I. Background

The RHS offers a variety of programs to build or improve housing and essential community facilities in rural areas. RHS offers loans, grants, and loan guarantees for single- and multifamily housing, childcare centers, fire and police stations, hospitals, libraries, nursing homes, schools, first responder vehicles and equipment, and housing for farm laborers. RHS also provides technical assistance loans and grants in partnership with non-profit organizations, Indian tribes, state and Federal government agencies, and local communities.

RHS administers the Section 538 Guaranteed Rural Rental Housing Program (GRRHP) under the authority of the Housing Act of 1949, as amended (42 U.S.C. 1490p-2) and operates under 7 CFR part 3565. Under the GRRHP, RHS guarantees loans for the development of housing and related facilities in rural areas. To preserve affordable housing, the GRRHP regulation requires properties that are financed with a Section 538 GRRHP loan be used for occupancy by low- and moderate-income households and remain as affordable rental housing for the original term of the loan. The Agency is proposing to require a separate deed restriction containing restrictive use language, stating that the housing must remain available for occupancy by low- and moderate-income households for the original term of the guaranteed loan, and be recorded along with other legally recorded documents. For the restriction to remain in place upon prepayment of the mortgage, the deed restriction must be recorded. The current regulation does not specify that the deed restriction be recorded.

The purpose of this proposed rule is to clarify that the deed restriction must be recorded to ensure affordable rural rental housing is preserved after prepayment of the mortgage. The current regulation does not specify that a separate deed restriction is to be recorded. Restrictive use provisions contained in the mortgage or deed of trust may be released along with the mortgage or deed of trust upon prepayment of the loan. However, documents recorded separately from the mortgage or deed of trust will survive if the loan is prepaid. If the deed is not recorded, the Agency will be at risk of not being able to enforce the restrictive use requirement and fulfill the need for affordable housing in rural areas. The proposed rule will require that applicants record a separate deed restriction.

The proposed changes would amend 7 CFR 3565.352(b) by adding language requiring that a separate deed restriction (containing the restrictive use language) be recorded before other documentation related to the transaction. This change would allow the Agency to enforce the restrictive use requirement to maintain affordable housing if the loan guaranteed by the Section 538 GRRHP is prepaid.

The RHS administers the Section 538 Guaranteed Rural Rental Housing Program (GRRHP) loans under the authority of the Housing Act of 1949, as amended (42 U.S.C. 1490p-2) and operates under 7 CFR part 3565.

These loans are subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. RHS conducts intergovernmental consultations for each loan in accordance with 2 CFR part 415, subpart C.

This proposed rule has been determined to be non-significant and, therefore, was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This rule has been reviewed under Executive Order 12988. In accordance with this rule: (1) unless otherwise specifically provided, all State and local laws that conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before bringing suit in court that challenges action taken under this rule.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the States is not required.

This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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. Consultation is also required for any regulation that preempts tribal law or that imposes substantial direct compliance costs on Indian tribal governments and that is not required by statute.

The Agency has determined that this proposed rule does not, to our knowledge, have tribal implications that require formal tribal consultation under Executive Order 13175. If a Tribe requests consultation, the RHS will work with the Office of Tribal Relations and USDA Rural Development's Tribal Relations Team to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

The rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

Section 270 of the Administrative Pay-As-You-Go-Act of 2023 (Pub. L. 118-5, div. B, title III, 137 Stat 31) amended 5 U.S.C. 801(a)(2)(A) to require U.S. Government Accountability Office (GAO) to assess agency compliance with the Act, which establishes requirements for administrative actions that affect direct spending, in GAO's major rule reports. The Act does not apply to this rule because it does not increase direct spending.

Title II of the UMRA, Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal Governments and on the private sector. Under section 202 of the UMRA, Federal Agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and final Rules with “Federal mandates” that may result in expenditures to State, local, or tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal Governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this proposed rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that (i) this action meets the criteria established in 7 CFR 1970.53(f); (ii) no extraordinary circumstances exist; and (iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

Rural Development has reviewed this rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis, to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, disability, marital or familial status. Based on the review and analysis of the rule and all available data, issuance of this proposed rule is not likely to negatively impact low and moderate-income populations, minority populations, women, Indian tribes or persons with disability, by virtue of their age, race, color, national origin, sex, disability, or marital or familial status. No major civil rights impact is likely to result from this proposed rule.

The program affected by this regulation is listed in the Catalog of Federal Domestic Assistance under numbers 10.438—Rural Rental Housing Guaranteed Loans (Section 538).

The information collection requirements contained in this regulation have been approved by OMB and have been assigned OMB control number 0575-0189. This proposed rule contains no new reporting and recordkeeping requirements that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Rural Development is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible and to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In accordance with Federal civil rights laws and USDA civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, or staff office; or the 711 Relay Service.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at usda.gov/sites/default/files/documents/ad-3027.pdf from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

a. Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or

b. Fax: (833) 256-1665 or (202) 690-7442; or

c. Email: program.intake@usda.gov.

It is USDA's intention that the provisions of this rule shall operate independently of each other. If this rule or any portion of this rule is ultimately declared invalid or stayed as to a particular provision, it is USDA's intent that the rule nonetheless be severable and remain valid with respect to those provisions not affected by a declaration of invalidity or stayed. USDA concludes it would separately adopt all the provisions contained in this rule.

For the reasons discussed in the preamble, the Agency proposes to amend 7 CFR part 3565 as follows:

DOE proposes to incorporate by reference the following industry standard into 10 CFR part 430:

AATCC LP1-2021, Laboratory Procedure for Home Laundering: Machine Washing, Revised 2023.

Copies of AATCC test methods can be obtained from the American Association of Textile Chemists and Colorists (“AATCC”), P.O. Box 12215, Research Triangle Park, NC 27709, (919) 549-3526, or www.aatcc.org.

See section IV.M of this document for a further discussion of this standard.

Consumer (residential) clothes washers (“RCWs”), commercial clothes washers (“CCWs”), and consumer clothes dryers are included in the list of “covered products/equipment” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(7)-(8); 42 U.S.C. 6311(1)(H)) DOE's test procedures for RCWs are currently prescribed at 10 CFR part 430, subpart B, appendices J (“appendix J”) and J2 (“appendix J2”). The test procedures for CCWs must be the same as those established for RCWs. (42 U.S.C. 6314(a)(8)). DOE's test procedures for consumer clothes dryers are currently prescribed at 10 CFR part 430, subpart B, appendices D1 (“appendix D1”) and D2 (“appendix D2”). DOE also prescribes specifications for the test cloth to be used for testing clothes washers at appendix J3 to subpart B (“appendix J3”). The following sections discuss DOE's authority to establish and amend test procedures for RCWs, CCWs, and consumer clothes dryers and relevant background information regarding DOE's consideration of test procedures for these products.

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317, as codified) Title III, Part B of EPCA  2 established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. These products include RCWs and consumer clothes dryers. (42 U.S.C. 6292(a)(7)-(8)) Title III, Part C of EPCA, 3 added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes CCWs. (42 U.S.C. 6311(1)(H)) RCWs, CCWs, and consumer clothes dryers are the subject of this document.

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291; 42 U.S.C. 6311), test procedures (42 U.S.C. 6293; 42 U.S.C. 6314), labeling provisions (42 U.S.C. 6294; 42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6295; 42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6296; 42 U.S.C. 6316).

The Federal testing requirements consist of test procedures that manufacturers of covered products/equipment must use as the basis for: (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s); 42 U.S.C. 6316(a)), and (2) making other representations about the efficiency of those consumer products/equipment (42 U.S.C. 6293(c); 42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the products/equipment comply with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s); 42 U.S.C. 6316(a))

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

Under 42 U.S.C. 6293 and 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products/equipment. EPCA requires that any test procedures prescribed or amended under this section be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product/equipment during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2))

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product and equipment, including RCWs, CCWs and consumer clothes dryers, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A); 6314(a)(1))

If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. (42 U.S.C. 6293(b)(2); 42 U.S.C. 6316(a)). If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. (42 U.S.C. 6293(b)(1)(A)(ii); 42 U.S.C. 6316(a))

In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, unless the current test procedure already incorporates the standby mode and off mode energy consumption, or if such integration is technically infeasible. (42 U.S.C. 6295(gg)(2)(A)(i)-(ii))  4 If an integrated test procedure is technically infeasible, DOE must prescribe separate standby mode and off mode energy use test procedures for the covered product, if a separate test is technically feasible. (42 U.S.C. 6295(gg)(2)(A)(ii)) Any such amendment must consider the most current versions of the International Electrotechnical Commission (IEC) Standard 62301  5 and IEC Standard 62087  6 as applicable. (42 U.S.C. 6295(gg)(2)(A))

EPCA requires the test procedures for CCWs to be the same as the test procedures established for RCWs. (42 U.S.C. 6314(a)(8)) As with the test procedures for RCWs, EPCA requires that DOE evaluate, at least once every 7 years, the test procedures for CCWs to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1))

DOE is publishing this notice of proposed rulemaking (“NOPR”) to address specific issues and to make minor corrections to the current test procedures that are required for certification of compliance with applicable energy conservation standards. However, this rulemaking does not satisfy the EPCA requirement that, at least once every 7 years, DOE review the test procedures for RCWs, CCWs, and consumer clothes dryers. (42 U.S.C. 6293(b)(1)(A); 6314(a)(1)(A))

As discussed, DOE's existing test procedures for clothes washers are prescribed at appendix J and appendix J2, 7 and DOE's existing test procedures for consumer clothes dryers are prescribed at appendix D1 and appendix D2. 8

Additionally, DOE's existing test procedure at appendix J3 provides specifications for the test cloth to be used for testing clothes washers; procedures for pre-conditioning new test cloth; procedures for verifying that new lots  9 of test cloth meet the defined material specifications; and procedures for developing a set of correction coefficients that correlate the measured remaining moisture content (“RMC”) values of each new test cloth lot with a set of standard RMC values established as a historical reference point. These correction coefficients are applied to the RMC measurements performed during testing according to appendix J or appendix J2, ensuring consistency in the final corrected RMC measurement across different test cloth lots used for testing.

Although the test cloth specifications and qualification procedures in appendix J3 are nominally applicable to clothes washer testing, DOE understands that manufacturers and test laboratories use the same test cloth for testing clothes dryers as well. As discussed further in section III.B of this document, the test cloth specifications for clothes washer testing and clothes dryer testing have historically been aligned. Furthermore, as discussed further in section III.D.3 of this document, test cloth that satisfies the requirements of appendix J3 for clothes washer testing also satisfies the requirements codified in appendices D1 and D2 for clothes dryer testing.

The Association of Home Appliance Manufacturers (“AHAM”) has established a Test Cloth Task Force (“AHAM task force”) that, among other responsibilities, reviews and recommends new lots of test cloth for industry use; identifies and secures suppliers for manufacturing test cloth; conducts research and investigations to recommend continuous improvements to the test cloth specifications and qualification procedures; and addresses any industry-wide concerns that may arise regarding the test cloth. DOE representatives participate in the AHAM task force.

On May 31, 2024, DOE received a letter from AHAM (“May 2024 AHAM Letter”) urging DOE to allow the use of alternate test cloth material for clothes washer and clothes dryer testing. (No. 1 at p. 4)  10 The May 2024 AHAM Letter also made further requests for DOE to amend certain test cloth specifications based on the results of recent investigations by the AHAM task force. ( Id. ) In this document, DOE proposes to implement changes to its test cloth specifications to address these concerns.

In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“Process Rule”), DOE notes that it is deviating from certain provisions in the Process Rule as follows.

Section 8(a) of the Process Rule states that in determining whether to consider establishing or amending any test procedure, DOE will publish one or more preliminary documents in the Federal Register ( e.g., a request for information or notice of data availability) intended to gather information on key issues. As discussed, DOE is conducting this rulemaking to address specific issues rather than conducting a full review of the clothes washer and clothes dryer test procedures that would satisfy the 7-year lookback requirement prescribed by EPCA. This proposal seeks to address known issues regarding test cloth that have been brought to DOE's attention, as discussed in the previous section of this document. For these reasons, DOE finds it appropriate to deviate from this provision in the Process Rule by forgoing publication of a preliminary document as part of a pre-NOPR stage for this rulemaking.

Section 8(b)(2) of the Process Rule states that there will be not less than 60 days for public comment on the NOPR, with at least one public hearing or workshop. As stated, DOE will hold a public meeting on this NOPR if one is requested; otherwise, DOE finds it appropriate to forgo a public hearing given the limited scope of issues addressed in this NOPR. DOE has also determined that 30 days is an appropriate period for providing comments.

In this NOPR, DOE proposes amendments to its test cloth specifications as follows:

(1) Specify that fabric weight and thread count must be measured on finished goods prior to pre-conditioning,

(2) Clarify that the test cloth be made with a “granite,” “momie,” or “crepe” weave,

(3) Allow the use of an alternate test cloth,

(4) Amend the statistical criteria for a new test cloth lot to be considered acceptable for use,

(5) Restructure and renumber certain sections of appendix J3 for clarity, and

(6) Harmonize the test cloth specifications for clothes washers and clothes dryers.

DOE's proposed actions are summarized in Table II.1 compared to the current test procedures as well as the reason for the proposed change.

DOE has tentatively determined that the proposed amendments described in section III of this document would not alter the measured efficiency of RCWs, CCWs, or consumer clothes dryers, or require retesting or recertification solely as a result of DOE's adoption of the proposed amendments to the test procedures, if finalized. (42 U.S.C. 6293(e)) Discussion of DOE's proposed actions are addressed in detail in section III of this document.

In the following sections, DOE proposes certain amendments to its test procedures for RCWs, CCWs, and consumer clothes dryers. For each proposed amendment, DOE provides relevant background information, explains why the amendment merits consideration, discusses relevant public comments, and proposes a potential approach.

This rulemaking applies to clothes washers (both RCWs and CCWs, which use the same test procedures)  11 and consumer clothes dryers.

DOE has defined a clothes washer as a consumer product designed to clean clothes, utilizing a water solution of soap and/or detergent and mechanical agitation or other movement, that must be one of the following classes: automatic clothes washers, 12 semi-automatic clothes washers, 13 and other clothes washers. 14 10 CFR 430.2.

DOE regulations also define “electric clothes dryer” and “gas clothes dryer” similarly as a cabinet-like appliance designed to dry fabrics in a tumble-type drum with forced air circulation, with blower(s) driven by an electric motor(s) and either electricity or gas, respectively, as the heat source. See, 10 CFR 430.2. DOE's clothes dryer test procedures are applicable to both electric and gas clothes dryers.

DOE is not proposing changes to the scope of the RCW, CCW, or consumer clothes dryer test procedures, or the relevant definitions, in this NOPR.

This section summarizes the historical background of test cloth specifications in DOE's clothes washer and clothes dryer test procedures that is relevant to topics discussed in this NOPR.

DOE first introduced the use of test cloth into the original clothes dryer test procedure established by the final rule published September 14, 1977 (“September 1977 Clothes Dryer Final Rule”). 42 FR 46145. The test cloth specifications were a 50-percent cotton and 50-percent polyester blended material, representative of the range of fabrics comprising consumer wash loads. Id. at 42 FR 46146. The September 1977 Clothes Dryer Final Rule also established a maximum use of 25 clothes dryer test cycles for each piece of test cloth to reduce potential variability in the test results that may occur from any change in the composition of the test cloth due to continued drying of the same test cloth. Id.

DOE introduced the use of test cloth into the original clothes washer test procedure established by the final rule published September 28, 1977 (“September 1977 Clothes Washer Final Rule”). 42 FR 49802. As discussed in the September 1977 Clothes Washer Final Rule, the size and composition of the test load was chosen to be identical to the test load that had been specified for clothes dryers in the September 1977 Clothes Dryer Final Rule. Id. at 49 FR 49805. The number of test runs for each piece of test cloth was limited to no more than 25 clothes washer test cycles. Id. at 49 FR 49808.

Since introducing the use of test cloth into the originally established clothes dryer and clothes washer test procedures, DOE has periodically updated the test cloth specifications and requirements. The following paragraphs summarize some of these changes to test cloth specifications and requirements that are relevant to the amendments proposed in this document.

In a final rule published May 19, 1981 (“May 1981 Final Rule”), DOE amended the clothes dryer test procedure to, among other changes, establish test cloth pre-conditioning requirements to improve test repeatability by ensuring that the test cloth not contain any water-soluble sizing or finishing agents that could affect the moisture performance of test cloth. 46 FR 27324. The May 1981 Final Rule also established a weight tolerance on the test cloth. Id.

In a final rule published August 27, 1997, DOE amended its test cloth requirements in the clothes washer test procedure by adding a new requirement to prewash ( i.e., pre-condition) new test cloth prior to first use for energy consumption testing. 62 FR 45484.

DOE published a final rule on January 12, 2001 (“January 2001 Final Rule”) that, among other changes to the clothes washer test procedure, introduced the modified energy factor descriptor, which incorporated an estimate of clothes drying energy into the clothes washer efficiency descriptor through consideration of the RMC of the clothes leaving the clothes washer. 66 FR 3314. As discussed in the January 2001 Final Rule, it had been discovered that the test cloth to be used for determining the RMC was giving inconsistent results. Id. at 66 FR 3317. DOE investigated possible causes for the inconsistent test results and summarized the results in a report published in May 2000 titled Development of a Standardized Energy Test Cloth for Measuring Remaining Moisture Content in a Residential Clothes Washer (“May 2000 Test Cloth Report”). 15

In particular, relevant to topics discussed in this NOPR, the May 2000 Test Cloth Report documented the difficulty of relating specifiable test cloth characteristics—fiber content, weight, etc. —to RMC measurements. ( See section 4 of May 2000 Test Cloth Report). On this basis, DOE concluded that tighter test cloth specifications alone would not necessarily lead to comparably consistent RMC measurements. To provide more consistent RMC measurements from lot to lot, the May 2000 Test Cloth Report proposed a new method for developing a “correction factor” for each new lot of test cloth. The correction factor would be applied to the RMC measurement to normalize the RMC results to match the RMC performance of a designated “standard lot.”

The May 2000 Test Cloth Report also concluded that a viable approach to minimize the effects of test cloth variation on RMC would be to consistently specify a single type of fabric that is produced frequently by one mill to a consistent set of specifications. The report recommended the use of a 50-percent cotton/50-percent polyester momie weave fabric from one particular mill as a suitable choice, noting that this cloth (at the time) was produced in high volume, had been produced to a consistent specification for many years, and was likely to continue to be produced on this basis for the foreseeable future. ( See section 6 of May 2000 Test Cloth Report)

The May 2000 Test Cloth Report recommended a set of test cloth specifications and an RMC correction factor approach that could be adopted into the DOE test procedure. The January 2001 Final Rule incorporated into the clothes washer test procedures many of the recommendations of the May 2000 Test Cloth Report, including the recommended updates to the test cloth specifications and the RMC correction factor procedure. The January 2001 Final Rule also increased the number of allowable test runs for each piece of test cloth to no more than 60 clothes washer test cycles (from 25 previously). 66 FR 3314, 3320.

DOE published a direct final rule on October 31, 2003 (“October 2003 Final Rule”) that, among other changes to the clothes washer test procedure, added as a testing requirement the use of a statistical analysis approach to qualify any interactive effect between different lots of test cloth and spin speeds to further improve consistency of the RMC measurement. 68 FR 62198.

On March 7, 2012, DOE published a final rule (“March 2012 Final Rule”) that, among other changes, updated certain test cloth specifications for clothes washer testing based on recommendations provided by AHAM. 77 FR 13888, 13920-13921. Specifically, the March 2012 Final Rule adopted definitions for cloth “lot” and “roll” and established test cloth weight tolerances. Id. at 77 FR 13921-13922. The March 2012 Final Rule also updated pre-conditioning wash requirements and incorporated American Association of Textile Chemists and Colorists (“AATCC”) test methods for verifying the absence of water-repellent finishes on the test cloth. Id. at 77 FR 13922.

In a final rule published on August 5, 2015 (“August 2015 Final Rule”), DOE moved the standard extractor RMC procedure for developing the correction factors for each new test cloth lot from appendix J2 to the newly created appendix J3. 80 FR 46730.

In a final rule published on June 1, 2022 (“June 2022 Final Rule”), among other changes, DOE further consolidated clothes washer test cloth-related provisions into appendix J3 (from appendix J2) to improve the overall logical flow of both test procedures. Id. at 87 FR 33367. DOE additionally codified in appendix J3 a test cloth material verification procedure that had historically been used by the AHAM task force when evaluating new lots of test cloth. Id. at 87 FR 33368.

In this NOPR, DOE is proposing to update its test cloth specifications and requirements to (1) further improve consistency in test results across different lots of test cloth, (2) clarify certain requirements consistent with textile industry nomenclature, (3) allow the use of an alternate type of test cloth that has been shown to exhibit consistent performance with the current test cloth, and (4) reevaluate appropriate thresholds for certain statistical requirements specified for new lots of test cloth.

Each of the proposed changes are in line with DOE's historical practice of regularly updating its test cloth specifications to improve the consistency of test results and adapt to changes in material specifications and availability of commercially available textiles.

In this section, DOE addresses clothes washer specifications in appendix J3 specifically. In section III.D.3 of this document, DOE proposes harmonizing the clothes washer and clothes dryer test cloth specifications such that the edits proposed in this section would apply to both product types.

Section 3.1 of appendix J3 specifies that the test cloth material should come from a roll of material with a width of approximately 63 inches, although other sizes may be used if the test cloth material meets the specifications listed in sections 3.2 through 3.6 of appendix J3. Section 3.7.1 of appendix J3 specifies the dimensions of the individual energy test cloths—nominally 24 inches by 36 inches prior to hemming. 16 Furthermore, section 5 of appendix J3 specifies that the maximum shrinkage requirements for the energy test cloth after pre-conditioning  17 must not be more than 5 percent of the length and width.

Appendix J3 does not specify the orientation of the rectangular dimensions ( i.e., lengthwise versus widthwise) for cutting individual energy test cloths from the roll of fabric. As such, the cut orientation of the rectangular energy test cloths can be optimized to minimize wasted fabric ( e.g., a lengthwise cut of 36 inches adjacent to a widthwise cut of 24 inches could be patterned on a 63-inch width roll of material with minimal waste).

The May 2024 AHAM Letter recommended that appendix J3 specify that the energy test cloth be cut in a specific orientation relative to the fabric roll. (No. 1 at p. 4) Specifically, the May 2024 AHAM Letter suggested that the 24-inch dimension be cut from the lengthwise ( i.e., “warp”) direction of the roll and the 36-inch dimension be cut from the widthwise ( i.e., “weft”) direction of the roll, as depicted in Figure III.1. ( Id. at p. 23)

DOE understands through discussions of the AHAM task force that differences in cut orientation can impact the relative shrinking of cloth in each direction after repeated wash and dry cycles, which could potentially affect its water absorption and retention properties—characteristics that are particularly relevant to the RMC measurement. 18 The May 2024 AHAM Letter did not, however, provide any data or quantitative evaluation of whether, or to what extent, the direction of cut orientation could affect the shrinkage of the energy test cloth, or the RMC measurement in the clothes washer test procedure. DOE notes that even if the cut orientation could impact the relative shrinkage of the length and width of the energy test cloth, section 5 of appendix J3 already specifies a maximum allowable shrinkage of 5 percent in each direction. DOE has no information to suggest that any variation in shrinkage within this 5 percent tolerance would have a substantive impact on the resulting RMC measurement in the clothes washer test procedure.

Furthermore, DOE is concerned about potential unintended consequences of requiring a specific cut orientation for each energy test cloth. Depending on the width of the fabric roll, specifying a cut orientation as suggested by AHAM could prevent the optimization of cut patterns as described previously ( i.e., a 36-inch lengthwise cut adjacent to a 24-inch widthwise cut on a 63-inch width roll of material), resulting in increased fabric waste and a corresponding increase in material cost. For instance, a 63-inch-wide roll as specified by section 3.1 of appendix J3 would only be able to accommodate a single 36-inch wide cut as suggested by AHAM, resulting in nearly 40 percent of the roll material being wasted. And although section 3.1 of appendix J3 permits the use of other size rolls, DOE understands that textiles are typically woven in standardized widths and is concerned that fabricating rolls with a custom width for DOE test cloth could increase the material cost.

In summary, DOE is uncertain as to whether, or to what extent, the energy test cloth cut orientation could impact the RMC measurement in the clothes washer test procedure, and whether specifying a particular cut orientation could result in fabric waste that would lead to an increase in material cost. As such, DOE requests comment to clarify these uncertainties, as provided at the end of this section. If DOE were to be provided with additional information that alleviates these uncertainties and concerns, DOE would consider establishing a cut orientation requirement in a final rule.

Irrespective of its determination regarding the specification of a cut orientation requirement, DOE has tentatively determined that section 3.1 of appendix J3 is superfluous, given that the suggested parameters regarding the width and length dimensions of the roll ( i.e., a roll width of approximately 63 inches and approximately 500 yards per roll) are rendered moot by the accompanying provision allowing for rolls of other sizes to be used. As such, DOE proposes to remove section 3.1 of appendix J3 and renumber the subsequent sections accordingly.

DOE requests comment on the roll dimensions and cut orientations that are currently used to fabricate DOE test cloth.

DOE requests comment as to whether, or to what extent, the energy test cloth cut orientation could impact the RMC measurement in the clothes washer test procedure.

DOE requests comment on its concern that establishing a cut orientation requirement could lead to fabric waste, depending on the dimensions of the fabric roll.

DOE requests comment on its tentative determination not to specify a cut orientation requirement. DOE further seeks comment on whether it should adopt the cut orientation requirement specified by AHAM or any other cut orientation requirement.

DOE requests comment on its tentative determination that section 3.1 of appendix J3 is superfluous and its proposal to remove the requirements in section 3.1 of appendix J3.

Section 3.3 of appendix J3 specifies that the fabric weight of the test cloth must be 5.60 ± 0.25 ounces per square yard, but it does not specify at what point in the fabrication process this specification applies. Similarly, section 3.4 of appendix J3 specifies that the thread count of the test cloth must be 65 × 57 threads per inch ± 2 percent, but it does not specify at what point in the fabrication process this specification applies. The May 2024 AHAM Letter requested that DOE amend these specifications to clarify that fabric weight and thread count specifications apply to “finished goods” test cloth prior to pre-conditioning. (No. 1 at pp. 4, 22) Through its participation in the AHAM task force, DOE understands the term “finished goods” to mean after the cloth has been hemmed into energy test cloth and energy stuffer cloths, but prior to any pre-conditioning.

DOE further understands through its participation in the AHAM task force that specifying that these requirements apply to finished goods (as opposed to prior to the cloth having been processed, de-starched, and hemmed), but prior to any pre-conditioning, is the most appropriate point in the cloth fabrication process because these dimensional properties can change during certain stages of the cloth fabrication process. Applying these specifications to finished goods therefore ensures the consistency of each test cloth lot at the state in which the test cloth is purchased by a manufacturer or test laboratory.

Consistent with AHAM's recommendation, DOE proposes to specify within section 3 of appendix J3 that fabric weight and thread count specifications apply to finished goods prior to pre-conditioning.

DOE requests feedback on its proposal to specify in appendix J3 that fabric weight and thread count specifications apply to finished goods prior to pre-conditioning.

Section 3.2 of appendix J3 states that the test cloth used for clothes washer testing must be a pure finished bleached cloth, made with a momie or granite weave. As discussed in the May 2024 AHAM Letter, recent lots 25A and 25B  19 were woven with a different type of granite weave—a “crepe” weave—than the “momie” type of granite weave that has historically been used for DOE test cloth. (No. 1 at p. 3)

To evaluate whether using a crepe weave would impact test results compared to the historical momie weave, DOE conducted comparative testing of RCWs and consumer clothes dryers using lot 25A (made with a crepe weave) and previous test cloth lot 23 (made with a momie weave). The results of DOE's testing are presented in a Technical Appendix published in the docket for this rulemaking. 20 This testing shows no substantive variation in RMC, integrated modified energy factor (“IMEF”), or integrated water factor—the reported metrics for RCWs—or in combined energy factor—the reported metric for consumer clothes dryers—between the different granite weave types ( i.e., traditional momie versus crepe weave). Although DOE's test sample did not include any CCWs, DOE expects that the trends in RMC values, energy use, and water use that it observed in RCWs would apply to CCWs, given that RCWs and CCWs are designed and operate similarly and are tested using the same test procedure.

Through its participation in discussions with the AHAM task force, DOE understands that very few textile mills maintain the capability to fabricate cloth using the type of momie weave that has traditionally been used to produce DOE test cloth. Instead, the type of crepe weave used for lot 25A is expected to be more readily available going forward. In recognition of this, DOE is proposing to add the term “crepe” to the list of allowable weaves—specifically, to revise newly renumbered section 3.1.1.1 of appendix J3 to specify that the test cloth be made with a momie, granite, or crepe weave.

DOE requests feedback on its proposal to add the term “crepe” to the list of allowable weaves in appendix J3.

Appendix J3 currently does not define the terms momie or granite weave. In the May 2024 AHAM Letter, AHAM suggested that DOE establish definitions for these terms in appendix J3. 21 (No. 1 at pp. 21-22) Through its participation in the AHAM task force, DOE understands that momie, granite, and crepe weave types are generally understood terms of art within the textile industry, but there is not a definitive source for definitions of these terms. DOE is concerned that creating its own definitions for these terms could inadvertently conflict with the range of weave styles that are generally understood by the textile industry to be granite weaves. Therefore, DOE has tentatively determined not to establish a definition for these terms within the appendix J3 test procedure. DOE would consider establishing definitions for one or more of these terms—including the definitions suggested by AHAM—if interested parties were to demonstrate sufficient justification that would alleviate the concerns expressed herein.

DOE requests feedback on its tentative determination not to establish definitions for “crepe,” “granite,” or “momie” weave in appendix J3.

DOE is required to ensure that the test procedure is reasonably designed to produce test results that measure energy efficiency, energy use, water use, or estimated annual operating cost of a covered product/equipment during a representative average use cycle or period of use and is not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2)) In establishing the current test cloth specifications, DOE considered the representativeness of the range of fabrics comprising consumer wash loads, the manufacturability of the fabric, the consistency in test cloth production, and the consistency in test results from the fabric. 66 FR 3314, 3318 (Jan. 12, 2001).

As discussed, the current test cloth specifications were recommended by the May 2000 Test Cloth Report, which noted that this cloth (at the time) was produced in high volume, had been produced to a consistent specification for many years, and was likely to continue to be produced on this basis for the foreseeable future. ( See section 6 of May 2000 Test Cloth Report.) The May 2000 Test Cloth Report also highlighted the benefits of specifying a single type of fabric that is produced frequently by one mill to a consistent set of specifications.

However, while the test cloth specified in appendix J3 continues to be produced by a single supplier, DOE understands through its participation in the AHAM task force that this cloth is produced exclusively for use in conducting the DOE test procedure ( i.e., this specific cloth is not used to any significant extent by any other industry bodies or for any other regulatory or research and development purposes). As such, it is no longer the case that this cloth is produced in high volume (beyond the volume needed for DOE testing purposes), leading to uncertainty as to whether this cloth is likely to remain readily available on a consistent basis for the foreseeable future.

During the COVID-19 pandemic, the laundry industry experienced shortages in DOE test cloth supply. 22 The specialized nature of the DOE test cloth ( i.e., the fact the cloth is unique to DOE testing needs and produced in relatively low volumes) inhibited the ability to identify alternate sources of supply for the test cloth. To mitigate this shortage, AHAM requested that DOE use its enforcement discretion to allow extended use of test cloth beyond the currently defined cycle limits. 23 On September 28, 2023, DOE issued a statement  24 stating that DOE would exercise its enforcement discretion and not impose civil penalties on a clothes washer, commercial clothes washer, or clothes dryer manufacturer for certifying compliance with DOE's energy conservation standards based on testing that exceeds the maximum test cloth run provision set forth in the DOE test procedures. Instead, DOE allowed for usage of test cloth for twice the number of runs allowed in the relevant test procedures.

In an effort to further alleviate any test cloth supply constraints that could limit energy testing activities for clothes washers and clothes dryers, the AHAM task force evaluated the potential merits of specifying an alternate test cloth that could be used for DOE testing, as discussed in the May 2024 AHAM Letter. (No. 1 at p. 3)

The AHAM task force identified a commercially available standardized fabric as a possible alternative to the current test cloth specification. This fabric is used as “ballast” for testing specific material attributes (such as colorfastness) of textiles and, according to the May 2024 AHAM Letter, has been used by the textile industry for over 80 years. (No. 1 at p. 3) Specifically, the fabric meets the specifications of Laundering Ballast Type 3 cloth specified by industry standard AATCC LP1-2021, Laboratory Procedure for Home Laundering: Machine Washing. 25 The specifications for Laundering Ballast Type 3 cloth are provided in Table III.1.

As part of an AHAM task force investigation, DOE and AHAM members conducted comparative testing of Laundering Ballast Type 3 cloth  26 to evaluate whether this cloth could be used to conduct the DOE test procedures and whether doing so would produce test results comparable to the currently specified test cloth. The results of DOE's testing are presented in the Technical Appendix published in the docket for this rulemaking.

Specifically, DOE tested six RCWs and eight consumer clothes dryers, representing eight manufacturers and all major product classes; AHAM members additionally conducted testing of eight RCWs and six consumer clothes dryers, representing all major product classes. These products were tested to their rated appendix (D1, D2, or J2) using both the current DOE test cloth and the Laundering Ballast Type 3 cloth.

DOE's testing demonstrated no substantive difference in measured efficiency compared with historical lots used for RCW and consumer clothes dryer testing. In particular for clothes washers, the Laundering Ballast Type 3 produced RMC results comparable to existing DOE test cloth using the currently specified correction factor approach. Although DOE's test sample did not include any CCWs, DOE expects that the trends in RMC values, energy use, and water use that it observed in RCWs would apply to CCWs, given that RCWs and CCWs are designed and operate similarly and are tested using the same test procedure.

In addition, AHAM presented the results of its members' testing in appendix A to the May 2024 AHAM Letter. (No. 1 at pp. 6-9) This testing also demonstrated no substantive difference in measured efficiency compared with historical lots used for RCW and consumer clothes dryer testing.

Based on this data, DOE has tentatively determined that the AATCC Laundering Ballast Type 3 cloth provides results that are equally as representative as results obtained using the currently specified test cloth. On this basis, DOE is proposing, consistent with recommendations from the May 2024 AHAM Letter, to amend appendix J3 to allow for the use of AATCC Laundering Ballast Type 3 cloth, with a specific yarn size, and cut and hemmed to the DOE energy test cloth dimensions. (No. 1 at p. 22) As discussed in section III.D.3 of this document, the specifications in appendix J3 would apply to both clothes washers and clothes dryers.

Specifically, DOE is proposing to incorporate by reference AATCC LP1-2021 into appendix J3 and to allow the use of test cloth meeting the specifications of Laundering Ballast Type 3, as specified in Table VII of AATCC LP1-2021, with the following additional specifications and substitutions:

• Edges: All edges hemmed only  28

• Finished Piece Size: Dimensions in accordance with sections 3.7.1 and 3.7.2 of appendix J3 for energy test cloths and energy stuffer cloths, respectively. 29

• Finished Piece Weight: Disregard  30

DOE requests comment on its proposal to allow the use of Laundering Ballast Type 3 cloth specified in AATCC LP1-2021 (with certain additional specifications) as an alternate test cloth for conducting clothes washer and clothes dryer testing.

Consistent with the discussion in section III.C.3 of this document, DOE considered whether to propose a definition for “plain weave” as specified in Table VII of AATCC LP1-2021. DOE understands the term “plain weave” to be a well-understood term of art and therefore tentatively determines that adding a definition of “plain weave” to appendix J3 would not be warranted.

DOE requests feedback on its tentative determination not to establish a definition for “plain weave” in appendix J3.

In the June 2022 Final Rule, DOE codified a prequalification procedure to be performed on each new lot of test cloth to verify the uniformity of the test cloth throughout the beginning, middle, and end of the lot. 87 FR 33316. As discussed in the June 2022 Final Rule, DOE had received a request from members of the AHAM task force to add to appendix J3 additional steps to the qualification procedure that have historically been performed on each new lot of test cloth to ensure uniformity of RMC test results on test cloths from the beginning, middle, and end of each new lot. Id. at 87 FR 33368. Industry practice has been to perform this “uniformity check” before conducting the procedure to develop the RMC correction factors currently specified in appendix J3. Id. Specifically, the uniformity check involves performing an RMC measurement on nine bundles of sample test cloth representing the beginning, middle, and end locations of the first, middle, and last rolls of test cloth in a new lot. Id. In the historical procedure provided by the AHAM task force, the coefficient of variation (“CV”) across the nine RMC values must be less than or equal to 1 percent for the test cloth lot to be considered acceptable for use. Id. The amendments codified by the June 2022 Final Rule included the suggested requirement for the CV of the “uniformity check” procedure to be less than or equal to 1 percent. Id. at 87 FR 33369.

Shortly after the publication of the June 2022 Final Rule establishing the requirement for the CV to be less than or equal to 1 percent—but prior to its effective date—lot 24D was produced by the test cloth supplier and was measured to have a CV of 1.6 percent. AHAM developed correction factors for this lot of test cloth despite its CV over 1 percent, on the basis that the new CV requirement had not yet become effective, and that the industry was facing a test cloth shortage.

Since the effective date of the CV requirement, the AHAM task force has developed correction factors for test cloth lots 25A and 25B  31 —both with CV values of 1.1 percent. AHAM stated in letters to DOE that it based its recommendations to proceed with these test cloth lots on the ongoing test cloth shortages, DOE's historical acceptance of lots with CVs exceeding 1 percent, and the extensive testing that DOE performed of lot 25A, as described in section III.C.3 of this document.

DOE notes that the 1-percent threshold was originally recommended by AHAM during a previous test procedure rulemaking. 87 FR 33316, 33368 (Jun. 1, 2022). DOE further notes that prior to the codification of the pre-qualification procedure, the AHAM task force used its discretion to evaluate the uniformity of each new test cloth lot. DOE understands the repeatable performance of test cloth lots with a CV slightly higher than 1 percent—as shown by the testing of lot 25A described in section III.C.3 of this document—to be an indication that the 1-percent threshold may be unnecessarily stringent ( i.e., too low). In this NOPR, DOE proposes to amend appendix J3 by increasing the allowable CV threshold to 2 percent.

DOE requests comment on its proposal to amend the CV threshold requirement in appendix J3 from 1 percent to 2 percent. Specifically, DOE requests comment on whether another threshold would be more appropriate.

In the October 2003 Final Rule, DOE adopted a statistical procedure, called “analysis of variance” (or “ANOVA”), as the lot-to-lot interactive-effect statistical test for screening out lots of test cloth whose RMC behavior is inconsistent with the baseline lot. 68 FR 62198, 62201. The ANOVA statistical test measures the extent of the deviation of the shape of the RMC compared to the g-curve for a given lot of the test cloth from the shape of the RMC compared to the g-curve for the baseline lot. Id. In the October 2003 Final Rule, DOE explained that it believed that the test would catch any unanticipated deviation in RMC in future lots. Id.

Section 8.8 of appendix J3 specifies performing the analysis of variance with replication test using two factors, spin speed and lot, to determine whether the interaction of speed and lot is significant. If the interaction is not significant (as calculated by the “P-value” of the F-statistic being greater than 0.1), then the lot is considered acceptable. If the P-value is less than 0.1, the test cloth is deemed unacceptable. The P-value provides an indication of any interactive effect between lots and spin speeds. The lower the P-value, the stronger the evidence of such an interaction.

On March 29, 2010, AHAM sent DOE a letter (“March 2010 AHAM Letter”) noting that the lot 17 was measured to have a P-value that was less than 0.1. (No. 2 at p. 1) AHAM requested that DOE approve lot 17 for use on the basis that the root-mean-square error (“RMSE”) was less than 2 percent, the P-value of the test cloth excluding the 100g test condition was greater than 0.1, and test cloth supply shortage issues. ( Id. at pp. 1-4)

The more recent lot of AATCC test cloth evaluated by DOE and AHAM, as described in section III.C.4 of this document, had a P-value of 0.072, which would not meet the requirements of section 8.8 of appendix J3. However, the testing conducted by DOE and AHAM  32 suggests that, despite the low P-value, the application of the test cloth correction factors produces corrected RMC values that are comparable ( i.e., less than 1 RMC percentage point difference on average) to the standard RMC values for each tested extractor condition. For this reason, DOE has tentatively determined that a low P-value is not necessarily indicative of a test cloth lot not being acceptable for use in the clothes washer test procedures. DOE has further tentatively determined that a different statistical measure can provide a better measure of the acceptability of a new test cloth lot.

Specifically, DOE has evaluated the usefulness of the RMSE between the corrected RMC values and the standard RMC values for the same test conditions as a potentially more relevant statistical measure to evaluate a new test cloth lot. Conceptually, this RMSE value represents the closeness of fit of the corrected RMC values to the standard RMC values. A smaller RMSE value indicates a better closeness of fit. Recognizing that the corrected RMC value is used to calculate IMEF, DOE tentatively determines that RMSE—which evaluates corrected RMC values—would provide a better measure of acceptability than P-value, which evaluates uncorrected RMC values.

As shown in Table III.2, the RMSE values of the historical test cloth lots posted to DOE's website  33 fall within a range of 0.004 to 0.014. Additionally, the AATCC lot of test cloth evaluated by DOE and AHAM, as described in section III.C.4 of this document, has an RMSE of 0.0091.

Based on the historical record and its testing, in this NOPR, DOE tentatively determines that an RMSE-based threshold for new test cloth lots would provide a better measure of the acceptability of a new test cloth lot. Therefore, DOE is proposing to replace the P-value evaluation in section 8.8 of appendix J3 with a calculation of RMSE and a requirement that the RMSE be below 0.015, which represents a threshold slightly higher than the maximum RMSE value of 0.014 observed among historical test cloth lots.

DOE requests feedback on its proposal to replace the P-value test in appendix J3 with a root-mean-square error test.

DOE requests feedback on specifying 0.015 as an acceptability threshold for the RMSE value.

Appendix J3 includes test cloth specifications, procedures for pre-conditioning test cloth, procedures for verifying that new lots of test cloth meet the defined material specifications, and procedures for developing RMC correction factors. Appendix J3 contains an introductory section titled “Objective” that summarizes the key objectives of the procedure. This paragraph currently does not reference the pre-conditioning of test cloth as one of the key objectives.

In this NOPR, DOE is proposing to update the heading to appendix J3 and its objective paragraph to explicitly include pre-conditioning of test cloth as one of its objectives.

DOE requests feedback on its proposal to update appendix J3 to explicitly mention pre-conditioning of test cloth.

Section 5 of appendix J3 provides the test cloth pre-conditioning instructions. Currently, this section is organized as a single paragraph detailing the entire procedure, whereas other sections of appendix J3 are organized with sections that provide a clearer step-by-step sequence of instructions. DOE proposes to restructure section 5 of appendix J3 to read as a sequence of instructions rather than a single paragraph, for greater clarity and ease of use.

As previously discussed, in the August 2015 Final Rule, DOE moved the test cloth qualification procedures from appendix J2 to a newly created appendix J3. Appendix J3 is currently only referenced by the clothes washer test procedure. Section 2.7 of appendices J and J2 reference appendix J3 generally for test cloth specifications and section 5 of appendix J3 for test cloth pre-conditioning instructions. Whereas, for clothes dryers, section 2.6 of appendices D1 and D2 list each of the test cloth specifications and detail the test cloth pre-conditioning requirements.

Historically, manufacturers and test laboratories have used the same test cloth for both clothes washers and clothes dryers. The May 2024 AHAM Letter requested that DOE harmonize specifically the pre-conditioning procedure for clothes washers and clothes dryers. (No. 1 at p. 4) In line with this recommendation, DOE has tentatively determined that all aspects of the test cloth specifications can be harmonized between clothes washers and clothes dryers ( i.e., not just the pre-conditioning requirements).

DOE proposes to harmonize test cloth specifications between appendices J, J2, D1, and D2 by replacing existing test cloth specifications in appendices D1 and D2 with references to the analogous specifications in appendix J3.

Specifically, DOE is proposing to replace the entirety of section 2.6 in both appendices D1 and D2 with a paragraph specifically referencing sections 3 (Test Cloth Specifications) and 7 (Test Cloth Material Verification Procedure) of appendix J3. DOE is also proposing to update section 2.7 of appendices J and J2 to specifically reference sections 3 (Test Cloth Specifications), 7 (Test Cloth Material Verification Procedure), and 8 (RMC Correction Curve Procedure) of appendix J3.

DOE is further proposing to remove section 3.8 of appendix J3, which currently specifies that the test cloth must be clean, may not be used for more than 60 clothes washer runs, must be permanently marked, and may not be used in mixed lots. These specifications—which are specific to clothes washers and do not apply to clothes dryers—would instead be included in section 2.7 of appendices J and J2. Appendices D1 and D2 would retain the existing requirement that for clothes dryers the test cloth must not be used for more than 25 runs, although this requirement would be relocated to section 2.6 (from 2.6.1(c) currently).

Finally, DOE is proposing to update the objective statement and section 5 of appendix J3 to explicitly reference clothes dryers alongside clothes washers.

DOE requests feedback on its proposal to harmonize test cloth specifications for clothes washers and clothes dryers.

Section 3.2 of appendix J3 specifies the “nominal fabric type” for the test cloth as pure finished bleached cloth made with a momie or granite weave, which is nominally 50 percent cotton and 50 percent polyester. Section 3.5 of appendix J3 contains a duplicative (although more specific) requirement specifying a fiber content of 50 percent ± 4 percent cotton, with the balance being polyester. DOE proposes to remove the less specific nominal fiber content specification from section 3.2 of appendix J3. Accordingly, DOE is further proposing to update the name of section 3.2 of appendix J3 from “nominal fabric type” to “fabric type.”

Within section 3 of appendix J3, which lists the specifications for the test cloth, sections 3.2 through 3.5 are currently organized as follows: section 3.2 specifies the nominal fabric type, section 3.3 specifies the fabric weight, section 3.4 specifies the thread count, and section 3.5 specifies the fiber content of the yarn. This order does not match the order in which these material properties are considered throughout the test cloth fabrication process. Specifically, the weaving process starts with spinning yarn of a specific fiber content, then a specific number of yarn strands (corresponding to thread count) are woven into a roll of fabric, resulting in a specific material density ( i.e., fabric weight). To better match the order in which these material properties are considered throughout the test cloth fabrication process, DOE proposes to reorder these sections to provide the fiber content specification first, followed by thread count specification, followed by the fabric weight specification.

Section 3.7 of appendix J3 currently includes dimensions for the energy test cloth and energy stuffer cloth  34 and specifies that the dimensions apply “before washing.” DOE is aware that this terminology may lead to confusion, as it is inconsistent with other parts of the test procedure that use the term “pre-conditioning” rather than “washing” to refer to the process by which test cloth is washed before its first use. Consistent with the recommendations in the May 2024 AHAM Letter, DOE is proposing to clarify this wording and to specify that the dimensions listed in section 3.7 apply before pre-conditioning of the test cloth. (No. 1 at p. 24)

Appendices D1, D2, J, J2, and J3 currently use inconsistent hyphenation of the word pre-conditioning, using “pre-conditioning” in some cases and “preconditioning” in others. The May 2024 AHAM Letter requested that DOE standardize the hyphenation of “pre-conditioning” throughout the appendix. (No. 1 at p. 4) In this NOPR, DOE is proposing to standardize the hyphenation of “pre-conditioning” across all five appendices.

The June 2022 Final Rule re-numbered certain sections of appendix J3 and implemented in section 8.5 of appendix J3 references to “sections 8.3.3 and 8.3.4 of this appendix.” 87 FR 33316, 33405. These cross-references should instead reference sections 8.3 and 8.4 of appendix J3. DOE is therefore proposing to correct this typographical error by updating section 8.5 of appendix J3 to correctly reference sections 8.3 and 8.4, in place of sections 8.3.3 and 8.3.4.

Finally, DOE is proposing to add a section 0 to appendix J3 to specify the industry standards incorporated by reference in this test procedure. Specifically, these include AATCC Test Method 118-2007, AATCC Test Method 79-2010, AATCC Test Method 135-2010, and, newly, AATCC LP1-2021. DOE also proposes conforming edits at each instance where these test methods are referenced within appendix J3.

DOE requests feedback on its proposals to clarify and restructure appendix J3, including the addition of a new section to specify the industry standards incorporated by reference.

EPCA requires that test procedures proposed by DOE not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3); 6314(a)(2)) DOE does not anticipate that the amendments proposed in this NOPR would impact testing costs or the burden of conducting the test procedure.

DOE's market research indicates that the alternate test cloth proposed for use in this document has approximately the same cost per pound as the current test cloth—approximately $40-50 per pound of unconditioned test cloth. 35 Therefore, using the alternate proposed test cloth would not impact clothes washer or clothes dryer testing costs.

Based on an analysis of the test results presented in the Technical Appendix, DOE has tentatively determined that manufacturers would be able to rely on data generated under the current test procedures should any of these additional proposed amendments be finalized.

DOE requests comments on its tentative determination that that the amendments proposed in this NOPR would not impact testing costs or the burden of conducting the test procedure.

As discussed, on September 28, 2023, DOE issued a statement stating that DOE would exercise its enforcement discretion and not impose civil penalties on a clothes washer, commercial clothes washer, or clothes dryer manufacturer for certifying compliance with DOE's energy conservation standards based on testing that exceeds the maximum test cloth run provision set forth in the DOE test procedures. Instead, DOE allowed for usage of test cloth for twice the number of runs allowed in the relevant test procedures.

In the May 2024 AHAM Letter, AHAM requested that DOE maintain its enforcement discretion policy to allow twice the number of test runs than is currently specified for test cloth meeting the current specifications, but not for any of the alternate test cloth proposed for use in this NOPR, noting that it does not have any test data to support an extended number of cycles on the new test cloth at this time. (No. 1 at p. 4)

EPCA prescribes that, if DOE amends a test procedure, all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with that amended test procedure, beginning 180 days after publication of such a test procedure final rule in the Federal Register . (42 U.S.C. 6293(c)(2))

If DOE were to publish an amended test procedure EPCA provides an allowance for individual manufacturers to petition DOE for an extension of the 180-day period if the manufacturer may experience undue hardship in meeting the deadline. (42 U.S.C. 6293(c)(3)) To receive such an extension, petitions must be filed with DOE no later than 60 days before the end of the 180-day period and must detail how the manufacturer will experience undue hardship. ( Id. )

DOE has tentatively determined that the updated test cloth provisions as proposed in this NOPR would alleviate any test cloth shortages that were the impetus for the enforcement discretion policy, and that at the time of compliance of any amended test procedure, should DOE decide to issue such an amendment, no need for such a policy would remain. Therefore, DOE has tentatively determined that upon the compliance date of test procedure provisions of an amended test procedure ( i.e., 180 days after publication of a test procedure final rule), should DOE issue such an amendment, the enforcement discretion policy would be withdrawn.

DOE requests comments on its tentative determination that the enforcement discretion policy allowing twice the number of test cloth runs would be withdrawn 180 days after publication of a test procedure final rule.

In the May 2024 AHAM Letter, AHAM further requested that DOE consider allowing immediate use of the alternate test cloth as a relief to manufacturers facing test cloth shortages, rather than waiting for the completion of the rulemaking. (No. 1 at p. 5)

DOE recognizes the concern of test cloth availability. As noted, DOE would maintain the current enforcement policy allowing for the extended lifetime of the current test cloth until 180 days after publication of a test procedure final rule. The proposed amendments, if adopted, could be used as early as their effective date ( i.e., 30 days after publication of any final rule DOE may publish regarding these amendments).

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this proposed regulatory action is consistent with these principles.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this proposed regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.

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

DOE has recently conducted a focused inquiry into small business manufacturers of the RCWs, CCWs, and consumer clothes dryers covered by this proposed rulemaking. DOE used available public information to identify potential small manufacturers. DOE accessed the Compliance Certification Database  36 to create a list of companies that import or otherwise manufacture the RCWs, CCWs, and consumer clothes dryers covered by this proposal.

As detailed in section III.C.4 of this document, DOE is proposing that an additional type of test cloth be permitted for testing. This alternate test cloth is approximately the same cost as the existing test cloth. As a result, DOE does not expect any increased cost or burdens to manufacturers from this proposal.

Therefore, DOE initially concludes that the impacts of the proposed test procedure amendments proposed in this NOPR would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of an IRFA is not warranted. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

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

DOE is not proposing to amend the certification or reporting requirements for RCWs, CCWs, and consumer clothes dryers in this NOPR.

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

In this NOPR, DOE proposes amendments to test procedures that are used to demonstrate compliance with energy conservation standards for RCWs, CCWs, and consumer clothes dryers. DOE has determined that this rulemaking falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and DOE's implementing regulations at 10 CFR part 1021. Specifically, DOE has determined that adopting test procedures for measuring energy efficiency of consumer products and industrial equipment is consistent with activities identified in 10 CFR part 1021, appendix A to subpart D, A5 and A6. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

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

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at www.energy.gov/gc/office-general-counsel. DOE examined this proposed rule according to UMRA and its statement of policy and determined that the rulemaking contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. When developing a Family Policymaking Assessment, agencies must assess whether: (1) the action strengthens or erodes the stability or safety of the family and, particularly, the marital commitment; (2) the action strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children; (3) the action helps the family perform its functions, or substitutes governmental activity for the function; (4) the action increases or decreases disposable income or poverty of families and children; (5) the proposed benefits of the action justify the financial impact on the family; (6) the action may be carried out by State or local government or by the family; and whether (7) the action establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility of youth, and the norms of society. In evaluating the above factors, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment as none of the above factors are implicated. Further, this proposed determination would not have any financial impact on families nor any impact on the autonomy or integrity of the family as an institution.

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

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

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

The proposed regulatory action to amend the test procedures for measuring the energy efficiency of RCWs, CCWs, and consumer clothes dryers is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.

The proposed modifications to the test procedures for RCWs, CCWs, and consumer clothes dryers would incorporate fabric specifications from the following commercial standard: AATCC LP1-2021. DOE has evaluated this standard and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA ( i.e., whether it was developed in a manner that fully provides for public participation, comment, and review). DOE will consult with both the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to prescribing a final rule.

The test procedure proposed in this NOPR references AATCC LP1-2021, “Laboratory Procedure for Home Laundering: Machine Washing.” AATCC LP1-2021 is an industry-developed test standard that specifies standard home laundering conditions. Specifically, the test procedure proposed in this NOPR references AATCC LP1-2021 for specifying standardized fabric materials. AATCC LP1-2021 is reasonably available from AATCC ( See, members.aatcc.org/store/lp001/2212/ ).

DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DATES section at the beginning of this proposed rule. 37 Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document.

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

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

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

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

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

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.

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

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

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

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

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

(1) DOE requests comment on the roll dimensions and cut orientations that are currently used to fabricate DOE test cloth.

(2) DOE requests comment as to whether, or to what extent, the energy test cloth cut orientation could impact the RMC measurement in the clothes washer test procedure.

(3) DOE requests comment on its concern that establishing a cut orientation requirement could lead to fabric waste, depending on the dimensions of the fabric roll.

(4) DOE requests comment on its tentative determination not to specify a cut orientation requirement. DOE further seeks comment on whether it should adopt the cut orientation requirement specified by AHAM or any other cut orientation requirement.

(5) DOE requests comment on its tentative determination that section 3.1 of appendix J3 is superfluous and its proposal to remove the requirements in section 3.1 of appendix J3.

(6) DOE requests feedback on its proposal to specify in appendix J3 that fabric weight and thread count specifications apply to finished goods prior to pre-conditioning.

(7) DOE requests feedback on its proposal to add the term “crepe” to the list of allowable weaves in appendix J3.

(8) DOE requests feedback on its tentative determination not to establish definitions for “crepe,” “granite,” or “momie” weave in appendix J3.

(9) DOE requests comment on its proposal to allow the use of Laundering Ballast Type 3 cloth specified in AATCC LP1-2021 (with certain additional specifications) as an alternate test cloth for conducting clothes washer and clothes dryer testing.

(10) DOE requests feedback on its tentative determination not to establish a definition for “plain weave” in appendix J3.

(11) DOE requests comment on its proposal to amend the CV threshold requirement in appendix J3 from 1 percent to 2 percent. Specifically, DOE requests comment on whether another threshold would be more appropriate.

(12) DOE requests feedback on its proposal to replace the P-value test in appendix J3 with a root-mean-square error test.

(13) DOE requests feedback on specifying 0.015 as an acceptability threshold for the RMSE value.

(14) DOE requests feedback on its proposal to update appendix J3 to explicitly mention pre-conditioning of test cloth.

(15) DOE requests feedback on its proposal to harmonize test cloth specifications for clothes washers and clothes dryers.

(16) DOE requests feedback on its proposals to clarify and restructure appendix J3, including the addition of a new section to specify the industry standards incorporated by reference.

(17) DOE requests comments on its tentative determination that that the amendments proposed in this NOPR would not impact testing costs or the burden of conducting the test procedure.

(18) DOE requests comments on its tentative determination that the enforcement discretion policy allowing twice the number of test cloth runs would be withdrawn 180 days after publication of a test procedure final rule.

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

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

This document of the Department of Energy was signed on October 25, 2024, 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 .

For the reasons stated in the preamble, DOE is proposing to amend part 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

The addition reads as follows:

The revisions and additions read as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-2419; Project Identifier MCAI-2023-00366-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; phone: (404) 474-5548; email: william.mccully@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0044, dated February 28, 2023, (EASA AD 2023-0044) to correct an unsafe condition on Airbus Model AS 350 B, AS 350 D, AS 350 B1, AS 350 B2, AS 350 BA, AS 350 BB, AS 350 B3, EC 130 B4, EC 130 T2, AS 355 E, AS 355 F, AS 355 F1, AS 355 F2, AS355 N, and AS355 NP helicopters. EASA advises that after a fleet design review for detection of particles in the MGB, it was determined that additional maintenance actions are necessary to improve detection of particles in the MGB. The FAA is proposing this AD to detect and correct the presence of particles in the MGB, which if not addressed, could result in reduced or loss of control of the helicopter.

You may examine EASA AD 2023-0044 in the AD docket at regulations.gov under Docket No. FAA-2024-2419.

EASA AD 2023-0044 requires repetitive borescope visual inspections of the bevel wheel of the affected MGB for particles, collecting and analyzing any found particles, and depending on the results, further actions, accomplishing corrective action in accordance with the ASB defined within, or contacting AH [Airbus Helicopters] for further corrective action. EASA AD 2023-0044 also requires accomplishing a borescope visual inspection of the bevel wheel of the affected MGB for particles following the detection of any particles at the MGB magnetic plug during accomplishment of certain maintenance tasks and depending on the results, taking corrective action. Lastly, EASA AD 2023-0044 prohibits installing an affected MGB on any helicopter unless it is a serviceable part as defined within and certain requirements are met.

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

The FAA reviewed Airbus Alert Service Bulletin No. AS350-05.01.04, No. AS355-05.00.87, and No. EC130-05A040, each Revision 0, and each dated January 25, 2023. This material specifies procedures for borescope inspecting the MGB bevel wheel for particles and, depending on the results, replacing a damaged epicyclic module or bevel reduction module with an airworthy part, and collecting the particles using a vacuum pump and analyzing the particles.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.

This proposed AD would require accomplishing the actions specified in EASA AD 2023-0044, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and EASA AD 2023-0044.”

This proposed AD would require certain actions within compliance times specified in certain material referenced for compliance in EASA AD 2023-0044, particularly for corrective actions for scales, flakes, or splinters. Depending on the measurements of the scales, flakes, or splinters, corrective actions include close monitoring, metallurgical analysis within 50 hours time-in-serivce, or removing each affected module and additional actions when certain criteria are exceeded.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0044 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0044 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0044 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0044. Material referenced in EASA AD 2023-0044 for compliance will be available at www.regulations.gov by searching for and locating Docket No. FAA-2024-2419 after the FAA final rule is published.

EASA AD 2023-0044 applies to Model AS350BB helicopters, whereas this proposed AD would not because that model is not FAA-type certificated.

Where Note 1 in the material referenced in EASA AD 2023-0044 specifies the option of 1 mechanical technician and 1 crew member, for this proposed AD, the pilot is only permitted to turn the tail rotor (b) because the other actions specified in the note must be accomplished by persons authorized under 14 CFR 43.3. Therefore, for the purposes of this proposed AD, the owner/operator (pilot) may turn the tail rotor (b) and must enter compliance with the applicable paragraph of this proposed AD in the helicopter maintenance records in accordance with 14 CFR 43.9(a) and 91.417(a)(2)(v). The pilot may perform this action because it only involves turning the tail rotor (b). This action can be performed equally well by a pilot or a mechanic. This action is an exception to the FAA's standard maintenance regulations.

This proposed AD would not require complying with paragraph (2) of EASA AD 2023-0044. Instead, this proposed AD would require repetitively inspecting the MGB magnetic plug for particles and, if there is any particle, accomplishing a borescope visual inspection, as specified in paragraphs (h)(6)(i) and (ii) of this proposed AD.

Where the material referenced in EASA AD 2023-0044 specifies contacting Airbus Helicopters for a certain action, this proposed AD would require accomplishing action in accordance with a method approved the FAA, EASA, or Airbus Helicopters' EASA Design Organization Approval.

The FAA estimates that this AD, if adopted as proposed, would affect 522 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

A repetitive visual borescope inspection of the MGB bevel wheel would take 1 work-hour for an estimated cost of $85 per helicopter and $44,370 for the U.S. fleet, per inspection cycle.

If necessary, collecting and performing a metallurgical analysis of the detected particles would take 6 work-hours for an estimated cost of $510 per helicopter, per analysis.

Repetitively inspecting the magnetic plugs of the MGB would take 1 work-hour for an estimated cost of $85 per helicopter and $44,370 for the U.S. fleet, per inspection cycle.

If required, close monitoring would take 2 work-hours for an estimated cost of $170 per helicopter, per close monitoring cycle.

Accomplishing a visual borescope inspection of the MGB bevel wheel as a result of an MGB magnetic plug inspection would take 1 work-hour for an estimated cost of $85 per helicopter.

If necessary, replacing an epicyclic module would take 56 work-hours and parts would cost $50,524 (overhauled) for an estimated cost of $55,284 per module.

If necessary, replacing a bevel reduction module would take 56 work-hours and parts would cost $18,500 (overhaled) for an estimated cost of $23,260 per module.

Certain corrective action could vary significantly from helicopter to helicopter. The FAA has no data to determine the costs to accomplish the corrective action.

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

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

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

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

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

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

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

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

Background

On October 23, 2024, BIS published the proposed rule “Export Administration Regulations: Revisions to Space-Related Export Controls, including Addition of License Exception Commercial Space Activities (CSA)” (89 FR 84784), which proposed changes to controls for spacecraft and related items under the EAR that would conform to proposed changes to the International Traffic in Arms Regulations related to U.S. Munitions List Categories IV and XV. This rule also proposed the addition of a new license exception for certain Commercial Space Activities (CSA). These proposed rules are intended to better enable a globally competitive U.S. space industrial base while continuing to protect U.S. national security and foreign policy interests.

On the same day, the State Department published the proposed rule “International Traffic in Arms Regulations (ITAR): U.S. Munitions List Categories IV and XV” (89 FR 84482). The rule proposes to amend the International Traffic in Arms Regulations (ITAR) to revise U.S. Munitions List (USML) Categories IV and XV and related sections of the ITAR to clarify and standardize the regulatory text, add items that warrant designation on the USML, and remove those items that no longer warrant designation on the USML. The rule further proposes to add three new license exemptions to the ITAR.

On November 6, 2024, the Bureau of Industry and Security will host a public briefing to address the details of and answer questions on these related proposed rules and the final rules discussed elsewhere in this issue of the Federal Register . The Department of Commerce, the State Department, and other U.S. Government agencies, as appropriate, will participate in the public briefing. The public briefing will be held on November 6, 2024, at the Commerce Research Library of the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230. The public briefing will begin at 1 p.m. EST and conclude at 3 p.m. EST.

To participate in the public meeting virtually or in-person, register at: space.commerce.gov/export24 no later than November 1, 2024, to attend in person, or by November 5, 2024, for virtual participation. for virtual participation. Note that due to space limitations, the capacity for in-person participation is limited. Once in-person capacity is reached, additional registrants will be directed to participate virtually. This web page will also display the agenda of the public meeting and any other necessary information. This web page will also display the agenda of the public meeting and any other necessary information.

In-person and virtual attendees are encouraged to submit written questions in advance of the briefing through the registration links at space.commerce.gov/export24. Questions must be received by 5 p.m. EST on Monday, November 4, 2024. Note that while public questions will also be accepted during the public briefing if there is available time, written questions will be prioritized.

All questions and answers from the public meeting will be posted at space.commerce.gov/export24 and at the Federal eRulemaking Portal at http://www.regulations.gov under the docket numbers BIS-2018-0029 or BIS 2024-0031. Related records are made accessible in accordance with the regulations published in 15 CFR part 4.

For any special accommodation needs, please send an email to: space.commerce@noaa.gov.

The information presented in this preamble is organized as follows:

This proposed action is to correct an error in an earlier EPA action, using the authority of section 110(k)(6) of the CAA. Section 110(k)(6) provides the EPA with explicit authority to correct errors in prior rulemaking actions:

Section 110(k)(6) of the CAA has been interpreted by courts as a “broad provision [that] was enacted to provide the EPA with an avenue to correct its own erroneous actions and grant the EPA the discretion to decide when to act pursuant to the provision.” Ass'n of Irritated Residents v. EPA, 790 F.3d 934, 948 (9th Cir. 2015).

The EPA notes that this statutory provision provides the EPA with authority to make corrections to actions on SIP submissions that are subsequently found to be in error. While CAA section 110(k)(6) provides the EPA with the authority to correct its own “error,” nowhere does this provision or any other provision in the CAA define what qualifies as “error,” and the EPA has used this explicit statutory authority on multiple occasions to correct various types of errors. 1

The error at issue here occurred in an October 23, 2023, EPA action  2 disapproving revisions to the State of Delaware's SIP which were submitted in response to the 2015 Startup, Shutdown, and Malfunction (SSM) SIP Action. 3 On June 12, 2015, the EPA finalized the 2015 SSM SIP Action, which clarified, restated, and updated the EPA's national policy regarding SIP provisions applying to excess emissions during periods of startup, shutdown, and malfunction. As part of the 2015 SSM SIP Action, the EPA issued a finding that certain SIP provisions for 36 states that were applicable in 45 statewide and local jurisdictions were substantially inadequate to meet CAA requirements due to how those SIP provisions treated excess emissions during SSM periods. Further, the EPA issued a “SIP call” to each of those 45 air agencies, including the State of Delaware, on the basis that Delaware's SIP contained impermissible director's discretion provisions that were substantially inadequate to meet CAA requirements. 4 To respond to the EPA's SIP call in the 2015 SSM SIP Action, each affected State was required to submit its corrective SIP revision by November 22, 2016. The State of Delaware submitted a SIP revision purporting to address the seven issues identified in EPA's 2015 SSM SIP Action on November 22, 2016. On October 23, 2023, the EPA took final action  5 disapproving certain portions of Delaware's November 22, 2016, SIP revision based on EPA's finding that the SIP revision did not correct the remaining deficiencies in Delaware's SIP identified by the 2015 SSM SIP Action. 6

On March 1, 2024, the United States Court of Appeals for the District of Columbia Circuit issued a decision in Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024). The case was a consolidated set of petitions for review of the EPA's 2015 SSM SIP Action. The Court granted the petitions in part, vacating the SIP calls that were based on SIP provisions that included automatic exemptions, director's discretion provisions, and “complete affirmative defenses” ( i.e., affirmative defenses that are functionally exemptions); and denied the petitions in part, affirming the SIP calls based on SIP provisions that included overbroad enforcement discretion provisions and affirmative defenses against specific relief. As a result of the D.C. Circuit's decision in Environ. Comm. Fl. Elec. Power v. EPA, certain portions of the EPA's SIP call in the 2015 SSM SIP Action were vacated by the D.C. Circuit and therefore have no legal effect. Thus, certain states subject to the 2015 SSM SIP Action no longer have a legal obligation to submit the revisions that the EPA had originally determined were required to correct the deficiency identified in the SIP call. 7 In other words, by partially vacating the EPA's 2015 SSM SIP Action, the D.C. Circuit's decision rendered Delaware's SIP submission in response to the 2015 SSM SIP Action voluntary rather than mandatory. As a result, the EPA is proposing to correct the EPA's October 23, 2023, disapproval action with respect to the consequences of that disapproval.

Section 110(k)(6) of the CAA provides the EPA with the authority to make corrections to actions on CAA implementation plans that are subsequently found to be in error. Ass'n of Irritated Residents v. EPA, 790 F.3d at 948 (110(k)(6) is a “broad provision [that] was enacted to provide the EPA with an avenue to correct its own erroneous actions”). The key provisions of section 110(k)(6) are that the Administrator has the authority to “determine” that an action approving, disapproving, or promulgating a plan was “in error,” and when the Administrator does so, may then revise the action “as appropriate,” in the same manner as the prior action. 8 Moreover, CAA section 110(k)(6) “confers discretion on the EPA to decide if and when it will invoke the statute to revise a prior action.” Ass'n of Irritated Residents v. EPA, F.3d at 948 (section 110(k)(6) grants the “EPA the discretion to decide when to act pursuant to the provision”). While CAA section 110(k)(6) provides the EPA with the authority to correct its own “error,” nowhere does this provision or any other provision in the CAA define what qualifies as “error.” Thus, the EPA believes that the term should be given its plain language, everyday meaning, which includes all unintentional, incorrect, or wrong actions or mistakes. 9 Under CAA section 110(k)(6), the EPA must make an error determination and provide “the basis thereof.” There is no indication that this is a substantial burden for the EPA to meet. To the contrary, the requirement is met if the EPA clearly articulates the error and basis thereof. 790 F.3d at 948; see also 85 FR 73636, 73638 (November 19, 2020). The EPA's error in the prior action disapproving Delaware's SIP revision is discussed below.

In this action, the EPA is proposing to correct the erroneous triggering of mandatory sanctions under CAA section 179 and 40 CFR 52.31 for the State of Delaware following its October 23, 2023 (88 FR 72688), disapproval of Delaware's SIP revision submitted in response to the 2015 SSM SIP call. The EPA is also proposing to correct the erroneous triggering of the EPA's obligation to issue a Federal Implementation Plan (FIP) under CAA section 110(c)(1)(B). As discussed in section II of this document, the D.C. Circuit's decision in Environ. Comm. Fl. Elec. Power v. EPA vacated several portions of the 2015 SSM SIP call, rendering those portions as no longer having a legal effect. As a result, the states with provisions to which those vacated portions of the SIP call previously applied, including Delaware, no longer have a legal obligation to submit the revisions that the EPA had originally determined were required to correct the identified deficiency. As such, the SIP revision submitted by Delaware on November 22, 2016, is no longer considered a mandatory submission; EPA is therefore proposing to find that the EPA's October 23, 2023 (88 FR 72688), disapproval action should not trigger imposition of mandatory sanctions under CAA section 179 and 40 CFR 52.31 or a FIP obligation under CAA 110(c)(1)(B). The EPA notes that it is not proposing to correct the merits of the October 23, 2023 disapproval nor is it withdrawing that disapproval action—the EPA does not believe that the substantive basis for the disapproval as explained in that final action was erroneous; rather, the EPA is proposing to find that because the SIP submittal itself is no longer mandatory following the D.C. Circuit's partial vacatur, the triggering of sanctions under section 179 and 40 CFR 52.31, and the triggering of the EPA's FIP obligation under 110(c)(1)(B), was in error. Therefore, if the EPA finalizes this error correction action as proposed, the imposition of sanctions for the State of Delaware and the FIP obligation for the EPA that were triggered as result of the October 23, 2023 (88 FR 72688), final disapproval action would no longer be in effect.

As a result of the D.C. Circuit's decision in Environ. Comm. Fl. Elec. Power v. EPA, the EPA is proposing to determine that, pursuant to section 110(k)(6) of the CAA, a portion of the EPA's October 23, 2023 (88 FR 72688), final disapproval action of Delaware's SIP revision was in error with respect to the consequences of that disapproval. By partially vacating the EPA's 2015 SSM SIP Action, the D.C. Circuit's decision rendered Delaware's SIP submission in response to the 2015 SSM SIP action voluntary rather than mandatory. Thus, the EPA is proposing to find that the triggering of mandatory sanctions and FIP obligation following the October 23, 2023 (88 FR 72688), final disapproval was erroneous and, through this action, is proposing to terminate the imposition of sanctions for the State and the FIP obligation for the EPA triggered by that disapproval as they are no longer legally valid.

Additional information about these statutes and Executive Orders (E.O.) can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is an error correction taken under section 110(k)(6) of the CAA and does not directly or disproportionately affect children.

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

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

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

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action as the EPA views this action as a necessary procedural step following the D.C. Circuit decision and vacatur of portions of the 2015 SIP call. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Ground-level ozone pollution is formed from the reaction of volatile organic compounds (VOC) and oxides of nitrogen (NO X ) in the presence of sunlight. These two pollutants, referred to as ozone precursors, are emitted by many types of sources, including on- and nonroad motor vehicles and engines, power plants and industrial facilities, and smaller area sources such as lawn and garden equipment and paints.

Scientific evidence indicates that adverse public health effects occur following exposure to ozone, particularly in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases. 1

Under section 109 of the Act, the EPA promulgates NAAQS for pervasive air pollutants, such as ozone. The NAAQS are concentration levels the EPA has determined to be requisite to protect public health and welfare. On February 8, 1979, the EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm) averaged over a 1-hour period. 2 On July 18, 1997, the EPA revised the primary and secondary standards for ozone to set the acceptable level of ozone in the ambient air at 0.080 ppm averaged over an 8-hour period (“1997 ozone NAAQS”). 3

In 2008, the EPA lowered the 8-hour ozone NAAQS to 0.075 ppm (“2008 ozone NAAQS”) to revise the 1997 ozone NAAQS. 4 Then, in 2015, the EPA lowered the primary and secondary 8-hour ozone NAAQS to 0.070 ppm (“2015 ozone NAAQS” or “standard”  5 ). 6 Most recently, in December 2020, the EPA finalized review of the ozone NAAQS, retaining the form and level of the standards. 7 As a result, no new ozone area designations were triggered under the CAA, and therefore, no new nonattainment area requirements will apply. This action pertains to only the 2015 ozone NAAQS.

Following promulgation of a new or revised NAAQS, the EPA is required by the CAA to promulgate designations for areas throughout the U.S. in accordance with section 107(a)(1) of the CAA. Effective August 3, 2018, the EPA established the initial air quality designations for most areas in the United States for the 2015 ozone NAAQS. 8 The EPA designated the Yuma area as “Marginal” nonattainment for the 2015 ozone NAAQS based on monitoring data from 2014-2016. Areas classified as Marginal must attain the NAAQS within three years of the effective date of the nonattainment designation. 9 The Yuma area covers 52 square miles in the Sonoran Desert region of southwestern Arizona and is adjacent to California and the international border with Mexico. 10 In response to the designation and classification of the Yuma area as a Marginal area, Arizona submitted to the EPA revisions to its nonattainment new source review (NNSR) program. The EPA approved the revisions and determined that the NNSR program meets the applicable NNSR program requirements for areas classified as Marginal nonattainment for the 2015 ozone NAAQS. 11 Arizona also submitted a plan titled “Marginal Ozone Plan for the Yuma Nonattainment Area” and a technical supplement which address the emissions inventory requirement in CAA section 182(a)(1) and the emissions statement requirement in CAA section 182(a)(3). The EPA approved the emissions inventory for the Yuma area on April 5, 2022, 12 and the emissions statement on July 29, 2022. 13

On October 7, 2022, the EPA determined that the Yuma area attained the 2015 ozone NAAQS by August 3, 2021, the attainment deadline specified by the Act, with a design value of 0.068 ppm. 14 The EPA relied on 2018-2020 quality-assured, certified ambient ozone data in making the determination that the Yuma area had attained the NAAQS by the applicable date.

The CAA establishes the criteria that must be met for the EPA to redesignate a nonattainment area to attainment for a given NAAQS. Specifically, section 107(d)(3)(E) sets forth the following criteria: (1) the EPA must determine that the area has attained the applicable NAAQS; (2) the EPA must have a fully approved SIP for the area under CAA section 110(k); (3) the EPA must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions; (4) the EPA must have fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and, (5) the State must have met all requirements applicable to the area under section 110 and title I, part D (“part D”) of the CAA. Section 110 identifies a comprehensive list of elements that must be included in SIPs, and part D establishes the SIP requirements for nonattainment areas. Part D is divided into six subparts. The generally applicable SIP requirements for nonattainment areas are found in subpart 1 of part D, and the ozone-specific SIP requirements are found in subpart 2 of part D. The EPA provided guidance on redesignations in a document titled “State Implementation Plans; General Preamble for the Implementation of title I of the Clean Air Act Amendments of 1990,” published in the Federal Register on April 16, 1992, 15 and supplemented on April 28, 1992  16 (collectively referred to herein as the “General Preamble”). The EPA issued additional guidance in two memoranda: a September 4, 1992 memorandum from John Calcagni, titled “Procedures for Processing Requests to Redesignate Areas to Attainment” (“Calcagni memo”);  17 and a 1995 memorandum from Mary D. Nichols, titled “Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment” (“Nichols memo”). 18

The EPA's approval of a State's maintenance plan is one of the CAA prerequisites for redesignation of a nonattainment area to attainment. Section 175A of the CAA provides the general framework for a State's maintenance plans. A State's initial 10-year maintenance plan must provide for maintenance of the NAAQS for at least 10 years after redesignation and include any additional control measures necessary to ensure such maintenance. In addition, maintenance plans must contain contingency provisions necessary to assure the prompt correction of a violation of the NAAQS during the maintenance period. At a minimum, these contingency provisions must include a requirement that a State will implement all control measures contained in the nonattainment SIP prior to redesignation. Because a State's maintenance plan submittals are SIP revisions, the EPA is obligated under CAA section 110(k) to approve them or disapprove them depending upon whether they meet the applicable CAA requirements for such plans outlined above.

For the reasons described in section III of this proposal, the EPA is proposing to approve the Yuma Maintenance Plan and approve Arizona's request for redesignation of the Yuma area to attainment for the 2015 ozone NAAQS. The EPA's proposed approvals are based on our conclusion that Arizona has satisfied all the criteria under CAA section 107(d)(3)(E).

On December 27, 2023, the Arizona Department of Environmental Quality (ADEQ) submitted to the EPA its redesignation request and the Yuma Maintenance Plan as a revision to the Arizona SIP. 19 This document addresses all of the CAA section 107(d)(3)(E) requirements for redesignating a nonattainment area to attainment for the NAAQS and includes the required maintenance plan elements. The Yuma Maintenance Plan is organized into eight chapters and two appendices. Appendix A of the Plan provides technical support for the emissions inventory, and appendix B of the Plan contains the procedural requirements and authority to implement the Yuma Maintenance Plan.

I. How are striped marlin managed?

NMFS and the Council manage U.S. commercial fishing for Pelagic Management Unit Species (PMUS), such as striped marlin ( Kajikia audax ), under the Pelagic FEP and implementing Federal regulations. Although the Pelagic FEP indicates that PMUS have statutory exemptions from annual catch limits (ACLs), the Magnuson-Stevens Act authorizes the Council to determine ACLs or other catch limits for PMUS if such actions are deemed appropriate and consistent with the Magnuson-Stevens Act and other statutory mandates.

Striped marlin are an internationally managed species often caught incidentally in fisheries primarily targeting tuna, but are retained due to their economic value. Magnuson-Stevens Act section 304(i) mandates that when the Secretary of Commerce (Secretary) determines a fishery is overfished or approaching a condition of being overfished due to excessive international fishing pressure, and if there are no management measures to end overfishing under an international agreement to which the U.S. is a party, the Council shall recommend domestic regulations to address the relative impact of U.S. fishing vessels on the stock.

As described in the proposed rule, the Secretary determined the stock was overfished in 2020 and informed the Council of its requirements under Magnuson-Stevens Act section 304(i). The Council recommended NMFS implement an annual catch limit of 457 metric tons (t) for Western and Central North Pacific Ocean (WCNPO) striped marlin caught in all U.S. fisheries and a retention limit of 443 t for vessels with Hawaii limited entry longline permits. If the retention limit were projected to be reached, retention of striped marlin by Hawaii longline vessels would be prohibited for the remainder of the calendar year. Additional background information on this action is in the proposed rule published in the Federal Register on February 26, 2024 (89 FR 14036); we do not repeat it here.

Results of a 2023 stock assessment for WCNPO striped marlin, considered relative to domestic status determination criteria in the FEP, indicate the stock is experiencing overfishing but is no longer overfished. In addition, the 2023 assessment estimated spawning stock biomass (SSB) in the terminal year of the assessment (SSB2020 = 1,696 t) had increased by nearly 73 percent from the estimate from the terminal year in the 2019 assessment (SSB2017 = 981 t) indicating the stock is not approaching a condition of being overfished.

On May 20, 2024, the NMFS Pacific Islands Fisheries Science Center and the NMFS Southwest Fisheries Science Center concluded that the results of the 2023 stock assessment were the best available scientific information for judging the status of the stock and for use in management, thus superseding the prior 2019 assessment.

On September 5, 2024, considering the 2023 assessment and status determination criteria defined in the Pelagic FEP, the Secretary determined that the status of WCNPO striped marlin had changed from overfished to not overfished-rebuilding. The stock remains subject to overfishing.

We published the proposed rule for catch and retention limits to address the relative impact of U.S. fishing vessels on the WCNPO striped marlin stock requirement in Magnuson-Stevens Act section 304(i) when the stock had been determined to be overfished. The stock status no longer meets the statutory criteria of overfished or approaching an overfished condition; therefore, the action cannot proceed. For this reason, NMFS is withdrawing the proposed rule.

As described in the proposed rule, this action on its own would not have ended overfishing on the stock, which must be addressed at the international level. International negotiations at the WCPFC have resulted in adoption of a rebuilding plan for this stock that requires rebuilding to 20 percent of unfished biomass with at least 60 percent probability by 2034. The rebuilding plan currently does not include catch limits, although it acknowledges that catch reductions by all member nations are required to achieve the rebuilding target.

The U.S. delegation has brought recommendations to the WCPFC and continues to pursue revised international measures for WCNPO striped marlin. We anticipate the WCPFC at its upcoming November 2024 meeting or a subsequent meeting will update international management for the stock, including updated catch limits for U.S. fisheries. If the WCPFC takes such action in November 2024, we intend to implement consistent domestic measures and/or catch limits. If the WCPFC does not act in November 2024, we intend to implement the 457 t domestic catch limit for WCNPO striped marlin as prescribed under the prior WCPFC Conservation and Management Measure 2010-01.