerant leaks because GWP refrigerants are more flammable, and in commercial refrigeration equipment, which has a statutory deadline of October 7, 2023; (3) new federal efficiency levels and metrics with compliance dates ranging from January 1, 2024 to January 1, 2025 for variable refrigerant flow (“VRF”) equipment, dedicated outdoor air systems, computer room air conditioners, air cooled three-phase small central air conditioners and heat pumps and VRF with a cooling capacity less than 65,000 Btu/h, and commercial fans; (4) California's regulation of commercial fans required on November 16, 2023; and (5) test procedures that are currently in the rulemaking process for commercial package air conditioners and heat pumps, single package vertical air conditioners and heat pumps, package terminal air conditioners and heat pumps, and water source heat pumps. (AHRI, No. 54 at pp. 6-7)

The June 2023 Direct Final Rule examined the cumulative regulatory burden that affects the manufacturers of the covered equipment ( i.e., electric motors). 88 FR 36066, 36133-36134. As previously stated, DOE typically does not include the impacts to other manufacturers. Therefore, DOE has determined that this comment does not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

AHRI commented that EPCA requires that any proposed new or amended energy conservation standards must result in significant energy savings and be technologically feasible and economically justified and cited to 42 U.S.C. 6295(o). AHRI commented that it does not believe that the energy conservation standards in the June 2023 Direct Final Rule comply with this requirement. (AHRI, No. 54 at p. 8)

In the June 2023 Direct Final Rule, DOE determined that the adopted energy conservation standards would result in significant energy savings and are technologically feasible and economically justified and provided supporting analysis. 88 FR 36066, 36072, 36120-36146. For the reasons discussed in the June 2023 Direct Final Rule, DOE has determined that the comment provided by AHRI does not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

AHRI commented that DOE's electric motors test procedure, which would rate motor efficiency at full load, fails to adequately capture representative load conditions for finished products and equipment that is largely optimized for, and regulated on, part-load performance. AHRI commented also that regulating special and definite purpose motors, particularly with the proposed third-party nationally recognized certification program requirements, will add cost, reduce market choices, and do little, if anything, to realize further energy savings. AHRI asserted that full-load operating temperature in testing may be greater than the rated operating temperature of the motor while it is operating in its intended air over application, which AHRI claimed to be particularly problematic for air-over motors. AHRI stated that DOE was working in other areas to design test procedures that reward part-load performance and that it was inexplicable that DOE proposed to do the opposite here. (AHRI, No. 54 at p. 3)

DOE notes that this comment relates to the electric motors test procedure and is not related to the June 2023 Direct Final Rule. As such, DOE does not consider this comment as an adverse comment for the June 2023 Direct Final Rule.

Ravnitzky requested clarification on whether the June 2023 Direct Final Rule applied to small electric motors, dedicated purpose pool pump motor, and motors that are used in consumer products. (Ravnitzky, No. 49 at p. 1) DOE clarifies that the June 2023 Direct Final Rule amends and establishes energy conservation standards for electric motors that meet the newly adopted scope criteria at 10 CFR 431.25 and are in the scope of subpart B of 10 CFR part 431. Section 431.11 specifies that subpart B does not cover “small electric motors,” which are addressed in subpart X of 10 CFR part 431 and does not cover electric motors that are “dedicated-purpose pool pump motors,” which are addressed in subpart Z of 10 CFR part 431. See 10 CFR 431.11. Therefore, the June 2023 Direct Final Rule does not apply to small electric motors or dedicated purpose pool pump motors. In addition, while the scope of the June 2023 Direct Final Rule does not differentiate electric motors by end-use applications, it only includes electric motors that operate on polyphase power supply and is unlikely to include electric motors incorporated in consumer products (which typically operate on single phase power supply). Accordingly, DOE does not consider the comment from Ravnitzky to be an adverse comment.

Ravnitzky commented that there are many small business manufacturers of electric motors and that DOE should provide exemptions, waivers, or alternative standards for small businesses and provide sufficient time for small businesses to adjust to the new requirements. (Ravnitzky, No. 49 at pp. 1-2)

DOE notes that manufacturers subject to DOE's energy efficiency standards may apply to DOE's Office of Hearings and Appeals for exception relief under certain circumstances. Manufacturers should refer to 10 CFR part 1003 for additional details. Therefore, DOE has determined that the comment from Ravnitzky does not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

Hogan commented that for permanent capacitive split phase motors (“PSC”), the motor efficiency decreases dramatically as the capacitor degrades and that efficiency loss is the dominant failure mode for PSC motors. Hogan added that DOE's analysis only considered the “as-built” efficiency of the motor and that DOE should have determined the actual running efficiency of motors over their entire operating life for several operating environments and applications that degrade over time due to partial demagnetization. Hogan also stated that the inverter drive efficiency also degrades over time. Further, Hogan disagreed with DOE's analysis, which assumed that the price of permanent magnet inverter motors would decline to that comparable of three phase motors, and stated that the induction motor would always have a cost advantage. Hogan also noted that inverter drive motors only produce greater efficiency in applications as a result of variable shaft speed. (Hogan, No. 50 at p. 1)

PSC motors, permanent magnet inverter motors, and inverter drives were not included in the scope of products for which DOE established and amended energy conservation standards in the June 2023 Direct Final Rule. Instead, in the LCC and national impact analysis (“NIA”) analysis, DOE added a scenario to account for the fact that some consumers may choose to purchase a synchronous electric motor ( i.e., a permanent magnet inverter motors, out of scope of the June 2023 Direct Final Rule) rather than a more efficient NEMA Design A or B electric motor or select to purchase a variable speed drive ( i.e., an inverter drive) in combination with a compliant electric motor. DOE developed a consumer choice model to estimate the percentage of consumers that would purchase a synchronous electric motor based on the payback period of such investment. 88 FR 36066, 36104. As part of this sensitivity analysis DOE did not assume any decline in price for permanent magnet inverter motors. Instead, DOE assumed that the price of a more efficient NEMA Design A or B electric motor would increase compared to a baseline NEMA Design A or B electric motor. 16 DOE acknowledges that there is uncertainty around the efficiency of permanent magnet inverter motors and inverter drives which may degrade over time. In the June 2023 Direct Final Rule, DOE noted that there is uncertainty as to which rate such substitution would occur due to the uncertainty in the estimated savings from speed controls, installation costs, and selected decision criteria, and DOE did not incorporate this scenario as part of the reference analysis. Id. As such, this analysis was not used to justify the adopted standards in the June 2023 Direct Final Rule. 17 Therefore, DOE has determined that this comment does not provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

Hogan commented that the efficiency of residential and commercial motors can be increased higher than what is proposed by DOE at minimal costs when wired for three phase power in comparison to using an inverter drive. Hogan added that DOE should reasonably require good efficiency for single phase alternative current (“AC”) motors for many fractional horsepower motors ( i.e., horsepower less than 1) and otherwise advance efficiency through three phase power. (Hogan, No. 50 at p. 1)

As noted previously, the scope of the June 2023 Direct Final Rule only includes electric motors that operate three phase power supply ( i.e., AC induction polyphase electric motors). 88 FR 36066, 36079-36081. In addition, the scope of the June 2023 Direct Final Rule includes motors with horsepower equal to or greater than 1 horsepower. Id. As such, DOE did not analyze technology options for single phase AC motors and fractional horsepower motors ( i.e., with horsepower less than 1) in the June 2023 Direct Final Rule and does not consider the recommendation from Hogan to provide a reasonable basis for withdrawal of the June 2023 Direct Final Rule.

EPCA directs DOE to consider any lessening of competition that is likely to result from new or amended standards. (42 U.S.C. 6295 (p)(4)(A)(i) and (C)(i)(II); 42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General of the United States (“Attorney General”) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) To assist the Attorney General in making this determination, DOE provided the Department of Justice (“DOJ”) with copies of the June 2023 Direct Final Rule, the corresponding NOPR, and the June 2023 Direct Final Rule TSD for review. DOE has published DOJ's comments at the end of this document.

In its letter responding to DOE, DOJ concluded that, based on its review, it is unlikely that the proposed energy conservation standards for electric motors would have a significant adverse impact on competition.

Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE had analyzed the direct final rule in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE determined that this rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix B, B5.1, because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, none of the exceptions identified in B5.1(b) apply, no extraordinary circumstances exist that require further environmental analysis, and it meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. Therefore, DOE determined that promulgation of this direct final rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA and does not require an environmental assessment or an environmental impact statement.

In summary, based on the previous discussion, DOE has determined that the comments received in response to the direct final rule for new and amended energy conservation standards for electric motors do not provide a reasonable basis for withdrawal of the direct final rule. As a result, the energy conservation standards set forth in the direct final rule became effective on September 29, 2023. Compliance with these standards is required on and after June 1, 2027.

This document of the Department of Energy was signed on October 16, 2023, by Jeffrey Marootian, 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 .

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 modifies Class E airspace to support IFR operations at Northeast Wyoming Regional Airport, Gillette, WY.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0850 in the Federal Register (88 FR 38412; June 13, 2023) proposing to modify Class E airspace at Northeast Wyoming Regional Airport, Gillette, WY. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to the publication of the NPRM, the FAA modified the Class E5 Airspace legal description for Northeast Wyoming Regional Airport, Gillette, WY, to simplify and shorten the description. The phrase “and that airspace” was removed from the description, and the phrase “that airspace” was replaced with the word “within.” Those changes are reflected in this final rule.

Class E5 airspace areas are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by modifying the Class E airspace extending upward from 700 feet above the surface at Northeast Wyoming Regional Airport, Gillette, WY.

The Class E airspace extending upward from 700 feet above the surface is modified to include a 5-mile radius of the airport. This area accommodates arriving IFR operations below 1,500 feet above the surface and departing IFR operations until they reach 1,200 feet above the surface.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Background

Section 412 of the Internal Revenue Code (Code) prescribes minimum funding requirements for defined benefit pension plans, and section 430 specifies the minimum funding requirements that apply generally to defined benefit plans that are not multiemployer plans. 1 Section 430(a) defines the minimum required contribution for a plan by reference to the plan's funding target for the plan year. Under section 430(d)(1), a plan's funding target for a plan year generally is the present value of all benefits accrued or earned under the plan as of the first day of that plan year.

Section 430(h)(3) provides rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), except as provided in section 430(h)(3)(C) or (D), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430. Those mortality tables are to be based on the actual mortality experience of pension plan participants and projected trends in that experience. In prescribing those mortality tables, the Secretary is required to take into account results of available independent studies of mortality of individuals covered by pension plans. Under section 430(h)(3)(B), the Secretary is required to revise any mortality table in effect under section 430(h)(3)(A) at least every 10 years to reflect actual mortality experience of pension plan participants and projected trends in that experience. Under section 430(h)(3)(C), a plan sponsor may request the Secretary's approval to use plan-specific substitute mortality tables that meet requirements specified in the statute rather than the generally applicable mortality tables. If approved, the substitute mortality tables are used to determine present values and make computations under section 430 during the period of consecutive plan years (not to exceed 10) specified in the request.

Section 430(h)(3)(D) provides for the use of separate mortality tables with respect to certain individuals who are entitled to benefits on account of disability. These separate mortality tables are permitted to be used with respect to disabled individuals in lieu of the generally applicable mortality tables provided pursuant to section 430(h)(3)(A). The Secretary is to establish separate tables for individuals with disabilities occurring in plan years beginning before January 1, 1995, and for individuals with disabilities occurring in later plan years, with the mortality tables for individuals with disabilities occurring in those later plan years applying only to individuals who are disabled within the meaning of Title II of the Social Security Act. 2

Section 417(e)(3) generally provides that the present value of certain benefits under a qualified pension plan (including single-sum distributions) must not be less than the present value of the accrued benefit using applicable interest rates and the applicable mortality table. Section 417(e)(3)(B) defines the term “applicable mortality table” as the mortality table specified for the plan year for minimum funding purposes under section 430(h)(3)(A) (without regard to the rules for substitute mortality tables under section 430(h)(3)(C) or mortality tables for disabled individuals under section 430(h)(3)(D)), modified as appropriate by the Secretary. The modifications made by the Secretary to the section 430(h)(3)(A) mortality table to determine the section 417(e)(3)(B) applicable mortality table are not addressed in these regulations. Revenue Ruling 2007-67, 2007-2 CB 1047, describes the modifications that are currently applied to determine the section 417(e)(3)(B) applicable mortality table.

Final regulations under section 430(h)(3) were published in the Federal Register on October 5, 2017, in TD 9826, 82 FR 46388 (the 2017 regulations). Section 1.430(h)(3)-1 prescribes base mortality tables and a set of mortality improvement rates, which may be reflected through the use of either generational mortality tables or static mortality tables. The generational mortality tables are a series of mortality tables, one for each year of birth, each of which fully reflects projected trends in mortality rates. The static mortality tables (which are updated annually  3 ) use a single mortality table for all years of birth to approximate the present value that would be determined using the generational mortality tables.

The mortality tables included in the 2017 regulations are based on the mortality tables included in the RP-2014 Mortality Tables Report  4 (referred to in this preamble as the RP-2014 mortality tables), which was released by the Retirement Plan Experience Committee (RPEC) of the Society of Actuaries (SOA) in October 2014 (as revised in November 2014), and a set of mortality improvement rates as released by RPEC in the Mortality Improvement Scale MP-2016 Report. 5 In 2016, RPEC initiated a study of private-sector retirement plans in the U.S. in order to provide an update to the RP-2014 mortality tables, and in 2019, RPEC issued the Pri-2012 Private Retirement Plans Mortality Tables Report (Pri-2012 Report). 6 In October 2021, RPEC published the Mortality Improvement Scale MP-2021 Report (MP-2021 Report), which includes the latest mortality improvement scale issued by RPEC. 7

The standards prescribed for developing the mortality tables under section 430(h)(3)(A) are the same as the standards that are prescribed for developing mortality tables for multiemployer plans under section 431(c)(6)(D)(iv)(II) (which are used to determine current liability in order to determine the minimum full funding limitation under section 431(c)(6)(B)). These standards also apply for CSEC plans described in section 414(y) for purposes of developing mortality tables that are used for purposes of section 433(h)(3)(B)(i) (to determine current liability in order to determine the minimum full funding limitation under section 433(c)(2)(C) and the funded current liability percentage under section 433(i)).

Proposed regulations to update the mortality tables issued under section 430(h)(3) and make certain other changes regarding those tables were published in the Federal Register on April 28, 2022 (87 FR 25161) (the proposed regulations). Five comments on the proposed regulations were received. No commenters requested to speak at the scheduled public hearing; accordingly, the public hearing was canceled.

On October 27, 2022, RPEC released a report titled the “RPEC 2022 Mortality Improvement Update.”  8 Unlike RPEC's previously issued reports regarding mortality improvement, this report does not include a new mortality improvement scale. RPEC noted that, as of the date of that report, the most recent year for which full-year mortality data was available was 2020, which was severely affected by the COVID-19 pandemic. RPEC concluded that it would not be appropriate to incorporate, without adjustment, the substantially higher rates of mortality experience from 2020 into the models RPEC had previously used to project future mortality. 9 Therefore, RPEC chose not to release a new mortality improvement scale in 2022. Instead, RPEC recommended the use of an assumed increase in mortality rates to reflect the impact of the COVID-19 pandemic, which would be phased out after an appropriate period. RPEC did not recommend a specific level for this assumed increase but provided data about mortality rates for 2020 through the first half of 2022 and provided examples of assumed increases that could be used (including the assumed increase used in the 2022 Annual Report of the Board of Trustees of the Federal Old-Age and Survivors Insurance and Federal Disability Insurance Trust Funds).

Section 335 of the SECURE 2.0 Act of 2022 (SECURE 2.0 Act), which was enacted on December 29, 2022 as Division T of the Consolidated Appropriations Act, 2023, Public Law 117-328 (136 Stat. 4459), instructs the Secretary or the Secretary's delegate to amend the regulations under section 430(h)(3)(A) no later than June 30, 2024. Under this provision, for valuation dates occurring during or after 2024, the mortality improvement rates specified in those regulations must not assume for years beyond the valuation date mortality improvements at any age that are greater than 0.78 percent. Section 335 of the SECURE 2.0 Act also instructs the Secretary (or delegate) to modify the 0.78 percent limitation to reflect material changes in the overall rate of improvement projected by the Social Security Administration.

After consideration of public comments received on the proposed regulations (and taking into account section 335 of the SECURE 2.0 Act), the proposed regulations are adopted by this Treasury decision, with certain changes. These changes include: (1) a delay in the applicability date; (2) modifications in the mortality improvement rates to reflect the expected ongoing impact of COVID-19 on mortality rates and to reflect the 0.78 percent annual cap on mortality improvement rates as required by section 335 of the SECURE 2.0 Act; and (3) a minor change related to the treatment of individuals who are not identified as male or female.

These regulations set forth the updated methodology for determining the generally applicable mortality tables that are used to calculate present value under section 430 of the Code. Pursuant to section 417(e)(3)(B), a modified version of these tables is used for purposes of determining the amount of a single-sum distribution (or another accelerated form of distribution). In addition, these tables are used to determine current liability for multiemployer plans under section 431(c)(6) and CSEC plans under section 433(h).

The updated methodology for determining the generally applicable mortality tables under section 430(h)(3)(A) is issued pursuant to the requirement under section 430(h)(3)(B) to revise the mortality tables used under section 430 to reflect the actual mortality experience of pension plan participants and projected trends in that experience as well as the requirement under section 335 of the SECURE 2.0 Act that mortality improvement rates provided under the regulations for years after the year that includes the applicable valuation date may not exceed 0.78 percent per year. As under the 2017 regulations and the proposed regulations, the methodology for determining generally applicable mortality tables involves the separate determination of base mortality tables and the projection of mortality improvement.

These regulations adopt the base mortality tables set forth in the proposed regulations for use under section 430(h)(3)(A) of the Code, which are derived from the tables set forth in the Pri-2012 Report. No commenter suggested any alternative source for base mortality tables.

Like the base mortality tables provided in the 2017 regulations, the base mortality tables set forth in these regulations are gender-distinct and provide separate non-annuitant and annuitant mortality rates. The base mortality tables have a base year of 2012 (the central year of the experience study used to develop the mortality tables in the Pri-2012 Report). These base tables generally have the same mortality rates as the employee and non-disabled annuitant mortality rates (amounts weighted) that were released by RPEC in connection with the Pri-2012 Report. However, these base tables also include non-annuitant mortality rates for ages below 18 and above 80 and annuitant mortality rates for ages below age 50. This generally is the same approach that was used to develop the base mortality tables in the 2017 regulations. The preamble to the proposed regulations describes the methodology that was used to develop non-annuitant mortality rates for ages below age 18 and above age 80 and annuitant mortality rates for ages below age 50. See 87 FR 25161, 25163.

These regulations adopt the methodology set forth in the proposed regulations regarding the adjustment of the base mortality tables to reflect expected trends in mortality improvement but use different mortality improvement rates. The proposed regulations applied the Scale MP-2021 Rates (the mortality improvement scale in the MP-2021 Report) for valuation dates in the 2023 calendar year. This mortality improvement scale was developed using the same underlying methodology used to develop earlier mortality improvement scales but reflects historical population data through 2019 and the change to the RPEC-selected assumptions for the long-term rate of mortality improvement that was first incorporated in the Mortality Improvement Scale MP-2020 Report. 10

One commenter expressed concern that the expected long-term improvements in longevity reflected in the MP-2021 Report may be overly optimistic and suggested that regulations apply a cap on the long-term mortality improvement rates used. Another commenter recommended that future mortality rates be increased to reflect the long-term impact of COVID-19.

After considering all the comments and the RPEC 2022 Mortality Improvement Update, the Department of the Treasury (Treasury Department) and the IRS have decided to adopt a modified version of the MP-2021 Mortality Improvement Scale for valuation dates occurring on or after January 1, 2024. The mortality improvement scale applicable for valuation dates occurring on or after January 1, 2024, which is referred to as the 2024 Adjusted Scale MP-2021 Rates, is based on the Scale MP-2021 Rates. However, the 2024 Adjusted Scale MP-2021 Rates reflect a modification to the Scale MP-2021 Rates that eliminates any mortality improvement during 2020, 2021, 2022, and 2023 (while retaining any projected mortality deterioration for those years under the MP-2021 Mortality Improvement Scale). 11 In addition, in response to the statutory instruction in section 335 of the SECURE 2.0 Act, the 2024 Adjusted Scale MP-2021 incorporates a cap on mortality improvement rates of 0.78 percent per year for years after 2024. 12 This cap on mortality improvement rates is statutorily required by a clear statutory instruction, and public comment on the cap rate is unnecessary.

The Treasury Department and the IRS intend to consider new data regarding mortality trends of the general population as it becomes available (including future reports and mortality improvement scales issued by RPEC, as well as projections of mortality improvement issued by the Social Security Administration) and to specify new mortality improvement rates that reflect updated data when future modifications become appropriate. Those new mortality improvement rates will incorporate the cap on mortality improvement rates described in section 335 of the SECURE 2.0 Act (including a change to the level of the 0.78 percent cap on annual mortality improvement rates as a result of any material changes in the overall rate of improvement projected by the Social Security Administration).

The 2017 regulations provide for the use of separate generational non-annuitant and annuitant mortality tables and separate static non-annuitant and annuitant mortality tables. However, the proposed regulations provided for the elimination of the use of static mortality tables other than for small plans. This change was proposed because the Treasury Department and the IRS believe that there was no longer a need to allow the use of static mortality tables for larger plans (as most actuarial firms have the capability to use generational mortality tables) and to minimize anti-selection by plan sponsors who determine that the use of static mortality tables results in lower minimum funding requirements. No commenters objected to this change, and these regulations adopt that change.

One commenter requested that final regulations clarify how the mortality tables under section 430(h)(3)(A) are applied in the case of a participant or beneficiary who identifies as nonbinary. To address this issue, and to clarify how these tables should be applied for the portion of a plan's population for whom gender data is not available, the regulations provide that the plan's actuary must use a reasonable approach in applying the section 430(h)(3)(A) mortality tables with respect to the portion of a plan's population whose gender is not identified as male or female (for example, a plan participant who identifies as nonbinary or for whom gender is not known). The regulations include two examples of reasonable approaches that may be used for this purpose. These two approaches are merely two reasonable methods for determining liabilities with respect to individuals for whom male or female gender is not identified, and other reasonable approaches may be appropriate. 13

Under the first approach, the liability for an individual is determined as the weighted average of the liability calculated as if the individual were male and the liability calculated as if the individual were female, using an appropriate weighting that takes into account the distribution of gender in the plan's population for individuals for whom gender is identified. For example, if the gender distribution in a plan's population for whom the gender is identified is 2/3 male and 1/3 female, the liability calculated for the individual would be equal to 2/3 of the liability calculated as if the individual were male and 1/3 of the liability calculated as if the individual were female.

The second approach might be used in connection with actuarial software that is not able to apply a weight to individuals in the plan census. Under the second approach, either male or female status is assigned randomly to an individual for whom male or female gender is not identified in a manner that is expected to result in an appropriate proportion of males and females for the plan population that takes into account the distribution of gender for individuals in the plan's population for whom gender is identified. For example, if the gender distribution in a plan population for whom the gender is identified is 2/3 male and 1/3 female, a gender may be assigned to an individual for whom gender is not identified based on the individual's birthdate, with someone born in the first 8 months of the year assigned male gender and someone born in the last 4 months of the year assigned female gender.

These regulations apply for valuation dates occurring on or after January 1, 2024.

The 2017 regulations also included rules regarding the use of plan-specific substitute mortality tables under section 430(h)(3)(C), which are set forth in § 1.430(h)(3)-2. Section 1.430(h)(3)-2(c)(6)(ii) provides for the early termination of the use of substitute mortality tables in certain circumstances, including in conjunction with a replacement of the mortality tables specified in § 1.430(h)(3)-1. Under § 1.430(h)(3)-2(c)(6)(ii)(E), the early termination in conjunction with a replacement of the generally applicable mortality tables will apply as of a date specified in guidance published in the Internal Revenue Bulletin. As stated in the preamble to the proposed regulations, the Treasury Department and the IRS generally will not require that the use of previously approved substitute mortality tables be terminated solely as a result of replacement of the generally applicable mortality tables.

Proposed regulations modifying the rules for approving plan-specific substitute mortality tables are being published in the proposed rules section of this issue of the Federal Register . Those regulations are proposed to apply to plan years beginning on or after January 1, 2025. Until amendments to the plan-specific substitute mortality regulations are finalized—and an updated revenue procedure that reflects the final regulations is issued—the Treasury Department and the IRS will not require that any previously approved plan-specific substitute mortality tables be terminated pursuant to § 1.430(h)(3)-2(c)(6)(ii)(E).

Section 1.430(h)(3)-1(b)(1)(iii) of these regulations provides that the mortality improvement rates used to construct generational tables to be used for valuation dates occurring on or after January 1, 2024, are the 2024 Adjusted Scale MP-2021 Rates as described in the third paragraph of section B of the Summary of Comments and Explanation of Revisions in this preamble. The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. These regulations require that agencies must discuss in the preamble to a rule or proposed rule the way in which materials that the agency incorporates by reference are reasonably available to interested persons, and how interested parties can obtain the materials. 1 CFR 51.5(b). The 2024 Adjusted Scale MP-2021 Rates may be found at www.irs.gov/retirement-plans/pension-plan-mortality-tables.

IRS Revenue Rulings, Revenue Procedures, and Notices cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS website at www.irs.gov.

Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6 of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that the regulations will not have a significant economic impact on a substantial number of small entities. The only provision that increases regulatory burden is § 1.430(h)(3)-1(b), which generally requires the use of generational mortality tables. However, under § 1.430(h)(3)-1(c), small entities are not required to use generational mortality tables. Therefore, these regulations will not have a significant economic impact on a substantial number of small entities.

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

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

Pursuant to section 7805(f) of the Code, the proposed regulations that preceded these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

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

The principal authors of these regulations are Arslan Malik and Linda S.F. Marshall of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). However, other personnel from the Treasury Department and the IRS participated in the development of these regulations.

Accordingly, 26 CFR part 1 is amended as follows:

Background

This document contains amendments to 26 CFR part 300—User Fees. On October 5, 2022, a notice of proposed rulemaking (NPRM) (REG-100719-21) and notice of public hearing was published in the Federal Register (87 FR 60357). The NPRM proposed amending the regulations relating to the user fees for enrolled actuaries. The document proposed increasing the amount of the user fee for both the new enrollment and renewal of enrollment for enrolled actuaries from $250 to $680 per enrollment application or renewal application. The NPRM contained a detailed explanation of the legal background and user fee calculations regarding the amendment to these regulations.

Four comments were submitted in response to the notice of proposed rulemaking. There were no requests to speak at the scheduled public hearing. Consequently, the public hearing was cancelled (87 FR 80109). After consideration of the written comments, the Department of the Treasury (Treasury Department) and the IRS have decided to adopt without modification the regulations proposed by the notice of proposed rulemaking.

The four comments submitted in response to the notice of proposed rulemaking are available at https://www.regulations.gov or upon request.

Some comments did not address modification or clarification of the user fee.

One comment expressed concern about the applicability date of the user fees for enrolled actuaries who apply to renew their enrollment for the 2023-2025 enrollment cycle. The proposed regulation amending 26 CFR 300.8, Renewal of enrollment of enrolled actuary fee, stated the effective date would be 30 days after the regulation is published as a final regulation in the Federal Register . The comment noted that applications for the enrollment renewal would be available in early January 2023 to enrolled actuaries seeking to renew their enrollment for the 2023-2025 enrollment cycle, and renewal of enrollment applications and fees must be submitted by March 1, 2023, to be effective beginning April 1, 2023. These final regulations are being published after the close of the 2023 season for timely renewal of enrollment. Consequently, the $250 renewal of enrollment user fee in effect on January 1, 2023, was in effect throughout the timely renewal season that closed March 1, 2023.

Another comment recommended adding a provision to the user fee regulations to eliminate the in-person continuing education formal program requirements. Continuing education requirements for enrolled actuaries are governed by 20 CFR 901.11. The comment regarding continuing education requirements for enrolled actuaries is outside the scope of these regulations.

In addition, a comment recommended that the Joint Board for the Enrollment of Actuaries (Joint Board) consider approaches to make its cost structure more efficient, presenting as examples adopting a longer enrollment cycle, and making the continuing professional education (CPE) audit process more efficient for enrolled actuaries and for qualifying sponsors of enrolled actuary continuing education. These regulations relate to the methodology used to determine user fees for new enrollment and renewal of enrollments. The operation of the Joint Board is outside the scope of these regulations. Nonetheless, the IRS continually looks for program efficiencies, which it takes into consideration during the enrolled actuary user fee biennial review.

The summary of comments below addresses those comments that make recommendations concerning, or seeking clarification of, the user fees set forth in the proposed regulations relating to the user fees for new enrollments and renewal of enrollments for enrolled actuaries.

One comment questioned why the user fee is calculated based on the number of enrolled actuary applicants. Enrolled actuary applicants seeking to be enrolled as new enrolled actuaries or to renew their enrolled actuary enrollment are the principal beneficiaries of the services provided by the Joint Board; that is, the enrolled actuary new enrollment and renewal of enrollment processes conducted by the IRS Return Preparer Office (RPO) under the oversight of the Joint Board. An individual who has been granted new enrollment or renewal of enrollment as an enrolled actuary by the Joint Board may perform pension actuarial services under the Employee Retirement Income Security Act of 1974 (ERISA) Public Law 93-406, Title III, section 3042, Sept. 2, 1974, 88 Stat. 1002, and practice before the IRS as provided by the rules governing practice before the IRS, published in 31 CFR subtitle A, part 10, and reprinted as Treasury Department Circular No. 230 (Circular 230). Enrollment confers special benefits on individuals who are enrolled actuaries beyond those that accrue to the general public.

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

Section 6a(1) of OMB Circular A-25 states that when a service offered by an agency confers special benefits to identifiable recipients beyond those accruing to the general public, the agency is to charge a user fee to recover the full cost of providing the service (unless the agency requests, and the OMB grants, an exception to the full-cost requirement). An agency that seeks to impose a user fee for government-provided services must calculate the full cost of providing those services.

In accordance with OMB Circular A-25, the RPO completed its 2021 biennial review of the enrollment and renewal of enrollment user fees associated with enrolled actuaries. As discussed in the notice of proposed rulemaking, during its review, the RPO took into account increases in labor, benefits, and overhead costs incurred in connection with providing enrollment services to individuals who enroll or renew enrollment as enrolled actuaries since the user fee was promulgated in 2007. The costs include activities related to verifying that an individual meets the requirements for enrollment or renewal of enrollment as an enrolled actuary. The RPO also took into account a reallocation of certain labor costs in their methodology to include costs associated with certain human resource matters, formalizing policies and procedures, and other administrative support. The RPO followed the generally accepted accounting principles established by the Federal Accounting Standards Advisory Board.

As required by section 6a(1) of OMB Circular A-25, the costs allocated to the enrollment and renewal processes for enrolled actuaries are borne in full by the identifiable group of actuaries who apply for new enrollment and renewal of enrollment services. Accordingly, the number of enrolled actuary applicants is used by the RPO to determine the per-applicant user fee. As described in the proposed regulations, to arrive at the total cost per application, the IRS divided the estimated three-year total of enrolled actuary costs by the total volume of applications expected over the same three-year period. Based on the number of applicants, the full cost of administering the enrollment and renewal for enrollment processes for enrolled actuaries increased from $250 to $680 per enrollment.

Several comments were received expressing concern about the amount by which the user fees increased, and sought clarification for what caused the increase. One commenter requested an explanation of the difference in outcomes between the 2019 biennial review when user fees were not increased and the 2021 biennial review. Commenters also inquired about the factors causing the reallocation of RPO's human resources, resulting in RPO's correction during the 2021 biennial review of the average time allocated to enrolled actuary enrollment and renewal of enrollment processes from 40 percent to 65 percent. Another commenter, questioning the increase in enrollment user fees between the 2019 biennial review and the 2021 biennial review, stated for comparison that the Bureau of Labor Statistics (BLS) Employment Cost Index (ECI) for private industry worker wages and salaries showed an increase of no more than 10 percent to 15 percent from the 2020-2022 enrollment cycle to the 2023-2025 enrollment cycle. The same commenter observed that many of the intellectual capital services the Treasury Department and the IRS provide across the organization are not directly relevant to enrolled actuaries and the services they provide to qualified pension plans. In the same vein, a commenter expressed an incorrect belief that the enrolled actuary enrollment user fees include costs not attributable to the enrolled actuary program for government employees who, among their overall responsibilities not allocated to the enrolled actuary program, have duties including working for the Joint Board.

More specifically, a commenter questioned the accuracy of the IRS's determination that 65 percent of four RPO employees' time is dedicated to enrollment activities during the three-year enrollment cycle, given the unevenness in enrollments and renewals during each of the three years. The 2021 biennial review was based on 214 applications in 2018, 132 applications in 2019, and 3,584 applications in 2020. According to this commenter, if the volume of applications is uneven, the percentage of time IRS employees spend working on enrollment activities would be similarly uneven and would not average 65 percent over the three-year enrollment cycle. Another commenter requested information about the change in the number of applicants relative to prior years. The commenter posited that if enrollments were decreasing, enrollment processes costs also should decrease because there are fewer applications to review. Enrolled actuary total new and renewal of enrollment applications have declined. The 2021 biennial review, based on fiscal years 2018, 2019, and 2020, showed approximately 450 fewer enrolled actuary applicants compared to the previous cycles.

These comments generally reflect an assumption that the enrolled actuary enrollment fees are solely attributable to enrollment applications processing. As explained in the proposed regulations, the methodology for calculating full costs associated with new and renewal of enrollment applications was updated during the 2021 biennial review. Prior costing analyses only considered the time associated with the actual processing of new and renewal of enrollment applications. However, application processing is only one aspect of the cost analysis. The current increase in user fees was, in part, the result of the RPO determining that the methodology previously used to compute labor allocations was outdated and did not capture the full costs associated with administering enrolled actuary enrollment and renewal of enrollment. Under the previous methodology, the salaries and benefits of RPO staff supporting the new and renewal of enrollment of enrolled actuaries were computed at 40 percent of four RPO staff members' salaries and benefits, with associated overhead. To more accurately calculate the full RPO costs directly associated with the enrolled actuary enrollment program, the updated costing analysis accounts for not only the time and resources involved in application processing, but also the additional time and resources spent to administer the enrolled actuary program. These activities continue throughout the three-year enrollment cycle even though enrollment application volume fluctuates. The RPO's responsibilities with respect to the enrolled actuary program beyond application processing include conducting yearly tax compliance and continuing professional education (CPE) audits of enrolled actuaries, communicating with inactive enrolled actuaries, implementing regulatory improvements, investigating discipline cases, and supporting the work of Joint Board Advisory Committee members.

The 2021 biennial review established that four RPO employees devoted an average of 65 percent of their time over the three-year enrollment cycle to enrolled actuary enrollment activities. Accordingly, the correct allocation of RPO's labor costs to the enrolled actuary enrollment and renewal of enrollment processes was 65 percent of the four RPO staff members' time, which was used to calculate the user fees in these final regulations. More specifically, during the 2021 biennial review, the IRS projected the estimated costs of direct labor and benefits based on the actual salary and benefits of the four employees who devote time to conducting enrolled actuary enrollment and renewal of enrollment processes, reduced to reflect the percentage of time each individual actually spends on those activities. The RPO's managers estimated the percentage of time these employees devoted to conducting enrollment activities based on the managers' knowledge of program assignments. In addition, the full costs of related oversight and support costs, plus travel, training, and supplies, were included in the 2021 biennial review user fee computations. These costs had not been included in the user fee computation previously.

Applying the refined methodology and including full costs in the 2021 biennial review resulted in the increase of $430 in new and renewal of enrollment user fees for the three-year enrollment cycle to $680, or $143.33 per year.

One commenter appeared to not understand that the change in the internal allocation methodology applied only to the RPO staff who actually provided the enrollment services. This commenter observed that a change in the Treasury Department's and IRS's internal allocation methodology for human resources should not result in a significant increase in enrolled actuary user fees because many of the services the agencies provide are not directly relevant to enrolled actuaries. Human resource allocation throughout the Treasury Department was not used as a cost factor attributed to the four RPO staff providing enrollment services. Neither were costs associated with agency-wide IRS human resource allocation; instead, those costs were one of several indirect costs used to compute the overhead rate included in the rate calculation methodology as described in the notice of proposed rulemaking.

Two comments questioned whether increasing user fees may discourage individuals from enrolling as enrolled actuaries or renewing their enrollment. These commenters were concerned that a decline in the number of enrolled actuaries could minimize the competition for services, which could result in increased costs passed to the consumers of services provided by enrolled actuaries. One commenter queried whether there had been consideration given to phasing in the increased user fees and implementing a cap on the user fees. The same commenter stated that, in circumstances of declining enrolled actuary enrollment, the remaining enrolled actuaries might in effect be penalized by substantially increasing user fees. This commenter observed that requiring enrolled actuaries to bear the full cost of enrollment processing may be to the detriment, instead of the benefit, of the enrollment of actuaries.

The Treasury Department and the IRS recognize the valuable service enrolled actuaries provide to taxpayers. As discussed in section 2.A of the Summary of Comments, OMB Circular A-25 states that when a service offered by a Federal agency provides special benefits to identifiable recipients beyond those accruing to the general public, the agency will establish a user fee to recover the full cost to the government of providing the service (unless the agency requests, and the OMB grants, an exception to the full-cost requirement). Also discussed in section 2.A of the Summary of Comments, the IRS confers benefits on individuals who are enrolled actuaries beyond those that accrue to the general public by allowing them to perform pension actuarial services under ERISA and to practice before the IRS. The Treasury Department and the IRS comply with OMB Circular A-25 by charging user fees to recover the full cost of overseeing the enrollment and renewal of enrollment processes. Based on the 2021 biennial review, the RPO determined that the full cost of administering the enrolled actuary new and renewal of enrollment processes increased from $250 to $680 per enrollment application for the three-year enrollment period. The fee is an increase of $143.33 per year for the period. The Treasury Department and the IRS have not requested an exception from the OMB because there is no data that indicates the user fee for new enrollment or renewal of enrollment is cost prohibitive or that any other condition exists that justifies an exception.

One commenter queried whether there should be an exemption from the user fee in certain circumstances, as permitted by OMB Circular A-25. As an example, the commenter described a scenario when enrolled actuary status is required to qualify for employment but the employment position itself does not involve providing pension actuarial services or representing a taxpayer before the IRS. According to the commenter, the enrolled actuary in this scenario should not be subject to the user fee because the employer does not benefit from the performance of the particular services the enrolled actuary status permits. This is a misunderstanding of the role “benefit” plays in the OMB Circular A-25 requirement to charge a user fee. As explained in the notice of proposed rulemaking and this preamble, the user fee is required to recover the full cost of providing the service of new and renewal of enrollment to an individual who has been approved by the Joint Board to perform actuarial services required under ERISA and to represent clients in certain circumstances before the IRS. This service confers special benefits to the enrolled actuary. Any third-party benefit, such as to an enrolled actuary's employer or clients, is not a consideration with respect to the OMB Circular A-25 requirement. The scenario presented by the commenter does not justify an exception to the full-cost recovery requirement.

Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6(b) of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.

The notice of proposed rulemaking included an initial regulatory flexibility analysis (IRFA). No comments pertaining to the analysis were received. Based on the IRFA, the Treasury Department and the IRS determined the rule is not expected to have a significant economic impact on a substantial number of small entities and a final regulatory flexibility analysis is not required. As discussed in the IRFA, the regulations affect actuaries who apply for enrollment as an enrolled actuary or renewal of enrollment with the Joint Board. Only individuals, not businesses, can apply for new enrollment or to renew enrolled actuary certification. Therefore, the economic impact of these regulations, an increase of $143.33 per year for the three-year enrollment period, on any small entity generally will be the result of an individual actuary owning a small business, or a small business employing an actuary and requiring the individual to apply for enrolled actuary status or renew as an enrolled actuary with the Joint Board. Pursuant to the RFA (5 U.S.C. chapter 6), it is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities.

Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking was submitted to the Office of Chief Counsel for Advocacy of the Small Business Administration (SBA) for comment on its impact on small business. The Chief Counsel for the Office of Advocacy of the SBA did not provide any comments.

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

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

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

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

Accordingly, the Treasury Department and the IRS amend 26 CFR part 300 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to respond and repair to the potential safety hazards associated with the aerial operations. It is impracticable to publish an NPRM because we must establish this safety zone by October 21st, 2023. An aerial conductor will be replaced by Nashville Electric Service between mile markers 190-191 which could cause a hazard to navigation on the Cumberland River. The safety zone must be established to protect people and vessels associated with and resulting from the aerial operations and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. This safety zone may include closures or navigation restrictions and requirements that are vital to maintain safe navigation on the Cumberland River during aerial operations.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because action is needed to respond to the potential safety hazards associated with the aerial operations starting October 21, 2023.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the aerial operations from October 21 and 22, 2023, will be a safety concern for anyone within mile marker 190-191. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the aerial operations are taking place.

This rule establishes a safety zone that will be enforced from 7 a.m. until 6 p.m. on October 21 and 22, 2023. The safety zone will cover all navigable waters within mile markers 190-191. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the aerial operations are being conducted. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this 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 rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the location of the event on the Cumberland River lasting only 11 hours daily for two days. Vessels will be able to contact the COTP for instructions on how to transit around the zone safely.

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 rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, this rule will only last 11 hours, this rule will not have a significant economic impact on any vessel owner or operator.

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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will 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 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 rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this 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 determined 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 rule involves safety zone lasting only 11 hours a day, for two days, that will prohibit entry within mile marker 181-183 of the Cumberland River. It is 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 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.

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.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

A. General Information Does this action apply to me?

Regulated entities: These final findings do not themselves apply new requirements to entities other than the EPA and the FAA. With respect to requirements for the EPA and the FAA, as indicated in the proposal for this action, if the EPA issues final findings that emissions of lead from certain classes of engines used in certain aircraft cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, the EPA then becomes subject to a duty to propose and promulgate emission standards pursuant to section 231 of the Clean Air Act. Upon EPA's issuance of regulations, the FAA shall prescribe regulations to ensure compliance with the EPA's emission standards pursuant to section 232 of the Clean Air Act. In contrast to the findings, those future standards would apply to and have an effect on other entities outside the Federal Government. In addition, pursuant to 49 U.S.C. 44714, the FAA has a statutory mandate to prescribe standards for the composition or chemical or physical properties of an aircraft fuel or fuel additive to control or eliminate aircraft emissions which the EPA has found endanger public health or welfare under section 231(a) of the Clean Air Act. In issuing these final findings, the EPA is making such a finding for emissions of lead from engines in covered aircraft.

The classes of aircraft engines and of aircraft relevant to this final action are referred to as “covered aircraft engines” and as “covered aircraft,” respectively throughout this document. Covered aircraft engines in this context means any aircraft engine that is capable of using leaded aviation gasoline. Covered aircraft in this context means all aircraft and ultralight vehicles  1 equipped with covered engines. Covered aircraft would, for example, include smaller piston-engine aircraft such as the Cessna 172 (single-engine aircraft) and the Beechcraft Baron G58 (twin-engine aircraft), as well as the largest piston-engine aircraft such as the Curtiss C-46 and the Douglas DC-6. Other examples of covered aircraft would include rotorcraft, 2 such as the Robinson R44 helicopter, light-sport aircraft, and ultralight vehicles equipped with piston engines. Because the majority of covered aircraft are piston-engine powered, this document focuses on those aircraft (in some contexts the EPA refers to these same engines as reciprocating engines). All such references and examples used in this document are covered aircraft as defined in this paragraph.