The Common Crop Insurance Regulations in 7 CFR part 457 were revised by a final rule with request for comments published in the Federal Register on November 27, 2024 (89 FR 93463-93470). Changes were made in that rule to regulations to allow revenue coverage for flax under the Small Grain Crop Insurance Provisions (7 CFR 457.101), to combine written agreement deadlines in the Dry Bean Crop Insurance Provisions (7 CFR 457.150) to match other insurance policies, to expand the availability of enterprise and optional units for some specialty and perennial crops, and to make clarifications and corrections to the Area Risk Protection Insurance Policy, Basic Provisions (7 CFR part 407) and Common Crop Insurance Policy, Basic Provisions (7 CFR 457.8). Since the publication of the rule, FCIC has identified provisions that were inadvertently omitted and provisions that should have been omitted but were not that need correction. This document makes the corrections in the following Provisions:

• Small Grains Crop Insurance Provisions (7 CFR 457.101); and

• Green Pea Crop Insurance Provisions (7 CFR 457.137).

Accordingly, 7 CFR part 457 is corrected by making the following amendments:

This final rule adopts, without change, revised fees for official services performed by FGIS, as well as the regulatory changes needed to implement those fees, as described in an interim rule (“Fees for Official Inspection and Weighing Services under the United States Grain Standards Act”) published in the Federal Register on June 6, 2024 (89 FR 48257). The revised fees became effective on July 8, 2024, and will remain in effect until new fees are established.

The revised fees were calculated using standardized formulas modeled after those used in other AMS user-fee funded grading programs. A forthcoming final rule (“Formulas for Calculating Hourly and Unit Fees for FGIS Services”) to be published separately in the Federal Register will amend FGIS's user fee regulations. Prospective customers can find FGIS's fee schedules posted on AMS's public website at: https://www.ams.usda.gov/about-ams/fgis-program-directives.

The United States Grain Standards Act (USGSA) authorizes and requires the Secretary of Agriculture to charge and collect reasonable fees to cover the estimated costs for performing official grain inspection and weighing services (which are mandatory under the Act for U.S. grain exports). In 2015, Congress amended the USGSA to provide that “[i]n order to maintain an operating reserve of not less than 3 and not more than 6 months, the Secretary shall adjust the fees . . . not less frequently than annually.” (7 U.S.C. 79(j)(4) and 79a(l)(3)). To comply with these provisions, FGIS, then the Grain Inspection, Packers, and Stockyards Administration (GIPSA), issued regulations requiring the agency to review and adjust fees annually in order to maintain a 3- to 6-month reserve of operating expenses. (81 FR 49855). AMS published the 2024 interim rule to address FGIS's immediate financial needs, ensure the agency's continued provision of mandatory official services, and prevent disruption to the grain industry.

AMS published the interim rule in the Federal Register on June 6, 2024 (89 FR 48257). The interim rule became effective on July 8, 2024. Copies of the interim rule were sent via email to FGIS stakeholders. The interim rule was also made available through the internet by AMS via https://www.regulations.gov. AMS provided a 30-day comment period, ending July 8, 2024, to give interested persons an opportunity to comment on the interim rule.

FGIS received two comments to the interim rule. One of the comments was irrelevant to the subject of the rule and was not considered with respect to this rulemaking action. The other comment was jointly submitted by two trade organizations. One of the trade organizations represents grain, feed, processing, exporting, and other grain handling companies who collectively operate over 8,000 facilities. The other trade association represents private and publicly owned companies and farmer-owned cooperatives that are involved in, and provide services to, the agri-bulk products international trading industry.

The trade associations' comment generally supported the interim rule; however, the comment expressed concern with the fee changes “and the potential impact of promoting the marketing of high-quality grain to both domestic and foreign buyers based on the agency's current financial status.” The comment also expressed concern about the shifting marketplace, with potentially reduced exports, noting the likelihood of reduced exports in the upcoming 12- to 18-months, and the importance of FGIS taking all measures to control costs. The comment noted that significant fee increases are unsustainable, but also articulated the importance of FGIS, and the accurate, timely, cost-effective delivery of official grain inspection and weighing services. As a strategy to improve the current method for calculating fees, the comment suggested that FGIS de-couple the other Schedule A user fees from the five-year rolling average for tonnage fees to make the fees more in line with the market rates.

FGIS agrees with the commenters. FGIS took steps to mitigate a larger increase in the fees through stakeholder interactions prior to publishing the interim rule, and published a more moderate fee increase that would spread the rebuild of the three- to six-month operating reserve over the duration of three years. This step allowed 2024 fees to be substantially lower than they would have been if FGIS attempted to rebuild the reserve more quickly. FGIS is actively taking steps to reduce costs and respond to the evolving export market. FGIS detailed over 10 percent of its staff, froze hiring and awards, reduced overtime, and stopped travel unless mission critical. These steps, coupled with the revised fees, have set FGIS on a path for continued, uninterrupted operations. FGIS is partnering with industry stakeholders to review ways to continue to reduce costs through the use of inspection automation technology.

Based on the comments received, the critical requirement for mandatory FGIS inspection and weighing services, and the immediate need for the revised fees published in the interim rule, FGIS has determined that finalizing the interim rule, as published in the Federal Register on June 6, 2024 (89 FR 48257) is consistent with and will tend to effectuate the purposes of the Act. Accordingly, FGIS has made no changes to the fees published in the interim rule and concludes the action through this final rule.

Tables 2 through 4, below, set forth the revised fees for FGIS inspection and weighing services effective July 8, 2024, as described in the interim rule published on June 6, 2024 (89 FR 48257). The revised fees will remain in effect until new fees are established. The revised fees were calculated using standardized formulas modeled after those used in other AMS user-fee funded grading programs. A forthcoming final rule to be published separately in the Federal Register will amend FGIS's user fee regulations to incorporate the formulas.

The interim rule added a new section (§ 800.74) to the regulations to implement the revised fees set forth above. In addition, because the current user fee regulation at 7 CFR 800.71 does not permit fee increases greater than 5 percent, the interim rule imposed a temporary stay on § 800.71. The interim rule also placed a temporary stay on § 800.72(b), as the additional charge provided therein was incorporated into Fee Table 2, footnote 2, above. To accommodate the stay imposed on §§ 800.71 and 800.72(b), and the addition of § 800.74, the interim rule also made conforming changes where § 800.71 or § 800.72 were otherwise referenced in 7 CFR part 800, including in the following sections: §§ 800.34, 800.36, 800.73, 800.156(d)(5), and 800.197(b).

This rule is being issued in conformance with Executive Order 12866, “Regulatory Planning and Review,” Executive Order 13563, “Improving Regulation and Regulatory Review,” and Executive Order 14094, “Modernizing Regulatory Review.” Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means.

OMB has designated this rule as not significant under Executive Orders 12866, 13563, and 14094. Accordingly, OMB has not reviewed this rule under those orders. Since grain export volume can vary significantly from year to year, estimating the impact of future fee changes can be difficult. FGIS recognizes the need to provide predictability to the industry for inspection and weighing fees. The statutory requirement to maintain an operating reserve between 3 to 6 months of operating expenses ensures that FGIS can adequately cover its costs without imposing an undue burden on its customers.

FGIS regularly reviews its user-fee financed programs to determine whether the fees charged for performing official inspection and weighing services adequately cover the costs of providing those services. Due to limitations in the current regulations (7 CFR 800.71(b)(3)), which permit fee increases of no more than 5 percent per year, combined with four years of rate decreases, and noneconomic factors that led to the 2020-2023 period having highest inflation in more than 40 years, 1 FGIS faced an operating deficit that was forecasted to grow without corrective action.

This rule revises the fees for official grain inspection and weighing services provided by FGIS to ensure the stability of the program. In conjunction with AMS's forthcoming final rule (“Formulas for Calculating Hourly and Unit Fees for FGIS Services”) amending FGIS's user fee regulations, this rule will also ensure that FGIS complies with the USGSA, which requires the agency to charge fees sufficient to cover its costs and maintain a 3- to 6-month operating reserve. FGIS will continue to seek out cost-saving measures and implement appropriate changes to reduce its costs to provide alternatives to fee increases.

This rule is unlikely to have an annual effect of $200 million or more or adversely affect the economy. FGIS has operated at a net loss for five consecutive years, and even with the maximum fee increases permitted under the current regulations, the agency has been unable to reduce the deficits and rebuild the operating reserve. While this rule addresses the agency's current deficit, the forthcoming final rule seeks to prevent additional deficits in future years by revising FGIS's user fee regulations to enable more accurate calculation of the agency's costs and greater flexibility in future rate changes.

Under the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-12), FGIS has considered the economic impact of this final rule on small entities. Accordingly, FGIS has prepared this regulatory flexibility analysis. The purpose of the Regulatory Flexibility Act is to fit regulatory actions to the scale of businesses subject to such actions. This ensures that small businesses will not be unduly or disproportionately burdened.

The Small Business Administration (SBA) defines small businesses by their North American Industry Classification System Codes (NAICS). This final rule will affect customers of FGIS's official inspection and weighing services in the domestic and export grain markets (NAICS code 115114). Current guidance from the SBA provides a revenue cutoff at $34 million to differentiate large and small firms in this industry. Fees for the program which apply to this industry are provided on the FGIS website.

Under the USGSA, all grain exported from the United States must be officially inspected and weighed, with few exceptions. FGIS provides mandatory inspection and weighing services at 29 export facilities in the United States. Five delegated State agencies provide mandatory inspection and weighing services at 20 facilities. All of these facilities are owned by multinational corporations, large cooperatives, or public entities that do not meet the requirements for small entities established by the SBA.

The USGSA requires the registration of all persons engaged in the business of buying grain for sale in foreign commerce. In addition, those persons who handle, weigh, or transport grain for sale in foreign commerce must also register. The regulations found at 7 CFR 800.30 and 800.31 define a foreign commerce grain business as the business of regularly buying, handling, weighing, or transporting grain for sale in foreign commerce totaling 15,000 metric tons or more during the preceding or current calendar year. Currently, there are 174 businesses registered to export grain, most of which are not small businesses.

Although most exporters are not small businesses, most users of FGIS's official inspection and weighing services (which include domestic grain businesses as well as exporters) meet the SBA requirements for small entities. Data on user fee receipts from FGIS for the past 5 years, plus 2024 through February, show a total of 2,123 different accounts over this time, though many firms are represented by multiple accounts. For the purpose of this regulatory flexibility analysis, FGIS will consider accounts as representing establishments, with multiple establishments associated with larger firms.

FGIS identified a total of 31 large firms, as defined by the SBA firm size classification of receipts in excess of $34 million. FGIS also identified the total number of establishments affiliated with the 31 large firms to be 133. With a total number of establishments of 2,123, this means 1,990, or 94 percent, of the establishments that paid fees to FGIS over the 2019-2024 period are small businesses according to the SBA definition.

Table 4 shows that, while only 6 percent of the firms are considered large, in total they have contributed the vast majority of the fees paid to the program. In each of the five previous years, and for the year 2024 to date, the 31 large firms paid between 86 and 90 percent of all FGIS fees, with an average of 89 percent. The remaining 1,990 establishments paid on average 11 percent of total fees.

The revised fees implemented by the interim rule and adopted herein do not change the relative burden of fees on small businesses. The provisions of this final rule will apply equally to all entities. The revised fees will benefit all inspection applicants, regardless of size, as the fees more closely reflect the current costs of inspections. Finally, this final rule will not impose additional reporting, record keeping, or other compliance requirements on small entities. FGIS has not identified any other Federal rules which may duplicate, overlap, or conflict with this final rule.

This final rule has been reviewed under Executive Order 12988—Civil Justice Reform. It is not intended to have retroactive effect. Section 18 of the USGSA (7 U.S.C. 87g) provides that no State or subdivision thereof may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the USGSA. Otherwise, this final rule will not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this final rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this final rule.

This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. FGIS has determined that this final rule is unlikely to 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.

Pursuant to the Congressional Review Act (5 U.S.C. 801-808), the Office of Information and Regulatory Affairs designated this final rule as not a major rule, as defined by 5 U.S.C. 804(2).

USDA is committed to complying with the provisions of the E-Government Act (44 U.S.C. 3601-3616) by promoting 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.

This final rule will not impose any additional reporting or recordkeeping requirements on either small or large FGIS customers. In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), FGIS reports and forms are periodically reviewed to reduce information collection requirements and duplication.

Interested parties are invited to comment on this action to further delay the effective date of the Security Bars final rule by submitting relevant written data, views, or arguments. To provide the most assistance to the Departments, comments should reference specific portions of the rule; explain the reason for any recommendation; and include data, information, or authority that supports the recommended course of action. Comments must be submitted in English, or an English translation must be provided. Comments submitted in a manner other than those listed above, including emails or letters sent to the Departments' officials, will not be considered comments on the rule and may not receive a response from the Departments.

Instructions: If you submit a comment, you must include the agency name and the DHS Docket No. USCIS-2020-0013 for this rulemaking. All submissions will be posted, without change, to the Federal eRulemaking Portal at https://www.regulations.gov and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any public comment submission you make to the Departments. The Departments may withhold information provided in comments from public viewing that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at https://www.regulations.gov.

Docket: For access to the docket and to read background documents or comments received, go to https://www.regulations.gov, referencing DHS Docket No. USCIS-2020-0013. You may also sign up for email alerts on the online docket to be notified when comments are posted or when the final rule is published.

On December 23, 2020, during the COVID-19 pandemic, the Departments published the Security Bars final rule to amend existing regulations to provide that certain emergency public health concerns generated by a communicable disease constitute circumstances for which there are “reasonable grounds for regarding [a noncitizen  1 ] as a danger to the security of the United States” or “reasonable grounds to believe that [a noncitizen] is a danger to the security of the United States,” making the noncitizen ineligible to be granted (1) asylum in the United States under section 208 of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. 1158; (2) withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3); and (3) withholding of removal under regulations implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (“CAT”), 2 8 CFR 208.16(c), 1208.16(c). See Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020).

Although the Security Bars final rule was scheduled to take effect January 22, 2021, intervening events and circumstances have prompted the Departments to delay its effective date, most recently until December 31, 2024. See Security Bars and Processing; Delay of Effective Date, 86 FR 6847 (Jan. 25, 2021); Security Bars and Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22, 2021); Security Bars and Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021); Security Bars and Processing; Delay of Effective Date, 87 FR 79789 (Dec. 28, 2022) (“December 2022 Delay IFR”  3 ).

In the December 2022 Delay IFR, the Departments explained that they were delaying the Security Bars final rule's effective date because its implementation would be infeasible due to a preliminary injunction  4 against another asylum-related rule, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274 (Dec. 11, 2020) (“Global Asylum final rule”). 87 FR 79790-91. Further, the Departments determined that, as a result of a subsequent, intervening rulemaking, Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (“Asylum Processing IFR”), implementation of the Security Bars final rule would result in conflicting and confusing regulatory text. Id. at 79791-92. Finally, the Departments stated that delaying the effective date would permit the Departments time to engage in notice-and-comment rulemaking regarding whether to modify or rescind the Security Bars final rule. Id. at 79792-93.

The Departments requested public comment on the second, third, and fourth delays and received comments addressing both the delay of the effective date and a potential proposal to modify or rescind the Security Bars final rule. In the December 2022 Delay IFR, the Departments addressed previously received comments related to the Security Bars final rule's delayed effective date. See id. at 79792-93 (discussing and responding to comments related to the delayed effective date).

The Departments received comments in response to the December 2022 Delay IFR. Relevant to the delayed effective date, most commenters urged the Departments to rescind the Security Bars final rule in its entirety, rather than issuing another delay. Specifically, commenters stated that repeated delays are an inefficient use of time and resources and that the Departments have had sufficient time to study the Security Bars final rule's legality and impact on asylum seekers. Commenters also expressed concern that further delay without rescission could allow the Security Bars final rule to go into effect if a future administration's priorities were to shift. Another commenter stated that rescission of the rule would not cause the Federal Government to incur any costs because the rule has never been implemented. Some commenters suggested that, if the Departments did not rescind the Security Bars final rule, they should delay the Security Bars final rule's effective date indefinitely or for a significant, extended period of time and suggested that other legal means should be used to manage concerns related to infectious diseases. In contrast, one comment, while not explicitly addressing the December 2022 Delay IFR, appeared to be generally supportive of the Security Bars final rule.

The Departments have considered the concerns raised by commenters. With respect to commenters' statements that the Departments should have had sufficient time to issue a rule during the most recent delay period, the Departments acknowledge that in the December 2022 Delay IFR, the Departments stated that they were working towards publication of a notice of proposed rulemaking (“NPRM”) to modify or rescind the Security Bars final rule. See 87 FR 79792 (“The Departments are working to publish a separate NPRM in the near future to solicit public comments on whether to modify or rescind the Security Bars rule. . . .”). At that time, the Departments also anticipated that delaying the effective date until December 31, 2024, would provide “sufficient time to complete notice-and-comment rulemaking to modify or rescind the Security Bars final rule, even in the event that circumstances require shifting departmental priorities and resources.” Id.

However, superseding regulatory priorities prevented completion of this anticipated rulemaking prior to December 31, 2024. See, e.g., Massachusetts v. E.P.A., 549 U.S. 497, 527 (2007) (“[A]n agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.”). For example, since the publication of the December 2022 Delay IFR, the Departments issued the Circumvention of Lawful Pathways and Securing the Border rules. See, e.g., Securing the Border, 89 FR 81156 (Oct. 7, 2024); Circumvention of Lawful Pathways, 88 FR 31314 (May 16, 2023).

Accordingly, although the Departments have considered the comments on the December 2022 Delay IFR, the Departments have now determined—in light of the Departments' limited resources and intervening regulatory priorities as just discussed, and for the additional reasons described in Section III of this preamble—that a 1-year further delay of the effective date of the Security Bars final rule is appropriate. The Departments continue to welcome data, views, and information regarding the effective date of the Security Bars rule, including whether the rule should be delayed beyond December 31, 2025. The Departments are not seeking comments on whether the rule should be modified or rescinded or otherwise addressing the substance of the Security Bars final rule.

Because of the resource constraints described in section II of this preamble, and for the following additional reasons, the Departments are further delaying the effective date of the Security Bars final rule until December 31, 2025.

Since the December 2020 publication of the Security Bars final rule, the Departments have further issued additional rules involving the credible fear screening process and asylum eligibility to address important policy objectives. See, e.g., Asylum Processing IFR, 87 FR 18078; Circumvention of Lawful Pathways, 88 FR 31314; Application of Certain Mandatory Bars in Fear Screenings, 89 FR 41347 (May 13, 2024)  5 (“Mandatory Bars rule”); Securing the Border, 89 FR 81156. These rules have made significant changes to the credible fear screening process and to asylum eligibility more generally.

Specifically, the Circumvention of Lawful Pathways rule, with certain exceptions, applies a rebuttable presumption of asylum ineligibility to noncitizens who arrive at the southwest land border and adjacent coastal borders within a prescribed period of time. See 88 FR 31314. Similarly, the Securing the Border rule, with an exception for exceptionally compelling circumstances, applies a limitation on asylum eligibility to certain noncitizens who arrive irregularly at the United States southern border during emergency border circumstances. See 89 FR 81156. Additionally, the Asylum Processing IFR allows USCIS asylum officers to adjudicate the asylum applications of noncitizens subject to expedited removal who are found to have a credible fear of persecution or torture. See 87 FR 18078. And the recently published Mandatory Bars rule, as finalized, allows asylum officers to consider the potential applicability of specified mandatory bars to asylum and statutory withholding of removal during fear screening processes. See 89 FR 41347 (NPRM).

These intervening rules and their impacts on the credible fear screening process necessitated further evaluation of their potential interplay with the Security Bars final rule. If the Security Bars final rule were allowed to go into effect, and if a public health situation triggered the bars outlined in the rule, many noncitizens entering the United States would likely be subject to the provisions of several of these rulemakings. This possibility requires further time for the Departments to consider the potential operational impacts of any procedural inconsistencies between the rules (such as those discussed below) and assess whether allowing the Security Bars final rule to go into effect is necessary or practicable.

Procedurally, the Security Bars final rule—if it were to take effect—would conflict with regulatory changes implemented by the intervening rulemakings, resulting in conflicting and confusing changes to the Departments' regulations. For example, in the December 2022 Delay IFR, the Departments explained that the subsequent publication of the Asylum Processing IFR would create conflicting and confusing regulatory text if the Security Bars final rule were to go into effect. See 87 FR 79791-92. Specifically, the Asylum Processing IFR amended certain regulations related to the credible fear screening process to return to the regulatory framework in place before the Global Asylum final rule was promulgated and to establish procedures for the newly created Asylum Merits interview process. Id. at 79792. Because the Security Bars final rule is founded upon the processes set forth in the Global Asylum final rule, allowing the Security Bars final rule to go into effect would add to the Code of Federal Regulations language from the Global Asylum final rule that the Departments have been enjoined from implementing and would result in conflicting regulatory provisions.

Similarly, the Circumvention of Lawful Pathways rule rescinded a separate final rule regarding transit through a third country entitled Asylum Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17, 2020) (“TCT Bar final rule”). This rescission required, among other changes, removing and reserving 8 CFR 208.30(e)(5)(iii), 208.13(c)(4), and 1208.13(c)(4). See 88 FR 31319. If the Security Bars final rule were to go into effect, its publication of 8 CFR 208.30(e)(5)(iii)—which included provisions implementing the Security Bars final rule and the now-enjoined Global Asylum final rule—would create conflicting and confusing regulatory text, as the remainder of the TCT Bar final rule was rescinded in the Circumvention of Lawful Pathways rule. Additionally, if the Security Bars final rule were to go into effect, its publication of cross-references to the now nonexistent 8 CFR 208.13(c)(4) and 1208.13(c)(4) would introduce inconsistencies in the regulations and create confusion as to the Departments' intended procedures for credible fear determinations.

Likewise, the Security Bars final rule would create procedural confusion because of its inconsistency with the Mandatory Bars rule as finalized. For example, under the Mandatory Bars rule, as finalized, if a noncitizen can establish a credible fear of torture, but appears subject to one or more specified mandatory bars to asylum or withholding of removal, then DHS must issue a Notice to Appear to initiate removal proceedings before an immigration judge or retain jurisdiction over the case for further consideration of the noncitizen's claim for deferral of removal under the CAT (“CAT deferral”). See 8 CFR 208.30(e)(5)(i) (as amended by the Mandatory Bars final rule). In contrast, the Security Bars final rule would publish § 208.30(e)(5)(iv), which contains an additional “more likely than not” CAT deferral screening standard for these same noncitizens. See 85 FR 84177-78, 84195. Thus, these differing provisions would create confusion over the proper procedures for these noncitizens, as one rule requires placement in removal proceedings or further consideration before DHS, while the other rule requires the noncitizen to first meet a higher CAT deferral screening standard.

The Security Bars final rule would also, if it were to take effect, elevate consideration of the now nonexistent regulatory bar created by the TCT Bar final rule above other potential bars that may be considered. See 85 FR 84198 (amending 8 CFR 1208.30 to state in paragraph (g)(1)(ii), another paragraph removed and reserved by the Circumvention of Lawful Pathways rule that would be reprinted if the Security Bars final rule were to go into effect, that an immigration judge “shall first review” any asylum officer determination that a noncitizen is ineligible for asylum under the TCT Bar final rule).

Therefore, the Departments are delaying the effective date of the Security Bars final rule to prevent these confusing and inconsistent changes from taking effect and to avoid the addition to the Code of Federal Regulations of any enjoined language from the Global Asylum final rule while the Departments consider further action on the rule.

The Departments have also concluded that there would be no direct, immediate impact on eligibility for asylum or other protection if the Security Bars final rule were to go into effect on December 31, 2024, because there is no existing public health situation that would trigger the bars outlined in the rule. This lack of any immediate impact supports further delay of the effective date of the Security Bars final rule while the Departments consider further action on the rule.

Specifically, the bars outlined in the Security Bars final rule could be triggered in two ways. The first way is “if a communicable disease has triggered an ongoing declaration of a public health emergency.” 85 FR 84193-94, 84197. No such emergency currently exists.

Second, the bars could be triggered if, “regarding a communicable disease of public health significance as defined at 42 CFR 34.2(b), the Secretary [of Homeland Security] and the Attorney General, in consultation with the Secretary of Health and Human Services, have jointly . . . [d]etermined” that the physical presence in the United States of individuals from affected regions “would cause a danger to the public health,” such that the situation warrants designating noncitizens within the incubation and contagion period of the disease “a danger to the security of the United States.” 85 FR 84193-94, 84196-97. Although a number of “communicable disease[s] of public health significance” within the meaning of 42 CFR 34.2(b) exist in the world today, the Centers for Disease Control and Prevention (“CDC”) has not determined that current health conditions warrant issuance of its most severe type of Travel Health Notice for any geographic area. 6 In the absence of such conditions, the Departments do not have a current basis for making the determinations required to trigger the bars outlined in the Security Bars final rule—which in effect create an asylum bar based on a general geographic designation. In addition, the Federal Government has measures to address potential public health risks, such as routing international flights from areas with known outbreaks to specific airports and conducting public health screenings of passengers at those airports. 7 Hence, because the bars would not currently be triggered if the Security Bars final rule went into effect, the Departments believe that the rule is unnecessary in the short term.

The Departments acknowledge that some commenters suggested that an indefinite delay or a very long delay would be appropriate if the Security Bars final rule were not rescinded. But the Departments believe that a delay of only 1 year is appropriate. The rule has already been delayed for a substantial period, and the Departments project that a 1-year delay will suffice to determine what further regulatory steps best balance the relevant interests. And, as noted above, the Departments welcome comments on whether a delay beyond December 31, 2025, would be appropriate.

Under the Administrative Procedure Act (“APA”), agencies must generally provide “notice of proposed rule making” in the Federal Register and, after such notice, “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” 5 U.S.C. 553(b) and (c). The Departments satisfied this notice requirement through the December 2022 Delay IFR, which indicated the possibility of a future delay of the effective date of the Security Bars final rule and requested comments on such a potential future delay. 87 FR 79793. In the December 2022 Delay IFR, the Departments explicitly stated that they “continue to welcome data, views, and information regarding the effective date of the Security Bars [final] rule” and specifically “solicit[ed] comments on whether the effective date should be delayed beyond December 31, 2024.” Id.

In addition, the Departments have considered the comments received in response to the December 2022 Delay IFR and have concluded—for the reasons explained in Sections II and III of this preamble—that, notwithstanding certain comments to the contrary, a 1-year delay is appropriate. The agencies have accordingly satisfied any obligation under the APA to consider and respond to the comments received. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 96 (2015) (“An agency must consider and respond to significant comments received during the period for public comment.”).

The Departments have also determined that good cause exists to forego the APA's procedures that generally require a delay between a final rule's publication and its effective date. See 5 U.S.C. 553(d)(3) (providing that “[t]he required publication or service of a substantive rule shall be made not less than 30 days before its effective date . . . except as otherwise provided by the agency for good cause found and published with the rule”). The purpose of this delay is “to give affected parties time to adjust their behavior before the final rule takes effect.” Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); see also H.R. Rep. No. 79-1980, at 25 (1946) (similar). Here, however, that purpose would not be served by a delay before effectuating this IFR, given that this IFR merely preserves the status quo by further delaying the effective date of the Security Bars final rule. Accordingly, this IFR does not require any parties to change their conduct or take any particular steps in advance of the IFR's effective date. See United States v. Gavrilovic, 551 F.2d 1099, 1104 & n.9 (8th Cir. 1977) (noting that the legislative history of the APA indicates that the waiting period “was not intended to unduly hamper agencies from making a rule effective immediately,” but intended “to `afford persons affected a reasonable time to prepare for the effective date of a rule . . . or to take any other action which the issuance of rules may prompt' ” (quoting S. Rep. No. 79-752, at 15 (1946))).

Executive Order 12866 (“Regulatory Planning and Review”), as amended by Executive Order 14094 (“Modernizing Regulatory Review”), and Executive Order 13563 (“Improving Regulation and Regulatory Review”), directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs of the Office of Management and Budget has determined that this rule is “significant” under Executive Order 12866 and has reviewed this regulation.

The Departments have reviewed this rule in accordance with the Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164 (1980), as amended (codified at 5 U.S.C. 601 et seq. ) and have determined that this rule will not have a significant economic impact on a substantial number of small entities. The rule does not regulate “small entit[ies]” as that term is defined in 5 U.S.C. 601(6). Only individuals, rather than entities, may seek asylum or withholding or deferral of removal, and only individual noncitizens are otherwise placed in immigration proceedings.

This rule will not result in 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 for inflation, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48; see also 2 U.S.C. 1532(a).

This rule does not meet the criteria set forth in 5 U.S.C. 804(2).

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Departments have determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The Departments have assessed this rule in accordance with section 654 of the Treasury General Appropriations Act, 1999, Public Law 105-277, div. A, 112 Stat. 2681, 2681-528, and have determined that, because the Security Bars final rule is not in effect, further delaying the rule would not affect family well-being. Further, even as compared to a world in which the Security Bars final rule is allowed to go into effect on December 31, 2024, the Departments believe further delay of the rule will not affect family well-being because, as described in section III.B of this preamble, there are no current public health conditions that would trigger the bars outlined in the rule.

This rule does not have Tribal implications under Executive Order 13175 because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

Executive Order 13045 requires agencies to consider the impacts of environmental health risks or safety risks that may disproportionately affect children. The Departments have reviewed this rule and have determined that this rule is not a covered regulatory action under Executive Order 13045. The rule is not considered economically significant and does not create an environmental risk to health or a risk to safety that might disproportionately affect children.

This rule does not promulgate new, or revise existing, “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

Pursuant to section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. 1187, the Secretary, in consultation with the Secretary of State, may designate certain countries as VWP countries if certain requirements are met. 1 Once a country has met the requirements and been designated by the Secretary as a program country, eligible citizens and nationals of a program country may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of ninety days or less for business or pleasure without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements.

As noted above, the Secretary, in consultation with the Secretary of State, may designate a country for participation in the VWP, or suspend or terminate such participation, consistent with section 217 of the INA. The regulations currently define “designated country” as a country listed explicitly in 8 CFR 217.2(a).

Historically, DHS, and before DHS the legacy Immigration and Naturalization Service (INS), have maintained a list in the Code of Federal Regulations (CFR) of currently designated countries participating in the VWP. This practice started with the designation of the United Kingdom as the first VWP country. See 53 FR 24898 (June 30, 1988). Subsequent designations or terminations have been the subject of a rule in the Federal Register . Such rules update the list of countries in the CFR. See, e.g., 73 FR 79597 (Dec. 30, 2008) (Malta); 75 FR 15992 (Mar. 31, 2010) (Greece); 77 FR 64411 (Oct. 22, 2012) (Taiwan); 79 FR 17854 (Mar. 31, 2014) (Chile); 84 FR 60318 (Nov. 8, 2019) (Poland); 86 FR 54031 (Sept. 30, 2021) (Croatia); 88 FR 67065 (Sept. 29, 2023) (Israel); and 89 FR 78785 (Sept. 26, 2024) (Qatar).

Through this final rule, DHS is amending 8 CFR 217.2(a) to remove references to specific countries in the regulations. Instead, DHS will define “designated country” as “any country currently designated by the Secretary for participation in the Visa Waiver Program.” The updated definition will also point readers to the list of currently designated countries on the DHS VWP website, https://www.dhs.gov/visa-waiver-program.

With this change, DHS will continue to update the list of designated countries on the DHS VWP website. In addition, DHS will continue its outreach to stakeholders and the public, such as through press releases, directly notifying air carriers, and updating the Electronic System for Travel Authorization (ESTA) to account for future changes to the list of designated countries participating in the VWP.

Following this change, however, DHS will no longer pursue the separate administrative step of publishing a technical amendment in the Federal Register for each new designation. This change removes an unnecessary administrative burden and allows for more expedient updates to the list of designated countries participating in the VWP. It will also reduce any risk of confusion by the public or international partners due to a time lag between the Secretary's designation and the publication of a technical amendment in the Federal Register .

This rule does not change which countries are designated to participate in the VWP.

Under the Administrative Procedure Act (5 U.S.C. 553(b)(B)), an agency may waive notice and comment requirements if it finds, for good cause, that the requirements are impracticable, unnecessary, or contrary to the public interest. This rule reflects an administrative change that merely removes the list of designated countries participating in the VWP from the CFR and adds a reference to the DHS VWP website. This rule does not alter which countries have been designated or the criteria for initial and continued designation as a program country. Because the VWP country list is readily available online, the update would not affect the public's rights, interests, or access to information. Therefore, notice and comment for this rule is unnecessary.

This rule is further excepted from the notice and comment requirement as a procedural rule. For the same reasons previously stated, the rule has no substantive impact or effect on public interest. In removing the list of VWP participating countries from the CFR, while including a reference to another location where a list can be found, the rule is technical in nature and relates only to organization, procedure, and practice. This rule only changes whether a list of designated countries is available in the CFR, making it a procedural rule exempt from notice and comment.

For the reasons above, DHS also finds that the 30-day delayed effective date requirement for substantive rules does not apply. See 5 U.S.C. 553(d). Good cause exists to make this technical amendment effective immediately under 5 U.S.C. 553(d)(2) and (d)(3).

Finally, this rule is also excluded from the rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function of the United States. Designating VWP countries advances the President's foreign policy goals and directly involves relationships between the United States and its noncitizen visitors. Accordingly, DHS is not required to provide public notice and an opportunity to comment before implementing this final rule.

For the reasons set forth in the preamble, DHS amends part 217 of title 8 of the Code of Federal Regulations (8 CFR part 217) as set forth below.

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this IFR via one of the methods and by the deadline stated above. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this IFR. Comments that will provide the most assistance to the Department will reference a specific portion of the IFR; explain the reason for any recommended change; and include data, information, or authority that support such recommended change.

Please note that all comments received are considered part of the public record and made available for public inspection at www.regulations.gov. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify the confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.

Personally identifiable information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. The Department may withhold from public viewing information provided in comments that it determines may impact the privacy of an individual or is offensive. For additional information, please read the “Privacy & Security Notice” that is available via the link in the footer of www.regulations.gov. To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the FOR FURTHER INFORMATION CONTACT paragraph above for agency contact information.

The Department issues this IFR pursuant to section 103(g) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1103(g), as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135 (as amended). Under the HSA, the Attorney General is charged with “such authorities and functions under [the INA] and all other laws relating to the immigration and naturalization of [noncitizens]  1 as were [previously] exercised by the Executive Office for Immigration Review [(“EOIR”)], or by the Attorney General with respect to [EOIR].” INA 103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521. The Attorney General also has the authority to “establish such regulations, . . . issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out” the Attorney General's authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2). These authorities cover forms of relief or protection from removal, including asylum, statutory withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and protection under the regulations implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). 2

Noncitizens who are physically present or arrive in the United States as provided in section 208 of the INA, 8 U.S.C. 1158, may apply for asylum, subject to certain exceptions in section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2). By statute, certain noncitizens are ineligible to apply for or to be granted asylum, and Congress has delegated to the Attorney General the authority to establish additional limitations and conditions, consistent with applicable statutes, under which noncitizens shall be ineligible for asylum. See INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A) (statutory bars to asylum); INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C) (additional limitation authority); INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (allowing for additional regulatory conditions or limitations on consideration of asylum applications). The Attorney General is also charged with providing a review procedure for negative credible fear determinations regarding asylum made by an asylum officer during the expedited removal process. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).

Additionally, the United States is a party to the 1967 United Nations Protocol Relating to the Status of Refugees, January 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 (“Refugee Protocol”), which incorporates Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (“Refugee Convention”). Article 33 of the Refugee Convention generally prohibits parties to the Convention from expelling or returning “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 19 U.S.T. at 6276. Congress codified these obligations in the Refugee Act of 1980, creating the precursor to what is now known as statutory withholding of removal. 3 The Supreme Court has long recognized that the United States implements its non-refoulement obligations under Article 33 of the Refugee Convention (via the Refugee Protocol) through the statutory withholding of removal provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which provides that a noncitizen may not be removed to a country where their life or freedom would be threatened because of one of the protected grounds listed in Article 33 of the Refugee Convention. 4 See INA 241(b)(3), 8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. By statute, certain noncitizens are ineligible for statutory withholding of removal. See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) (establishing bars to statutory withholding of removal).

Separately, the Department also has authority to implement Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994). The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”) provides the Department with the authority to “prescribe regulations to implement the obligations of the United States under Article 3 of the [CAT], subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.” Public Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C. 1231 note). The Department has implemented the United States' obligations under Article 3 of the CAT by regulation, consistent with FARRA. See, e.g., 8 CFR 1208.16(c)-1208.18; Regulations Concerning the Convention Against Torture, 64 FR 8478 (Feb. 19, 1999), amended by 64 FR 13881 (Mar. 23, 1999).

Asylum is a discretionary form of relief for noncitizens who establish, among other things, that they have experienced past persecution or have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the Attorney General “may” grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining “refugee”).

Noncitizens who are ineligible, by statute or regulation, to apply for or to be granted asylum, or who are denied asylum as a matter of discretion, nonetheless may qualify for other forms of protection from removal. 5 Specifically, such an applicant may be eligible for statutory withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). Statutory withholding of removal prevents a noncitizen's removal to any country where the noncitizen's life or freedom would “more likely than not” be threatened because of a protected ground. See generally 8 CFR 1208.16(b)(2) (withholding of removal under the INA); see also INS v. Stevic, 467 U.S. 407, 413, 424 (1984) (holding that the “clear probability” or “more likely than not” standard applies to withholding of deportation); INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (holding that, while withholding of removal requires a showing that it is “more likely than not” that a noncitizen would be subject to persecution, an applicant for asylum must only demonstrate a “well-founded fear” of persecution).

Additionally, noncitizens who express a fear of torture may be eligible for protection under the CAT, which is available in two forms: withholding of removal or deferral of removal. See 8 CFR 1208.16(c) (CAT withholding of removal), 1208.17 (CAT deferral of removal), 1208.18 (CAT implementation). Both withholding of removal and deferral of removal under the CAT prevent a noncitizen's removal to any country where the noncitizen is “more likely than not” to be tortured. 8 CFR 1208.16(c), 1208.17, 1208.18.

The INA includes several statutory bars to asylum, which can affect a noncitizen's ability to apply for, or their eligibility for, such relief. Compare INA 208(a)(2), 8 U.S.C. 1158(a)(2) (bars to applying for asylum), with INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A) (bars to eligibility for asylum). For example, the statute contains six mandatory bars to asylum eligibility, covering any noncitizen: (1) who “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of” a protected ground; (2) who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;” (3) for whom “there are serious reasons for believing” that the noncitizen “has committed a serious nonpolitical crime outside the United States” prior to arrival in the United States; (4) for whom “there are reasonable grounds for regarding” as “a danger to the security of the United States;” (5) who is described in the terrorism-related inadmissibility grounds, with limited exception; or (6) who “was firmly resettled in another country prior to arriving in the United States.” See INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A).

The statute also includes four similar mandatory bars to withholding of removal eligibility for a noncitizen: (1) who “ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion”; (2) who, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States; (3) for whom “there are serious reasons to believe” that the noncitizen committed a serious nonpolitical crime outside the United States before their arrival in the United States; or (4) for whom “there are reasonable grounds to believe that” the noncitizen is a danger to the security of the United States, including for engaging in terrorist activities as described in INA 237(a)(4)(B), 8 U.S.C. 1227(a)(4)(B). 6 See INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B).

Regarding protection under the CAT, noncitizens who are subject to a bar to statutory withholding of removal pursuant to section 241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B), are likewise ineligible for withholding of removal under the CAT. See 8 CFR 1208.16(d)(2) (explaining that “an application for withholding of removal . . . under the Convention Against Torture shall be denied if the applicant falls within section 241(b)(3)(B) of the Act”). However, there are no bars to deferral of removal under the regulations implementing the CAT. See 8 CFR 1208.17(a); but see 8 CFR 1208.17(d)(4), (e) and (f) (explaining instances where deferral of removal may be terminated). Thus, a noncitizen who is entitled to protection under the CAT but is subject to a mandatory bar to CAT withholding of removal “shall be granted deferral of removal” as a limited form of protection. 8 CFR 1208.17(a). In other words, granting deferral of removal under the CAT is mandatory for noncitizens who establish eligibility for such protection. Id.

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Public Law 104-208, div. C, 110 Stat. 3009, 3009-546, Congress established the expedited removal process. See INA 235(b)(1), 8 U.S.C. 1225(b)(1). The process is applicable to noncitizens arriving in the United States (and, in the discretion of the Secretary of Homeland Security, certain other designated classes of noncitizens) who are found to be inadmissible under certain provisions of the INA. See INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i) (applying the expedited removal process to noncitizens inadmissible under section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C) (inadmissible based on material misrepresentations), and section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7) (documentation requirements for admission)).

In the expedited removal process, such noncitizens may be “removed from the United States without further hearing or review unless the [noncitizen] indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.” INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). If a noncitizen indicates an intention to apply for asylum, a fear of persecution or torture, or a fear of return, DHS uses a “credible fear” screening to identify potentially valid claims for asylum, statutory withholding of removal, and CAT protection, so as to prevent noncitizens placed in expedited removal from being removed to a country in which they would face persecution or torture without further consideration of their fear claim. See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4), 208.30(b).

To implement the credible fear screening process, such noncitizens are referred for an interview by a U.S. Citizenship and Immigration Services (“USCIS”) asylum officer to determine whether the noncitizen has a credible fear of persecution or torture. INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4). The term “credible fear of persecution” means that there is “a significant possibility, taking into account the credibility of the statements made by the [noncitizen] in support of the [noncitizen's] claim and such other facts as are known to the officer, that the [noncitizen] could establish eligibility for asylum under section 1158 of [the INA].” INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). The credible fear screening by the asylum officer may also include consideration of certain limitations on, or presumptions against, asylum eligibility. See, e.g., Circumvention of Lawful Pathways, 88 FR 31314, 31450 (May 16, 2023) (codifying the lawful pathways condition on asylum eligibility at 8 CFR 208.33 and 1208.33); Securing the Border, 89 FR 81156 (Oct 7, 2024) (codifying a limitation on asylum eligibility for certain noncitizens who enter during emergency border circumstances).

During the screening process, such cases may be referred to EOIR for the limited purpose of having an immigration judge review the asylum officer's determination that a noncitizen does not have a credible fear of persecution or torture. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g)(1). Specifically, if the asylum officer determines that the noncitizen does not have a credible fear of persecution or torture, the noncitizen may request that an immigration judge review that determination. Id.; 8 CFR 208.30(g), 208.33(b), 208.35(b)(2)(v), 1208.30(g), 1208.33(b), 1208.35(b). This process is generally known as a “credible fear review.” See, e.g., 8 CFR 1003.42 (“Review of credible fear determinations”). Such reviews are intended to be concluded “as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days” after the asylum officer's determination. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). No further appeal is available from a credible fear review. 7 See 8 CFR 1003.42(f).

Separately, reasonable fear proceedings involve noncitizens who have been ordered removed under section 238(b) of the INA, 8 U.S.C. 1228(b), based on an aggravated felony conviction, or whose prior orders of removal have been reinstated under section 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5), but who express a fear of returning to the country of removal. See 8 CFR 208.31(a); 1208.31(a). The reasonable fear screening process was established by regulation to fulfill a statutory mandate to implement, in part, the United States' obligations under Article 3 of the CAT. See Regulations Concerning the Convention Against Torture, 64 FR at 8478 (“This rule is published pursuant to this mandate to implement United States obligations under Article 3 in the context of the Attorney General's removal of [noncitizens] . . . .”). Specifically, the reasonable fear screening process was established to provide for the fair resolution of claims to withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and protection under the regulations implementing U.S. obligations under Article 3 of the CAT, without unduly disrupting the streamlined removal processes applicable to these noncitizens. Id. at 8479.

Similar to credible fear screenings, noncitizens who express fear are referred to an asylum officer for a reasonable fear screening. See 8 CFR 208.31(b)-(c); see also Regulations Concerning the Convention Against Torture, 64 FR at 8485 (explaining that the reasonable fear process is “modeled on the credible fear screening process”). However, unlike those in the credible fear process, noncitizens subject to the reasonable fear process are categorically ineligible for asylum by virtue of their aggravated felony conviction, INA 208(b)(2)(A)(ii), (B), 8 U.S.C. 1158(b)(2)(A)(ii), (B) (barring from asylum those convicted of an aggravated felony), or being subject to reinstatement, INA 241(b)(5), 8 U.S.C. 1231(b)(5) (rendering those whose removal orders have been reinstated ineligible and unable to apply for any “relief”). Rather, the asylum officer determines whether the noncitizen has a reasonable fear of persecution or torture upon removal and is therefore eligible for consideration of statutory withholding of removal or CAT protection. See 8 CFR 208.31(c). A “reasonable fear of persecution or torture” means that there is a reasonable possibility that the noncitizen would be persecuted because of their race, religion, nationality, membership in a particular social group, or political opinion, or a reasonable possibility that the noncitizen would be tortured if returned to the country of removal. 8 CFR 208.31(c).

Such cases may be referred to EOIR for the limited purpose of having an immigration judge review the asylum officer's determination that a noncitizen does not have a reasonable fear of persecution or torture. See 8 CFR 1208.31(g) (“Review by immigration judge”). If the asylum officer determines that the noncitizen does not have a reasonable fear of persecution or torture, the noncitizen may request that an immigration judge review that determination. See 8 CFR 1208.31(f). This is generally known as a “reasonable fear review.” Such reviews are intended to be conducted within 10 days of filing the referral with the immigration court. See 8 CFR 1208.31(g). No further administrative appeal is available from a negative reasonable fear determination. See 8 CFR 1208.31(g)(1).

During both credible fear and reasonable fear reviews, immigration judges review de novo an asylum officer's determination that a noncitizen does not have a credible fear or reasonable fear, as applicable. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III) (providing for prompt review of an asylum officer's determination that a noncitizen does not have a credible fear of persecution); 8 CFR 1003.42(a) (requiring DHS to file the written record of determination with the immigration judge for credible fear review), 1208.31(g) (same for reasonable fear review). The immigration judge's review may include consideration of certain limitations on, or presumptions against, asylum eligibility. See, e.g., 8 CFR 1208.33(b) (review of the lawful pathways condition on asylum eligibility), 1208.35(b) (review of the limitation on asylum eligibility for certain noncitizens who enter during emergency border circumstances).

However, asylum officers historically have not considered the applicability of mandatory bars to asylum or withholding of removal contained in INA 208(a)(2), (b)(2)(A), 8 U.S.C. 1158(a)(2), (b)(2)(A), or INA 241(b)(3)(B), 8 U.S.C. 1241(b)(3)(B), during credible fear and reasonable fear screenings, and accordingly, immigration judges have not reviewed the application of those bars during review of credible fear and reasonable fear determinations. But in recent years, there have been a number of regulations seeking to permit or mandate the consideration of some or all of these bars during the credible fear process—followed, in some cases, by regulations reversing that approach.

As one example, in 2020, DHS and DOJ amended the Departments' regulations to instruct asylum officers and immigration judges to apply certain mandatory bars during the credible fear process. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274, 80278 (Dec. 11, 2020) (“Global Asylum Rule”). On January 8, 2021, the Global Asylum Rule was enjoined before its effective date. Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021).

Subsequently, in 2022, the Department and DHS issued a joint rule amending the credible fear regulations at 8 CFR 208.30(e)(5), 8 CFR 1003.42, and 8 CFR 1208.30, as relevant here, returning the regulatory text to the pre-Global Asylum Rule approach where asylum officers do not consider the applicability of mandatory bars for credible fear determinations, and therefore, immigration judges do not consider the applicability of bars in reviewing such determinations. See Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078, 18219, 18221-22 (Mar. 29, 2022) (“Asylum Processing IFR”).

Most recently, in December 2024, DHS issued a rule to allow asylum officers to consider the potential applicability of certain bars to asylum and statutory withholding of removal during credible fear and reasonable fear screenings. See 89 FR 103370 (Dec. 18, 2024) (“DHS Mandatory Bars”). Specifically, the rule allows asylum officers to apply the mandatory asylum and withholding of removal bars relating to national security and public safety as set forth in INA 208(b)(2)(A)(i) through (v), 8 U.S.C. 1158(b)(2)(A)(i) through (v) and INA 241(b)(3)(B), 8 U.S.C. 1241(b)(3)(B), during credible fear and reasonable fear screenings in certain instances. See id.

The Department is issuing this IFR to make a technical amendment to EOIR's regulations in order to clarify the scope of an immigration judge's credible fear or reasonable fear review. Upon a noncitizen's request, immigration judges have always reviewed—and will continue to review—the underlying asylum officer determinations made during credible fear or reasonable fear screenings that a noncitizen could not establish potential eligibility for relief or protection. This rule clarifies that an immigration judge's de novo review of an asylum officer's credible fear or reasonable fear determination includes review of the asylum officer's application of any bars to asylum and withholding of removal considered by the asylum officer pursuant to DHS regulations. See 8 CFR 1003.42(d) (credible fear review), 1208.31(g) (reasonable fear review), 1208.33(b) (credible fear review after application of the lawful pathways rebuttable presumption of asylum ineligibility). This housekeeping measure ensures that immigration judges consider the asylum officers' determinations made regarding credible fear and reasonable fear, including their application of any bars to asylum and withholding of removal, consistent with the statutory scheme. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III) (statutory review role); 8 CFR 1003.42(d) (credible fear review), 1208.31(g) (reasonable fear review), 1208.33(b) (credible fear review after application of the lawful pathways rebuttable presumption of asylum ineligibility).

With respect to credible fear screenings, this housekeeping clarification accords with the statutory scheme set forth by the INA. The INA charges asylum officers with making determinations whether a noncitizen has demonstrated a credible fear of persecution, INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), and immigration judges with reviewing negative credible fear determinations, INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). Consistent with this division of screening and review authority, the DHS regulations governing asylum officers have always addressed whether or not the bars to asylum should be taken into consideration by the asylum officer in credible fear screenings. During the long period when asylum officers did not apply any of those bars, the EOIR regulations governing immigration judges did not expressly address the issue. Instead, the EOIR regulations simply provided for de novo review of the asylum officer's determination that the noncitizen does not have a credible fear of persecution or torture, taking into account any additional evidence or testimony provided during the review.

Similarly, with respect to reasonable fear screenings, this rule maintains consistency with the existing regulatory scheme, where asylum officers “determine” whether the noncitizen has a reasonable fear of persecution or torture, 8 CFR 208.31(c), and immigration judges may review negative reasonable fear determinations. 8 CFR 1208.31(g). This housekeeping measure clarifies that, going forward, the immigration judge may continue to review the entirety of an asylum officer's negative reasonable fear determination, including application of bars during a reasonable fear screening under DHS regulations. This rule also adds the words “de novo” to state that an “asylum officer's negative decision regarding reasonable fear shall be subject to de novo review by an immigration judge,” 8 CFR 1208.31(g), to explicitly codify the standard by which the immigration judge reviews the asylum officer's determination.

This rulemaking is intended to prevent future confusion regarding whether an immigration judge's credible fear or reasonable fear review will encompass review of the asylum officer's application of bars to asylum or withholding of removal, consistent with existing review requirements. See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B) (charging DHS with making credible fear determinations and the Department with review of those determinations); 8 CFR 1208.31(g) (authorizing immigration judges to conduct reasonable fear reviews). This clarification is particularly important in light of DHS's December 2024 rule to allow asylum officers to consider the potential applicability of certain bars to asylum and withholding of removal during credible fear and reasonable fear screenings. See DHS Mandatory Bars, 89 FR 103370.

Moreover, the Department found recent rulemakings regarding the credible fear screening process instructive on providing clarity regarding immigration judge review during that process. See, e.g., Circumvention of Lawful Pathways, 88 FR at 31314; Securing the Border, 89 FR at 81156. In these rulemakings, DHS and DOJ provided specific regulatory provisions regarding immigration judge review of the limitation on asylum eligibility or rebuttable presumption of asylum ineligibility contained in those rules during credible fear reviews. See, e.g., 8 CFR 1208.33(b) (review of the lawful pathways rebuttable presumption of asylum ineligibility); 1208.35(b) (review of the limitation on asylum eligibility for certain noncitizens who enter during emergency border circumstances). The Department believes that providing clarity in this rule regarding immigration judge review of any bars to asylum or withholding of removal the asylum officer applied during the credible fear and reasonable fear process would be similarly beneficial.

Specifically, the Department is modifying EOIR's credible fear review regulations to state: “This determination shall, where relevant, include review of the asylum officer's application of any bars to asylum and withholding of removal pursuant to 8 CFR 208.30(e)(5).” See 8 CFR 1003.42(d). The Department is also amending the Circumvention of Lawful Pathways regulatory section to clarify that immigration judges' de novo review under 8 CFR 1208.33(b) includes review of the asylum officer's application of any bars to withholding of removal pursuant to 8 CFR 208.33(b)(2). 8 See 8 CFR 1208.33(b)(1). Similarly, the Department is adding an affirmative sentence stating that, during reasonable fear review before EOIR, “[t]he immigration judge's review shall, where relevant, include review of the asylum officer's application of any bars pursuant to 8 CFR 208.31(c).” See 8 CFR 1208.31(g).

In making these changes, the Department notes that, while the immigration judge's role is to conduct a de novo review of the asylum officer's credible or reasonable fear determination, both the statute and the regulations contemplate that the immigration judge may make their ultimate de novo determination based on the record the asylum officer provides, as well as evidence or testimony that was not available to the asylum officer. See, e.g., INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225 (b)(1)(B)(iii)(III) (explaining that a credible fear review “shall include an opportunity for the [noncitizen] to be heard and questioned by the immigration judge. . . .”); 8 CFR 1003.42(d) (noting that, during a credible fear review, the immigration judge will “tak[e] into account the credibility of the statements made by the [noncitizen] in support of the [noncitizen's] claim, and such other facts as are known to the immigration judge”); Immigration Court Practice Manual, Chapter 7.4(e)(4)(E) (October 25, 2023) (stating that, during a reasonable fear review, “[e]ither party may introduce oral or written statements”). This rule, therefore, honors the statutory screening and review scheme, while also preserving the existing statutory and regulatory recognition that additional evidence or testimony may be provided that implicates the noncitizen's credible or reasonable fear.

The Department also notes that there may be instances where review of an asylum officer's application of a bar may be unnecessary to make a determination as to whether a noncitizen has a credible or reasonable fear. For example, if the immigration judge finds that the noncitizen could not establish a credible fear or reasonable fear for a separate reason unrelated to any bars to asylum or withholding of removal, the immigration judge does not need to then conduct further review of the asylum officer's application of any bars. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). This ensures that such reviews are “concluded as expeditiously as possible,” consistent with the statute. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).

Further, the Department notes that this rulemaking does not itself modify or alter the substantive standards applicable in credible fear or reasonable fear screenings. See, e.g., 8 CFR 1003.42(d) (credible fear standards), 1208.31(c) (reasonable fear standards), 1208.33(b)(2) (credible fear standards under the Circumvention of Lawful Pathways rule), 1208.35(b)(2)(iii) (credible fear standards under Securing the Border rule). Nor does this rulemaking alter the procedures that immigration judges currently follow during credible fear or reasonable fear reviews. See generally 8 CFR 1003.42, 1208.30(g), 1208.31(g), 1208.33(b), 1208.35(b). In short, during credible fear and reasonable reviews, immigration judges will continue to make a de novo determination as to whether the noncitizen has made a threshold showing under the relevant standard that they could establish eligibility for asylum, statutory withholding of removal, or protection under the CAT, as applicable. This rulemaking simply clarifies that, as part of these existing reviews, immigration judges shall, where relevant, review the asylum officer's application of any bars to asylum or withholding of removal.

Additionally, the changes in this rulemaking do not affect the ability of a noncitizen to pursue or receive deferral of removal under the CAT, 8 CFR 1208.16(c)(4) and 1208.17, or the existing processes for referring noncitizens with a fear of torture for adjudication of their deferral claim, where applicable. See 1208.30(g)(2)(iv)(B) (referrals from positive credible fear review); 1208.31(g)(2)(i) (further consideration from positive reasonable fear review). There are no bars to deferral of removal under the CAT, and noncitizens who demonstrate the requisite credible or reasonable fear of torture will continue to be able to pursue deferral of removal under the CAT, regardless of an asylum officer's application of any bars to asylum or withholding of removal specified in DHS regulations. Noncitizens who are referred for further proceedings after positive credible or reasonable fear determinations, and who then make the requisite showing that they are more likely than not to be tortured, will therefore receive deferral of removal, without any consideration of those bars.

This rulemaking is also making minor technical edits for consistency in the EOIR regulations amended by this rule. For example, in 8 CFR 1003.42, the rule decapitalizes the words “Immigration Court” and “Immigration Judge” to read “immigration court” and “immigration judge.” Similarly, the rule replaces outdated references to “the Service” with “DHS” and updates references to form titles in 8 CFR 1003.42 and 1208.31. The rule also makes two non-substantive corrections to inadvertent errors in cross-references to the definition of “victim of a severe form of trafficking in persons” in 8 CFR 1208.33(a)(3)(i)(C) and 1208.35(a)(2)(i)(C).

This rulemaking also replaces the term “alien” with “noncitizen” in 8 CFR 1003.42, 1208.31, and 1208.33. Similarly, in 8 CFR 1208.33(a)(2)(i), this rulemaking replaces the phrase “unaccompanied alien child as defined in 6 U.S.C. 279(g)(2)” with the phrase “unaccompanied child as defined in 8 CFR 1001.1(hh).” These changes are consistent with recent terminology usage changes at EOIR. See 8 CFR 1001.1(gg) (defining “noncitizen” as equivalent to the statutory term “ `alien,' as defined in section 101(a)(3) of the Act,” 8 U.S.C. 1101(a)(3)), 1001.1(hh) (defining “unaccompanied child” as equivalent to the statutory term “ `unaccompanied alien child' as defined in 6 U.S.C. 279(g)(2)”); see also Efficient Case and Docket Management in Immigration Proceedings, 89 FR at 46787 (adding new 8 CFR 1001.1(gg)-(hh)).

This rule also removes and reserves 8 CFR 1208.31(b) through (d). These paragraphs were duplicated from 8 CFR 208.31 as part of the reorganization of title 8 following the transfer of functions from the former Immigration and Naturalization Service to DHS due to the HSA. Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824, 9834 (Feb. 28, 2003). Because these paragraphs refer to DHS operations performed by asylum officers, not EOIR immigration judges, they are therefore unnecessary to maintain in EOIR's regulations. The Departments always regarded this duplication as temporary and have periodically taken steps to eliminate unnecessary duplication. E.g., id. at 9825-26; Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals, 70 FR 4743, 4749 & n.7 (Jan. 31, 2005); Inflation Adjustment for Civil Monetary Penalties Under Sections 274A, 274B, and 274C of the Immigration and Nationality Act, 73 FR 10130, 10132 (Feb. 26, 2008).

The rule also makes clarifying, technical changes to 8 CFR 1003.42(a) and 8 CFR 1208.31(g) regarding the record forwarded by DHS to the immigration court for credible fear or reasonable fear reviews. These technical edits are designed to emphasize that the immigration judge's review of the asylum officer's determination will consist of the “complete” record, as described by statute in the credible fear context, and as described by regulation in the reasonable fear context, respectively. 9 In other words, these edits are intended to provide clarity for all parties by emphasizing that it is particularly important for immigration judges to have the complete record to review an asylum officer's application of any bars pursuant to 8 CFR 208.30(e) and 8 CFR 208.31(c). See 8 CFR 1003.42(a), (d), 1208.31(g). These edits to the EOIR regulations do not, however, substantively or procedurally change the content or items that DHS provides to DOJ for the record of a credible fear or reasonable fear determination. 10

Next, the rule makes two clarifying edits to the EOIR regulations at 8 CFR 1003.42(e). First, the rule amends the regulatory text for specificity to include the form number—Form I-869—for the Record of Negative Credible Fear Finding and Request for Review. 8 CFR 1003.42(e). Second, the rule clarifies that the immigration judge's review of the negative credible fear determination will conclude no later than 7 days after the supervisory asylum officer has “concurred with”—rather than “approved”—the asylum officer's negative credible fear determination for conformity with DHS's terminology regarding its internal processes for supervisory review. Id.; see, e.g., 8 CFR 208.30(b) (“after supervisory concurrence” ) (emphasis added), (e)(6)(i) (“[i]f the asylum officer, with concurrence from a supervisory asylum officer”) (emphasis added), (e)(7)(i)(A) (same).

Additionally, this rule makes technical changes to the EOIR regulations at 8 CFR 1003.42(d) and 1208.33(b)(2)(i) and (ii) to correct two inadvertent omissions and clarify the appropriate countries to consider for screenings related to statutory withholding of removal and CAT protection. First, at 8 CFR 1003.42(d) and 1208.33(b)(2)(i), the Department is adding “withholding” and “deferral” to the list of the forms of relief and protection considered during an immigration judge's credible fear review to ensure that immigration judges are instructed to screen for both forms of CAT protection. This omission was inadvertent in both instances, and amending the provisions in this way is thus a mere technical change.

Relatedly, the Department is also amending 8 CFR 1003.42(d) and 1208.33(b)(2)(i) and (ii) to make clear that, when screening for statutory withholding of removal and both withholding of removal and deferral of removal under the CAT, the immigration judge considers those forms of protection as to the country or countries of removal identified pursuant to section 241(b) of the Act, 8 U.S.C. 1231(b). 11 This is a housekeeping measure to add clarity to the regulation and to ensure it is applied consistently with the statute. This is because under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and the regulations implementing the CAT, both forms of protection prevent removal to a specific country only—the proposed country of removal. See INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.16(c)(2) (providing that it is the noncitizen's burden to establish that they are more likely than not to be tortured in the “proposed country of removal”).

For a noncitizen subject to expedited removal, the identification of the country or countries of removal pursuant to section 241(b) of the Act takes place as part of DHS's removal process and occurs before any potential referral for a credible fear screening or subsequent EOIR credible fear review. See INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); 8 CFR 235.3(b)(2)(i) (explaining removability determinations made during expedited removal process). And thus, it is before DHS—not EOIR—that the country or countries of removal will be identified pursuant to section 241(b) of the Act, 8 U.S.C. 1231(b). This country designation is not reviewable during a credible fear review by the immigration judge, who is authorized to review only “a determination . . . that the [noncitizen] does not have a credible fear of persecution” with respect to identified countries of removal. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). See also Matter of A-S-M-, 28 I&N Dec. 282, 285 (BIA 2021) (recognizing, in the reasonable fear context, that DHS “`retains discretion' to determine the proper country of removal under section 241(b)(2) of the Act,” 8 U.S.C. 1231(b)(2), and that determination is unreviewable by an immigration judge or the Board of Immigration Appeals). Thus, this change makes clear that the immigration judge reviews the screening eligibility determinations with respect to the country or countries of removal identified pursuant to section 241(b) of the Act, 8 U.S.C. 1231(b).

The Administrative Procedure Act (“APA”) generally requires agencies to publish notice of a proposed rulemaking in the Federal Register and allow for a period of public comment. 5 U.S.C. 553(b) through (c). The APA's notice-and-comment requirements, however, do not apply to “rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Courts “have used the term `procedural exception' as shorthand for that exemption.” Am. Fed'n of Lab. & Cong. of Indus. Orgs. v. Nat'l Lab. Rels. Bd., 57 F.4th 1023, 1034 (D.C. Cir. 2023) (citing Pub. Citizen v. Dep't of State, 276 F.3d 634, 640 (D.C. Cir. 2002) (quoting JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 328 (D.C. Cir. 1994))). “[T]he critical feature of a rule that satisfies the . . . procedural exception is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.' ” Id. (citing James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000) (internal quotations omitted)); cf. Texas v. United States, 809 F.3d 134, 176 (5th Cir. 2015) (holding that a rule is not procedural when it “modifies substantive rights and interests” (quoting U.S. Dep't of Lab. v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984))).

To determine whether a rule is procedural or substantive, courts “must look at [the rule's] effect on those interests ultimately at stake in the agency proceeding.” Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984). That said, “an otherwise-procedural rule does not become a substantive one, for notice-and-comment purposes, simply because it imposes a burden on regulated parties.” James V. Hurson Assocs., Inc., 229 F.3d at 281. Even “a rule with a `substantial impact' upon the persons subject to it is not necessarily a substantive rule under” the APA. Elec. Priv. Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 5 (D.C. Cir. 2011) (citing Pub. Citizen v. Dep't of State, 276 F.3d at 640-41).

The Department has determined that this rule regulates agency procedure and is therefore exempt from notice-and-comment procedures under the APA, 5 U.S.C. 553(b)(A). The amendments adopted through this IFR do not alter individuals' rights or interests nor do they alter any eligibility requirements for relief or protection from removal. See JEM Broad. Co., 22 F.3d at 326. Instead, these amendments clarify that an immigration judge's review of the determinations made by an asylum officer at the credible fear or reasonable fear screening will include, where relevant, review of the asylum officer's application of any bars to asylum and withholding of removal under DHS regulations. An immigration judge's review of an asylum officer's credible or reasonable fear determination will remain, as it has always been, de novo, and thus the clarifications made in this rule are merely procedural and do not place any new, “substantive burden[s]” on regulated parties. Elec. Priv. Info. Ctr., 653 F.3d at 6.

EOIR's current regulations provide immigration judges with the broad authority to conduct de novo review of an asylum officer's credible or reasonable fear determination, and do not expressly limit the ability of immigration judges to consider any relevant bars to asylum or withholding of removal, should DHS provide for them by regulation. See, e.g., 8 CFR 1003.42(d); 1208.31(g). However, rather than risk the potential confusion regarding consideration of the applicability of bars at the immigration judge's review stage, this rule explicitly states that immigration judges shall, where relevant, review the asylum officer's application of such bars. Because this modification is a housekeeping measure, including terminology updates for internal consistency of usage within EOIR's regulations and additions for clarity regarding review of protection claims relating to the designated country of removal, the Department believes that this IFR is an efficient means of making this procedural clarification. See James V. Hurson Assocs., Inc., 229 F.3d at 282 (“We have, therefore, consistently recognized that `agency housekeeping rules often embody a judgment about what mechanics and processes are most efficient.' This does not convert a procedural rule into a substantive one.”) (citations omitted).

As noted, the Department has previously made conforming changes to its regulations jointly with DHS when DHS modified its own regulations governing whether the asylum officer may consider the mandatory bars to asylum and withholding of removal in credible fear determinations. See, e.g., 85 FR at 80278 (Global Asylum Rule). However, the Department has determined that, in the interest of administrative efficiency, the Department will simply codify in the EOIR regulations that the immigration judge will review the asylum officer's credible fear or reasonable fear determination, including, as directed by DHS regulations, the asylum officer's application of any bars to eligibility, de novo. This language will ensure that EOIR regulations sufficiently cover any scenario where asylum officers may consider the bars to asylum and withholding of removal in a screening determination, and will not require further EOIR rulemaking action should DHS make future regulatory changes to the applicability of any bars to asylum or withholding of removal during the credible fear or reasonable fear screening processes.

Although prior notice-and-comment is not required, the Department invites public comment on this IFR, and will, before issuing a final rule, consider any such comments submitted in accordance with the requirements herein.

Additionally, the Department has also determined that, because this is a procedural rule under the APA, the rule is not subject to the APA's requirement of a 30-day delay in the effective date. See 5 U.S.C. 553(d)(3) (providing that “[t]he required publication or service of a substantive rule shall be made not less than 30 days before its effective date . . . except as otherwise provided by the agency for good cause found and published with the rule”) (emphasis added).

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, generally requires an agency to prepare and make available to the public a final regulatory flexibility analysis that describes the effect of a rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required “to publish a general notice of proposed rulemaking” prior to issuing the final rule. See 5 U.S.C. 603(a), 604(a).

This IFR is not subject to the regulatory flexibility analysis requirement because, as explained above, the Department is not required to publish a proposed rule before publishing this IFR. Such analysis is not required when a rule is exempt from notice-and-comment rulemaking under 5 U.S.C. 553(b) or other law. Because this is a rule of agency procedure and therefore is exempt from notice-and-comment rulemaking, no RFA analysis under 5 U.S.C. 603 or 604 is required. The Department nonetheless welcomes comments regarding potential impacts on small entities, which the Department may consider as appropriate.

Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993), as amended by Executive Order 14094, Modernizing Regulatory Review, 88 FR 21879 (Apr. 6, 2023) and supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 18, 2011), directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 further emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The Office of Management and Budget, Office of Information and Regulatory Affairs (“OIRA”) has designated this IFR a “significant regulatory action” under Executive Order 12866, as amended. Accordingly, OIRA has reviewed this regulation. Further, the Department certifies that this IFR has been drafted in accordance with the principles of Executive Orders 12866, 13563, and 14094.

Overall, the Department believes that the changes adopted in this IFR will not have a significant impact on adjudicators, the parties, and the broader public. This rule is a housekeeping measure that clarifies existing credible fear and reasonable fear review processes, including the review of the asylum officer's application of the bars to asylum and withholding of removal pursuant to 8 CFR 208.30(e)(5).

In sum, any changes contemplated by the IFR would not impact the public in a way that would render the IFR in tension with the principles of Executive Orders 12866 or 13563.

The Unfunded Mandates Reform Act of 1995 (“UMRA”) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and Tribal governments, or a private sector mandate, by requiring the preparation of an UMRA analysis for a rule that may directly result in a $100 million or more expenditure (adjusted annually for inflation) in any one year.

This IFR is not subject to the written statement requirement because no general notice of proposed rulemaking was published prior to issuance of this IFR. 2 U.S.C. 1532(a). In addition, this IFR does not contain such a mandate because it does not impose any enforceable duty upon any other level of government or private sector entity. Any downstream effects on such entities would arise solely due to their voluntary choices, and the voluntary choices of others, and would not be a consequence of an enforceable duty imposed by this IFR. Similarly, any costs or transfer effects on State and local governments would not result from a Federal mandate as that term is defined under UMRA. The requirements of title II of UMRA, therefore, do not apply, and the Department has not prepared a statement under UMRA.

This IFR will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this IFR does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This IFR meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5, 1996).

The Department has reviewed this IFR in line with the requirements of section 654 of the Treasury and General Government Appropriations Act, 1999, see 5 U.S.C. 601 note, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999. Public Law 105-277, 112 Stat. 2681 (1998). The Department has reviewed the criteria specified in section 654(c)(1), by evaluating whether this regulatory action (1) impacts the stability or safety of the family, particularly in terms of marital commitment; (2) impacts the authority of parents in the education, nurture, and supervision of their children; (3) helps the family perform its functions; (4) affects disposable income or poverty of families and children; (5) only financially impacts families, if at all, to the extent such impacts are justified; (6) may be carried out by State or local government or by the family; or (7) establishes a policy concerning the relationship between the behavior and personal responsibility of youth and the norms of society. If the agency determines a regulation may negatively affect family well-being, then the agency must provide an adequate rationale for its implementation.

The Department has determined that the implementation of this IFR does not impose a negative impact on family well-being or the autonomy or integrity of the family as an institution.

This IFR will not have “tribal implications” because it will not 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. Accordingly, Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) requires no further agency action or analysis for this rulemaking.

The Department and its components analyzed this rulemaking action to determine whether the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (“NEPA”), applies to these actions and, if so, what level of NEPA review is required. 42 U.S.C. 4336.

Federal agencies may establish categorical exclusions for categories of actions they determine normally do not significantly affect the quality of the human environment, and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 42 U.S.C. 4336(a)(2), 4336e(1); 40 CFR 1501.4, 1507.3(c)(8). DHS has established its categorical exclusions through Appendix A of the DHS's Directive 023-01, Revision 01, 12 and Instruction Manual 023-01-001-01, Revision 01 (“Instruction Manual”), 13 which establishes the procedures that DHS and its components use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations  14 for implementing NEPA, 40 CFR parts 1500 through 1508.

Under DHS's NEPA implementing procedures, for an action to be categorically excluded, it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more of the Categorical Exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. See Instruction Manual at V-4 through V-6. The CEQ NEPA regulations allow an agency to adopt another agency's determination that a categorical exclusion applies to a proposed action if the action covered by the original categorical exclusion determination and the adopting agency's proposed action are substantially the same. 40 CFR 1506.3(a), (d).

As discussed in more detail throughout this rule, the Department is modifying EOIR regulations applicable to noncitizens who have been placed into the credible fear and reasonable fear processes to clarify that immigration judges have the authority to review any mandatory bars to asylum or withholding of removal applied by asylum officers during such processes. This clarification in the EOIR regulations is particularly important in light of DHS's December 2024 rule that allows asylum officers to consider the potential applicability of certain bars to asylum and statutory withholding of removal during credible fear and reasonable fear screenings. See DHS Mandatory Bars, 89 FR 103370. DHS has determined that promulgation of the DHS rule, which allows asylum officers to apply the mandatory bars in the first instance during such screenings, qualifies for a categorical exclusion because it fits entirely within DHS categorical exclusion A3, is a standalone rule, and DHS is not aware of any extraordinary circumstances that would cause a significant environmental impact. See DHS Mandatory Bars, 89 FR 103412-413.

The Department is adopting DHS's categorical exclusion determination. See 42 U.S.C. 4336c; 40 CFR 1506.3(d) (setting forth the ability of an agency to adopt another agency's categorical exclusion determination). The Department has determined that this IFR fits within categorical exclusion A3 for the promulgation of rules that interpret or amend an existing regulation without changing its environmental effect. See Instruction Manual at A-1 through A-2. This rule does not alter any asylum or withholding of removal eligibility criteria. Instead, this rule clarifies certain procedures, specifically, to make explicit that immigration judges will review de novo any credible or reasonable fear determination, including, where relevant, whether a mandatory bar to asylum or withholding of removal is implicated.

Additionally, this IFR is not a piece of a larger action and serves to clarify the Department's regulations. The Department is not aware of any extraordinary circumstances that would cause an environmental impact. Nothing in the IFR, which clarifies EOIR's existing regulations and authorities, will have a significant effect on the human environment that would necessitate the preparation of an environmental assessment or an environmental impact statement. The Department has also determined that the DHS action, which allows asylum officers to consider certain statutory bars to asylum and statutory withholding of removal during the credible fear and reasonable fear process, and the action covered by this IFR, which clarifies that immigration judges have authority to review asylum officers' application of any such bars during the credible fear and reasonable process, are substantially the same. Therefore, the Department is adopting DHS's categorical exclusion determination. 42 U.S.C. 4336c; 40 CFR 1506.3(d).

This IFR does not propose new or revisions to existing “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

The Department has determined that this action is a rule relating to agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (5 U.S.C. 801). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, for the reasons set forth in the preamble, the Department amends 8 CFR parts 1003 and 1208 as follows:

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act required agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, notwithstanding 5 U.S.C. 553. DOE's initial catch-up adjustment interim final rule was published June 28, 2016 (81 FR 41790), and adopted as final without amendment on December 30, 2016 (81 FR 96349). The 2015 Act also provides that any increase in a CMP shall apply only to CMPs, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.

In accordance with the 2015 Act, the Office of Management and Budget (OMB) must issue annually guidance on adjustments to civil monetary penalties. This final rule to adjust civil monetary penalties for 2025 is issued in accordance with applicable law and OMB's guidance memorandum on implementation of the 2025 annual adjustment. 1

The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) preceding the date of the adjustment, and the prior year's October CPI-U. Pursuant to the aforementioned OMB guidance memorandum, the adjustment multiplier for 2025 is 1.02598. In order to complete the 2025 annual adjustment, each CMP is multiplied by the 2025 adjustment multiplier. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.

The following list summarizes DOE authorities containing CMPs, and the penalties before and after adjustment.

The 2015 Act requires that annual adjustments for inflation subsequent to the initial “catch-up” adjustment be made notwithstanding 5 U.S.C. 553.

This final rule has been determined not to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993), as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and amended by E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023). Accordingly, this action was not subject to review under that Executive order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment. As discussed previously, the 2015 Act requires that annual inflation adjustments subsequent to the initial catch-up adjustment be made notwithstanding 5 U.S.C. 553. Because a notice of proposed rulemaking is not required for this action pursuant to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis has been prepared for this final rule.

This final rule imposes no new information collection requirements subject to the Paperwork Reduction Act.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Section 201 excepts agencies from assessing effects on State, local or tribal governments or the private sector of rules that incorporate requirements specifically set forth in law. Because this rule incorporates requirements specifically set forth in 28 U.S.C. 2461 note, DOE is not required to assess its regulatory effects under section 201. Unfunded Mandates Reform Act sections 202 and 205 do not apply to this action because they apply only to rules for which a general notice of proposed rulemaking is published. Nevertheless, DOE has determined that this regulatory action does not impose a Federal mandate on State, local, or tribal governments or on the public sector.

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 that may affect family well-being. This final rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), 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 section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.

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 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this final 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 promulgated or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

The Secretary of Energy has approved publication of this final rule.

This document of the Department of Energy was signed on December 18, 2024, by Samuel Walsh, General Counsel, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set forth in the preamble, DOE amends chapters II, III, and X of title 10 of the Code of Federal Regulations as set forth below.

The following sections briefly discuss the statutory authority underlying this confirmation of withdrawal, as well as some of the historical background relevant to dishwashers, residential clothes washers (“RCWs”), and consumer clothes dryers.

The U.S. Department of Energy (“DOE”) must follow specific statutory criteria under the Energy Policy and Conservation Act, Public Law 94-163, 1 as amended, (“EPCA”) for prescribing new or amended standards for covered products, including dishwashers, RCWs, and consumer clothes dryers. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary of Energy (“Secretary”) determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))

In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven statutory factors:

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

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

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

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

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

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

(7) Other factors the Secretary considers relevant.

EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))

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

The Administrative Procedure Act (“APA”), 5 U.S.C. 551 et seq., provides, among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) Pursuant to this provision of the APA, the Competitive Enterprise Institute (“CEI”) petitioned DOE (“March 2018 Petition”) for the issuance of a rule establishing a new product class under 42 U.S.C. 6295(q) that would cover dishwashers with a cycle time of less than 60 minutes from washing through drying, asserting that it is not technologically feasible to create dishwashers that both meet the current standards and have cycle times of 60 minutes or less. 2 On October 30, 2020, DOE published a final rule that established a product class for standard-size dishwashers with a cycle time for the normal cycle  3 of 60 minutes or less. 85 FR 68723 (“October 2020 Final Rule”). Contrary to CEI's claim in the March 2018 Petition that it is not technologically feasible for a dishwasher with a cycle time of 60 minutes or less to meet the current standards, in the October 2020 Final Rule, DOE identified several dishwashers that had cycles that were less than 60 minutes and met the current standards but asserted that establishing a product class for dishwashers with a normal cycle of 60 minutes or less could spur manufacturer innovation to generate additional product offerings. Id. at 85 FR 68726. The October 2020 Final Rule additionally specified that the current standards for dishwashers no longer apply to short-cycle products and that DOE intended to conduct the necessary rulemaking to determine standards that would provide the maximum energy efficiency that is technologically feasible and economically justified, and would result in a significant conservation of energy. Id. at 85 FR 68733, 68741.

Following the October 2020 Final Rule, having determined that similarities exist between the consumer use of dishwashers, RCWs, and consumer clothes dryers ( i.e., that these products offer several cycles with varying times, and that consumers run these cycles multiple times per week on average), DOE published a final rule on December 16, 2020, that established product classes for top-loading standard-size RCWs and certain classes of consumer clothes dryers with a cycle time of less than 30 minutes, and front-loading standard-size RCWs with a cycle time of less than 45 minutes (“December 2020 Final Rule”). 85 FR 81359. Similar to the October 2020 Final Rule, the December 2020 Final Rule also specified that the current standards for RCWs and consumer clothes dryers no longer apply to short-cycle products. 85 FR 68723, 68742; 85 FR 81359, 81376.

On January 19, 2022, DOE published a final rule (“January 2022 Final Rule”) revoking the October 2020 Final Rule and the December 2020 Final Rule (collectively, “Short-Cycle Final Rules”). In that rule, DOE noted that the appropriate time for establishing a new product class under 42 U.S.C. 6295(q) is during a rulemaking prescribing new or amended standards. 87 FR 2673, 2682. And, as the Short-Cycle Final Rules stated that they were not applying the rulemaking analysis pursuant to the seven factors specified in 42 U.S.C. 6295(o) for the establishment of standards, DOE found that these rules were improperly promulgated. Id. at 87 FR 2673. The January 2022 Final Rule reinstated the prior product classes and applicable standards for these covered products. Id. at 87 FR 2686.

On March 17, 2022, various States filed a petition in the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) seeking review of the January 2022 Final Rule, which eliminated the short-cycle product classes and reinstated the applicable energy conservation standards. The petitioners argued that the January 2022 Final Rule withdrawing the Short-Cycle Final Rules violated EPCA and was arbitrary and capricious. On January 8, 2024, the Fifth Circuit granted the petition for review and remanded the matter to DOE for further proceedings consistent with the Fifth Circuit's opinion. In remanding the January 2022 Final Rule for further consideration, the Court held that even if the Short-Cycle Final Rules were invalid, DOE was obligated to consider other remedies short of withdrawal. See Louisiana, et al. v. United States Department of Energy, et al., 90 F.4th 461, 477 (5th Cir. 2024). Specifically, the Court noted that instead of withdrawing the Short-Cycle Final Rules, DOE could have promulgated energy conservation standards for the short-cycle product classes. Id. at 476.

As a result, DOE has considered whether short-cycle product classes and standards can be established under the applicable statutory criteria. Under EPCA, DOE establishes product classes based on: (1) fuel type; or (2) performance-related features. (42 U.S.C. 6295(q)(1)) With regards to product classes based on performance-related features, the product must have a feature which other products within such type do not have and such feature must justify a different standard from that which applies to other products within such type. ( Id.). In the Short-Cycle Final Rules, DOE found that cycle time was a performance-related feature and that some products had shorter cycle times than others. 85 FR 68723, 68726; 85 FR 81359, 81361. But the Short-Cycle Final Rules did not determine whether cycle time justified different standards. Instead, the Short-Cycle Final Rules stated DOE would determine specific standards in a separate rulemaking. Id. Therefore, to establish separate energy conservation standards for short-cycle product classes, DOE must first confirm the determination made in the Short-Cycle Final Rules that cycle time is a performance-related feature for these three covered products. DOE must then determine that a different standard level is justified for short-cycle products, as there is no basis for establishing a product class under 42 U.S.C. 6295(q) that would be subject to the same standard level. Finally, assuming DOE determines that cycle time is a performance-related feature and a different standard level is justified for short-cycle products, DOE must apply the criteria in 42 U.S.C. 6295(o) to prescribe energy conservation standards that, among other things, are technologically feasible and economically justified and would result in significant conservation of energy.

As part of this process, DOE published a request for information on March 11, 2024 (“March 2024 RFI”), seeking data and other information on, among other things, the presence of any short-cycle products in the market and any relationship between cycle time and performance. 89 FR 17338.

Subsequently, on November 8, 2024, DOE published a proposed confirmation of withdrawal (“November 2024 Proposed Withdrawal”), which considered the factors outlined by the Fifth Circuit and proposed to confirm the elimination of short-cycle product classes in the January 2022 Final Rule. 89 FR 88661. DOE received comments in response to the November 2024 Proposed Withdrawal from the interested parties listed in Table I.1. 4

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 5

This discussion responds to the Fifth Circuit's January 8, 2024, decision remanding this matter to DOE for further proceedings consistent with its opinion. In remanding the January 2022 Final Rule for further consideration, the Fifth Circuit found the January 2022 Final Rule arbitrary and capricious for two principal reasons:

With regards to the second reason, the Court noted that instead of withdrawing the Short-Cycle Final Rules, DOE could have promulgated energy conservation standards for the short-cycle product classes. Id. at 476.

In the November 2024 Proposed Withdrawal, DOE considered whether an alternative to withdrawing the Short-Cycle Final Rules—establishing standards for the short-cycle product classes—would be justified under EPCA. 89 FR 88661, 88664. Specifically, DOE tentatively concluded that the short-cycle features of dishwashers, RCWs, and consumer clothes dryers do not justify standards different from those applicable to those products generally. Id. DOE also considered the effect of withdrawing the short-cycle product classes on product performance and energy and water use savings, including cleaning and drying performance, the potential for increased substitution ( e.g., by hand washing or pre-washing), and the risk that standards are unintentionally increasing energy use ( e.g., via consumers relying on multiple cycles or unregulated cycles). Id.

AWE, AHAM, ASAP et al., CEC, CA IOUs, NEEA, and Ravnitzky commented in support of the November 2024 Proposed Withdrawal and noted that short-cycle product classes do not warrant different energy conservation standards than those generally applicable to dishwashers, RCWs, and consumer clothes dryers. (AWE, No. 20 at p. 1; AHAM, No. 23 at p. 2; ASAP et al., No. 21 at pp. 1-2; CEC, No. 17 at p. 1; CA IOUs, No. 22 at p. 1; NEEA, No. 19 at pp. 1-2; Ravnitzky, No. 15 at p. 1)

CEI asserted that terminating the short-cycle product classes for dishwashers, RCWs, and consumer clothes dryers would ignore the consumer protections in EPCA as well as recent Federal court precedent and should not be finalized. (CEI, No. 18 at p. 1) CEI also commented that the Fifth Circuit held that DOE's failure to consider any alternative other than refusing to promulgate a rulemaking was arbitrary and capricious. CEI stated that an alternative would have been to set a new standard for short-cycle product classes while taking other relevant features into account, as required by EPCA. ( Id. at p. 5)

DOE notes that in the November 2024 Proposed Withdrawal, DOE did, in fact, consider whether an alternative to withdrawing the Short-Cycle Final Rules would be justified under EPCA, as required by the Fifth Circuit's decision remanding the January 2022 Final Rule to DOE. 89 FR 88661. As discussed in the November 2024 Proposed Withdrawal and in the following sections of this document, DOE concludes that the short-cycle features of dishwashers, RCWs, and consumer clothes dryers do not justify standards different from those applicable to these products generally.

The following sections apply DOE's authority under EPCA at 42 U.S.C. 6295(q) to determine whether a “short-cycle” feature for dishwashers is a performance-related feature that justifies the establishment of a separate product class. DOE considers a short-cycle feature for dishwashers to be a cycle that can completely wash a full load of normally soiled dishes in 60 minutes or less. DOE first reiterates its prior determinations that cycle time is a performance-related feature of dishwashers and details its specific consideration of the short-cycle feature ( see section II.A.1 of this document). As discussed in section II.A.2 of this document, DOE determines in this analysis that the short-cycle feature does not justify a different standard. Data and information from the Short-Cycle Final Rules, March 2024 RFI, and dishwashers direct final rule published on April 24, 2024 (“April 2024 Dishwashers Direct Final Rule”; 89 FR 31398) show that products with a normal cycle of less than 60 minutes can meet the current energy conservation standards using the same design strategies as other dishwashers of comparable efficiency without a short-cycle feature. Finally, in section II.A.3 of this document, DOE addresses other pertinent comments received in response to the November 2024 Proposed Withdrawal that pertain to the dishwasher topics discussed in this document.

DOE first considered whether cycle time is a performance-related feature of dishwashers in accordance with 42 U.S.C. 6295(q)(1)(B). Consistent with DOE's assessment in the November 2024 Proposed Withdrawal and in previous rulemakings, discussed as follows, DOE reiterates that cycle time is a performance-related feature of dishwashers.

In a notice of proposed rulemaking (“NOPR”) published on July 16, 2019 (“July 2019 NOPR”), DOE noted that while some individual consumers commented in response to the Notice of Petition for Rulemaking that was published on April 24, 2018 (83 FR 17768) that they were not concerned with a shorter cycle time, other individual consumers expressed dissatisfaction with the amount of time necessary to run their dishwashers. 84 FR 33869, 33873. In the July 2019 NOPR, DOE further discussed that the data and comments from dissatisfied consumers indicated that for many consumers, there is a utility in shorter cycle times to clean a normally soiled load of dishes. Id. Based on these considerations, DOE concluded that cycle time for dishwashers is a performance-related feature for the purposes of 42 U.S.C. 6295(q). Id.

DOE reiterated this conclusion in the October 2020 Final Rule. 85 FR 68723, 68726-68732. Specifically, DOE concluded in the October 2020 Final Rule that dishwashers with a normal cycle with a cycle time of 60 minutes or less have a performance-related feature that other dishwashers currently on the market lack. Id. at 85 FR 68726, citing 84 FR 33869, 33871. As defined in section 1 of appendix C1, the normal cycle refers to the cycle recommended to the consumer to completely wash a full load of normally soiled dishes.

As discussed, CEI petitioned DOE in March 2018 to establish a separate product class for dishwashers for which the normal cycle is less than 60 minutes. In the October 2020 Final Rule, DOE finalized the creation of a new product class for standard-size dishwashers with a normal cycle of 60 minutes or less. 85 FR 68723, 68733. In the January 2022 Final Rule, DOE did not question the validity of those prior determinations that short cycles provide a performance-related feature. 87 FR 2673, 2682.

In response to the November 2024 Proposed Withdrawal, AHAM commented that cycle time is an important consumer feature. (AHAM, No. 23 at p. 2) The CA IOUs, however, commented that the March 2018 Petition from CEI, the Short-Cycle Final Rules, and the November 2024 Proposed Withdrawal did not include sufficient justification from DOE or CEI for why these specific short-cycle times offered a unique consumer utility. (CA IOUs, No. 22 at p. 2) The CA IOUs requested that DOE assess the merits of the selected cycle time delineations and the consumer utility they may or may not provide in future rulemakings. ( Id. )

In response to the comment from the CA IOUs, DOE notes that the specific short-cycle time considered, 60 minutes or less, is less than the average cycle time for this product. As such, DOE believes this short-cycle time can provide utility to some consumers, e.g., consumers needing to complete multiple cycles in a limited amount of time. For the reasons stated in the July 2019 NOPR and October 2020 Final Rule, and consistent with the November 2024 Proposed Withdrawal, DOE reconfirms in this confirmation of withdrawal that cycle time is a performance-related feature of dishwashers for the purposes of 42 U.S.C. 6295(q).

The following paragraphs discuss DOE's specific consideration of the short-cycle feature for dishwashers.

To address the concerns of the Fifth Circuit regarding DOE's previous consideration of “quick” cycles as the basis for concluding whether separate standards are justified for short-cycle dishwashers, for the analysis conducted in support of the November 2024 Proposed Withdrawal, DOE did not consider any “quick” cycles that do not perform equivalently to a normal cycle. In the November 2024 Proposed Withdrawal, DOE considered a dishwasher to have a “short-cycle feature” only if it provides a cycle with the capability of “completely washing”  6 a full load of normally soiled dishes in 60 minutes or less, as would be the consumer expectation for a normal cycle. 89 FR 88661, 88665. In accordance with the Fifth Circuit's January 8, 2024, decision, DOE did not consider any “quick” cycles intended for washing only a partial load of dishes, or a cycle unable to completely wash a full load of normally soiled dishes, to be a short-cycle feature for the purpose of this analysis—even if such cycle has a cycle time of 60 minutes or less. Id. In this regard, the analyses performed in the November 2024 Proposed Withdrawal differed from the analyses DOE performed in support of the January 2022 Final Rule, in which DOE considered all “quick” cycles with a cycle time of 60 minutes or less, regardless of dish load size or cleaning ability. By considering only cycles that can completely wash a full load of normally soiled dishes, DOE avoided considering “quick” cycles designed for addressing niche applications ( e.g., light soils, delicate items, etc. ) that are not capable of washing a full load of normally soiled dishes, as would be the consumer expectation for a normal cycle.

In response to the November 2024 Proposed Withdrawal, Ravnitzky commented that, in his experience, he occasionally uses the shorter cycles on his dishwasher when the dishes are not very dirty or when the task needs to be completed quickly. Ravnitzky further commented that these occasions are relatively infrequent and that, for the majority of the time, he relies on the standard cycles to ensure thorough cleaning and drying. (Ravnitzky, No. 15 at p. 1)

AHAM commented that consumers are satisfied with existing normal cycle times and most products also have short-cycle options for when quicker cycles are needed. (AHAM, No. 23 at p. 1)

CEI asserted that the November 2024 Proposed Withdrawal repeated the claim from the January 2022 Final Rule that the availability of quick cycles on many dishwasher models obviates the need for the short-cycle product class, which would be applicable to the normal cycle. CEI noted that the Fifth Circuit criticized and rejected this argument and asserted that DOE did not address this concern in the November 2024 Proposed Withdrawal. (CEI, No. 18 at p. 6)

In response to the comment from CEI, DOE reiterates that it did, in fact, address the concerns of the Fifth Circuit regarding DOE's previous consideration of “quick” cycles as the basis for concluding whether separate standards are justified for short-cycle dishwashers. Specifically, as discussed, DOE's analysis conducted in support of the November 2024 Proposed Withdrawal did not consider any “quick” cycles that do not perform equivalently to a normal cycle. Rather, in the November 2024 Proposed Withdrawal, DOE considered in its determination of a short-cycle feature only those dishwasher cycles that could completely wash a full load of normally soiled dishes in 60 minutes or less, as would be the consumer expectation for a normal cycle. 7 89 FR 88661, 88665. DOE specifically noted that this distinction to only consider cycles that met both the cleaning performance threshold and cycle time threshold was a key difference in the analyses performed in the November 2024 Proposed Withdrawal from the analyses performed in the January 2022 Final Rule. 89 FR 88661, 88665, 88667-88668.

In this document, consistent with the November 2024 Proposed Withdrawal, DOE continues to consider a dishwasher to have a short-cycle feature only if it provides any cycle with the capability of completely washing a full load of normally soiled dishes in 60 minutes or less, as would be the consumer expectation for the normal cycle. In the sections that follow, DOE evaluates whether such a short-cycle feature justifies a separate product class in accordance with 42 U.S.C. 6295(q).

As discussed, EPCA authorizes DOE to prescribe a higher or lower standard than that which applies (or would apply) for such type (or class) for any group of covered products which have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE considers such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. ( Id. )

A typical application of this provision of EPCA is for DOE to establish comparatively less stringent standards for classes of covered products that have a performance-related feature that inherently uses more energy than products without such feature, and for which DOE has determined that such feature provides a utility to the consumer that justifies the comparatively less stringent standard. For example, when establishing standards for consumer refrigerators, DOE determined through-the-door ice service to be a performance-related feature of refrigerators that provides utility to the consumer and that affects efficiency; i.e., inherently uses more energy ( see discussion of product class segregation at 52 FR 46367, 46371 (Dec. 7, 1987)). Accordingly, DOE established comparatively less stringent standards for refrigerators with through-the-door ice service than for equivalent refrigerators without such a feature. 54 FR 47916, 47943-47944 (Nov. 17, 1989). DOE has maintained a product class distinction with comparatively less stringent standards for refrigerators with through-the-door ice service through successive amendments to the standards for consumer refrigerators. 8

In the October 2020 Final Rule, DOE acknowledged that designing a dishwasher with a normal cycle time of 60 minutes or less is achievable and asserted that establishing a short-cycle product class could spur manufacturer innovation to generate additional product offerings to fill the market gap that exists for dishwashers with this feature ( i.e., the ability to clean a load of normally soiled dishes in under 60 minutes). DOE further stated its intent to determine the specific energy and water conservation standards of the new product class in a separate rulemaking. 85 FR 68723, 68724.

In the November 2024 Proposed Withdrawal, DOE conducted an analysis of the energy and water use of a short-cycle feature for dishwashers to evaluate whether different ( i.e., comparatively less stringent) standards would be warranted for dishwashers that provide a short-cycle feature. 89 FR 88661, 88666. As discussed in the previous section of this document, DOE has determined that a normal cycle of 60 minutes or less on a dishwasher is a performance-related feature that provides consumer utility for the purpose of consideration of potential product class distinction under the provisions of 42 U.S.C. 6295(q). In the November 2024 Proposed Withdrawal, DOE next evaluated whether dishwashers with a short-cycle feature necessitate more energy and water use than dishwashers without such feature, which could justify a comparatively less stringent standard for dishwashers that provide such a feature. Id.

To evaluate the energy and water use of a short-cycle feature in comparison to the currently applicable energy and water standards, in the November 2024 Proposed Withdrawal, DOE considered all data available from recent rulemakings, including data from testing conducted in support of the October 2020 Final Rule  9 and the April 2024 Dishwashers Direct Final Rule and confidential data from AHAM. Id.

The data from testing conducted in support of the October 2020 Final Rule included energy and water use, cycle time, and cleaning performance scores. Because there was no established DOE test procedure to evaluate dishwasher cleaning performance at the time of the October 2020 Final Rule, the cleaning performance scores in the October 2020 Final Rule dataset were based on the 2014 ENERGY STAR Test Method for Determining Residential Dishwasher Cleaning Performance  10 (“2014 ENERGY STAR Test Method”). 85 FR 68723, 68725.

In a final rule amending the test procedure for dishwashers published on January 18, 2023 (“January 2023 TP Final Rule”), DOE established a new test procedure at 10 CFR 430, subpart B, appendix C2 (“appendix C2”), which in addition to measuring the energy and water use of a dishwasher, specifies a methodology to evaluate the cleaning performance of a dishwasher and establishes a minimum cleaning index threshold as criteria for a valid test cycle. 11 In the January 2023 TP Final Rule, DOE discussed that it was implementing this minimum cleaning index threshold as criteria for a valid test cycle to ensure that the measured energy and water results are reflective of a cycle that meets consumer expectations ( i.e., to ensure that the DOE test procedure produces results that are representative of an average use cycle). 88 FR 3234, 3250-3267.

In conducting the analyses for the November 2024 Proposed Withdrawal, DOE identified that the 2014 ENERGY STAR Test Method that was used at the time of the October 2020 Final Rule to evaluate cleaning performance produces test results with greater variability and less repeatability in comparison to test results produced by DOE's appendix C2 test procedure. 12 For consistency with the analysis conducted for the November 2024 Proposed Withdrawal and to ensure representativeness of the cleaning performance indices resulting from the testing for the October 2020 Final Rule, DOE translated the October 2020 Final Rule test data to be equivalent to test results achieved under appendix C2, 13 which DOE has established to be representative of an average consumer use cycle. 89 FR 88661, 88666.

Further, in the October 2020 Final Rule, DOE used the cleaning performance scores produced by the 2014 ENERGY STAR Test Method for comparison purposes only, stating that DOE did not have information at the time to relate the cleaning scores produced by that test method to minimum consumer acceptance of cleaning performance. 85 FR 68723, 68726. It was not until the January 2023 TP Final Rule that DOE determined that a score of 70 as tested according to appendix C2 reflects the threshold of consumer acceptability for cleaning performance of a normal cycle. Accordingly, DOE established in appendix C2 a minimum cleaning index threshold of 70 as a condition for a valid test cycle. 88 FR 3234, 3259-3263. Appendix C2 also requires that, as a condition for a valid test, the threshold cleaning index of 70 be achieved on each of the heavy, medium, and light soil loads required for testing, which collectively represent typical consumer usage patterns of dishwashers.

Consistent with this determination of the threshold for a consumer-acceptable level of cleaning performance, in the November 2024 Proposed Withdrawal and in this document, DOE only considered a dishwasher as having a “short-cycle feature” if it had a cycle time less than 60 minutes and a per-cycle cleaning index threshold of at least 70.

From its test sample, DOE identified one unit that provides a “short-cycle feature”—as DOE has described that term in this document—that uses less energy and water than the maximum allowable standard level for standard-size dishwashers. 89 FR 88661, 88666. Specifically, this unit achieves a cleaning index of at least 70 on the heavy, medium, and light soil loads that are required for testing the normal cycle, with a cycle time less than 60 minutes; i.e., provides a “short-cycle feature” consistent with consumer expectations of a normal cycle. 14 This unit's test results demonstrate that providing a short-cycle feature consistent with consumer expectations of a normal cycle ( i.e., a cycle that can completely wash a full load of normally soiled dishes in 60 minutes or less) does not necessitate using more energy and water than a dishwasher without such feature that meets the current standards. DOE further evaluated the technologies and design strategies used by this dishwasher and tentatively concluded that this unit does not incorporate any proprietary technologies or design strategies and is designed no differently than other dishwashers of comparable efficiency without a short-cycle feature. Id.

In the November 2024 Proposed Withdrawal, DOE tentatively concluded that the availability of this feature currently on the market—at lower energy and water levels than the current standard allows—in a unit with no identifiable proprietary design or control strategy demonstrated that a dishwasher with a short-cycle feature does not inherently use more energy and water than a dishwasher without such feature to achieve an acceptable cleaning performance, and that the current dishwasher standards do not preclude manufacturers from offering a normal cycle of 60 minutes or less. Id.

In the November 2024 Proposed Withdrawal, DOE discussed that further evaluation of consumer survey data and comments from dishwasher manufacturers indicates that the limited availability of short-cycle features on the current market is not indicative of energy conservation standards precluding or discouraging the availability of such feature, but rather reflects the prioritization of product offerings by manufacturers commensurate with a relatively low level of market demand for this feature in comparison to other features more important to consumers. Id. On average, a consumer runs 184 dishwasher cycles per year, or, said another way, consumers run their dishwasher approximately once every two days. 88 FR 3234, 3244. This usage pattern doesn't demonstrate a need for faster cycle times, further supporting the low market demand for the short-cycle feature.

In the November 2024 Proposed Withdrawal, DOE re-analyzed the provisions of a previous rulemaking ( i.e., the January 2022 Final Rule) that withdrew short-cycle product and tentatively determined, based on the available test data—which demonstrated that it is feasible to design a short-cycle feature while meeting current standards—as well as stakeholder comments and market survey data, that (1) a short-cycle feature that can completely wash a full load of normally soiled dishes in 60 minutes or less is technologically feasible; (2) current standards do not prevent dishwasher manufacturers from providing such a short-cycle feature; and (3) there is a dishwasher currently available on the market that provides such a short-cycle feature and meets the currently applicable energy and water standard. 89 FR 88661, 88667. Accordingly, DOE did not propose to establish separate energy conservation standards for dishwashers with a short-cycle feature. Id.

In the November 2024 Proposed Withdrawal, DOE sought comment on these proposed determinations. Id.

The CA IOUs commented that DOE had demonstrated that the applicable standards for dishwashers do not preclude manufacturers from developing products that meet the intention of the short-cycle product class and agreed that the technological feasibility of developing such products is the appropriate factor when determining if a performance characteristic merits a different standard level. (CA IOUs, No. 22 at p. 2)

ASAP et al. commented in support of DOE's proposal to confirm the withdrawal of the short-cycle product class for dishwashers on the basis that there is at least one model available on the market that provides the short-cycle feature and uses less energy and water than the current standard. ASAP et al. noted that DOE considered a model to have the short-cycle feature only if it meets the consumer expectation of a normal cycle ( i.e., completely washing a full load of normally soiled dishes in 60 minutes or less). ASAP et al. stated that the availability of such a model demonstrates that the current standards for these products are not precluding manufacturers from offering products with short cycle times and good product performance on a normal cycle. (ASAP et al., No. 21 at pp. 1-2)

CEC agreed with DOE that standards do not impact the ability of manufacturers to provide dishwashers with the short-cycle feature, as evidenced by existing product offerings. CEC further asserted that manufacturer comments on the rulemaking make it clear that a short-cycle product class is neither necessary nor warranted for dishwashers, and accordingly, a separate product class is not justified. (CEC, No. 17 at p. 1)

Ravnitzky supported DOE's tentative determination that a short-cycle feature for dishwashers does not justify a separate product class with separate standards under 42 U.S.C. 6295(q) to not impose separate requirements for short-cycle features. (Ravnitzky, No. 15 at p. 1)

NEEA supported DOE's proposal in the November 2024 Proposed Withdrawal to eliminate “short-cycle” product classes for dishwashers. NEEA stated that its comments build upon past NEEA letters submitted to DOE, which demonstrated that short-cycle product classes were unnecessary for these products because (1) consumers already have access to short cycle settings on dishwashers; (2) consumers use short cycles relatively infrequently; (3) consumers are satisfied with high-efficiency appliances; and (4) consumers are satisfied with appliances that have fast cycle options. NEEA added that leveraged sales data from the Northwest, consumer use data from regional field studies (“RBSA”), surveys of online retail catalogs, technology research, and laboratory tear-down studies support these conclusions. (NEEA, No. 4 at p. 2)

AHAM asserted that for its members, the consumer is always top of mind, and accordingly, manufacturers make appliances that last longer, perform better, and respond to consumer needs and preferences. AHAM stated that manufacturers pay careful attention to consumer needs and desires for particular features and utilities and products currently on the market have a demonstrated capability to achieve the recommended energy and water conservation standards and retain consumer satisfaction with a range of performance considerations, utilities, and features. (AHAM, No. 23 at pp. 1-2)

CEI asserted that DOE recently “relaxed” its test procedure for dishwashers by not including spots, streaks, and rack contact marks in the calculation of the cleaning index. CEI also commented that although DOE presented data showing at least one dishwasher model that has a quick cycle that meets the cleaning index criteria established by the DOE test procedure, CEI stated that it is not aware of any manufacturer claiming that its quick cycle is equivalent to the normal cycle. CEI also questioned why such a cycle would not be designated as the normal cycle. CEI asserted that DOE suggested that a dishwasher with a normal cycle that takes 2 hours or more, accompanied by a quick cycle that can meet the criteria of the new test procedure at appendix C2, is good enough to comply with the law. CEI further asserted that EPCA does not allow for any diminished features and performance resulting from its standards and claimed that a quick cycle meeting the criteria of the appendix C2 test procedure represents a decline in performance as compared to the normal cycle. CEI commented that such a decline justifies creating a separate short-cycle product class for dishwashers. (CEI, No. 18 at p. 6)

Contrary to CEI's claim, DOE has not “relaxed” its test procedure. As discussed previously, the new appendix C2 test procedure established by the January 2023 TP Final Rule is the first time DOE has finalized a test procedure that evaluates dishwasher cleaning performance and specifies a minimum cleaning index threshold that ensures that test results produced by the test procedure are representative of consumer use and consumer expectations of a normal cycle. 15 The cleaning performance threshold discussed in the October 2020 Final Rule, which was based on using the 2014 ENERGY STAR Test Method, does not correspond to the cleaning performance threshold that DOE has since determined to be indicative of consumer-acceptable cleaning performance for a normal cycle. Translating the October 2020 Final Rule data set to reflect cleaning indices equivalent to cleaning indices obtained using the appendix C2 test method was necessary to provide a consistent data set with which to identify dishwasher cycles that meet consumer expectations of a normal cycle.

Further, DOE did not suggest that a dishwasher with a normal cycle that takes 2 hours or more, accompanied by a quick cycle that provides a short-cycle feature, is “good enough to comply with the law.” Rather, DOE concluded that the availability of a short-cycle feature that meets consumer expectations of a normal cycle ( i.e., completely washing a full load of normally soiled dishes in 60 minutes or less) while using no more energy and water than the current standard level indicates that it is technologically feasible to design a “normal cycle” with a cycle time of 60 minutes or less without diminishing any features or compromising dishwasher performance. In other words, energy conservation standards are not precluding manufacturers from designing a normal cycle with a cycle time of 60 minutes or less, and therefore the short-cycle feature would not justify less stringent standards.

In response to CEI's question about why such a cycle would not be designated on the normal cycle, or why no manufacturer is claiming that its quick cycle is equivalent to the normal cycle, DOE reiterates its conclusion that the limited availability of short-cycle features on the current market is not indicative of energy conservation standards precluding or discouraging the availability of such feature, but rather reflects the prioritization of product offerings by manufacturers commensurate with a relatively low level of market demand for this feature in comparison to other features more important to consumers. 89 FR 88661, 88666.

In conclusion, based on the available test data—which demonstrate that it is feasible to design a short-cycle feature while meeting current standards—as well as stakeholder comments in response to the March 2024 RFI and November 2024 Proposed Withdrawal and market survey data, DOE has determined that (1) a short-cycle feature that can completely wash a full load of normally soiled dishes in 60 minutes or less is technologically feasible; (2) current standards do not prevent dishwasher manufacturers from providing such a short-cycle feature; and (3) there is a dishwasher currently available on the market that provides such a short-cycle feature and meets the currently applicable energy and water standard.

For these reasons, DOE has determined that a short-cycle feature for dishwashers does not justify a separate product class with different standards under 42 U.S.C. 6295(q).

In the sections that follow, DOE addresses comments received in response to the November 2024 Proposed Withdrawal that pertain to other dishwasher topics discussed in this document.

In its March 2018 Petition, CEI presented dishwasher cycle time data compiled from annual Consumer Reports data. These data include the range of cycle times measured by Consumer Reports as well as an approximate market-average cycle time for each year. Based on the Consumer Reports data, CEI concluded that the historical increase in the average normal cycle time demonstrates that current standards have precluded manufacturers from offering products with short cycles as the normal cycle. 16 In particular, CEI noted that the average cycle time had not been about 1 hour since 1983, before any standards were adopted; average cycle time in 2018 was 2 hours and 20 minutes, and, according to CEI, had more than doubled due to current energy standards. CEI further asserted that when a new energy standard is adopted by DOE, the result is an increase in dishwasher cycle time. CEI also asserted that dishwasher average cycle times of less than 1 hour had been eliminated from the marketplace.

In the November 2024 Proposed Withdrawal, DOE discussed that market-average cycle time is not an appropriate indicator to demonstrate any causality with standards. Instead, the minimum available cycle time is a more appropriate indicator to assess any impact of standards on dishwasher cycle time, because the minimum available cycle time on the market can provide an indication of the technological feasibility of providing shorter cycle times while meeting more stringent standards. Whereas trends in market-average cycle times have largely been driven by other factors, discussed in the following paragraphs. 89 FR 88661, 88668.

Based on the data shared by CEI in the March 2018 Petition, DOE noted in the November 2024 Proposed Withdrawal that minimum cycle times (as represented by the lowest cycle time measured by Consumer Reports each year) have generally increased only during periods when standards were not amended. For example, the minimum cycle time—as apparent in the Consumer Reports data—increased from 65 minutes in 1993 to 85 minutes in 2006, a period during which there were no changes to dishwasher standards. Furthermore, the minimum cycle time as measured by Consumer Reports has decreased over the past 15 years, even while standards became more stringent during that time period. Id.

Additionally, in the November 2024 Proposed Withdrawal, DOE noted that the short-cycle feature currently available on the market has a cycle time (41 minutes) that is lower than the minimum cycle time measured by Consumer Reports in 1983 (55 minutes), prior to the introduction of any standards for dishwashers. DOE stated that this demonstrates that amended standards have not prevented the technological feasibility of providing a short-cycle feature even as dishwasher standards have become more stringent, and even as the market-weighted average cycle time has increased due to other factors ( see discussion in the following paragraphs regarding the potential impact of dishwasher sound levels and detergent formulation on cycle time). In other words, the totality of data available indicate that current standards are not precluding manufacturers from offering dishwashers with a short-cycle feature. Id.

In response to the November 2024 Proposed Withdrawal, CEI commented that DOE should address the issue of longer cycle times that CEI asserted have been caused by previous appliance regulations by creating new standards that are achievable by short-cycle product classes. (CEI, No. 18 at p. 1) CEI also asserted that the impact of previous dishwasher standards on cycle time is an example of a DOE appliance regulation that “crossed the line,” and stated that DOE should withdraw the November 2024 Proposed Withdrawal and instead consider a rulemaking process to establish standards for the short-cycle product classes. ( Id. at p. 7)

CEI also commented that dishwashers that can complete a normal cycle in 1 hour or less were widely available prior to the imposition of DOE standards but are not available anymore. Therefore, according to CEI, a separate standard for short-cycle product classes is required. ( Id. at p. 7)

As stated in the November 2024 Proposed Withdrawal, DOE reiterates that based on the data shared by CEI in the March 2018 Petition, minimum cycle times have generally increased during periods when standards were not amended. In fact, minimum cycle time as measured by Consumer Reports has decreased over the past 15 years, even while standards became more stringent during that time period. 89 FR 88661, 88668. The Consumer Reports data shared by CEI in the March 2018 Petition do not support CEI's assumption that minimum cycle times have increased due to DOE standards. On the contrary, the Consumer Reports data specifically fail to show a causal linkage between technologically feasible (i.e., minimum) cycle times and DOE standards, because minimum cycle time increases generally occurred without a change in standards, yet decreases in minimum cycle time took place while standards became more stringent. Thus, DOE concludes, consistent with its position in the November 2024 Proposed Withdrawal, that the technological feasibility of providing dishwasher cycles with shorter durations has not been impacted due to DOE standards.

Further, as discussed, DOE has identified at least one model currently available on the market that provides a short-cycle feature and has a cycle time of 41 minutes, demonstrating that dishwasher standards are not preventing manufacturers from designing a dishwasher that can completely wash a normally soiled load in 1 hour or less. Therefore, a short-cycle feature for dishwashers does not justify a separate product class with separate standards under 42 U.S.C. 6295(q).

Regarding CEI's assertion that dishwashers that can complete a normal cycle in 1 hour or less were widely available prior to the imposition of DOE standards, the data provided by CEI do not support this conclusion. An analysis of the Consumer Reports data presented by CEI in the March 2018 Petition indicates that only 3 out of 16 models from 1983 had cycle times of 60 minutes or less, and only 1 out of 20 models from 1990 had a cycle time of 60 minutes or less. These data do not provide any indication that dishwashers with normal cycle times of 60 minutes or less were “widely available” in the past, particularly since the data do not include any shipments information. Instead, the Consumer Reports data provided by CEI are consistent with DOE's tentative findings in the November 2024 Proposed Withdrawal that there is a lack of correlation solely between cycle time, energy/water use, and cleaning performance. The August 1983 Consumer Reports  17 and May 1990 Consumer Reports  18 indicate that all 4 models with cycle times of 60 minutes or less had only “average” washing performance based on a rating scale of “worse,” “bad,” “average,” “good,” and “better.” In contrast, some of the units with “good” cleaning performance ( i.e., better than “average”) used less energy and water than units with “average” cleaning performance—and in fact were some of the most energy and water efficient units of that time.

Specifically, DOE reiterates the discussion provided by ASAP et al.' s  19 comment in response to the March 2024 RFI that was presented in the November 2024 Proposed Withdrawal. DOE notes that ASAP et al. asserted that the increase in cycle time was likely driven by other factors, such as consumer preference for quieter products and changes to detergent formulation. ASAP et al. cited Reviewed, 20 which stated that older dishwashers had sound levels around 60 decibels, while modern dishwashers average between 40 and 50 decibels. ASAP et al. also cited Reviewed to explain that “there are lots of ways to reduce noise, but most of them involve reducing the machine's cleaning power, and that in turn means lengthening cycle times to compensate.” (ASAP et al., No. 8 at p. 4) ASAP et al. also stated that by 2010, many states had banned the sale of dishwasher detergents containing phosphates, which resulted in newer detergents that use enzymes. ASAP et al. cited information from Reviewed explaining that enzyme-based detergents require more time to work, lengthening cycle times. ( Id. ) ASAP et al. further commented that short cycle times would likely result in trade-offs with other aspects of dishwasher performance such as cleaning performance or noise. ASAP et al. asserted that quick cycles would likely be noisier, because one way of reducing cycle time is to increase mechanical action, which in turn increases noise levels. (ASAP et al., No. 8 at p. 6)

In the November 2024 Proposed Withdrawal, DOE recognized that dishwasher manufacturers design dishwashers to achieve many different performance requirements ( e.g., cleaning performance, drying performance, noise, efficiency, cycle time). DOE reiterated that one of the units in DOE's test sample meets the cleaning index threshold specified in appendix C2 while also having a cycle time of less than 60 minutes and meeting the current standards, demonstrating that current standards do not require manufacturers to trade off cleaning performance with cycle time. However, as noted in the November 2024 Proposed Withdrawal, DOE did not collect noise data in its previous testing so that it could not independently corroborate the extent to which there may be a trade-off between noise and cycle time. 89 FR 88661, 88678.

In response to this discussion in the November 2024 Proposed Withdrawal, CEI commented that DOE asserted that cycle times have not increased due to historical dishwasher standards (as conceded by DOE in the past, according to CEI) but they may be a side-effect to creating quieter dishwashers. CEI stated that consumer preference for quieter dishwashers in lieu of longer cycle times was not raised in the January 2022 Final Rule. (CEI, No. 18 at p. 4)

CEI asserted also that even if dishwasher cycle time has increased to make dishwashers quieter, EPCA would still require a 1-hour standard because EPCA does not allow for the sacrifice of one performance feature in pursuit of another. CEI further asserted that there is public dissatisfaction with longer cycle times and that noise levels would need to be factored into determining the stringency of the standard for the short-cycle product class. ( Id. at p. 5)

CEI stated that DOE's reference to stakeholder comments that longer cycle times may have been necessitated by new dishwasher detergent requirements in some States conflicts with DOE's earlier acknowledgement in the 2016 DOE Technical Support Document that longer cycle times are the result of DOE's energy and water conservation standards. CEI further commented that even if this were true, DOE should consider the impact of new detergent formulations when establishing a standard for the dishwashers short-cycle product class rather than foregoing the product class altogether. (CEI, No. 18 at p. 5)

Contrary to CEI's assertion, DOE did not acknowledge that longer cycle times are the result of DOE's energy and water conservation standards in a technical support document (“TSD”) posted in the docket of the final determination published on December 13, 2016 (“December 2016 Final Determination”) in which DOE determined that more stringent residential dishwasher standards would not be economically justified at the time. 81 FR 90072. In the December 2016 Final Determination TSD, DOE explained the “control strategies” technology option as follows:

This discussion in the December 2016 Final Determination TSD explains that manufacturers may (emphasis added) adjust dishwasher controls to improve the water and energy efficiency of a dishwasher; this discussion was not intended to suggest that implementing control strategies would be necessary, or would be the only design pathway to improve efficiency. Further, DOE also noted that the implementation of control strategies would typically (emphasis added) increase cycle time, not that it would necessarily increase cycle time. The discussion in the December 2016 Final Determination TSD describes one potential pathway to DOE evaluated to improve efficiency at the time of the December 2016 Final Determination, but it was not the only pathway to improved efficiency. Manufacturers are free to choose any design options to meet or exceed a given water and energy efficiency standard.

Finally, as discussed in section II.A.2 of this document, DOE's most recent testing and analyses of test data show that it is technologically feasible to achieve cycle times as low as 41 minutes while meeting the current DOE standard and also providing a consumer-acceptable level of cleaning performance ( i.e., it is technologically feasible to design a short-cycle feature while meeting current standards). It is also important to note that, in the April 2024 Dishwashers Final Rule, DOE found that the amended standards adopted in that rule do not have a negative impact on cleaning performance because technology options likely to be used to meet the amended standards for dishwashers would not have a significant adverse impact on the utility of the product to subgroups of consumers and the dishwashers test procedure at appendix C2 requires that a test cycle achieve a minimum cleaning performance threshold to determine if a dishwasher, when tested according to the DOE test procedure, completely washes a normally soiled load of dishes, meaning that the standards cannot compromise the utility that consumers expect from dishwashers. 89 FR 31398, 31436. Therefore, even if there was a potential for a negative impact on cleaning performance associated with decreasing water use and water temperature, that potential is no longer applicable as dishwashers must meet the cleaning performance threshold.

Finally, CEI commented that dishwasher features other than cycle times do not negate DOE's obligation to set a separate standard for short-cycle dishwashers. (CEI, No. 18 at p. 4) CEI referenced comments in the April 2024 Dishwashers Direct Final Rule and data submitted in response to the March 2024 RFI to support CEI's assertion that consumers are not satisfied with current cycle times. ( Id. at pp. 4-5) CEI concluded that the DOE should establish a standard for short-cycle dishwashers to respond to the Fifth Circuit's January 8, 2024, decision that DOE did not consider any alternatives than repealing the Short-Cycle Final Rules. ( Id. at p. 5)

With respect to the comment from CEI regarding DOE's obligation to set standards for short-cycle dishwashers, DOE notes that its obligation is to follow its statutory authority under EPCA. As DOE stated in the November 2024 Proposed Withdrawal and confirms in this document, DOE reiterated that cycle time is a performance-related feature of dishwashers in accordance with 42 U.S.C. 6295(q)(1)(B), but that is only the first step for establishing a product class under 42 U.S.C. 6295(q). 89 FR 88661, 88665. Contrary to the assertion from CEI, the existence of a performance-related feature is not enough to justify a separate product class. DOE then needed to evaluate whether a different standard level is justified for short-cycle products. Id. Because available test data, market survey data, and stakeholder comments in response to the March 2024 RFI and November 2024 Proposed Withdrawal, show that it is technically feasible for a short-cycle feature to completely wash a full load of normally soiled dishes in 60 minutes or less, current standards do not prevent dishwasher manufacturers from providing such a short-cycle feature. In fact, there is a dishwasher currently available on the market that provides such a short-cycle feature and meets the currently applicable energy and water standards. For these reasons, DOE has determined that a short-cycle feature for dishwashers does not justify a separate product class with separate standards under 42 U.S.C. 6295(q).

The following sections apply DOE's authority under EPCA at 42 U.S.C. 6295(q) to determine whether a “short-cycle” feature for RCWs is a performance-related feature that justifies the establishment of separate product classes. DOE considers a short-cycle feature for top-loading RCWs to be a cycle that can completely wash a full load of normally soiled cotton clothing in less than 30 minutes, and for front-loading RCWs to be a cycle that can completely wash a full load of normally soiled cotton clothing in less than 45 minutes. 22 DOE first reiterates its prior determinations that cycle time is a performance-related feature of RCWs and details its specific consideration of the short-cycle feature ( see section II.B.1 of this document). As discussed in section II.B.2 of this document, DOE determines in this analysis that the short-cycle feature does not justify a different standard. Data and information from the Short-Cycle Final Rules, the RCW direct final rule published on March 15, 2024 (“March 2024 RCW Direct Final Rule”; 89 FR 19026), and the March 2024 RFI show that RCWs currently available with a short normal cycle ( i.e., with a cycle time less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs) can meet the current energy conservation standards using the same design strategies as other RCWs of comparable efficiency without a short-cycle feature.

DOE first considered whether cycle time is a performance-related feature of RCWs in accordance with 42 U.S.C. 6295(q)(1)(B). Consistent with DOE's assessment in the November 2024 Proposed Withdrawal and in previous rulemakings, discussed as follows, DOE reiterates that cycle time is a performance-related feature of RCWs.

DOE has previously considered cycle time as a consumer utility for the purposes of establishing product classes for RCWs. In a direct final rule published on May 31, 2012, (“May 2012 Direct Final Rule”) DOE determined that the longer cycle times of front-loading RCWs versus cycle times for top-loading RCWs are likely to impact consumer utility. 77 FR 32308, 32319. Because the wash cycle times for front-loaders arise from the reduced mechanical action of agitation as compared to top-loaders, DOE stated that it believes that such longer cycles may be required to achieve the necessary cleaning, and thereby constitute a performance-related utility of front-loading versus top-loading RCWs pursuant to the meaning of 42 U.S.C. 6295(q). 77 FR 32308, 32319.

In a NOPR published on August 13, 2020 (“August 2020 NOPR”), DOE discussed that consumer use of RCWs is similar to that of dishwashers, in that the products provide consumer utility over discrete cycles with programmed cycle times, and consumers run these cycles multiple times per week on average. As such, the impact of cycle time on consumer utility identified by CEI in its March 2018 Petition regarding dishwashers is also relevant to RCWs. Based on these considerations, DOE concluded that cycle time for RCWs is a performance-related feature for the purposes of 42 U.S.C. 6295(q). 85 FR 49297, 49299.

DOE reiterated this conclusion in the December 2020 Final Rule. Specifically, DOE concluded in the December 2020 Final Rule that RCWs with a short normal cycle ( i.e., with a cycle time less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs) provide a distinct utility to consumers that other RCWs do not provide, and that consumers receive a utility from the short normal cycle feature to support the establishment of new product classes under 42 U.S.C. 6295(q)(1)(B). 85 FR 81359, 81363-81364. The “normal cycle” refers to the cycle recommended to the consumer for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing. In the January 2022 Final Rule, DOE did not question the validity of those prior determinations made that short cycles provide a performance-related feature. 87 FR 2673, 2682.

In response to the November 2024 Proposed Withdrawal, the CA IOUs stated that they continue to disagree with DOE's determination that cycle time is a performance-related feature. (CA IOUs, No. 22 at p. 2) The CA IOUs further asserted that DOE or CEI did not include sufficient justification in the October 2020 Final Rule for why a 30-minute or 45-minute cycle time threshold offered a unique consumer utility. The CA IOUs stated that DOE should assess the merits of the selected cycle time threshold and the consumer utility that it may or may not provide. ( Id. at pp. 2-3)

AHAM commented that it continues to believe that cycle time is an important consumer feature. (AHAM, No. 23 at p. 2) AHAM also commented that consumers are satisfied with existing normal cycle times and most products also have short-cycle options for when quicker cycles are needed. ( Id. at p. 1)

Ravnitzky commented that in his experience, he occasionally uses the shorter cycles on his RCW when the clothing is not heavily soiled or when the task needs to be completed quickly. Ravnitzky further commented that these occasions are relatively infrequent and that for the majority of the time, he relies on the standard cycles to ensure thorough cleaning and drying. (Ravnitzky, No. 15 at p. 1)

In response to the comment from the CA IOUs, DOE notes that the specific short-cycle times considered, less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs, are less than the average cycle time for these products. 23 As such, DOE believes these short-cycle times can provide utility to some consumers, e.g., consumers needing to complete multiple cycles in a limited amount of time. For the reasons stated in the May 2012 Direct Final Rule, August 2020 NOPR, and December 2020 Final Rule, and consistent with the November 2024 Proposed Withdrawal, DOE reconfirms in this confirmation of withdrawal that cycle time is a performance-related feature of RCWs for the purposes of 42 U.S.C. 6295(q).

In the sections that follow, DOE evaluates whether such a short-cycle feature justifies separate product classes in accordance with 42 U.S.C. 6295(q).

As discussed, EPCA authorizes DOE to prescribe a higher or lower standard than that which applies (or would apply) for such type (or class) for any group of covered products which have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE considers such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. ( Id. )

DOE stated in the August 2020 NOPR, and reiterated in the December 2020 Final Rule, that it presumed manufacturers were implementing the shortest possible cycle times that enabled a clothes washer to achieve satisfactory cleaning performance (and other aspects of clothes washer performance) while meeting the applicable energy and water conservation standards. 85 FR 81359, 81361. DOE stated its belief that the current energy conservation standards may have been precluding or discouraging manufacturers from introducing models to the market with substantially shorter cycle times. Id. DOE further stated in the December 2020 Final Rule that its actions ( i.e., establishing short-cycle product classes for top-loading and front-loading RCWs) were intended to incentivize manufacturers to provide consumers with new options when purchasing RCWs, asserting that creation of these new product classes would incentivize manufacturers to develop innovative products with short cycle times for those consumers that receive a value from the time saved washing and drying their clothing. Id. at 85 FR 81360-81361. DOE further stated its intent to determine the specific energy and water consumption limits for the new product classes in a separate rulemaking. Id.

In the November 2024 Proposed Withdrawal, DOE conducted an analysis of the energy and water use of a short-cycle feature for RCWs to evaluate whether different ( i.e., comparatively less stringent) standards would be warranted for RCWs that provide a short-cycle feature. 89 FR 88661, 88670. As discussed in the previous section of this document, DOE has determined that a normal cycle of less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs is a performance-related feature that provides consumer utility for the purpose of consideration of potential product class distinction under the provisions of 42 U.S.C. 6295(q). In the November 2024 Proposed Withdrawal, DOE next evaluated whether RCWs with a short-cycle feature necessitate more energy and water use than RCWs without such feature, which could justify a comparatively less stringent standard for RCWs that provide such a feature. Id.

To evaluate the energy and water use of a short-cycle feature in comparison to the currently applicable energy and water standards, in the November 2024 Proposed Withdrawal, DOE considered all data available from recent rulemakings, including DOE's data from testing conducted in support of the December 2020 Final Rule and the March 2024 RCW Direct Final Rule and confidential data received from AHAM. 24 Id. All RCW test data evaluated in this manner was based on testing of the normal cycle as defined in section 1 of appendix J2, corresponding to the cycle recommended by the manufacturer for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing.

From among DOE's test samples, DOE identified 3 top-loading RCWs and 9 front-loading RCWs that provide a short-cycle feature. Specifically, these units have a normal cycle time of less than 30 minutes for the top-loading RCWs and less than 45 minutes for the front-loading RCWs. 25 Id.

From AHAM's test sample, DOE identified 1 top-loading standard-size RCW with a normal cycle time of less than 30 minutes and 4 front-loading RCWs with a normal cycle time of less than 45 minutes. Id.

In the November 2024 Proposed Withdrawal, DOE then assessed the energy and water use of the short-cycle feature on these units in comparison to the currently applicable DOE standards. Id. For all of these units, the short-cycle feature uses no more energy and water than the maximum allowable standard levels for standard-size RCWs, demonstrating that providing a short-cycle feature consistent with consumer expectations of a normal cycle ( i.e., a cycle that can completely wash a full load of normally soiled cotton clothing in less than 30 or 45 minutes for top-loading and front-loading RCWs respectively) does not necessitate using more energy and water than an RCW without such feature that meets the current standards. DOE further evaluated the technologies and design strategies used by these RCW models and tentatively concluded that these units do not incorporate any proprietary technologies or design strategies and are designed no differently than other RCW models of comparable efficiency without a short-cycle feature. Id.

In the November 2024 Proposed Withdrawal, DOE tentatively concluded that the availability of this feature currently on the market—at energy and water levels that comply with the current standards—in units with no identifiable proprietary designs or control strategies demonstrates that an RCW with a short-cycle feature does not inherently use more energy and water than an RCW without such feature, and that the current RCW standards do not preclude manufacturers from offering a short-cycle feature ( i.e., a normal cycle time of less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs). Id. On the basis that both top-loading and front-loading RCWs with short-cycle features are currently available on the market with no identifiable proprietary designs or control strategies, DOE tentatively determined that a short-cycle feature is technologically feasible and that current standards do not prevent manufacturers from providing a short-cycle feature. Id.

In the November 2024 Proposed Withdrawal, based on the available test data—which demonstrate that it is feasible to design a short-cycle feature while meeting current standards—DOE tentatively determined that (1) a short-cycle feature for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing is technologically feasible; (2) current standards do not prevent RCW manufacturers from providing such a short-cycle feature; and (3) multiple RCW models are currently available on the market that provide such a short-cycle feature that meet the currently applicable energy and water standards. Id.

In the November 2024 Proposed Withdrawal, DOE requested comment on these proposed determinations. Id.

The CA IOUs commented that DOE had demonstrated that the applicable standards for RCWs do not preclude manufacturers from developing products that meet the intention of the short-cycle product classes and agreed that the technological feasibility of developing such products is the appropriate factor when determining if a performance characteristic merits a different standard level. (CA IOUs, No. 22 at p. 2)

ASAP et al. commented in support of DOE's proposal to confirm the withdrawal of the short-cycle product classes for RCWs on the basis that there is at least one model available on the market that provides the short-cycle feature and uses less energy and water than the current standard. ASAP et al. stated that the availability of such a model demonstrates that the current standards for these products are not precluding manufacturers from offering products with short cycle times and good product performance on a normal cycle. (ASAP et al., No. 21 at pp. 1-2)

CEC agreed with DOE that standards do not impact the ability of manufacturers to provide RCWs with the short-cycle feature, as evidenced by existing product offerings. CEC further asserted that manufacturer comments on the rulemaking make it clear that short-cycle product classes are neither necessary nor warranted for RCWs, and accordingly, separate product classes are not justified. (CEC, No. 17 at p. 1)

NEEA supported DOE's proposal in the November 2024 Proposed Withdrawal to eliminate “short-cycle” product classes for RCWs. NEEA stated that its comments build upon past NEEA letters submitted to DOE, which demonstrated that short-cycle product classes were unnecessary for these products because (1) consumers already have access to short cycle settings on RCWs; (2) consumers use short cycles relatively infrequently; (3) consumers are satisfied with high-efficiency appliances; (4) consumers are satisfied with appliances that have fast cycle options; and (5) cost-effective technologies are available to improve the efficiency of RCWs while reducing cycle times. NEEA added that leveraged sales data from the Northwest, consumer use data from regional field studies (“RBSA”), surveys of online retail catalogs, technology research, and laboratory tear-down studies support these conclusions. (NEEA, No. 4 at p. 2)

AHAM asserted that for its members, the consumer is always top of mind, and accordingly, manufacturers make appliances that last longer, perform better, and respond to consumer needs and preferences. AHAM stated that manufacturers pay careful attention to consumer needs and desires for particular features and utilities, and products currently on the market have a demonstrated capability to achieve the recommended energy and water conservation standards and retain consumer satisfaction with a range of performance considerations, utilities, and features. (AHAM, No. 23 at pp. 1-2)

Ravnitzky supported DOE's tentative determination that a short-cycle feature for RCWs does not justify a separate product class with separate standards under 42 U.S.C. 6295(q) and to not impose separate requirements for short-cycle products. (Ravnitzky, No. 15 at p. 1)

CEI commented that although its comment focuses on dishwashers (see section II.A of this document), it believes there are equally valid reasons for setting separate new standards protecting faster RCWs. (CEI, No. 18 at p. 3)

In response to the comment from CEI, DOE notes that all of the data and information that CEI submitted pertained to dishwashers, and that CEI did not provide any data or information specific to RCWs that would support its assertion regarding new standards for RCWs.

In conclusion, for the reasons discussed in the November 2024 Proposed Withdrawal and in this document, DOE has determined that a short-cycle feature for RCWs does not justify separate product classes with separate standards under 42 U.S.C. 6295(q).

The following sections apply DOE's authority under EPCA at 42 U.S.C. 6295(q) to determine whether a “short-cycle” feature for consumer clothes dryers is a performance-related feature that justifies the establishment of a separate product class. DOE considers a short-cycle feature for consumer clothes dryers to be a normal cycle that offers cycle times of less than 30 minutes. DOE first reiterates its prior determinations that cycle time is a performance-related feature of consumer clothes dryers and details its specific consideration of the short-cycle feature ( see section II.C.1 of this document). As discussed in section II.C.2 of this document, DOE determines in this analysis that the short-cycle feature does not justify a different standard. Data and information from the Short-Cycle Final Rules, the consumer clothes dryers direct final rule published on March 12, 2024 (“March 2024 Dryers Direct Final Rule”; 89 FR 18164), and the March 2024 RFI show that products with a normal cycle of less than 30 minutes can meet the current energy conservation standards using the same design strategies as other consumer clothes dryers of comparable efficiency without a short-cycle feature.

DOE first considered whether cycle time is a performance-related feature of consumer clothes dryers in accordance with 42 U.S.C. 6295(q)(1)(B). Consistent with DOE's assessment in the November 2024 Proposed Withdrawal and in previous rulemakings, discussed as follows, DOE reiterates that cycle time is a performance-related feature of consumer clothes dryers.

In the August 2020 NOPR, DOE discussed that consumer use of consumer clothes dryers is similar to that of dishwashers, in that the products provide consumer utility over discrete cycles with programmed cycle times, and consumers run these cycles multiple times per week on average. As such, the impact of cycle time on consumer utility identified by CEI in its March 2018 Petition regarding dishwashers is also relevant to consumer clothes dryers. Based on these considerations, DOE concluded that cycle time for consumer clothes dryers is a performance-related feature for the purposes of 42 U.S.C. 6295(q). 85 FR 49297, 49299.

DOE reiterated this conclusion in the December 2020 Final Rule. 85 FR 81359, 81363-81364. Specifically, DOE concluded in the December 2020 Final Rule that consumer clothes dryers with a short normal cycle ( i.e., with a cycle time of less than 30 minutes) provide a distinct utility to consumers that other consumer clothes dryers do not provide, and that consumers receive a utility from the short normal cycle feature to support the establishment of a new product class under 42 U.S.C. 6295(q)(1)(B). Id. at 85 FR 81363, 81364. The “normal cycle” refers to the cycle recommended by the manufacturer to the consumer for drying cotton or linen clothes, among other criteria. In the January 2022 Final Rule, DOE did not question the validity of those prior determinations made about whether that short cycles provide a performance-related feature. 87 FR 2673, 2682.

In response to the November 2024 Proposed Withdrawal, the CA IOUs stated that they continue to disagree with DOE's determination that cycle time is a performance-related feature. (CA IOUs, No. 22 at p. 2) The CA IOUs commented that the March 2018 Petition from CEI, the Short-Cycle Final Rules, and the November 2024 Proposed Withdrawal did not include sufficient justification from DOE or CEI for why these specific short-cycle times offered a unique consumer utility. ( Id. ) The CA IOUs requested that DOE assess the merits of the selected cycle time delineations and the consumer utility they may or may not provide in future rulemakings. ( Id. )

AHAM commented that it continues to believe that cycle time is an important consumer feature. (AHAM, No. 23 at p. 2) AHAM also commented that consumers are satisfied with existing normal cycle times and most products also have short-cycle options for when quicker cycles are needed. ( Id. at p. 1)

In response to the comment from the CA IOUs, DOE notes that the specific short-cycle time considered, less than 30 minutes for consumer clothes dryers, is less than the average cycle time for this product. 26 As such, DOE believes this short-cycle can provide utility to some consumers, e.g., consumers needing to complete multiple cycles in a limited amount of time. For the reasons stated in the August 2020 NOPR and December 2020 Final Rule, and consistent with the November 2024 Proposed Withdrawal, DOE reconfirms in this confirmation of withdrawal its previous determinations that cycle time is a performance-related feature of consumer clothes dryers for the purposes of 42 U.S.C. 6295(q).

In the sections that follow, DOE evaluates whether such a short-cycle feature justifies separate product classes in accordance with 42 U.S.C. 6295(q).

As discussed, EPCA authorizes DOE to prescribe a higher or lower standard than that which applies (or would apply) for such type (or class) for any group of covered products which have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE considers such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. ( Id. )

DOE stated in the August 2020 NOPR, and reiterated in the December 2020 Final Rule, that vented electric standard-size and vented gas clothes dryers that comply with the current energy conservation standards exhibit cycle times of approximately 30 minutes or longer. 85 FR 81359, 81361. Based on a presumption that manufacturers were already implementing the shortest possible cycle times that enabled a clothes dryer to achieve satisfactory drying performance (and other aspects of clothes dryer performance) while meeting the applicable energy conservation standards, DOE asserted that the standards may have discouraged manufacturers from developing clothes dryers for consumers that provide the utility of 30-minute-or-less cycle times. Id. DOE further stated in the December 2020 Final Rule that its actions ( i.e., establishing short-cycle product classes for consumer clothes dryers) were intended to incentivize manufacturers to provide consumers with new options when purchasing clothes dryers, asserting that creation of this new product class would incentivize manufacturers to develop innovative products with short cycle times for those consumers that receive a value from the time saved washing and drying their clothing. Id. at 85 FR 81360-81361. DOE further stated its intent to determine the specific energy conservation standards of the new product classes in a separate rulemaking. Id.

In the November 2024 Proposed Withdrawal, DOE conducted an analysis of the energy use of a short-cycle feature for consumer clothes dryers to evaluate whether different ( i.e., comparatively less stringent) standards would be warranted for consumer clothes dryers that provide a short-cycle feature. 89 FR 88661, 88672. As discussed in the previous section of this document, DOE has determined that a short-cycle feature on a consumer clothes dryer is a performance-related feature that provides consumer utility for the purpose of consideration of potential product class distinction under the provisions of 42 U.S.C. 6295(q). In the November 2024 Proposed Withdrawal, DOE next evaluated whether consumer clothes dryers with a short-cycle feature necessitate more energy use than consumer clothes dryers without such feature, which could justify a comparatively less stringent standard for consumer clothes dryers that provide such a feature. Id.

To evaluate the energy use of a short-cycle feature in comparison to the currently applicable energy standards, in the November 2024 Proposed Withdrawal, DOE considered all data available from recent rulemakings, including DOE's data from testing conducted in support of the December 2020 Final Rule, the March 2024 Dryers Direct Final Rule, and confidential data from AHAM. Id. at 89 FR 88673. All consumer clothes dryer test data evaluated in this manner was based on testing of the Normal cycle as defined in section 3.3.2 of 10 CFR part 430, subpart B, appendix D2 (“appendix D2”), corresponding to the program labeled “normal” or, for clothes dryers that do not have a “normal” program, the cycle recommended by the manufacturer for drying cotton or linen clothes. 27 In addition, all test data represent cycles that achieve a final moisture content of 2 percent or less, which DOE has determined to be representative of the consumer-acceptable dryness level after completion of a drying cycle.

None of the units in DOE's test sample had a normal cycle time less than 30 minutes. However, from the confidential data received from AHAM, DOE identified 3 electric standard-size clothes dryers and 1 vented gas standard-size clothes dryer with normal cycle times of less than 30 minutes. Id.

In the November 2024 Proposed Withdrawal, DOE then assessed the energy use of the short-cycle feature on these units in comparison to the current applicable DOE standards. Id. For all of these units, the short-cycle feature uses no more energy than the maximum allowable standard levels for standard-size consumer clothes dryers, demonstrating that providing a short-cycle feature consistent with consumer expectations of a normal cycle ( i.e., cycle recommended by the manufacturer to the consumer for drying cotton or linen clothes in less than 30 minutes) does not necessitate using more energy than a consumer clothes dryer without such feature that meets the current standards. In the engineering analysis conducted for the March 2024 Dryers Direct Final Rule, DOE did not identify any proprietary technologies in use among clothes dryers currently on the market. 89 FR 18164, 18178-18179. Therefore, although AHAM's data set did not identify specific model numbers associated with each data point, DOE noted in the November 2024 Proposed Withdrawal that it has no reason to believe that any proprietary technologies or design strategies are being used in those clothes dryer models with cycle times of less than 30 minutes. 89 FR 88661, 88673.

In the November 2024 Proposed Withdrawal, DOE tentatively concluded that the availability of a short-cycle feature currently on the market—at energy efficiency levels that comply with the current standards—in units with no identifiable proprietary designs or control strategies demonstrates that a consumer clothes dryer with a short-cycle feature does not inherently use more energy than a consumer clothes dryer without such a feature, and that the current consumer clothes dryer standards do not preclude manufacturers from offering a short-cycle feature ( i.e., a normal cycle time of less than 30 minutes). Id. On the basis that both vented electric standard-size and vented gas clothes dryers with short-cycle features ( i.e., normal cycles less than 30 minutes) are currently available on the market with no identifiable proprietary designs or control strategies, DOE tentatively determined that a short-cycle feature is technologically feasible and that current standards do not prevent manufacturers from providing a short-cycle feature. Id.

In the November 2024 Proposed Withdrawal, DOE noted that it was not proposing to add any new regulations for consumer clothes dryers. Id. Instead, the November 2024 Proposed Withdrawal reanalyzed the provisions of a previous rulemaking ( i.e., the January 2022 Final Rule) that withdrew short-cycle product classes. Id.

In the November 2024 Proposed Withdrawal, based on the available test data—which demonstrate that it is feasible to design a short-cycle feature while meeting current standards—DOE tentatively determined that (1) a short-cycle feature as the normal cycle for drying cotton or linen clothes is technologically feasible; (2) current standards do not prevent consumer clothes dryer manufacturers from providing such a short-cycle feature; and (3) multiple consumer clothes dryer models are currently available on the market that provide such a short-cycle feature that meet the currently applicable energy and water standards. Id. at 89 FR 88673-88674.

In the November 2024 Proposed Withdrawal, DOE requested comment on these proposed determinations. Id. at 89 FR 88674.

The CA IOUs commented that DOE had demonstrated that the applicable standards for consumer clothes dryers do not preclude manufacturers from developing products that meet the intention of the short-cycle product classes and agreed that the technological feasibility of developing such products is the appropriate factor when determining if a performance characteristic merits a different standard level. (CA IOUs, No. 22 at p. 2)

ASAP et al. commented in support of DOE's proposal to confirm the withdrawal of the short-cycle product classes for consumer clothes dryers on the basis that there is at least one model available on the market that provides the short-cycle feature and uses less energy than the current standard. ASAP et al. noted that DOE considered a model to have the short-cycle feature only if it meets the consumer expectation of a normal cycle in 30 minutes or less. ASAP et al. stated that the availability of such a model demonstrates that the current standards for these products are not precluding manufacturers from offering products with short cycle times and good product performance on a normal cycle. (ASAP et al., No. 21 at pp. 1-2)

CEC agreed with DOE that standards do not impact the ability of manufacturers to provide consumer clothes dryers with the short-cycle feature, as evidenced by existing product offerings. CEC further asserted that manufacturer comments on the rulemaking make it clear that short-cycle product classes are neither necessary nor warranted for consumer clothes dryers, and accordingly, separate product classes are not justified. (CEC, No. 17 at p. 1)

NEEA supported DOE's proposal in the November 2024 Proposed Withdrawal to eliminate “short-cycle” product classes for consumer clothes dryers. NEEA stated that its comments build upon past NEEA letters submitted to DOE, which demonstrated that short-cycle product classes were unnecessary for these products because (1) consumers already have access to short cycle settings on consumer clothes dryers; (2) consumers use short cycles relatively infrequently; (3) consumers are satisfied with high-efficiency appliances; (4) consumers are satisfied with appliances that have fast cycle options; and (5) cost-effective technologies are available to improve the efficiency of consumer clothes dryers while reducing cycle times. NEEA added that leveraged sales data from the Northwest, consumer use data from regional field studies (“RBSA”), surveys of online retail catalogs, technology research, and laboratory tear-down studies support these conclusions. (NEEA, No. 4 at p. 2)

AHAM asserted that for its members, the consumer is always top of mind, and accordingly, manufacturers make appliances that last longer, perform better, and respond to consumer needs and preferences. AHAM stated that manufacturers pay careful attention to consumer needs and desires for particular features and utilities and products currently on the market have a demonstrated capability to achieve the recommended energy and water conservation standards and retain consumer satisfaction with a range of performance considerations, utilities, and features. (AHAM, No. 23 at pp. 1-2)

Ravnitzky supported DOE's tentative determination that a short-cycle feature for consumer clothes dryers does not justify a separate product class with separate standards under 42 U.S.C. 6295(q) and to not impose separate requirements for short-cycle features. (Ravnitzky, No. 15 at p. 1)

CEI commented that although its comment focuses on dishwashers (see section II.A of this document), it believes there are equally valid reasons for setting separate new standards protecting faster consumer clothes dryers. (CEI, No. 18 at p. 3)

In response to the comment from CEI, DOE notes that all of the data and information that CEI submitted pertained to dishwashers, and that CEI did not provide any data or information specific to consumer clothes dryers that would support its assertion regarding new standards for consumer clothes dryers.

In conclusion, for the reasons discussed in the November 2024 Proposed Withdrawal and in this document, DOE has determined that a short-cycle feature for consumer clothes dryers does not justify separate product classes with separate standards under 42 U.S.C. 6295(q).

In its opinion, the Fifth Circuit stated that “[n]o part of [EPCA] indicates Congress gave DOE power to regulate water use for energy-using appliances (like dishwashers and [RCWs]),” and stated that it is unclear that DOE has any statutory authority to regulate water use in dishwashers and RCWs. See Louisiana, 90 F.4th at 470-471.

In response, DOE notes, as did the Fifth Circuit, that EPCA prescribed initial energy conservation standards with both energy and water use requirements for RCWs and dishwashers. (42 U.S.C. 6295(g)(9)(A) and (10)(A)). In establishing energy conservation standards with both energy and water use performance standards for RCWs and dishwashers, Congress also directed DOE to “determin[e] whether to amend” those standards. (42 U.S.C. 6295(g)(9)(B) and (10)(B)) Congress's directive, in section 6295(g)(9)(B), to consider whether “to amend the standards in effect for RCWs,” and in section 6295(g)(10)(B), to consider whether “to amend the standards for dishwashers,” refers to “the standards” established in the immediately preceding paragraphs, where Congress established energy conservation standards with both energy and water use performance standards for RCWs and dishwashers. Indeed, the energy and water use performance standards for RCWs (both top-loading and front-loading) are each contained within a single subparagraph, as are the energy and water use performance standards for dishwashers (both standard-size and compact-size). ( See id. ) Accordingly, DOE's authority, under 42 U.S.C. 6295(g)(9)(B) and (10)(B), includes consideration of amended energy and water use performance standards for RCWs and dishwashers, respectively.

Similarly, DOE's authority under 42 U.S.C. 6295(m) to amend “standards” for covered products includes amending both the energy and water use performance standards for RCWs and dishwashers. Neither section 6295(g)(9)(B) or (10)(B) nor section 6295(m) limit their application to “energy use standards.” Rather, they direct DOE to consider amending “the standards,” 42 U.S.C. 6295(g)(9)(B) and (10)(B), or simply “standards,” 42 U.S.C. 6295(m)(1)(B), which may include both energy and water use performance standards.

Accordingly, DOE noted in the November 2024 Proposed Withdrawal that it had considered (where appropriate) whether the relevant short-cycle features justify both different water and energy standards. 89 FR 88661, 88676.

In response to the November 2024 Proposed Withdrawal, AWE commented supporting DOE's continued attention to dishwasher and RCW water use. AWE asserted that the existing water consumption standards for dishwashers and RCWs are well within DOE's authority, notwithstanding the Fifth Circuit's dictum. (AWE, No. 20 at p. 4) AWE asserted that the Fifth Circuit's suggestion that DOE has authority to regulate water use only for showerheads, faucets, water closets, and urinals is incorrect. ( Id. at pp. 1-2)

AWE stated that although the Fifth Circuit's January 8, 2024, decision included dictum suggesting DOE has authority over water use only for showerheads, faucets, water closets, and urinals, the Fifth Circuit did not have the benefit of argument and full information about the basis for DOE's water regulation, as the hypothesis about DOE's authority was not raised by parties in the litigation. (AWE, No. 20 at p. 1)

AWE stated that, in the April 2024 Dishwashers Direct Final Rule and March 2024 RCW Direct Final Rule, DOE correctly explained that 42 U.S.C. 6295(g)(9) and (10) expressly authorize DOE to amend the water consumption standards initially established by those paragraphs. AWE asserted that the Fifth Circuit briefly mentioned these same provisions but ignored the actual text when it said that their “plain text” give DOE “only [the] power to amend energy-use standards for dishwashers and [RCWs].” ( Id. )

AWE asserted that, under 42 U.S.C. 6291(6), DOE is authorized to impose requirements that do not, themselves, specify energy efficiency requirements or energy use—namely, “design requirements” for certain types of products (including dishwashers and RCW) and “any other requirements.” According to AWE, similar to the qualitative design requirement on certain boilers having constant-burning pilots and quantitative design requirement that a showerhead's flow-restricting insert resist a pulling force of 8.0 pounds, a limitation on the per-cycle water consumption of a dishwasher or RCW is qualified as a design requirement because these products' water consumption is important for regulating their energy consumption. AWE asserted that reducing the per-cycle water consumption of dishwashers and RCWs is a requirement that reduces energy consumption, not just water itself, and accordingly, DOE is justified to impose a limit on water consumption as a design requirement. AWE also stated that potable water in a residential pipe embeds the energy needed for water supply, treatment, and distribution of water; and wastewater from the appliance also requires energy for treatment. ( Id. at p. 2)

AWE stated that DOE has authority to establish both performance standards and design requirements for a given requirement given the word “or” in the definition of “energy conservation standards at 42 U.S.C. 6291(6). According to AWE, although the Fifth Circuit has declined to read “or” as establishing mutually exclusive alternatives, this would mean only that a given standard is not categorized as either a performance standard or a design standard but not as both, and would not restrict DOE to imposing only one requirement or force DOE to choose one or the other. AWE noted that Congress added “design requirements” to the definition of “energy conservation standards” in the same statute that added dishwashers, RCWs, and consumer clothes dryers as covered products, which then specified design requirements for each of these products ( e.g., dishwashers must provide an option to dry without heat) and required DOE to determine whether those standards should be amended. According to AWE, it is highly unlikely that when Congress added “design requirement” to the definition of “energy conservation standard” while specifying updates to the standards for dishwashers, RCWs, and consumer clothes dryers, if it meant that DOE must choose, for dishwashers, either to retain a design requirement ( i.e., no-heat drying option) or to have a minimum efficiency, and could not require both. ( Id. at pp. 2-3)

AWE additionally asserted that the 2007 amendments to EPCA in the Energy Independence and Security Act expressly authorized DOE to set maximum water consumption standards for dishwashers and RCWs, contrary to the Fifth Circuit's statement that these provisions allow DOE to set only energy conservation standards. AWE asserted that Congress established in the statute an energy and water-consumption standard for each product type, and then authorized DOE to amend those standards. AWE stated that Congress intentionally referred to standards more broadly, giving DOE the power to amend both of the standards stated in 42 U.S.C. 6295(g)(9) and (10), consistent with the structure of EPCA overall. ( Id. at p. 3)

AWE further asserted that DOE's general authority to revise standards for consumer products, which is specified in 42 U.S.C. 6295(m), also instructs DOE to consider, within six years after “establishing or amending a standard,” whether to amend the “standards” and not “energy conservation standard.” AWE also stated that 42 U.S.C. 6295(n) allows petitions for amendments to “standards” and not “energy conservation standards.” ( Id. at pp. 3-4)

AWE further stated that 42 U.S.C. 6295(q), which authorizes product classes, is different than the previously mentioned provisions of EPCA in that it does not allow DOE to create product classes for standards other than energy conservation standards, or to specify class-specific parameters other than energy use or efficiency. According to AWE, if the water-consumption standards for dishwashers and RCWs were authorized solely by 42 U.S.C. 6295(g)(9)-(10), and were not themselves energy conservation standards, DOE would not be allowed to set different water-consumption standards for the putative short-cycle classes. ( Id. at p. 4)

DOE agrees that EPCA authorizes DOE to consider amended energy and water use standards for RCWs and dishwashers.

In conclusion, in conducting the analyses in both the November 2024 Proposed Withdrawal and this confirmation of withdrawal, DOE has considered (where appropriate) whether the relevant short-cycle features justify both different water and energy standards.

The Fifth Circuit noted that DOE tests only some of the settings on dishwashers and “laundry machines” ( i.e., RCWs and consumer clothes dryers) and stated that DOE concluded in the January 2022 Final Rule that “manufacturers are free to deploy other, non-tested settings that use as much energy and water as necessary to actually clean consumers' things,” indicating that this could create a loophole for manufacturers to deploy unregulated cycles. Louisiana, 90 F.4th at 474.

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. 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 water use (in the case of showerheads, faucets, water closets and urinals), or estimated annual operating cost of a covered product during a representative average use cycle or period of use, as determined by the Secretary, and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

DOE has established test procedures for dishwashers, RCWs, and consumer clothes dryers in 10 CFR part 430, subpart B, appendices C1 and C2, J and J2, and D1 and D2, respectively. For each test procedure, DOE has determined through its rulemaking process, which included ample manufacturer input, that the tested cycle(s)— i.e., the normal cycle for dishwashers, RCWs, and consumer clothes dryers—produce representative measures of energy efficiency, energy use or water use, or estimated annual operating cost, as applicable for each product, without the undue burden that would be associated with requiring every available cycle to be tested.

To ensure that the normal cycle produces measures of energy use, efficiency, and estimated annual operating cost specifically for a representative average use cycle or period of use, DOE has developed definitions and testing instructions in each test procedure to guide the appropriate selection of cycles to be tested, which corresponds to a representative average use cycle of how such appliance are used by consumers in their households.

For dishwashers, the normal cycle is “[t]he cycle type, including washing and drying temperature options, recommended in the manufacturer's instructions for daily, regular, or typical use to completely wash a full load of normally soiled dishes including the power-dry feature. If no cycle or more than one cycle is recommended in the manufacturer's instructions for daily, regular, or typical use to completely wash a full load of normally soiled dishes, the most energy intensive of these cycles shall be considered the normal cycle. In the absence of a manufacturer recommendation on washing and drying temperature options, the highest energy consumption options must be selected.” Section 1 of appendices C1 and C2.

In the January 2023 TP Final Rule, DOE noted that it was maintaining the dishwasher test cycle selections and cycle options to test on the normal cycle. DOE additionally added a cleaning performance requirement to validate that the tested cycle was representative of an average use cycle. 88 FR 3234, 3243. Prior to publishing this final rule, in a NOPR published on December 22, 2021 (“December 2021 TP NOPR”), DOE summarized and addressed stakeholder comments regarding the representative test cycle for dishwashers. 86 FR 72738. Specifically, AHAM commented that consumers still most frequently select the normal cycle, and when consumers decide on a cycle selection, they typically use it for most of their cycles. Both GE Appliances and Whirlpool Corporation (“Whirlpool”) supported AHAM's comment that the normal cycle should remain the tested cycle. Both manufacturers submitted confidential data that supported the position that the manufacturer-designated normal cycle still represents consumer preference regarding cycle selection. These confidential data indicated, in the aggregate, that roughly 55 to 75 percent of all dishwasher cycles are conducted on the normal cycle. DOE further observed that among the other selected cycle types, some would be expected to be less energy-intensive than the normal cycle ( e.g., a glassware cycle type), while others would be expected to be more energy-intensive than the normal cycle ( e.g., a pots and pans cycle type). Id. at 86 FR 72757. The CA IOUs referenced PG&E's 2016 Home Energy Use Survey to support their claim that the tested normal cycle including any power-dry feature, in the current test procedure, is still the cycle most representative of how consumers operate dishwashers. In this survey, PG&E found that 75 percent of households use the normal cycle. The CA IOUs further stated that consumers would be less likely to switch from using the normal cycle if DOE were to incorporate cleaning performance in the test procedure, and recommended DOE investigate incorporating a cleaning performance test. Id. at 86 FR 72747. In the December 2021 TP NOPR, DOE noted that absent data that reflects national use and frequency of use of other cycle types, DOE was not proposing changes to cycle selections for testing. Id. Further, according to the U.S. Energy Information Administration's (“EIA's”) 2020 Residential Energy Consumption Survey (“RECS”), 28 over 80 percent of consumers use normal cycles most of the time.

In the December 2021 TP NOPR, DOE noted that it was proposing a minimum cleaning index threshold for a test cycle to be considered valid. That is, if the normal cycle does not meet a specified threshold at any soil-load, DOE proposed that the most energy-intensive cycle be tested and used for certification purposes at that soil load. DOE noted that this alternative approach would better represent an average use cycle by capturing those consumers that may select other cycles for washing dishes if the cleaning performance of the normal cycle does not meet their expectations, because higher energy use provides increased thermal and mechanical action for removing soils, thus correlating generally with improved cleaning performance. Id. DOE adopted these proposals in the January 2023 TP Final Rule. 88 FR 3234, 3243.

In response to the November 2024 Proposed Withdrawal, the CA IOUs commented supporting the recently updated test procedure for dishwashers. The CA IOUs stated that the update to the dishwasher test procedure to include a cleaning index threshold ensures that consumers continue to receive high-performing efficient products. The CA IOUs asserted that improving the representativeness in the test procedure, ensures that consumers will not need to re-run a dishwasher due to unsatisfactory performance. (CA IOUs, No. 22 at p. 2)

ASAP et al. commented that the new test procedure for dishwashers at appendix C2 requiring a minimum cleaning index threshold for a test cycle to be considered valid will ensure that all new dishwashers provide good cleaning performance. (ASAP et al., No. 21 at p. 4)

Based on stakeholder comments, nationally representative survey data, and DOE's analyses, DOE reaffirms its previous conclusions that the normal cycle is the representative average use cycle for dishwashers.

For RCWs, the normal cycle is “the cycle recommended by the manufacturer (considering manufacturer instructions, control panel labeling and other markings on the clothes washer) for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing. For machines where multiple cycle settings are recommended by the manufacturer for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing, then the Normal cycle is the cycle selection that results in the lowest [energy efficiency] value.” Section 1 of 10 CFR part 430, subpart B, appendix J (“appendix J”) and appendix J2.

For the final rule that established 10 CFR part 430, subpart B, appendix J1, which was a precursor to the current appendices J and J2, DOE reviewed Procter & Gamble data indicating that the normal cycle on a typical RCW is used approximately 75 percent of the time, and DOE noted that its test procedure uses the normal cycle to approximate typical use by consumers. 62 FR 45484, 45493 (Aug. 27, 1997). In a test procedure final rule published on August 5, 2015, DOE changed the draft language for the definition of the normal cycle from referencing “the most common consumer cycle” to referencing “the cycle recommended by the manufacturer [. . .] for normal, regular, or typical use,” noting that the updated phrasing represented the same intent. 80 FR 46730, 46742. In the most recently published test procedure for RCWs that established the current appendices J and J2 (“June 2022 TP Final Rule”), DOE noted that its test procedure identifies the “normal cycle” as the cycle representative of consumer use and requires testing using it. 87 FR 33316, 33351 (June 1, 2022).

In response to the November 2024 Proposed Withdrawal, the CA IOUs commented supporting the recently updated test procedure for RCWs. The CA IOUs stated that the update to the RCW test procedure to include measurements of remaining moisture content for all test cycles ensures that consumers continue to receive high-performing efficient products. (CA IOUs, No. 22 at p. 2)

Based on stakeholder comments and DOE's analyses, DOE reaffirms its previous conclusions that the normal cycle is the representative average use cycle for RCWs.

For all consumer clothes dryers in the test procedure at 10 CFR part 430, subpart B, appendix D1 (“appendix D1”) and for timer dryers in the test procedure at appendix D2, the consumer clothes dryer is operated for the test cycle at the maximum temperature setting and, if equipped with a timer, at the maximum time setting. If the consumer clothes dryer does not have a separate temperature setting selection on the control panel, the maximum time settings is used for the drying test cycle. For automatic termination control dryers in the test procedure at appendix D2, the “normal” program shall be selected for the test cycle. Automatic termination control dryers that do not have a “normal” program are tested using the cycle recommended by the manufacturer for drying cotton or linen clothes. Section 3.3 of appendices D1 and D2.

In a NOPR published on January 2, 2013, DOE first proposed the use of the “normal” program for the drying test cycle in conjunction with test methods that would more accurately measure the energy use of automatic termination control dryers, which comprise the majority of consumer clothes dryer shipments. DOE determined this program to be most representative of consumer use based on data from NEEA's residential laundry field use study, which showed that the average household surveyed used the “normal” or an equivalent program cycle for nearly 60 percent of all drying. 78 FR 152, 170-171. DOE received comments from Samsung stating that the proposed test procedure would be representative of consumer use because it measures the energy use of the most commonly selected cycle (Normal/Cottons and Linens) for automatic termination control dryers. DOE adopted this proposal and established appendix D2 in a final rule published on August 14, 2013. 78 FR 49608, 49624.

In response to the November 2024 Proposed Withdrawal, the CA IOUs commented supporting the recently updated test procedure for consumer clothes dryers. The CA IOUs stated that the update to the consumer clothes dryers test procedure to include a testing requirement for the automatic termination of all clothes dryers equipped with such a feature ensures that consumers continue to receive high-performing efficient products. CA IOUs asserted that improving the representativeness in the test procedure, ensures that consumers will not need to re-run a consumer clothes dryer due to unsatisfactory performance. (CA IOUs, No. 22 at p. 2)

ASAP et al. commented that the new test procedure for consumer clothes dryers at appendix D2 requiring a final moisture content threshold in order to be certified as compliant will ensure that all new consumer clothes dryers provide good drying performance. (ASAP et al., No. 21 at p. 4)

Based on stakeholder comments and DOE's analyses, DOE reaffirms its previous conclusions that the normal cycle is the representative average use cycle for consumer clothes dryers.

DOE has thereby promulgated new and amended test procedures in accordance with EPCA's requirements to ensure that manufacturers are certifying dishwashers, RCWs, and consumer clothes dryers that comply with the currently applicable energy conservation standards. As discussed in section II.D.3 of this document, DOE has also developed provisions within its test procedures for dishwashers, RCWs, and consumer clothes dryers that ensure that the tested cycles maintain product utility that meets consumer expectations.

In its opinion, the Fifth Circuit stated that “Americans who want clean dishes or clothes may use more energy and more water to preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances,” and that DOE did not adequately respond to this potential for more energy and water use in the January 2022 Final Rule. Louisiana, 90 F.4th at 472-473. In the following sections, DOE addresses stakeholder concerns regarding preservation of product utility for each product type.

In addition to the Fifth Circuit's opinion on product utility, in the November 2024 Proposed Withdrawal, DOE also addressed stakeholder comments on this topic in response to the March 2024 RFI. Specifically, DOE presented comments from the AGs of MT et al. stating that, according to survey results presented by CEI in response to the July 2019 NOPR, 29 over 85 percent of consumers hand-wash dishes at least sometimes “because the dishwasher takes too long;” roughly 33 percent of consumers reported that their dishwasher does not clean their dishes well; and 34 percent reported that they run their dishwasher multiple times to get their dishes clean. (AGs of MT et al., No. 9 at p. 5)

DOE also presented data and conclusions from other stakeholders that contradicted the data and conclusions presented by the AGs of MT et al. 89 FR 88661, 88677.

Specifically, with regard to handwashing dishes because the dishwasher takes too long, AHAM submitted data  30 indicating that 81 percent of respondents were satisfied with the length of the normal cycle of their dishwashers. (AHAM, No. 5 at p. 3) AHAM also referenced a 2020 University of Michigan study  31 and commented that this study showed that recommended practices for dishwasher use are not always performed, with 67 percent of dishwasher owners typically pre-rinsing dishes before loading. However, AHAM stated that its member data do not indicate that consumers are choosing to wash their dishes by hand because of perceived longer cycle times. ( Id. at p. 5) AHAM further commented that consumers are satisfied with current cycle times, choosing to rely on their dishwashers regularly. ( Id. at p. 6)

In the November 2024 Proposed Withdrawal, DOE tentatively concluded that any consumer handwashing or pre-washing is unlikely to have been the result of past or current standards. Further, the amended test procedure at appendix C2 requires test samples to meet a cleaning index threshold consistent with consumer expectations. Accordingly, in the November 2024 Proposed Withdrawal, DOE stated that it did not expect increased handwashing or pre-washing (above levels resulting from consumer preferences or misunderstandings) in the future. 89 FR 88661, 88678.

In the November 2024 Proposed Withdrawal, DOE also noted that the 2020 Michigan study cited by AHAM discussed the role of behavioral barriers in explaining why certain consumers may be reluctant to switch from handwashing to machine washing, as these consumers believe handwashing outperforms machine washing in terms of resource consumption and cleaning performance. Likewise, in the November 2024 Proposed Withdrawal, DOE noted that findings from the University of Bonn and the Impulse Reach national survey  32 33 also suggest that the primary factor contributing to consumers handwashing dishes is not the dishwasher cycle duration, but rather a misconception by consumers that dishwashers require more energy and water than handwashing. 89 FR 88661, 88678.

In response to the November 2024 Proposed Withdrawal, CEI asserted that AHAM and Whirlpool's comment in the April 2024 Dishwashers Direct Final Rule that “energy conservation standards beyond EL 1 will cause rebound consumer behavior, such as running the dishwasher more than once to reach the desired cleanliness, re-rinsing dishes before placing them in the dishwasher, or handwashing, all of which undercut projected energy and water savings” (89 FR 31398, 31435), contradicts AHAM's comment in response to the March 2024 RFI that “consumers are satisfied with current cycle times” and that “consumers are choosing to wash their dishes by hand because of perceived longer cycle times.” (CEI, No. 18 at p. 4).

DOE notes that while AHAM and Whirlpool had previously commented in response to a NOPR published on May 19, 2023 (88 FR 32514) that energy conservation standards beyond EL 1 would cause rebound consumer behavior, they were also signatories to a Joint Agreement  34 submitted to DOE later, on September 25, 2023, that recommended dishwasher standards that exceeded the EL 1 as proposed in the May 2023 NOPR. The dishwasher standards recommended in the Joint Agreement were adopted in the April 2024 Dishwashers Direct Final Rule.

In response to the November 2024 Proposed Withdrawal, CEI commented that AHAM did not provide its survey questions or scope, which CEI asserted makes AHAM's survey data unreliable. CEI further stated that AHAM asked only if people were “satisfied” with current cycle times, not whether consumers would prefer a faster cycle time. (CEI, No. 18 at p. 5)

DOE notes that the AHAM survey data are proprietary and DOE is not able to assess the methodology used for AHAM's estimate of consumer satisfaction with cycle times.

CEI also commented that the 2020 University of Michigan study cited by AHAM showed that 67 percent of consumers pre-wash their dishes, which CEI asserted demonstrates a lack of confidence in the performance of dishwashers. CEI further commented the study cited by AHAM that consumers handwash dishes due to low consumer knowledge were specifically talking about countries other than the United States, and CEI stated that DOE should not use studies that talk about other countries when making claims about the United States. (CEI, No. 18 at p. 4)

DOE disagrees with CEI's assessment that the 2020 University of Michigan study demonstrated a lack of consumer confidence in dishwasher performance. The 2020 University of Michigan study focused on consumer behavior in using a dishwasher and did not assess participant confidence in dishwasher performance. The authors of the study also note that pre-rinsing was not necessary to achieve acceptable cleaning performance. Although DOE agrees caution is needed in interpreting results from outside of the United States in the context of U.S. dishwasher usage, the results of such studies are still useful in understanding overall consumer perceptions of dishwashers. DOE notes that the 2020 University of Michigan study focuses on U.S. dishwasher users. Additionally, the Berkholz (2011) study includes U.S. participants and provides results by global region.

CEI commented that the Fifth Circuit opined that the lack of a short-cycle product class not only violates the law and harms consumers but also undercuts the energy and water efficiency goals of DOE's program because the longer cycle times and reduced cleaning performance of currently available models encourage some consumers to “use more energy and more water to preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.” (CEI, No. 18 at p. 6)

CEI asserted that DOE continues to ignore handwashing that occurs due to long cycle times. ( Id. at p. 4) CEI also claimed that DOE's conclusion “that any consumer handwashing or pre-washing is unlikely to have been the result of past or current standards” is false and without substantial evidence. ( Id. at p. 5)

DOE disagrees with CEI's assertion that efficiency standards have conclusively led to dishwasher users using more energy and water to pre-clean, re-clean, or handwash dishes as a result of longer cycle times. As noted in the November 2024 Proposed Withdrawal, the available research on dishwasher consumer behavior attributes handwashing and pre-washing dishes to a misconception that dishwashers require more energy and water than handwashing. In the absence of data demonstrating a causal relationship between efficiency standards and handwashing behavior, DOE maintains its position that previous or current standards have not influenced handwashing or pre-washing behavior.

ASAP et al. stated that there is no evidence that energy conservation standards have resulted in increased energy and water use as stated by the Fifth Circuit, noting that there is no evidence that standards have resulted in consumers running multiple cycles on the same load or that energy and water use have increased as a result of improved efficiency. ASAP et al. noted that data from RECS  35 and the Water Research Foundation  36 have shown that the average number of cycles per year for dishwashers, along with dishwasher water use, have declined with improved efficiency. ASAP et al. also agreed with DOE's tentative conclusion that any handwashing or prewashing is unlikely to have been the result of past or current standards. (ASAP et al., No. 21 at pp. 3-4)

CEI asserted that DOE's analysis in the December 2016 Dishwashers Final Determination TSD regarding shipment declines under new standards presents a flawed view because DOE states it “assumed that those consumers who forego buying a dishwasher because of the higher purchase price would then wash their dishes by hand,” but, when comparing standards, DOE states, “it would be inappropriate to count energy savings that result from shipments that decline because of higher efficiency cases,” without explaining why it would be inappropriate to count the increased water and energy use that will occur from delayed purchases due to more stringent standards. CEI opined that DOE ignored handwashing due to price and cycle time as inappropriate to consider, which CEI characterized as arbitrary and capricious. (CEI, No. 18 at pp. 6-7)

DOE affirms that its methodology for calculating energy and water savings in the December 2016 Dishwashers Final Determination and the April 2024 Dishwashers Direct Final Rule accounts for increased handwashing for households that choose not to purchase a standards-compliant dishwasher due to a price increase associated with a standard. DOE's statement that it does not “count energy savings that result from shipments that decline because of higher efficiency cases” refers specifically to the reduction in energy and water consumption of dishwasher stock in a standards case with fewer shipments compared to the no-new-standards case. DOE does not include reductions in energy and water savings from reduced product stock in estimates of benefits attributed to a standard. DOE does, however, reduce the energy savings in standards cases to account for households that choose to handwash dishes instead of purchasing a standards-compliant unit in the standards case. See section 10.3.2 of chapter 10 of the December 2016 Dishwasher Final Determination TSD  37 and section 10.4.2 of chapter 10 of the April 2024 Dishwasher Direct Final Rule TSD for additional details on DOE's methodology. 38

CEI also reiterated its survey data, submitted in support of the March 2018 Petition, saying that it was a representative sample of public opinion, in which 82 percent of the people found a dishwasher that cleans in less than 1 hour to be useful; 49 percent of people always or often handwash dishes because the dishwasher takes too long; and 36 percent sometimes do so. CEI commented that 14 percent of people never handwash dishes and opined that it is likely these are the people who complain about dishwasher noise level and their opinion should not govern what the standard should be, according to CEI. (CEI, No. 18 at pp. 4-5)

AWE commented that the survey results from CEI are unreliable given the lack of information from the State AGs of MT et al. and CEI on the methodology of the survey necessary for assessing the meaning, significance, reliability, or accuracy of the asserted survey results. AWE noted that information on how the survey was conducted; how participants were selected; whether the survey was online, by phone, or in paper; the extent to which participants responded and how non-responses were handled in data analysis; and how the survey questions were designed was not provided by the State AGs of MT et al. or CEI. (AWE, No. 20 at pp. 4-5)

DOE agrees with AWE's assertion that it is challenging to interpret the results of CEI's survey due to a lack of information on the survey methodology and techniques used to construct its sample. Although described as a representative sample of public opinion, it is not clear if their sample includes households that do not currently own a dishwasher and how these households would have been handled in the data analysis. Additionally, it is unclear whether CEI performed any weighting analysis to make its raw sample representative of the U.S. population or the U.S. population of dishwasher owners. Regardless, even taking the CEI survey results at face value, there is no evidence provided indicating that standards have impacted consumer behavior towards handwashing dishes. As noted in the November 2024 Proposed Withdrawal, a 2020 study by the University of Michigan discussed the role of behavioral barriers in explaining why certain consumers may be reluctant to switch from handwashing to machine washing, as these consumers believe handwashing outperforms machine washing in terms of resource consumption and cleaning performance. With regards to CEI's survey result indicating 82 percent of respondents would find a dishwasher that cleans in less than 1 hour to be useful, DOE emphasizes that manufacturers already provide quick cycles in current models to meet this preference. As demonstrated in section II.A.2 of this document, it is also technologically feasible to design a short-cycle feature for dishwashers while meeting current standards.

With regard to the portion of consumers who report their dishwasher does not clean well or they run the dishwasher multiple times to get dishes clean, DOE noted in January 2023 TP Final Rule that the cleaning performance at the completion of a dishwasher cycle influences how a consumer uses the product. DOE acknowledged that if the cleanliness of the dishware after completion of a cleaning cycle does not meet consumer expectations, consumers may alter their use of the dishwasher by selecting a different cycle type that consumes more energy and water, operating the selected cycle type multiple times, or prewashing the dishware items. DOE recognized the need to ensure that the cycle type tested in the DOE test procedure is representative of consumer use as the dishwasher market continuously evolves to higher levels of efficiency. DOE therefore established a new cleaning performance threshold in the newly established appendix C2 test procedure that represents what constitutes “completely washing” a full load of normally soiled dishes ( i.e., a threshold below which the dishwasher would not meet consumer expectations of cleanability). 88 FR 3234, 3250-3267. Under appendix C2, a dishwasher must meet the cleaning performance threshold at all tested soil loads, and thus consumer expectations of cleanability. In the November 2024 Proposed Withdrawal, DOE noted that to the extent that any individual dishwashers on the market have not met consumer expectations for cleanability, such historical performance issues should be remedied moving forward, as the test procedure at appendix C2 ensures that any dishwasher tested for certification will have a valid energy and water representation only if the dishwasher also meets or exceeds a minimum level of cleaning performance. 89 FR 88661, 88678.

AWE noted that in the survey data provided by CEI, 18 percent of respondents purchased dishwashers well before the compliance date of the current standard ( i.e., 2013). AWE further noted that CEI's survey results stating that 33 percent of respondents were dissatisfied with the cleaning performance of their dishwashers could be indicative that the majority of those respondents had older dishwashers whose performance may have degraded over time. AWE commented that the AGs of MT et al. and CEI gave no basis for concluding that current dishwashers, compliant with existing standards, fail to clean dishes adequately. (AWE, No. 20 at p. 5)

CEI stated that dishwasher standards have compromised dishwasher quality in several ways, including poorer cleaning performance, reduced reliability, and cycle length. (CEI, No. 18 at pp. 2-3)

As discussed in section II.A.3.a of this document, data has shown that minimum cycle times have not increased due to standards. Further, as discussed in section II.A.2 and elsewhere in this document, DOE has identified a dishwasher basic model that meets the current standard while providing the short-cycle feature; that is, it is technologically feasible to design a dishwasher that provides a cycle time of 60 minutes or less, while achieving a cleaning index of at least 70 on each of the three soil loads specified in the DOE test procedure, and while meeting the current standard. As evidenced by the availability of a dishwasher with this feature currently on the market, designing such a dishwasher does not necessitate compromises to cleaning performance or cycle length.

Additionally, DOE does not have any evidence that dishwasher standards have reduced reliability. In fact, as noted in the November 2024 Proposed Withdrawal, DOE has not found any evidence of average product lifetime being correlated with any specific higher-efficiency design options or efficiency levels. Among the dishwasher standards rulemakings conducted over the course of the last 30 years, the data sources that DOE uses to derive estimates of average product lifetime have not provided any indication of a substantial change in lifetime during this time period. In fact, the data suggest that current product lifetimes are actually longer than the lifetime estimates used in 1991. Specifically, DOE's estimates of average lifetime for dishwashers have been as follows: 12.6 years in the May 1991 Final Rule, 12.3 years in the 2007 Advance Notice of Proposed Rulemaking, 15.4 years in the May 2012 Direct Final Rule, 15.2 years in the December 2016 Final Determination, and 15.2 years in the April 2024 Dishwashers Direct Final Rule. 56 FR 22250, 22276 (May 14, 1991); 72 FR 64432, 64435 (Nov. 15, 2007); 77 FR 31918, 31933 (May 30, 2012); 81 FR 90072, 90088 (Dec. 13, 2016); 89 FR 31398, 31430. 89 FR 88661, 88675. The lifetime data over the past 33 years shows that standards have not compromised dishwasher reliability.

CEI commented that, while DOE has established a minimum cleaning performance requirement, it should allow manufacturers to exceed the minimum threshold because consumers desire dishwashers that provide excellent cleaning performance. (CEI, No. 18 at p. 4)

The minimum cleaning index threshold specified in the DOE test procedure at appendix C2 is exactly that; a minimum threshold. Manufacturers are free to design dishwashers with cleaning performance that exceeds this threshold.

In conclusion, the weight of the evidence available supports the determination that increased re-washing, handwashing, or pre-washing (above levels resulting from consumer preferences or misunderstandings) are unlikely to result in the future as a result of standards; nor does DOE expect any negative impact to cleaning performance or cycle length of dishwashers. Available data from RECS and the Water Foundation show that the average number of cycles for dishwashers has declined over time, indicating households have not needed to run multiple cycles on the same load. The DOE test procedure at appendix C2 requires test samples to meet a cleaning index threshold consistent with consumer expectations, which would ensure a consumer-acceptable level of cleaning performance. Finally, as noted elsewhere in this document, it is technologically feasible to provide the short-cycle feature on dishwashers. Therefore, DOE also does not expect any impact to cycle length.

In the November 2024 Proposed Withdrawal, DOE recognized that RCW manufacturers design RCWs to achieve many different performance requirements ( e.g., cleaning performance, rinsing performance, noise, efficiency, cycle time). Manufacturers also provide multiple cycle types to meet different consumer needs ( e.g., normal, heavy, light, quick, delicates). However, DOE reiterates that multiple top-loading RCW models currently on the market provide a cycle time of less than 30 minutes, and multiple front-loading RCW models provide a cycle time of less than 45 minutes, all of which meet the current standards—demonstrating that current standards do not require manufacturers to trade off cycle time with energy and water use. 89 FR 88661, 88678-88679.

ASAP et al. stated that there is no evidence that energy conservation standards have resulted in increased energy and water use as stated by the Fifth Circuit, noting that there is no evidence that standards have resulted in consumers running multiple cycles on the same load or that energy and water use have increased as a result of improved efficiency. ASAP et al. noted that data from RECS and the Water Research Foundation has shown that average number of cycles per year for RCWs along with RCW water use has declined with improved efficiency. ASAP et al. also agreed with DOE's tentative conclusion that any handwashing or prewashing is unlikely to have been the result of past or current standards. (ASAP et al., No. 21 at pp. 3-4)

DOE agrees with ASAP's assessment that available nationally representative data from RECS and the Water Research Foundation show that the average numbers of cycles for RCWs has declined over time, indicating that households have not needed to run multiple cycles on the same load as a result of past or current standards.

Although DOE's current RCW test procedures do not include a measure of cleaning performance, DOE does consider multiple aspects of clothes washer performance as it evaluates potential energy and water conservation standards for RCWs to ensure that no lessening of the utility or performance of the product is likely to result from an amended standard. For example, in support of the NOPR preceding the March 2024 RCW Direct Final Rule, DOE conducted extensive testing to evaluate any potential impacts of amended standards on of several performance characteristics including cycle time, hot wash water temperature, soil and stain removal, and mechanical action. 39 88 FR 26511 (May 1, 2023).

Even though DOE's analyses conducted as part the standards rulemaking process have demonstrated that performance can be maintained under the current standards for RCWs, DOE has previously discussed, for example in the June 2022 TP Final Rule, that the cleaning performance at the completion of a wash cycle could influence how a consumer uses the product. If the cleanliness of the clothing after completion of a wash cycle were to not meet consumer expectations, consumers could be expected to alter their use of the clothes washer. For example, consumers could alter the use of the product by choosing cycle modifiers to enhance the performance of the selected cycle; selecting an alternate cycle that consumes more energy and water to provide a higher level of cleaning; operating the selected cycle multiple times; or pre-treating ( e.g., pre-soaking in water) clothing items before loading into the clothes washer to achieve an acceptable level of cleaning. 87 FR 33316, 33352.

As discussed, the dishwasher test procedure defines a cleaning performance threshold that represents what constitutes “completely washing” a full load of normally soiled dishes ( i.e., a threshold below which the dishwasher would not meet consumer expectations of cleanability). However, the current RCW test procedures do not define what constitutes “washing” up to a full load of normally soiled cotton clothing ( i.e., the cleaning performance). In the June 2022 TP Final Rule, DOE discussed its consideration of adding a cleaning performance metric to its RCW test procedures, but ultimately DOE was unable to make a determination whether existing test procedures for determining cleaning performance would produce results for DOE's purposes that are representative of an average use cycle, as required by EPCA. Furthermore, DOE was unable to assess whether the additional burden resulting from these additional tests would be outweighed by the benefits of incorporating these tests. Therefore, DOE did not include a measure of cleaning performance in the RCW test procedures in the June 2022 TP Final Rule. 87 FR 33316, 33352.

DOE continues, however, to evaluate the potential benefits and burdens of incorporating a measure of performance into its RCW test procedures, akin to the cleaning performance threshold incorporated into the appendix C2 test procedure for dishwashers. Any such amendments to the RCW test procedures would be considered in a separate rulemaking.

In the November 2024 Proposed Withdrawal, DOE recognized that consumer clothes dryer manufacturers design consumer clothes dryers to achieve many different performance requirements ( e.g., drying performance, noise, efficiency, cycle time). Manufacturers also provide multiple cycle types to meet different consumer needs ( e.g., normal, heavy, light, quick, delicates). However, DOE reiterates that multiple clothes dryer models currently on the market provide a cycle time of less than 30 minutes, all of which meet the current standards—demonstrating that current standards do not require manufacturers to trade off cycle time with energy use. 89 FR 88661, 88679.

ASAP et al. stated that there is no evidence that energy conservation standards have resulted in increased energy use as stated by the Fifth Circuit, noting that there is no evidence that standards have resulted in consumers running multiple cycles on the same load or that energy use has increased as a result of improved efficiency. ASAP et al. noted that data from RECS has shown that average number of cycles per year for consumer clothes dryers has declined with improved efficiency. (ASAP et al., No. 21 at pp. 3-4)

DOE agrees with ASAP's assessment that available nationally representative data from RECS shows that the average numbers of cycles for consumer clothes dryers has declined over time indicating households have not needed to run multiple cycles on the same load.

Similar to dishwashers, for consumer clothes dryers DOE noted in the test procedure final rule published on October 8, 2021, that drying performance at the completion of a clothes dryer cycle may influence how a consumer uses the product. 86 FR 56608. DOE acknowledged that if the dryness of the clothes after completion of a during cycle does not meet consumer expectations, consumers may alter their use of their consumer clothes dryer by selecting a different cycle type that consumers more energy, or operating the selected cycle type multiple times. DOE recognized the need to ensure that the cycle type tested in the DOE test procedure is representative of consumer use as the consumer clothes dryer market continuously evolves to higher levels of efficiency. DOE therefore established a 2-percent final moisture content dryness threshold in the appendix D2 test procedure that was shown to be representative of the consumer-acceptable dryness level after completion of a drying cycle. 86 FR 56608, 56627-56628. Under appendix D2, a consumer clothes dryer must achieve this dryness threshold in order for the tested cycle to be considered valid for certifying compliance with the applicable standard.

To the extent that any individual consumer clothes dryers on the market have not met consumer expectations for dryness, such historical performance issues should be remedied moving forward, as the test procedure at appendix D2 ensures that any consumer clothes dryer tested for certification will have a valid energy and water representation only if the consumer clothes dryer meets or exceeds this threshold of dryness performance.

In conclusion, and for the reasons discussed in the preceding sections of this document, DOE has determined that a short-cycle feature does not justify separate product classes with separate standards under 42 U.S.C. 6295(q) for dishwashers, RCWs, and consumer clothes dryers. Therefore, products with short-cycle features remain subject to the currently applicable standards as specified in 10 CFR 430.32(f), (g), and (h), respectively.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the January 2022 Final Rule remain unchanged for this confirmation of that rule. These determinations are set forth in the January 2022 Final Rule. 87 FR 2673, 2686-2688.

The Secretary of Energy has approved publication of this final rule; confirmation of effective date.

This document of the Department of Energy was signed on December 19, 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 .

The CFPB is amending Regulation C, which implements the Home Mortgage Disclosure Act of 1975 (HMDA) asset thresholds, to establish the asset-sized exemption threshold for depository financial institutions for 2025. The asset threshold will be $58 million for 2025.

HMDA requires most mortgage lenders located in metropolitan areas to collect data about their housing-related lending activity. 1 Annually, lenders must report their data to the appropriate Federal agencies and make the data available to the public. The CFPB's Regulation C implements HMDA. 2

Prior to 1997, HMDA exempted certain depository institutions as defined in HMDA ( i.e., banks, savings associations, and credit unions) with assets totaling $10 million or less as of the preceding year-end. In 1996, HMDA was amended to expand the asset-size exemption for these depository institutions. 3 The amendment increased the dollar amount of the asset-size exemption threshold by requiring a one-time adjustment of the $10 million figure based on the percentage by which the CPI-W for 1996 exceeded the CPI-W for 1975, and it provided for annual adjustments thereafter based on the annual percentage increase in the CPI-W, rounded to the nearest multiple of $1 million.

The definition of “financial institution” in § 1003.2(g) provides that the CFPB will adjust the asset threshold based on the year-to-year change in the average of the CPI-W, not seasonally adjusted, for each 12-month period ending in November, rounded to the nearest $1 million. For 2024, the threshold was $56 million. During the 12-month period ending in November 2024, the average of the CPI-W increased by 2.9 percent. As a result, the exemption threshold is increased to $58 million for 2025. Thus, banks, savings associations, and credit unions with assets of $58 million or less as of December 31, 2024, are exempt from collecting data in 2025. An institution's exemption from collecting data in 2025 does not affect its responsibility to report data it was required to collect in 2024.

Under the Administrative Procedure Act (APA), notice and opportunity for public comment are not required if the CFPB finds that notice and opportunity for public comment are impracticable, unnecessary, or contrary to the public interest. 4 Pursuant to this final rule, comment 2(g)-2 in Regulation C, supplement I, is amended to update the exemption threshold. The amendment in this final rule is technical and non-discretionary, and it merely applies the formula established by Regulation C for determining any adjustments to the exemption threshold. For these reasons, the CFPB has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendment is adopted in final form.

Section 553(d) of the APA generally requires publication of a final rule not less than 30 days before its effective date, except in the case of (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. 5 At a minimum, the CFPB has determined that the amendment falls under the third exception to section 553(d). The CFPB finds that there is good cause to make the amendment effective on January 1, 2025. The amendment in this final rule is technical and non-discretionary, and it applies the method previously established in the agency's regulations for determining adjustments to the threshold.

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 6 As noted previously, the CFPB has determined that it is unnecessary to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirement relating to an initial and final regulatory flexibility analysis does not apply.

In accordance with the Paperwork Reduction Act of 1995, 7 the CFPB reviewed this final rule. The CFPB has determined that this rule does not create any new information collections or substantially revise any existing collections.

Pursuant to the Congressional Review Act, the CFPB will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to the rule taking effect. 8 The Office of Information and Regulatory Affairs (OIRA) has designated this rule as not a “major rule” as defined by 5 U.S.C. 804(2).

Banks, banking, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations.

For the reasons set forth above, the CFPB amends Regulation C, 12 CFR part 1003, as set forth below:

On November 27, 2020, Safran applied for FAA validation for a type certificate for their Model ENGINeUS 100A1 electric engine. The Safran Model ENGINeUS 100A1 electric engine will be used in a single-engine airplane that will be certified separately from the engine.

The Safran Model ENGINeUS 100A1 electric engine is comprised of a direct-drive, radial-flux, permanent magnet motor, divided in two sections, each section having a three-phase motor, and one electric power inverter controlling each three-phase motor.

Under the provisions of 14 CFR 21.17(a)(1), generally, Safran must show that Model ENGINeUS 100A1 electric engines meet the applicable provisions of 14 CFR part 33 in effect on the date of application for a type certificate.

If the Administrator finds that the applicable airworthiness regulations ( e.g., part 33) do not contain adequate or appropriate safety standards for the Safran Model ENGINeUS 100A1 electric engines because of a novel or unusual design feature, special conditions may be prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other engine model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other engine model under § 21.101.

The FAA issues special conditions, as defined in § 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

The Safran Model ENGINeUS 100A1 electric engines will incorporate the following novel or unusual design features:

An electric motor, motor controller, and high-voltage electrical systems that are used as the primary source of propulsion for an aircraft.

Electric propulsion technology is substantially different from the technology used in previously certificated turbine and reciprocating engines. Therefore, these engines introduce new safety concerns that need to be addressed in the certification basis.

A growing interest within the aviation industry involves electric propulsion technology. As a result, international agencies and industry stakeholders formed Committee F39 under ASTM International, formerly known as American Society for Testing and Materials, to identify the appropriate technical criteria for aircraft engines using electrical technology that has not been previously type certificated for aircraft propulsion systems. ASTM International is an international standards organization that develops and publishes voluntary consensus technical standards for a wide range of materials, products, systems, and services. ASTM International published ASTM F3338-18, “Standard Specification for Design of Electric Propulsion Units for General Aviation Aircraft,” in December 2018. 1 The FAA used the technical criteria from the ASTM F3338-18, the published Special Conditions No. 33-022-SC for the magniX USA, Inc. Model magni350 and magni650 engines, and information from the Safran Model ENGINeUS 100A1 electric engine design to develop special conditions.

Aircraft engines make use of an energy source to drive mechanical systems that provide propulsion for the aircraft. Energy can be generated from various sources such as petroleum and natural gas. The turbine and reciprocating aircraft engines certificated under part 33 use aviation fuel for an energy source. The reciprocating and turbine engine technology that was anticipated in the development of part 33 converts oxygen and fuel to energy using an internal combustion system, which generates heat and mass flow of combustion products for turning shafts that are attached to propulsion devices such as propellers and ducted fans. Part 33 regulations set forth standards for these engines and mitigate potential hazards resulting from failures and malfunctions. The nature, progression, and severity of engine failures are tied closely to the technology that is used in the design and manufacture of aircraft engines. These technologies involve chemical, thermal, and mechanical systems. Therefore, the existing engine regulations in part 33 address certain chemical, thermal, and mechanically induced failures that are specific to air and fuel combustion systems operating with cyclically loaded, high-speed, high-temperature, and highly stressed components.

The existing part 33 airworthiness standards for aircraft engines date back to 1965. As discussed in the previous paragraphs, these airworthiness standards are based on fuel-burning reciprocating and turbine engine technology. The Safran Model ENGINeUS 100A1 electric engines are neither turbine nor reciprocating engines. These engines have a novel or unusual design feature, which is the use of electrical sources of energy instead of fuel to drive the mechanical systems that provide propulsion for aircraft. The Safran aircraft engine is subject to operating conditions produced by chemical, thermal, and mechanical components working together, but the operating conditions are unlike those observed in internal combustion engine systems. Therefore, part 33 does not contain adequate or appropriate safety standards for the Safran Model ENGINeUS 100A1 electric engine's novel or unusual design feature.

Safran's aircraft engines will operate using electrical power instead of air and fuel combustion to propel the aircraft. These electric engines will be designed, manufactured, and controlled differently than turbine or reciprocating aircraft engines. They will be built with an electric motor, motor controller, and high-voltage electrical systems that draw energy from electrical storage or electrical energy generating systems. The electric motor is a device that converts electrical energy into mechanical energy by electric current flowing through windings (wire coils) in the motor, producing a magnetic field that interacts with permanent magnets mounted on the engine's main rotor. The controller is a system that consists of two main functional elements: the motor controller and an electric power inverter to drive the motor. 2 The high-voltage electrical system is a combination of wires and connectors that integrate the motor and controller.

In addition, the technology comprising these high-voltage and high-current electronic components introduces potential hazards that do not exist in turbine and reciprocating aircraft engines. For example, high-voltage transmission lines, electromagnetic shields, magnetic materials, and high-speed electrical switches are necessary to use the physical properties of an electric engine for propelling an aircraft. However, this technology also exposes the aircraft to potential failures that are not common to gas-powered turbine and reciprocating engines, technological differences which could adversely affect safety if not addressed through these special conditions.

Although Safran's electric aircraft engines use novel or unusual design features that the FAA did not envisage during the development of its existing part 33 airworthiness standards, these engines share some basic similarities, in configuration and function, to engines that use the combustion of air and fuel, and therefore require similar provisions to prevent common hazards ( e.g., fire, uncontained high energy debris, and loss of thrust control). However, the primary failure concerns and the probability of exposure to these common hazards are different for the Safran Model ENGINeUS 100A1 electric engine. This creates a need to develop special conditions to ensure the engine's safety and reliability.

The requirements in part 33 ensure that the design and construction of aircraft engines, including the engine control systems, are proper for the type of aircraft engines considered for certification. However, part 33 does not fully address aircraft engines like the Safran Model ENGINeUS 100A1 electric engine, which operates using electrical technology as the primary means of propelling the aircraft. This necessitates the development of special conditions that provide adequate airworthiness standards for these aircraft engines.

The requirements in part 33, subpart B, are applicable to reciprocating and turbine aircraft engines. Subparts C and D are applicable to reciprocating aircraft engines. Subparts E through G are applicable to turbine aircraft engines. As such, subparts B through G do not adequately address the use of aircraft engines that operate using electrical technology. Special conditions are needed to ensure a level of safety for electric engines that is commensurate with these subparts, as those regulatory requirements do not contain adequate or appropriate safety standards for electric aircraft engines that are used to propel aircraft.

Applicability: Special condition no. 1 requires Safran to comply with part 33, except for those airworthiness standards specifically and explicitly applicable only to reciprocating and turbine aircraft engines.

Engine Ratings and Operating Limitations: Special condition no. 2, in addition to compliance with § 33.7(a), requires Safran to establish engine operating limits related to the power, torque, speed, and duty cycles specific to Safran Model ENGINeUS 100A1 electric engines. The duty or duty cycle is a statement of the load(s) to which the engine is subjected, including, if applicable, starting, no-load and rest, and de-energized periods, including their durations or cycles and sequence in time. This special condition also requires Safran to declare cooling fluid grade or specification, power supply requirements, and to establish any additional ratings that are necessary to define the Safran Model ENGINeUS 100A1 electric engine capabilities required for safe operation of the engine.

Materials: Special condition no. 3 requires Safran to comply with § 33.15, which sets requirements for the suitability and durability of materials used in the engine, and which would otherwise be applicable only to reciprocating and turbine aircraft engines.

Fire Protection: Special condition no. 4 would require Safran to comply with § 33.17, which sets requirements to protect the engine and certain parts and components of the airplane against fire, and which would otherwise be applicable only to reciprocating and turbine aircraft engines. Additionally, this special condition requires Safran to ensure that the high-voltage electrical wiring interconnect systems that connect the controller to the motor are protected against arc faults. An arc fault is a high-power discharge of electricity between two or more conductors. This discharge generates heat, which can break down the wire's insulation and trigger an electrical fire. Arc faults can range in power from a few amps up to thousands of amps and are highly variable in strength and duration.

Durability: Special condition no. 5 requires the design and construction of Safran Model ENGINeUS 100A1 electric engines to minimize the development of an unsafe condition between maintenance intervals, overhaul periods, and mandatory actions described in the Instructions for Continued Airworthiness (ICA).

Engine Cooling: Special condition no. 6 requires Safran to comply with § 33.21, which requires the engine design and construction to provide necessary cooling, and which would otherwise be applicable only to reciprocating and turbine aircraft engines. Additionally, this special condition requires Safran to document the cooling system monitoring features and usage in the engine installation manual (see § 33.5) if cooling is required to satisfy the safety analysis described in special condition no. 17. Loss of cooling to an aircraft engine that operates using electrical technology can result in rapid overheating and abrupt engine failure, with critical consequences to safety.

Engine Mounting Attachments and Structure: Special condition no. 7 requires Safran and the design to comply with § 33.23, which requires the applicant to define, and the design to withstand, certain load limits for the engine mounting attachments and related engine structure. These requirements would otherwise be applicable only to reciprocating and turbine aircraft engines.

Accessory Attachments: Special condition no. 8 requires the design to comply with § 33.25, which sets certain design, operational, and maintenance requirements for the engine's accessory drive and mounting attachments, and which would otherwise be applicable only to reciprocating and turbine aircraft engines.

Rotor Overspeed: Special condition no. 9 requires Safran to establish by test, validated analysis, or a combination of both, that—

(1) the rotor overspeed must not result in a burst, rotor growth, or damage that results in a hazardous engine effect;

(2) rotors must possess sufficient strength margin to prevent burst; and

(3) operating limits must not be exceeded in service.

The special condition associated with rotor overspeed is necessary because of the differences between turbine engine technology and the technology of these electric engines. Turbine rotor speed is driven by expanding gas and aerodynamic loads on rotor blades. Therefore, the rotor speed or overspeed results from interactions between thermodynamic and aerodynamic engine properties. The speed of an electric engine is directly controlled by electric current, and an electromagnetic field created by the controller. Consequently, electric engine rotor response to power demand and overspeed-protection systems is quicker and more precise. Also, the failure modes that can lead to overspeed between turbine engines and electric engines are vastly different, and therefore this special condition is necessary.

Engine Control Systems: Special condition no. 10(b) requires Safran to ensure that these engines do not experience any unacceptable operating characteristics, such as unstable speed or torque control, or exceed any of their operating limitations.

The FAA originally issued § 33.28 at amendment 33-15 to address the evolution of the means of controlling the fuel supplied to the engine, from carburetors and hydro-mechanical controls to electronic control systems. These electronic control systems grew in complexity over the years, and as a result, the FAA amended § 33.28 at amendment 33-26 to address these increasing complexities. The controller that forms the controlling system for these electric engines is significantly simpler than the complex control systems used in modern turbine engines. The current regulations for engine control are inappropriate for electric engine control systems; therefore, the special condition no. 10(b) associated with controlling these engines is necessary.

Special condition no. 10(c) requires Safran to develop and verify the software and complex electronic hardware used in programmable logic devices, using proven methods that ensure that the devices can provide the accuracy, precision, functionality, and reliability commensurate with the hazard that is being mitigated by the logic. RTCA DO-254, “Design Assurance Guidance for Airborne Electronic Hardware,” dated April 19, 2000, 3 distinguishes between complex and simple electronic hardware.

Special condition no. 10(d) requires data from assessments of all functional aspects of the control system to prevent errors that could exist in software programs that are not readily observable by inspection of the code. Also, Safran must use methods that will result in the expected quality that ensures the engine control system performs the intended functions throughout the declared operational envelope.

The environmental limits referred to in special condition no. 10(e) include temperature, vibration, high-intensity radiated fields (HIRF), and all others addressed in RTCA DO-160G, “Environmental Conditions and Test Procedures for Airborne Electronic/Electrical Equipment and Instruments,” dated December 8, 2010, which includes RTCA DO-160G, Change 1—“Environmental Conditions and Test Procedures for Airborne Equipment,” dated December 16, 2014, and “DO-357—User Guide: Supplement to DO-160G,” dated December 16, 2014. 4 Special condition 10(e) requires Safran to demonstrate by system or component tests in special condition no. 27 any environmental limits that cannot be adequately substantiated by the endurance demonstration, validated analysis, or a combination thereof.

Special condition no. 10(f) requires Safran to evaluate various control system failures to ensure that such failures will not lead to unsafe engine conditions. The FAA issued Advisory Circular (AC) 33.28-3, “ Guidance Material for 14 CFR 33.28, Engine Control Systems,” on May 23, 2014 (AC 33.28-3), for reciprocating and turbine engines. 5 This AC provides guidance for defining an engine control system failure when showing compliance with the requirements of § 33.28. AC 33.28-3 also includes objectives for control system integrity requirements, criteria for a loss of thrust control (LOTC) and loss of power control (LOPC) event, and an acceptable LOTC/LOPC rate. The electrical and electronic failures and failure rates did not account for electric engines when the FAA issued this AC, and therefore performance-based special conditions are established to allow fault accommodation criteria to be developed for electric engines.

The phrase “in the full-up configuration” used in special condition no. 10(f)(2) refers to a system without any fault conditions present. The electronic control system must, when in the full-up configuration, be single-fault tolerant, as determined by the Administrator, for electrical, electrically detectable, and electronic failures involving LOPC events.

The term “local” in the context of “local events” used in special condition no. 10(f)(4) means failures or malfunctions leading to events in the intended aircraft installation such as fire, overheat, or failures leading to damage to engine control system components. These “local events” must not result in a hazardous engine effect due to engine control system failures or malfunctions.

Special condition no. 10(g) requires Safran to conduct a safety assessment of the control system to support the safety analysis in special condition no. 17. This control system safety assessment provides engine response to failures, and rates of these failures that can be used at the aircraft-level safety assessment.

Special condition no. 10(h) requires Safran to provide appropriate protection devices or systems to ensure that engine operating limits will not be exceeded in service.

Special condition no. 10(i) is necessary to ensure that the controllers are self-sufficient and isolated from other aircraft systems. The aircraft-supplied data supports the analysis at the aircraft level to protect the aircraft from common mode failures that could lead to major propulsion power loss. The exception “other than power command signals from the aircraft,” noted in special condition no. 10(i), is based on the FAA's determination that the engine controller has no reasonable means to determine the validity of any in-range signals from the electrical power system. In many cases, the engine control system can detect a faulty signal from the aircraft, but the engine control system typically accepts the power command signal as a valid value.

The term “independent” in the context of “fully independent engine systems” referenced in special condition no. 10(i) means the controllers should be self-sufficient and isolated from other aircraft systems or provide redundancy that enables the engine control system to accommodate aircraft data system failures. In the case of loss, interruption, or corruption of aircraft-supplied data, the engine must continue to function in a safe and acceptable manner without hazardous engine effects.

The term “accommodated,” in the context of “detected and accommodated,” referenced in special condition 10(i)(2) is to assure that, upon detecting a fault, the system continues to function safely.

Special condition no. 10(j) requires Safran to show that the loss of electric power from the aircraft will not cause the electric engine to malfunction in a manner hazardous to the aircraft. The total loss of electric power to the electric engine may result in an engine shutdown.

Instrument Connection: Special condition no. 11 requires Safran to comply with § 33.29(a), (e), and (g), which set certain requirements for the connection and installation of instruments to monitor engine performance. The remaining requirements in § 33.29 apply only to technologies used in reciprocating and turbine aircraft engines.

Instrument connections (wires, wire insulation, potting, grounding, connector designs, etc.) must not introduce unsafe features or characteristics to the aircraft. Special condition no. 11 requires the safety analysis to include potential hazardous effects from failures of instrument connections to function properly. The outcome of this analysis might identify the need for design enhancements or additional ICA to ensure safety.

Stress Analysis: Section 33.62 requires applicants to perform a stress analysis on each turbine engine. This regulation is explicitly applicable only to turbine engines and turbine engine components, and it is not appropriate for the Safran Model ENGINeUS 100A1 electric engines. However, a stress analysis particular to these electric engines is necessary to account for stresses resulting from electric technology used in the engine.

Special condition no. 12 requires a mechanical, thermal, and electrical stress analysis to show that the engine has a sufficient design margin to prevent unacceptable operating characteristics. Also, the applicant must determine the maximum stresses in the engine by tests, validated analysis, or a combination thereof, and show that they do not exceed minimum material properties.

Critical and Life-Limited Parts: Special condition no. 13 requires Safran to show whether rotating or moving components, bearings, shafts, static parts, and non-redundant mount components should be classified, designed, manufactured, and managed throughout their service life as critical or life-limited parts.

The term “low-cycle fatigue,” referenced in special condition no. 13(a)(2), is a decline in material strength from exposure to cyclic stress at levels beyond the stress threshold the material can sustain indefinitely. This threshold is known as the “material endurance limit.” Low-cycle fatigue typically causes a part to sustain plastic or permanent deformation during the cyclic loading and can lead to cracks, crack growth, and fracture. Engine parts that operate at high temperatures and high mechanical stresses simultaneously can experience low-cycle fatigue coupled with creep. Creep is the tendency of a metallic material to permanently move or deform when it is exposed to the extreme thermal conditions created by hot combustion gasses, and substantial physical loads such as high rotational speeds and maximum thrust. Conversely, high-cycle fatigue is caused by elastic deformation, small strains caused by alternating stress, and a much higher number of load cycles compared to the number of cycles that cause low-cycle fatigue.

The engineering plan referenced in special condition no. 13(b)(1) informs the manufacturing and service management processes of essential information that ensures the life limit of a part is valid. The engineering plan provides methods for verifying the characteristics and qualities assumed in the design data using methods that are suitable for the part criticality. The engineering plan informs the manufacturing process of the attributes that affect the life of the part. The engineering plan, manufacturing plan, and service management plan are related in that assumptions made in the engineering plan are linked to how a part is manufactured and how that part is maintained in service. For example, environmental effects on life limited electric engine parts, such as humidity, might not be consistent with the assumptions used to design the part. Safran must ensure that the engineering plan is complete, available, and acceptable to the Administrator.

The term “manufacturing plan,” referenced in special condition no. 13(b)(2), is the collection of data required to translate documented engineering design criteria into physical parts, and to verify that the parts comply with the properties established by the design data. Because engines are not intentionally tested to failure during a certification program, documents and processes used to execute production and quality systems required by § 21.137 guarantee inherent expectations for performance and durability. These systems limit the potential manufacturing outcomes to parts that are consistently produced within design constraints.

The manufacturing plan and service management plan ensure that essential information from the engineering plan, such as the design characteristics that safeguard the integrity of critical and life-limited parts, is consistently produced and preserved over the lifetime of those parts. The manufacturing plan includes special processes and production controls to prevent inclusion of manufacturing-induced anomalies, which can degrade the part's structural integrity. Examples of manufacturing-induced anomalies are material contamination, unacceptable grain growth, heat-affected areas, and residual stresses.

The service-management plan ensures the method and assumptions used in the engineering plan to determine the part's life remain valid by enabling corrections identified from in-service experience, such as service-induced anomalies and unforeseen environmental effects, to be incorporated into the design process. The service-management plan also becomes the ICA for maintenance, overhaul, and repairs of the part.

Lubrication System: Special condition no. 14 requires Safran to ensure that the lubrication system is designed to function properly between scheduled maintenance intervals and to prevent contamination of the engine bearings. This special condition also requires Safran to demonstrate the unique lubrication attributes and functional capability of the Safran Model ENGINeUS 100A1 electric engine design.

The corresponding part 33 regulations include provisions for lubrication systems used in reciprocating and turbine engines. The part 33 requirements account for safety issues associated with specific reciprocating and turbine engine system configurations. These regulations are not appropriate for the Safran Model ENGINeUS 100A1 electric engines. For example, electric engines do not have a crankcase or lubrication oil sump. Electric engine bearings are sealed, so they do not require an oil circulation system. The lubrication system in these engines is also independent of the propeller pitch control system. Therefore, special condition no. 14 incorporates only certain requirements from the part 33 regulations.

Power Response: Special condition no. 15 requires the design and construction of the Safran Model ENGINeUS 100A1 electric engines to enable an increase from the minimum—

(1) power setting to the highest rated power without detrimental engine effects, and

(2) within a time interval appropriate for the intended aircraft application.

The engine control system governs the increase or decrease in power in combustion engines to prevent too much (or too little) fuel from being mixed with air before combustion. Due to the lag in rotor response time, improper fuel/air mixtures can result in engine surges, stalls, and exceedances above rated limits and durations. Failure of the combustion engine to provide thrust, maintain rotor speeds below rotor burst thresholds, and keep temperatures below limits can have engine effects detrimental to the aircraft. Similar detrimental effects are possible in the Safran Model ENGINeUS 100A1 electric engines, but the causes are different. Electric engines with reduced power response time can experience insufficient thrust to the aircraft, shaft over-torque, and over-stressed rotating components, propellers, and critical propeller parts. Therefore, this special condition is necessary.

Continued Rotation: Special condition no. 16 requires Safran to design the Model ENGINeUS 100A1 electric engines such that, if the main rotating systems continue to rotate after the engine is shut down while in-flight, this continued rotation will not result in any hazardous engine effects.

The main rotating system of the Safran Model ENGINeUS 100A1 electric engines consists of the rotors, shafts, magnets, bearings, and wire windings that convert electrical energy to shaft torque. For the initial aircraft application, this rotating system must continue to rotate after the power source to the engine is shut down. The safety concerns associated with this special condition are substantial asymmetric aerodynamic drag that can cause aircraft instability, loss of control, and reduced efficiency; and may result in a forced landing or inability to continue safe flight.

Safety Analysis: Special condition no. 17 requires Safran to comply with § 33.75(a)(1) and (a)(2), which require the applicant to conduct a safety analysis of the engine, and which would otherwise be applicable only to turbine aircraft engines. Additionally, this special condition requires Safran to assess its engine design to determine the likely consequences of failures that can reasonably be expected to occur. The failure of such elements, and associated prescribed integrity requirements, must be stated in the safety analysis.

A primary failure mode is the manner in which a part is most likely going to fail. Engine parts that have a primary failure mode, a predictable life to the failure, and a failure consequence that results in a hazardous effect, are life-limited or critical parts. Some life-limited or critical engine parts can fail suddenly in their primary failure mode, from prolonged exposure to normal engine environments such as temperature, vibration, and stress, if those engine parts are not removed from service before the damage mechanisms progress to a failure. Due to the consequence of failure, these parts are not allowed to be managed by on-condition or probabilistic means because the probability of failure cannot be sensibly estimated in numerical terms. Therefore, the parts are managed by compliance with integrity requirements, such as mandatory maintenance (life limits, inspections, inspection techniques), to ensure the qualities, features, and other attributes that prevent the part from failing in its primary failure mode are preserved throughout its service life. For example, if the number of engine cycles to failure are predictable and can be associated with specific design characteristics, such as material properties, then the applicant can manage the engine part with life limits.

Complete or total power loss is not assumed to be a minor engine event, as it is in the turbine engine regulation § 33.75, to account for experience data showing a potential for higher hazard levels from power loss events in single-engine general aviation aircraft. The criteria in these special conditions apply to an engine that continues to operate at partial power after a single electrical or electronic fault or failure. Total loss of power is classified at the aircraft level using special condition nos. 10(g) and 33(h).

Ingestion: Special condition no. 18 requires Safran to ensure that these engines will not experience unacceptable power loss or hazardous engine effects from ingestion. The associated regulations for turbine engines, §§ 33.76, 33.77, and 33.78, are based on potential performance impacts and damage from birds, ice, rain, and hail being ingested into a turbine engine that has an inlet duct, which directs air into the engine for combustion, cooling, and thrust. By contrast, the Safran Model ENGINeUS 100A1 electric engines are not configured with inlet ducts.

An “unacceptable” power loss, as used in special condition no. 18(b), is such that the power or thrust required for safe flight of the aircraft becomes unavailable to the pilot. The specific amount of power loss that is required for safe flight depends on the aircraft configuration, speed, altitude, attitude, atmospheric conditions, phase of flight, and other circumstances where the demand for thrust is critical to safe operation of the aircraft.

Liquid and Gas Systems: Special condition no. 19 requires Safran to ensure that systems used for lubrication or cooling of engine components are designed and constructed to function properly. Also, if a system is not self-contained, the interfaces to that system would be required to be defined in the engine installation manual. Systems for the lubrication or cooling of engine components can include heat exchangers, pumps, fluids, tubing, connectors, electronic devices, temperature sensors and pressure switches, fasteners and brackets, bypass valves, and metallic chip detectors. These systems allow the electric engine to perform at extreme speeds and temperatures for durations up to the maintenance intervals without exceeding temperature limits or predicted deterioration rates.

Vibration Demonstration: Special condition no. 20 requires Safran to ensure the engine—

(1) is designed and constructed to function throughout its normal operating range of rotor speeds and engine output power without inducing excessive stress caused by engine vibration, and

(2) design undergoes a vibration survey.

The vibration demonstration is a survey that characterizes the vibratory attributes of the engine. It verifies that the stresses from vibration do not impose excessive force or result in natural frequency responses on the aircraft structure. The vibration demonstration also ensures internal vibrations will not cause engine components to fail. Excessive vibration force occurs at magnitudes and forcing functions or frequencies, which may result in damage to the aircraft. Stress margins to failure add conservatism to the highest values predicted by analysis for additional protection from failure caused by influences beyond those quantified in the analysis. The result of the additional design margin is improved engine reliability that meets prescribed thresholds based on the failure classification. The amount of margin needed to achieve the prescribed reliability rates depends on an applicant's experience with a product. The FAA considers the reliability rates when deciding how much vibration is “excessive.”

Overtorque: Special condition no. 21 requires Safran to demonstrate that the engine is capable of continued operation without the need for maintenance if it experiences a certain amount of overtorque.

Safran's electric engine converts electrical energy to shaft torque, which is used for propulsion. The electric motor, controller, and high-voltage systems control the engine torque. When the pilot commands power or thrust, the engine responds to the command and adjusts the shaft torque to meet the demand. During the transition from one power or thrust setting to another, a small delay, or latency, occurs in the engine response time. While the engine dwells in this time interval, it can continue to apply torque until the command to change the torque is applied by the engine control. The allowable amount of overtorque during operation depends on the engine's response to changes in the torque command throughout its operating range.

Calibration Assurance: Special condition no. 22 requires Safran to subject the engine to calibration tests to establish its power characteristics and the conditions both before and after the endurance and durability demonstrations specified in special condition nos. 23 and 26. The calibration test requirements specified in § 33.85 only apply to the endurance test specified in § 33.87, which is applicable only to turbine engines. The FAA determined that the methods used for accomplishing those tests for turbine engines are not appropriate for electric engines. The calibration tests in § 33.85 have provisions applicable to ratings that are not relevant to the Safran Model ENGINeUS 100A1 electric engines. Special condition no. 22 allows Safran to demonstrate the endurance and durability of the electric engine either together or independently, whichever is most appropriate for the engine qualities being assessed. Consequently, the special condition applies the calibration requirement to both the endurance and durability tests.

Endurance Demonstration: Special condition no. 23 requires Safran to perform an endurance demonstration test that is acceptable to the Administrator. The Administrator will evaluate the extent to which the test exposes the engine to failures that could occur when the engine is operated at up to its rated values, and determine if the test is sufficient to show that the engine design will not exhibit unacceptable effects in service, such as significant performance deterioration, operability restrictions, and engine power loss or instability, when it is run repetitively at rated limits and durations in conditions that represent extreme operating environments.

Temperature Limit: Special condition no. 24 requires Safran to ensure the engine can endure operation at its temperature limits plus an acceptable margin. An “acceptable margin,” as used in the special condition, is the amount of temperature above that required to prevent the least capable engine allowed by the type design, as determined by § 33.8, from failing due to temperature-related causes when operating at the most extreme engine and environmental thermal conditions.

Operation Demonstration: Special condition no. 25 requires the engine to demonstrate safe operating characteristics throughout its declared flight envelope and operating range. Engine operating characteristics define the range of functional and performance values the Safran Model ENGINeUS 100A1 electric engines can achieve without incurring hazardous effects. The characteristics are requisite capabilities of the type design that qualify the engine for installation into aircraft and that determine aircraft installation requirements. The primary engine operating characteristics are assessed by the tests and demonstrations that would be required by these special conditions. Some of these characteristics are shaft output torque, rotor speed, power consumption, and engine thrust response. The engine performance data Safran will use to certify the engine must account for installation loads and effects. These are aircraft-level effects that could affect the engine characteristics that are measured when the engine is tested on a stand or in a test cell. These effects could result from elevated inlet cowl temperatures, aircraft maneuvers, flowstream distortion, and hard landings. For example, an engine that is run in a sea-level, static test facility could demonstrate more capability for some operating characteristics than it will have when operating on an aircraft in certain flight conditions. Discoveries like this during certification could affect engine ratings and operating limits. Therefore, the installed performance defines the engine performance capabilities.

Durability Demonstration: Special condition no. 26 requires Safran to subject the engine to a durability demonstration. The durability demonstration must show that the engine is designed and constructed to minimize the development of any unsafe condition between maintenance intervals or between engine replacement intervals if maintenance or overhaul is not defined. The durability demonstration also verifies that the ICA is adequate to ensure the engine, in its fully deteriorated state, continues to generate rated power or thrust, while retaining operating margins and sufficient efficiency, to support the aircraft safety objectives. The amount of deterioration an engine can experience is restricted by operating limitations and managed by the engine ICA. Section 33.90 specifies how maintenance intervals are established; it does not include provisions for an engine replacement. Electric engines and turbine engines deteriorate differently. Therefore, Safran will use different test effects to develop maintenance, overhaul, or engine replacement information for their electric engine.

System and Component Tests: Special condition no. 27 requires Safran to show that the systems and components of the engine perform their intended functions in all declared engine environments and operating conditions.

Sections 33.87 and 33.91, which are specifically applicable to turbine engines, have conditional criteria to decide if additional tests will be required after the engine tests. The criteria are not suitable for electric engines. Part 33 associates the need for additional testing with the outcome of the § 33.87 endurance test because it is designed to address safety concerns in combustion engines. For example, § 33.91(b) requires the establishment of temperature limits for components that require temperature-controlling provisions, and § 33.91(a) requires additional testing of engine systems and components where the endurance test does not fully expose internal systems and components to thermal conditions that verify the desired operating limits. Exceeding temperature limits is a safety concern for electric engines. The FAA determined that the § 33.87 endurance test is not appropriate for testing the electronic components of electric engines because mechanical energy is generated differently by electronic systems than it is by the thermal conditions in turbine engines. Additional safety considerations also need to be addressed in the test. Therefore, special condition no. 27 is a performance-based requirement that allows Safran to determine when engine systems and component tests are necessary and to determine the appropriate limitations of those systems and components used in the Safran Model ENGINeUS 100A1 electric engine.

Rotor Locking Demonstration: Special condition no. 28 requires the engine to demonstrate reliable rotor locking performance and that no hazardous effects will occur if the engine uses a rotor locking device to prevent shaft rotation.

Some engine designs enable the pilot to prevent a propeller shaft or main rotor shaft from turning while the engine is running, or the aircraft is in-flight. This capability is needed for some installations that require the pilot to confirm the functionality of certain flight systems before takeoff. The Safran engine installations are not limited to aircraft that will not require rotor locking. Section 33.92 prescribes a test that may not include the appropriate criteria to demonstrate sufficient rotor locking capability for these engines. Therefore, this special condition is necessary.

The special condition does not define “reliable” rotor locking but allows Safran to classify the hazard as major or minor and assign the appropriate quantitative criteria that meet the safety objectives required by special condition no. 17 and the applicable portions of § 33.75.

Teardown Inspection: Special condition no. 29 requires Safran to perform a teardown or non-teardown evaluation after the endurance, durability, and overtorque demonstrations, based on the criteria in special condition no. 29(a) or (b).

Special condition no. 29(b) includes restrictive criteria for “non-teardown evaluations” to account for electric engines, sub-assemblies, and components that cannot be disassembled without destroying them. Some electrical and electronic components like Safran's are constructed in an integrated fashion that precludes the possibility of tearing them down without destroying them. The special condition indicates that, if a teardown cannot be performed in a non-destructive manner, then the inspection or replacement intervals must be established based on the endurance and durability demonstrations. The procedure for establishing maintenance should be agreed upon between the applicant and the FAA prior to running the relevant tests. Data from the endurance and durability tests may provide information that can be used to determine maintenance intervals and life limits for parts. However, if life limits are required, the lifing procedure is established by special condition no. 13, Critical and Life-Limited Parts, which corresponds to § 33.70. Therefore, the procedure used to determine which parts are life-limited, and how the life limits are established, requires FAA approval, as it does for § 33.70. Sections 33.55 and 33.93 do not contain similar requirements because reciprocating and turbine engines can be completely disassembled for inspection.

Containment: Special condition no. 30 requires the engine to have containment features that protect against likely hazards from rotating components, unless Safran can show the margin to rotor burst does not justify the need for containment features. Rotating components in electric engines are typically disks, shafts, bearings, seals, orbiting magnetic components, and the assembled rotor core. However, if the margin to rotor burst does not unconditionally rule out the possibility of a rotor burst, then the special condition requires Safran to assume a rotor burst could occur and design the stator case to contain the failed rotors, and any components attached to the rotor that are released during the failure. In addition, Safran must also determine the effects of subsequent damage precipitated by a main rotor failure and characterize any fragments that are released forward or aft of the containment features. Further, decisions about whether the Safran engine requires containment features, and the effects of any subsequent damage following a rotor burst, should be based on test or validated analysis. The fragment energy levels, trajectories, and size are typically documented in the installation manual because the aircraft will need to account for the effects of a rotor failure in the aircraft design. The intent of this special condition is to prevent hazardous engine effects from structural failure of rotating components and parts that are built into the rotor assembly.

General Conduct of Tests: Special condition no. 32 requires Safran to include scheduled maintenance in the engine ICA, include any maintenance, in addition to the scheduled maintenance that was needed during the test to satisfy the applicable test requirements, and conduct any additional tests that the Administrator finds necessary, as warranted by the test results.

For example, certification endurance test shortfalls might be caused by omitting some prescribed engine test conditions, or from accelerated deterioration of individual parts arising from the need to force the engine to operating conditions that drive the engine above the engine cycle values of the type design. If an engine part fails during a certification test, the entire engine might be subjected to penalty runs, with a replacement or newer part design installed on the engine, to meet the test requirements. Also, the maintenance performed to replace the part, so that the engine could complete the test, would be included in the engine ICA. In another example, if the applicant replaces a part before completing an engine certification test because of a test facility failure and can substantiate the part to the Administrator through bench testing, they might not need to substantiate the part design using penalty runs with the entire engine.

The term “excessive” is used to describe the frequency of unplanned engine maintenance, and the frequency of unplanned test stoppages, to address engine issues that prevent the engine from completing the tests in special condition nos. 32(b)(1) and (2), respectively. Excessive frequency is an objective assessment from the FAA's analysis of the amount of unplanned maintenance needed for an engine to complete a certification test. The FAA's assessment may include the reasons for the unplanned maintenance, such as the effects test facility equipment may have on the engine, the inability to simulate a realistic engine operating environment, and the extent to which an engine requires modifications to complete a certification test. In some cases, the applicant may be able to show that unplanned maintenance has no effect on the certification test results, or they might be able to attribute the problem to the facility or test-enabling equipment that is not part of the type design. In these cases, the ICA will not be affected. However, if Safran cannot reconcile the amount of unplanned service, then the FAA may consider the unplanned maintenance required during the certification test to be “excessive,” prompting the need to add the unplanned maintenance to mandatory ICA to comply with the certification requirements.

Engine electrical systems: The current requirements in part 33 for electronic engine control systems were developed to maintain an equivalent level of safety demonstrated by engines that operate with hydromechanical engine control systems. At the time § 33.28 was codified, the only electrical systems used on turbine engines were low-voltage, electronic engine control systems (EEC) and high-energy spark-ignition systems. Electric aircraft engines use high-voltage, high-current electrical systems and components that are physically located in the motor and motor controller. Therefore, the existing part 33 control system requirements do not adequately address all the electrical systems used in electric aircraft engines. Special condition no. 33 is established using the existing engine control systems requirement as a basis. It applies applicable airworthiness criteria from § 33.28 and incorporates airworthiness criteria that recognize and focus on the electrical power system used in the engine.

Special condition no. 33(b) ensures that all aspects of an electrical system, including generation, distribution, and usage, do not experience any unacceptable operating characteristics.

Special condition no. 33(c) requires the electrical power distribution aspects of the electrical system to provide the safe transfer of electrical energy throughout the electric engine.

The term “abnormal conditions” used in special condition no. 33(c)(2) is intended to be consistent with the definitions in MIL-STD-704F “Aircraft Electric Power Characteristics” which defines normal operation and abnormal operation. MIL-STD-704F is a standard that ensures compatibility between power sources that provide power to the aircraft's electrical systems and airborne equipment that receive power from the power source. This standard also establishes technical criteria for aircraft electric power. The term “abnormal conditions” refers to various engine operating conditions such as:

• System or component characteristics outside of normal statistical variation from circumstances such as systems degradation, installation error, and engine response to fault conditions;

• Unusual environmental conditions from extreme temperature, humidity, vibration, lightning, high-intensity radiated field (HIRF), atmospheric neutron radiation; and

• Unusual and infrequent events such as landing on icy runways, rejected take-offs or go-arounds, extended ground idling or taxiing in a hot environment, and abrupt load changes from foreign object damage or engine contamination.

The phrase “safe transmission of electric energy” used in special condition no. 33(c)(3) refers to the transmission of electrical energy in a manner that supports the operation of the electric engine(s) and the aircraft safety objectives without detrimental effects such as uncontrolled fire or structural failure due to severe overheating.

Special condition no. 33(d) requires the engine electrical system to be designed such that the loss, malfunction, or interruption of the electrical power source, or power conditions that exceed design limits, will not result in a hazardous engine effect.

Special condition no. 33(e) requires Safran to identify and declare, in the engine installation manual, the characteristics of any electrical power supplied from the aircraft to the engine, or electrical power supplied from the engine to the aircraft via energy regeneration, and any other characteristics necessary for safe operation of the engine.

Special condition no. 33(f) requires Safran to demonstrate that systems and components will operate properly up to environmental limits, using special conditions, when such limits cannot be adequately substantiated by the endurance demonstration, validated analysis, or a combination thereof. The environmental limits referred to in this special condition include temperature, vibration, HIRF, and others addressed in RTCA DO-160G, “Environmental Conditions and Test Procedures for Airborne Electronic/Electrical Equipment and Instruments.”

Special condition 33(g) requires Safran to evaluate various electric engine system failures to ensure that these failures will not lead to unsafe engine conditions. The evaluation includes single-fault tolerance, ensures no single electrical or electronic fault or failure would result in hazardous engine effects, and ensures that any failure or malfunction leading to local events in the intended aircraft application do not result in certain hazardous engine effects. The special condition also implements integrity requirements, criteria for LOTC/LOPC events, and an acceptable LOTC/LOPC rate.

Special condition 33(h) requires Safran to conduct a safety assessment of the engine electrical system to support the safety analysis in special condition no. 17. This safety assessment provides engine response to failures, and rates of these failures, which can be used at the aircraft safety assessment level.

The FAA issued a notice of proposed special conditions (NPSC) Docket No. FAA-2023-0587 for the Safran Model ENGINeUS 100A1 electric engines, which was published in the Federal Register on March 20, 2024 (89 FR 19763).

The FAA received responses from four commenters, Airbus Helicopters (Airbus), Ampaire Inc. (Ampaire), Kite Magnetics Pty Ltd. (Kite Magnetics), and magniX USA, Inc. (magniX).

The FAA received one comment from Airbus that stated proposed special condition no. 4, Fire Protection, does not prescribe safety criteria for flammable cooling fluids and suggested that a fireproof wall, cooling fluid shut-off valve, fluid draining system, and fire detection system may be necessary because a potential ignition source (electrical failure) and flammable fluids share the same area in the aircraft.

The FAA does not concur with Airbus's comment that special condition no. 4 does not prescribe safety criteria for flammable cooling fluids. Special condition no. 4 incorporates § 33.17(b) through (g) into the Safran electric engine certification basis, which include provisions for flammable fluid. The FAA also revised special condition no 4. slightly to clarify that § 33.17(b) through (g) are required as part of that special condition.

The FAA received several comments from Ampaire.

Ampaire asked if the FAA determined that the definition of propeller options for part 33 electric propulsion systems are sufficiently covered by existing reciprocating and gas turbine regulations.

These special conditions are applicable to the Safran electric engine, which will be used with fixed pitch propellers. The existing requirements for reciprocating and gas turbine regulations are sufficient for the conventional fixed-pitch propellers and therefore no other propeller options are required. No changes were made as a result of this comment.

Ampaire regarded proposed special condition no. 10(f)(4) regarding engine control system failures as very similar to the corresponding part 33 regulation (§ 33.28(d)(4)), but noted that special condition is harder to understand without examples that describe the term “local events” such as those provided in the original part 33 regulation. Ampaire recommended adding the examples to special condition no. 10(f)(4) or including other more relevant examples.

The examples Ampaire requested are already in the preamble discussion for special condition no. 10(f)(4). The FAA did not intend to create a new definition of “local events.” As explained in the preamble, the term “local events” means failures or malfunctions leading to events in the intended aircraft installation such as fire, overheat, or failures leading to damage to engine control system components. No changes were made as a result of this comment.

Ampaire stated a system safety assessment is required by § 33.28 but there is no requirement in part 33 to add the rates of hazardous and major faults in the installation manual. Ampaire asked the FAA to explain why this requirement is included in special condition no. 10(g) for the Safran electric engine but not in part 33 for reciprocating and gas turbine engines.

The FAA added the requirement because electric engines enable a wide variety of new aircraft propulsion features, and the engine control system safety assessment is tied to these new propulsion features, which support aircraft that combine vertical takeoff and landing, multi-engine distributed-propulsion, propeller lift and tilt-wing functions, and zero velocity inflight maneuvering capabilities. The effects of an engine failure, such as power loss from an engine, and hazards to the aircraft are contingent on the aircraft design. Therefore, the hazards identified in the safety analysis, as well as the hazard level rates, are included in the engine installation manual to ensure any assumptions about aircraft capabilities that mitigate the effects of engine failures are taken into account when deciding if an engine can be installed in an aircraft. No changes were made as a result of this comment.

Ampaire asked the FAA to explain why the reference to special condition no. 31, Operation with variable pitch propeller, is included in the magniX special condition no. 17(d)(1), Safety analysis, but not the Safran proposed special condition no. 17(d)(1).

Safran's electric engine will be used with a fixed-pitch propeller, and therefore special condition no. 31 is not applicable to the Safran engine type design. No changes were made as a result of this comment.

Ampaire stated proposed special condition no. 23, Endurance demonstration, implies that endurance testing requires a demonstration of energy regeneration, but energy regeneration might not be a feature for some electric engines that operate normally at their limits. Ampaire suggested replacing the second sentence in special condition no. 23 with “The endurance demonstration must include dwellings and increases and decreases of the engine's power settings for sufficient durations that produce the extreme physical conditions the engine experiences at rated performance levels, operational limits, and at any other conditions or power settings including energy regeneration that are required to verify the limit capabilities of the engine.”

The FAA concurs with Ampaire's comment that energy regeneration might not be a feature for some electric engines that operate at their limits. The phrase “that produce the extreme physical conditions” in special condition no. 23 indicates the endurance test addresses engine properties where the extreme physical conditions can occur including conditions that cause the engine to operate at its limits of energy regeneration. As a result of this comment, the FAA changed special condition no. 23 in accordance with Ampaire's recommendation.

Ampaire requested the FAA revise special condition nos. 33(c)(1) and (d) for electrical power distribution and protection systems, respectively, by adding the conditional statement “due to a single fault” and explained electrical power distribution within the part 33 powerplant may take several faults to result in total loss. Ampaire also stated that electric power distribution outside the part 33 powerplant is the subject of part 23 aircraft certification.

The FAA does not concur with Ampaire's request to revise special condition nos. 33(c)(1) and (d) to provide protection from potential consequences resulting only from single electrical faults. Special condition nos. 33(g)(2) and (3), Electrical system failures, have safety criteria that already address single faults in all the engine electrical systems. The safety criteria in special condition no. 33(c)(1) and (d) are for loss of function in electrical power distribution systems, and the criteria apply regardless of the cause of system failures or malfunctions. Also, part 33 has provisions for electrical power supplied to electrical control systems, and therefore this special condition is within the scope of engine requirements. No changes were made as a result of this comment.

Ampaire asked the FAA to explain the regulatory significance of the term “detrimental” as it is used in proposed special condition no. 33, Engine electrical systems, and whether the term relates to hazard levels.

The FAA intends the term “detrimental” to have the same meaning as the meaning of the term as it is commonly used in the English language. The term is used extensively in existing FAA regulations and guidance. There is no intent to change how the term is used in these special conditions. Also, there is no correlation between the term “detrimental” and engine failure effect hazard levels. The term is intended to capture all engine effects that could result in an unsafe engine condition. No changes were made as a result of this comment.

The FAA received several comments from magniX.

MagniX noted proposed special condition nos. 1(b) and (c) state that a means of compliance, which may include consensus standards, must be “accepted by the Administrator” and “in a form and manner acceptable to the Administrator.” MagniX explained that these paragraphs are directly out of 14 CFR 23.2010, which contains performance-based language. MagniX also explained that part 33 and the Safran special conditions are prescriptive regulations, not performance-based. MagniX further indicated that requiring a performance-based process for establishing means of compliance with prescriptive regulations is unnecessary and overly burdensome to applicants and regulators. MagniX recommended the FAA not adopt proposed special condition nos. 1(b) and (c).

The FAA does not concur with magniX's recommendation. The FAA considers special condition nos. 1(b) and (c) to be essential for achieving an equivalent level of safety to the level of safety provided by the part 33 engine requirements. The Safran electric engine criteria are a combination of part 33 requirements and special conditions to the requirements in part 33. Special conditions are developed under the provisions of § 21.16, which are issued when the applicable regulations do not contain adequate or appropriate safety standards. Special condition nos. 1(b) and (c) will be used to incorporate the additional details that apply to the Safran engine design using accepted means of compliance. No changes were made as a result of this comment.

MagniX stated proposed special condition nos. 10(g), 15(b), and 17(f) would require applicants to declare proprietary information in the engine installation manual, these documentation requirements establish a precedent beyond that required of their existing reciprocating or turbine engine counterparts, and these requirements increase the risk that sensitive information is disclosed. MagniX explained that while it is understood this information is used during aircraft-level certification efforts, traditional data sharing agreements sufficiently provide the integrator with the required information while respecting the proprietary nature of the data. MagniX also stated requiring these additional data in the engine installation manual overly constrains the means of compliance and introduces commercial risk. MagniX recommended the FAA not adopt the requirement to include these specific disclosures in the engine installation manual. MagniX proposed that these data be provided to integrators through generic “installation instructions” in lieu of the engine installation manual and explained this will allow specific proprietary disclosures in other installation documents such as interface control drawings, technical memorandums, or other installer requested documentation.

Special condition nos. 10(g), 15(b), and 17(f) do not require the disclosure of sensitive information. As discussed in the NPSC, the documentation requirements in special conditions nos. 10(g), 15(b), and 17(f) are expected to ensure that the engine is used safely and properly by constraining the installation of electric engines to only aircraft types (configurations, flight capabilities, etc.) that were used by the engine manufacturer to determine the engine ratings, limits, performance characteristics, as well as the reliability and criticality of engine systems and parts.

These documentation requirements are intended, and the FAA finds necessary, to ensure enough information is included to safeguard compatibility between the electric engine and aircraft, and to prevent the engine from being used in an aircraft type that requires safety features or performance characteristics that are not available from an engine that was type-certificated for an aircraft that does not require the same safety features or performance characteristics. The FAA modified the proposed special conditions to clarify the requirement by specifying the information identified in special condition nos. 6 “Engine cooling,” 10 “Engine control systems,” 15 “Power response,” 17 “Safety analysis,” 18 “Ingestion,” 19 “Liquid and gas systems,” 30 “Containment,” and 33 “Engine electrical systems” must be documented and provided to the installer as part of the requirements in § 33.5.

The FAA received several comments from Kite Magnetics.

Kite Magnetics stated that special condition no. 14 for the lubrication system of the Safran Model ENGINeUS 100A1 electric engine should focus specifically on the unique lubrication attributes and inherent functional capabilities of the Safran electric engine design, rather than apply requirements for the entire lubrication system. Kite Magnetics suggested changing special condition no. 14 to apply component-level requirements that would be better suited for the unique attributes of electric engines such as the Safran Model ENGINe US 100A1, promote clarity and relevance of the special condition to critical aspects of the lubrication system pertinent to electric engines, and avoid unnecessary requirements that do not apply to this engine type.

The FAA does not concur with Kite Magnetics' comment that the special conditions for an electric engine lubrication system should be established at the component level. These special conditions are engine-level requirements; however, the means of compliance to the special conditions can involve component-level assessments using special condition no. 27, System and component tests, which can focus on the unique lubrication attributes and inherent functional capabilities of the Safran electric engine design. No changes were made as a result of this comment.

Kite Magnetics stated the language “Any system or device that provides, uses, conditions, or distributes electrical power, and is part of the engine type design” in proposed special condition no. 33(a) could imply that energy storage systems (ESS) are part of the engine electrical system. Kite Magnetics explained that ESS fall under the category of systems that provide electrical power and may be perceived as part of the engine's electrical system. However, Kite Magnetics noted that an ESS is a distinct system that supports the engine's electrical power needs, but it is not inherently integrated into the engine's core electrical system design. Kite Magnetics requested confirmation that special condition 33(a) does not apply to ESS. Kite Magnetics did not request changes to this special condition.

The FAA confirms special condition 33(a) does not apply to ESS. No changes were made as a result of this comment.

Kite Magnetics requested clarification regarding the components and devices that are considered part of the engine's electrical power distribution system, as outlined in proposed special condition no. 33(c). Kite Magnetics explained this request is intended to ensure a clear understanding of the scope and components included within the electrical power distribution system. Kite Magnetics did not request changes to this special condition.

The FAA confirms special condition no. 33(c) applies only to the electrical power distribution systems that are part of Safran's electric engine type design. However, the partition between the engine and aircraft electrical power distribution systems must be clearly described and documented with the data provided for showing compliance to § 33.5(a). No changes were made as a result of this comment.

The FAA also determined that the following changes are necessary.

The phrase “In addition” is added to special condition no. 4, Fire protection, to connect the introduction sentence to (a) and (b) and avoid confusion.

The phrase “as defined in special condition no. 17 of these special conditions” is also added where the term “hazardous engine effects” is mentioned in these special conditions.

The applicability of special condition no. 33(b) “Electrical systems” to electrical load shedding is clarified to affect the electrical system only when required.

The term “electrical power plant” is changed to “powerplant” in special condition no. 33(c)(1), which is a term used in part 23, subpart E.

Definitions of the terms “abnormal condition” used in special condition no. 33(c)(2) and “safe transmission” used in special condition no. 33(c)(3) are included in the preamble discussion for special condition no. 33.

Special condition no. 33 was modified to provide flexibility in electric engine protection system designs. Special condition no. 33(c)(3) is changed to, “The system must provide mechanical or automatic means of isolating a faulted electrical-energy generation or storage device from leading to hazardous engine effects, as defined in special condition no. 17(d)(2) of these special conditions, or detrimental effects in the intended aircraft application.” The phrase, “or detrimental engine effects in the intended aircraft application” is also relocated to special condition no. 33(c)(3) to maintain the connection with special condition no. 33(g).

Special condition nos. 33(e)(1) and (e)(2) are both required and therefore “or” is replaced with “and” in special condition no. 33(e)(1), “Electrical power characteristics.”

The documentation requirement in special condition no. 10(g) is also applied to special condition no. 33 (h) “Engine Electrical Systems—System Safety Assessment.”

The FAA did not adopt proposed special condition no. 31 “Operation with a variable pitch propeller” because the Safran Model ENGINeUS 100A1 electric engine will not use a variable pitch propeller.

Except as discussed above, these special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to Safran Model ENGINeUS 100A1 electric engines. Should Safran apply at a later date for a change to the type certificate to include another model on the same type certificate, incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only Safran Model ENGINeUS 100A1 electric engines. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

On October 1, 2024, the FAA published the final rule Removal of Expiration Date on a Flight Instructor Certificate; Additional Qualification Requirements To Train Initial Flight Instructor Applicants; and Other Provisions in the Federal Register (89 FR 80020) (hereinafter the CFI rule). That final rule removed the expiration date on flight instructor certificates to align with other airman certificates. Additional amendments included updating renewal requirements to recent experience requirements, introducing a new method for establishing recent flight instructor experience, and allowing instructors with a lapse of no more than three months to reinstate privileges via an approved flight instructor refresher course instead of a practical test. The final rule also added two new methods for flight instructors to qualify to train initial applicants.

As part of the amendments made in the CFI rule, the FAA revised the authority citation for part 61 by removing 49 U.S.C. 106(g) as that paragraph had been removed and reserved as part of the FAA Reauthorization Act of 2024. The final rule added section 820 of Public Law 118-63 to the authority citation. Section 820 of the FAA Reauthorization Act of 2024 required the FAA to promulgate the CFI final rule within 18 months after the date of enactment of the Act, to at a minimum, update part 61, Code of Federal Regulations, to remove the expiration date on the flight instructor certificate and replace the requirement that a flight instructor renews their flight instructor certificate with appropriate recent experience requirements. The CFI rule became effective on December 1, 2024.

Subsequently, on November 18, 2024, the FAA published the final rule Regulatory Updates to BasicMed (89 FR 90572) (hereinafter the BasicMed rule). That final rule implemented the provisions of sections 815 and 828 of the FAA Reauthorization Act of 2024. In the BasicMed rule, the FAA revised the authority citation for part 61 by adding sections 815 and 828 of Public Law 118-63 to the authority citation for part 61. The BasicMed final rule became effective on the date of publication, November 18, 2024.

However, when the CFI rule became effective on December 1, 2024, and the authority citation for part 61 was revised in accordance with the instructions contained in the CFI rule, those revisions inadvertently removed the revisions made in the BasicMed final rule which published after, but became effective before, the CFI rule. Therefore, this correction revises the authority citation for part 61 to include both the revisions from the CFI rule and the BasicMed rule.

On December 18, 2024, the FAA published the final rule Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States (RIN 2120-AK09) in the Federal Register at 89 FR 103416. That document requires certificated repair stations located outside the territory of the United States (U.S.) whose employees perform safety-sensitive maintenance functions on certain air carrier aircraft to conduct alcohol and controlled substance testing in a manner acceptable to the Administrator and consistent with the applicable laws of the country in which the repair station is located. The document also directs the repair station to comply with the requirements of the Drug and Alcohol Testing Program published by the FAA and the Procedures for Transportation Workplace Drug Testing Programs published by the Department of Transportation, as proposed. However, the documents also allows foreign governments, on behalf of certificated repair stations within their territories, and individual foreign repair stations subject to the rule to obtain the Administrator's recognition of a compatible alternative that contains minimum criteria in lieu of compliance with certain components of the Drug and Alcohol Testing Program.

In that final rule, the FAA inadvertently mischaracterized two commenters which does not accurately reflect their respective memberships. This document makes those corrections

In the final rule FR Doc. 2024-29837, beginning on page 103416, in the Federal Register of December 18, 2024, make the following correction: On page 103423 in the first column, in the first full paragraph, correct the last sentence to read as: “The 17 supporting commenters included transportation labor groups and unions (International Brotherhood of Teamsters (Teamsters), Transport Workers Union of America (TWU), and Transportation Trades Department, AFL-CIO (TTD)), a pilots' union (Allied Pilots Association (APA)), a trade association (National Drug & Alcohol Screening Association (NDASA)), a Substance Abuse Professional (SAP) Directory service (SAPList), a software provider (Nexus 33 Group LLC), and 10 individuals.”

Issued under authority provided by 49 U.S.C. 106(f), 45102, 44731(d) in Washington, DC.

On June 18, 2024, the FAA published a final rule titled “Removal of Check Pilot Medical Certificate Requirement.”  1 That final rule removed inconsistencies applicable to the qualification requirements for check pilots and flight instructors in domestic, flag, and supplemental operations and flight instructors in commuter and on demand operations so that check pilots, check flight engineers, and flight instructors can continue to perform their functions in aircraft without a medical certificate unless they are serving as required flightcrew members. It also removed the medical certificate requirement for flight instructors in commuter and on-demand operations who perform their functions in aircraft and are not serving as required flightcrew members. This is the second set of corrections. The first set of corrections was published in the Federal Register on July 16, 2024 (89 FR 57729). This document augments the previously published corrections.

After publication of the final rule, the FAA determined that the revisions to the section headings for §§ 135.339 and 135.340 had inadvertently not been made. The final rule intended to revise the section heading for § 135.339 by removing the obsolete terminology “check airmen (aircraft), check airmen (simulator)” and replacing them with “check pilots.” This would rename the heading to that section from “§ 135.339 Initial and transition training and checking: Check airmen (aircraft), check airmen (simulator),” to “§ 135.339 Initial and transition training and checking: Check pilots.” Similarly, the section heading for § 135.340 was also intended to be revised by removing the obsolete terminology “flight instructors (aircraft)” and “flight instructors (simulator)” and replacing those terms with “flight instructor. This would rename the heading to that section from “§ 135.340 Initial and transition training and checking: Flight instructors (aircraft), flight instructors (simulator)” to “§ 135.340 Initial and transition training and checking: Flight instructors.” However, the FAA failed to include the instruction to revise the section heading in the amendatory instructions for both sections. This document makes those corrections.

Accordingly, 14 CFR part 135 is corrected by making the following correcting amendments:

On September 6, 2024, BIS published in the Federal Register the interim final rule “Commerce Control List Additions and Revisions; Implementation of Controls on Advanced Technologies Consistent with Controls Implemented by International Partners” (RIN 0694-AJ60) (89 FR 72926). That rule contained inadvertent errors in §§ 742.4, 742.6, and 743.7 of the Export Administration Regulations (15 CFR parts 730 through 774) (EAR) and in Export Control Classification Numbers (ECCNs) 2B910 and 3C908 of the Commerce Control List (CCL) in supplement no. 1 to part 774 of the EAR.

In column 1 of 89 FR 72938, under the section heading “§ 742.4 National security,” there is an incorrect citation. This rule amends the regulatory text in § 742.4(a)(5)(ii)(A) by replacing the reference to “general order no. 4” with “general order no. 6.”

In columns 1 and 2 of 89 FR 72938, also under the section heading “§ 742.4 National security,” the paragraph designations in § 742.4 are incorrect. This rule revises paragraph (a)(5)(ii)(B)( 1 ) to clarify the reference to quantum items eligible for the deemed export and deemed reexport exclusion by breaking the “technology” parenthetical referencing ECCNs 4D906 and 4E906 into separate list entries for ECCN 4D906 and ECCN 4E906.

In column 3 of 89 FR 72938, under the section heading “§ 742.6 Regional stability,” there is an incorrect citation in § 742.6(a)(10)(ii)(A). This rule amends § 742.6(a)(10)(ii)(A) by replacing the reference to “general order no. 4” with “general order no. 6.”

In column 2 of 89 FR 72939, under the part heading “Part 743—Special Reporting and Notification”, the paragraph designations in § 743.7 are incorrect. This rule amends § 743.7 by redesignating paragraphs (c)(1)(A) through (C) as paragraphs (c)(1)(i) through (iii), and redesignating paragraphs (c)(2)(A) through (D) as paragraphs (c)(2)(i) through (iv).

In column 2 of 89 FR 72940, in the CCL of the EAR, ECCN 2B910.d contains an error. This rule corrects ECCN 2B910.d by replacing the citation to 2B010.c with 2B910.c.

In column 1 of 89 FR 72951, in the CCL of the EAR, the license requirement table in ECCN 3C908 contains inadvertent errors ( i.e., the duplication of the Regional Stability (RS) license requirement paragraph and omission of an Anti-terrorism (AT) license requirement paragraph). This rule corrects ECCN 3C908 by removing the duplicate RS license requirement paragraph and adding the missing AT license requirement paragraph.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (codified, as amended, at 50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. In particular, Section 1753 of ECRA (50 U.S.C. 4812) authorizes the regulation of exports, reexports, and transfers (in-country) of items subject to U.S. jurisdiction. Further, Section 1754(a)(1)-(16) of ECRA (50 U.S.C. 4813(a)(1)-(16)) authorizes, inter alia, the establishment of a list of controlled items; the prohibition of unauthorized exports, reexports, and transfers (in-country); the requirement of licenses or other authorizations for exports, reexports, and transfers (in-country) of controlled items; apprising the public of changes in policy, regulations, and procedures; and any other action necessary to carry out ECRA that is not otherwise prohibited by law. Pursuant to section 1762(a) of ECRA (50 U.S.C. 4821(a)), these changes can be imposed in a final rule without prior notice and comment. The revisions, including the addition of the missing AT license requirement paragraph to ECCN 3C908, made through this rulemaking fall within the authorizations conferred by ECRA as described above.

1. This correction has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.

2. Notwithstanding any other provision of 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 Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule involves collections currently approved by OMB under the following control numbers:

• 0694-0088, “Simplified Network Application Processing System,” which carries a burden-hour estimate of 29.6 minutes for a manual or electronic submission;

• 0694-0137 “License Exceptions and Exclusions,” which carries a burden-hour estimate average of 1.5 hours per submission (Note: submissions for License Exceptions are rarely required);

• 0694-0096 “Five Year Records Retention Period,” which carries a burden-hour estimate of less than 1 minute; and

• 0607-0152 “Automated Export System (AES) Program,” which carries a burden-hour estimate of 3 minutes per electronic submission.

Additional information regarding these collections of information—including all background materials—can be found at: https://www.reginfo.gov/public/do/PRAMain and using the search function to enter either the title of the collection or the OMB Control Number.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date. While Section 1762 of ECRA provides sufficient authority for such an exemption, this action is also independently exempt from these APA requirements because it involves a military or foreign affairs function of the United States (5 U.S.C. 553(a)(1)).

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

The final regulations (TD 9992) that are the subject of this correction are under section 897 of the Code.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:

The Coast Guard is issuing this temporary rule under the authority in 5 U.S.C. 553(b)(B). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard was not informed of the need for a large-based fireworks display with sufficient time to go through the full notice and comment rulemaking process. Immediate action is needed to respond to the potential safety hazards associated with a large-based fireworks display, in Beaufort, SC. It is impracticable to publish an NPRM because we must establish this safety zone by December 31, 2024, or an alternate weather contingency date of January 1, 2025.

Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is necessary to protect personnel, vessels, and the marine environment from the potential safety hazards associated with the barge-based fireworks display located in the Beaufort River, in Beaufort, SC.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Charleston (COTP) has determined that potential hazards associated with a barge-based fireworks display on December 31, 2024, or on an alternate weather contingency date of January 1, 2025, will be a safety concern for anyone within a 150-yard radius of the fireworks barge. This rule is needed to ensure the safety of vessels and persons in the navigable waters before, during, and after a barge-based fireworks display.

This rule establishes a safety zone from 8 p.m. through 10 p.m. on December 31, 2024, or on a weather contingency date of January 1, 2025, from 8 p.m. through 10 p.m. The safety zone will cover all navigable waters within 150 yards of the fireworks barge on the Beaufort River in Beaufort, SC. The duration of the zone is intended to ensure the safety of vessels and persons before, during, and after the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone Although the rule restricts access to a small, designated area of the Beaufort River encompassed by the safety zone, the effect of this rule will not be significant because the local waterways users will be notified to ensure the safety zone will result in minimal impact for the 2 hours in the evening when vessel traffic is normally low. Additionally, vessel traffic will be able to safely transit around the safety zone.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves This rule involves a safety zone lasting only 2 hours that will prohibit entry within 150 yards of a fireworks barge. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule under the authority in 5 U.S.C. 553(b)(B). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the required safety zone will be implemented with too little time for a comment period.

Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable the date of the required safety zone will occur within less than 30 days of publication.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Eastern Great Lakes (COTP) has determined that potential hazards associated with a fireworks display over the Erie Canal in North Tonawanda, NY, will be a safety concern for anyone within a 125-foot radius of the land-based launch site on the Main Street Bridge in North Tonawanda, NY. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display is occurring.

This rule establishes a safety zone from 11:45 p.m. December 31, 2024, through 1:15 a.m. on January 1, 2025. The safety zone will cover all navigable waters within 125 feet of the Main Street Bridge, over the Erie Canal in North Tonawanda, NY 43°01′17.96″ N, 78°52′41.04″ W. All geographic coordinates are North American Datum of 1983 (NAD 1983). The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters from falling debris from a fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessels will not be permitted to transit within the 1.5 hour time allotted. This is during a time of year when the locks systems on the Erie Canal are not functioning, so no through-traffic is expected.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 1.5 hours that will prohibit entry within 125 feet of the Main Street Bridge, over the Erie Canal, in North Tonawanda, NY. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Port of Miami is undergoing an expansion project that will create new cruise ship terminals at the eastern end of the Port and outside the existing security zone. The Captain of the Port (COTP) Miami identified a need to amend the existing security zone to address the Port of Miami's cruise ship terminal expansion. In response, on August 16, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Security Zone; Port of Miami” (87 FR 50278). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this security zone. During the comment period that ended September 15, 2022, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest. This rule must be immediately effective to guard against potential security concerns associated with the new cruise ship terminal at the Port of Miami which was added in December 2024.

The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70051 and 70124. The Captain of the Port Miami (COTP) has determined it is necessary to extend the existing Port of Miami fixed security zone eastward approximately 840 yards to cover all navigable waters in the Main Ship Channel from approximately Watson Island to just west of the Biscayne Bay Pilots Station.

As noted above, we received no comments on our NPRM published August 16, 2022. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule amends an established fixed security zone that encompasses all waters in the Main Ship Channel from approximately Star Island to just west of the Biscayne Bay Pilots Station. The fixed security zone is in effect when two or more passenger vessels, vessels carrying cargoes of particular hazard, or vessels carrying LHG, enter or moor within this zone.

When the security zone is in effect, persons and vessels shall not enter or transit the security zone along the Miami Main Channel unless authorized by Captain of the Port of Miami or a designated representative. Persons and vessels may transit the Miami Main Channel when only one passenger vessel, one vessel carrying cargoes of particular hazard or one vessel carrying LHG is berthed. The public will be able to reach law enforcement vessels via VHF-FM marine channel 16.

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

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

This regulatory action determination is based on the limited nature of the security zone, specifically: persons and vessels may transit the Miami Main Channel when less than two passenger vessel is berthed, less than two vessel carrying cargoes of hazard, or vessel carrying LHG is berthed in the channel. Additionally, persons and vessels may operate within the security zone when authorized by Captain of the Port of Miami or a designated representative.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves increasing the size of an existing security zone along the Miami Main Channel. Such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Throughout this document whenever “we,” or “our,” is used, it refers to the EPA.

On October 22, 2024 (89 FR 84322), the EPA proposed to approve State Implementation Plan (SIP) revisions to the Energy Facility Site Evaluation Council (EFSEC) air quality regulations submitted by the State of Washington, through the Department of Ecology (Ecology) on June 15, 2023. In that proposal, we also proposed to determine that one of the SIP revisions, the removal of EFSEC's adoption by reference of WAC 173-400-107, corrects the deficiency with respect to EFSEC that we identified in our June 12, 2015 action entitled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction”  1 (“2015 SSM SIP call”) and our January 12, 2022, Findings of Failure to Submit  2 (FFS). The remaining SIP revisions submitted with the removal of EFSEC's adoption by reference of WAC 173-400-107 on June 15, 2023, were not specified in the 2015 SSM SIP call. The reasons for our proposed approval and determination can be found in the proposed action and will not be fully restated here. The public comment period closed on November 21, 2024. We received one comment outside the scope of our proposed action; therefore, we are finalizing our action as proposed.

Comment: The commenter appears to support the EPA finalizing approval of revisions to EFSEC's regulations but voiced concern about the amount of time it took to get to this approval from issuance of the 2015 SSM SIP call. The commenter also raised concerns about implementation “of the statute” and the allowance of “significant pollutant emissions despite the good-faith intentions of both Federal and state agencies.” The commenter went on to suggest “New rules surrounding revision timelines could help effectively allocate agency efforts in the exercise of its authority while retaining the necessary period for due process and public participation.

Response: The EPA acknowledges the commenter's concerns. However, the concerns raised by the commenter are outside the scope of this action. Moreover, the commenter does not indicate that the EPA's proposed approval action of the SIP submission should be changed or should not be finalized as proposed. Rather, the comment appears to support finalizing the proposed approval. Therefore, we are finalizing our action as proposed.

The EPA is approving and incorporating by reference in the Washington SIP the revisions Washington submitted on June 15, 2023, except for those withdrawn by Washington. 3 This action includes removal of the adoption by reference of WAC 173-400-107—the provision identified as inconsistent with Clean Air Act (CAA) requirements in our 2015 SSM SIP call—from the EFSEC air quality regulations contained in Chapter 463-78 Washington Administrative Code (WAC) General and Operating Permit Regulations for Air Pollution Sources.

Once this action becomes effective, the Washington SIP will no longer include the following regulations for EFSEC's jurisdiction:

• WAC 173-400-070, Emission Standards for Certain Source Categories—sets forth maximum allowable standards for emissions units within the categories listed;

• WAC 173-400-107, Excess Emissions—established a pathway to determine excess emissions unavoidable, excuse them from penalty, and in certain instances precluded them from being considered violations.

This action also approves and incorporates by reference at 40 CFR 52.2470(c)— Table 3—Additional Regulations Approved for the Energy Facilities Site Evaluation Council (EFSEC) Jurisdiction, the following revised regulations:

• WAC 463-78-005(2), Adoption by Reference (State effective August 28, 2020)—which adopts certain regulations in Chapter 173-400 WAC by reference.

The revised Chapter 173-400 WAC provisions approved for EFSEC's jurisdiction are:

• WAC 173-400-030, Definitions (State effective September 16, 2018)—which establishes definitions used throughout Chapter 173-400 WAC;

• WAC 173-400-081, Emission Limits during Startup and Shutdown (State effective September 16, 2018)—which establishes pathway for developing emissions limits that apply during startup and shutdown;

• WAC 173-400-082, Alternative Emission Limit That Exceeds an Emission Standard in the SIP (State effective September 16, 2018)—which establishes pathway for an owner or operator to request an alternative emissions limit;

• WAC 173-400-136 Use of Emission Reduction Credits (ERC) (State effective December 29, 2012)—which identifies permissible use and sets certain conditions of use of ERCs;

• WAC 173-400-171 Public Involvement (State effective September 16, 2018)—which sets forth certain requirements for public involvement.

These SIP revisions apply specifically to the jurisdiction of the Washington State Energy Facility Site Evaluation Council.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference as described in section III of this preamble. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 4

Also in this document, the EPA is removing regulatory text from incorporated by reference, as described in section III. of this preamble.

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, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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 approves a State program;

• 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.

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 communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. The EPA defines 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.” The 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. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. 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 Executive Order 12898 of achieving environmental justice for communities with EJ concerns.

The SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on Tribal governments or preempt Tribal law. Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided State and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area.

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

On August 16, 2024 (89 FR 66661), EPA proposed to approve revisions to 326 IAC 1-1-3, definition of “References to Code of Federal Regulations.” IDEM updated the reference to the CFR in 326 IAC 1-1-3 from the 2018 edition to the 2022 edition. This is an administrative change that allows Indiana to reference a more current version of the CFR.

By incorporating by reference 326 IAC 1-1-3 to reference the 2022 version of the CFR, the provisions in title 326 of the IAC will be consistent with the applicable CFR regulations. Because this action updates Indiana rules to be more consistent with EPA's current regulations, EPA is approving these revisions. An explanation of the Clean Air Act (CAA) requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking and will not be restated here. The public comment period for this proposed rule ended on September 16, 2024. EPA received no comments on the proposal.

EPA is approving the December 14, 2023, submission as a revision to the Indiana SIP. Specifically, EPA is approving 326 IAC 1-1-3 References to the Code of Federal Regulations, effective October 20, 2023.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana Regulations described in section I of this preamble and set forth in the amendments to 40 CFR part 52 below. EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), and 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 approves a state program;

• 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 rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines 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.”

IDEM did not evaluate EJ 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. 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 EJ for communities with EJ concerns.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 25, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, title 40 CFR part 52 is amended as follows:

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

The background for this action is discussed in detail in our October 30, 2024 proposal (89 FR 86305). In that document we proposed to approve revisions to the Common Provisions Regulation portion of Colorado's SIP. We did not receive comments on this proposal.

The EPA is approving the portion of Colorado's June 26, 2023, SIP submission revising the Colorado SIP by removing Common Provisions Regulation sections II.E. and II.J. from the SIP by making them State-only. We are approving the SIP revisions because we have determined that they are consistent with the requirements for SIP provisions under the CAA. The EPA is further determining that finalizing such SIP revisions would correct the deficiencies identified in the EPA's June 12, 2015 Findings of Substantial Inadequacy and SIP Calls. 1

In this action, we are including in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5 the EPA is incorporating by reference the revisions that would designate them as State-only, and thus remove from “5 CCR 1001-02, Common Provisions Regulation” of the Colorado SIP, sections II.E., “Affirmative Defense Provision for Excess Emissions During Malfunctions,” and II.J., “Affirmative Defense Provision for Excess Emissions During Startup and Shutdown.” The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and in hard copy at the EPA Region 8 office.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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 approves a State program;

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

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

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

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 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. The 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.” The 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.”

Colorado did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this final action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 25, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons stated in the preamble, the Environmental Protection Agency is amending 40 CFR part 52 as follows:

On May 31, 2023, 1 KDAQ, on behalf of the District, submitted changes to the Jefferson County portion of the Kentucky SIP for EPA approval. 2 3 In this rulemaking, EPA is approving changes to Regulation 1.11, Control of Open Burning.

Through a notice of proposed rulemaking (NPRM) published on October 31, 2024 (89 FR 86771), EPA proposed to approve changes to the District's Regulation 1.11, Control of Open Burning, which included three changes. The first change was the addition of the phrase “ i.e., a controlled burn” to Section 2.1.4 to clarify that “a fire for general agricultural production” must be a controlled burn. The second change was the addition of an exception to Section 2.4 allowing the use of District-approved liquid accelerants to start fires for general agricultural production for weed abatement, disease control, or pest prevention or for recognized silvicultural, range, native grassland, or wildlife management practices that have been approved by the District pursuant to Section 2.1.4. The third and final change renumbers the paragraph breaks for subsections 2.1.8 and 2.1.9 and removes subsection 2.1.10. These numbering changes do not affect the language of the rule or otherwise have any substantive impact.

In this rulemaking, EPA is finalizing its approval of the District's May 31, 2023, request to incorporate Version 11 of Regulation 1.11 into the SIP, replacing Version 10, the version of the rule currently in the SIP. EPA's rationale for approving the changes is described in the October 31, 2024, NPRM. Comments on the October 31, 2024, NPRM were due on or before December 2, 2024. No comments were received on the October 31, 2024, NPRM, adverse or otherwise.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I of this preamble, EPA is finalizing the incorporation by reference of Jefferson County Regulation 1.11, Version 11, Control of Open Burning, District-effective on March 15, 2023, which clarifies that a fire for general agricultural production must be a controlled burn; allows the use of District-approved accelerants to start certain fires; and adjusts paragraph numbering. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 4

EPA is approving the aforementioned changes to Regulation 1.11, Control of Open Burning, submitted to EPA on May 31, 2023. EPA has determined that the requested changes in Kentucky's May 31, 2023, SIP revision will not interfere with any applicable requirement concerning attainment, or any other applicable requirement of the CAA.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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 approves a state program;

• 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 rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements E.O. 12898 and defines EJ as, among other things, the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, or Tribal affiliation, or disability in agency decision-making and other Federal activities that affect human health and the environment.

The District did not evaluate EJ 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. 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. 12898/14096 of achieving EJ for communities with EJ concerns.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 25, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

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

On September 4, 1992, the EPA promulgated 40 CFR part 55,1 which established requirements to control air pollution from OCS sources in order to attain and maintain federal and state ambient air quality standards and to comply with the provisions of part C of title I of the Clean Air Act (CAA). The regulations at 40 CFR part 55 apply to all OCS sources offshore of the states except those located in the Gulf of Mexico west of 87.5 degrees longitude. Section 328 of the CAA requires that for such sources located within 25 miles of a state's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the COA. Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) of the CAA requires that the EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

On September 17, 2008 (73 FR 53718), the EPA finalized a consistency update of the OCS air regulations pertaining to the requirements of OCS sources in the Commonwealth of Massachusetts. The update was the result of a Notice of Intent (NOI) being submitted on December 7, 2007 by Cape Wind Associates, LLC. The rules incorporated by reference into Appendix A of 40 CFR part 55 were applicable provisions of 310 Code of Massachusetts Regulations (CMR) 4.00: Timely Action Schedule and Fee Provisions; 310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of Massachusetts; 310 CMR 7.00: Air Pollution Control; and 310 CMR 8:00: The Prevention and/or Abatement of Air Pollution Episode and Air Pollution Incident Emergencies.

On August 24, 2010 (75 FR 51968), the EPA finalized a consistency update of the OCS regulations pertaining to the requirements of OCS sources in the Commonwealth of Massachusetts. This update was the result of EPA's annual review of the Commonwealth of Massachusetts regulations. The rules incorporated by reference into Appendix A of 40 CFR part 55 were updates and new requirements of 310 CMR 4.00: Timely Action Schedule and Fee Provisions; 310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of Massachusetts; 310 CMR 7.00: Air Pollution Control; and 310 CMR 8:00: The Prevention and/or Abatement of Air Pollution Episode and Air Pollution Incident Emergencies.

A similar action occurred on November 13, 2018 (83 FR 56259) after the submittal of an NOI on December 11, 2017 by Vineyard Wind, LLC, leading to further updates to Appendix A of 40 CFR part 55. The rules incorporated through this action were applicable provisions of 310 CMR 4.00: Timely Action Schedule and Fee Provisions; 310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of Massachusetts; 310 CMR 7.00: Air Pollution Control; and 310 CMR 8.00: The Prevention and/or Abatement of Air Pollution Episode and Air Pollution Incident Emergencies, as amended through March 9, 2018.

Lastly, on November 15, 2022 (87 FR 68364) the EPA finalized action to incorporate updates to 40 CFR part 55 after receipt of an NOI on September 9, 2021 by Sunrise Wind, LLC. This final rule incorporated applicable provisions of 310 CMR 4.00: Timely Action Schedule and Fee Provisions; 310 CMR 6.00: Ambient Air Quality Standards for the Commonwealth of Massachusetts; and 310 CMR 7.00: Air Pollution Control, as amended through March 5, 2021.

EPA has received subsequent NOIs for projects and conducted periodic reviews of Massachusetts regulations to ensure all applicable requirements for OCS sources as they relate to attainment and maintenance of federal or state ambient air quality standards and the requirements of part C of title I of the CAA are incorporated by reference into the Massachusetts section of Appendix A in 40 CFR part 55. These evaluations have not led to additional requirements incorporated by reference into Appendix A, because either a Massachusetts regulation did not change or because any changes to a previously incorporated regulation were not applicable to the attainment and maintenance of federal or state ambient air quality standards for OCS sources.

However, through EPA's implementation of the OCS air permitting program, we have become aware that 310 CMR 4.03: Annual Compliance Assurance Fee and 310 CMR 7.12: U Source Registration are unnecessarily incorporated into Appendix A of 40 CFR part 55. These two regulations are either (1) implemented by existing EPA programs and thus duplicative or (2) not rationally related to the attainment or maintenance of federal or state ambient air quality standards or to the requirements of part C of title I of the CAA. EPA is removing these previously approved regulations incorporated into Appendix A of 40 CFR part 55 since our last amendment on November 15, 2022. See 87 FR 68364.

The specific requirements of the consistency update and the rationale for EPA's action are explained in the September 11, 2024, NPRM (89 FR 73617). One comment was received but is not germane to the EPA's action; the comment is available at www.regulations.gov under the Docket for this action (Docket ID No. EPA-R01-OAR-2024-0367).

The EPA is taking final action to remove two regulations currently incorporated by reference in Appendix A of Part 55 for OCS sources where the Commonwealth of Massachusetts is the COA. The regulations that the EPA is removing are specific provisions within: (1) 310 CMR 4.00: Timely Action Schedule and Fee Provisions; and (2) 310 CMR 7.00: Air Pollution Control. Based on a review of Part 55 (1) 310 CMR 4.03: Annual Compliance Assurance Fee is duplicative of existing federal rules and (2) 310 CMR 7.12: U Source Registration is no longer determined to be rationally related to the attainment and maintenance of Federal or State ambient air quality standards or to the requirements of part C of title I of the Act. Further, these changes are being made to ensure consistency of the OCS permitting program in accordance with Part 55 requirements.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of “Commonwealth of Massachusetts Requirements Applicable to OCS Sources,” dated September 11, 2024, which provides the text of the MassDEP air rules in effect as of September 11, 2024, that would apply to OCS source. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region 1 Regional Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air pollution control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore. See 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, the EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the CAA. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy direction by the EPA. For that reason, this action:

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, nor does it impose substantial direct compliance costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 25, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This action does not impose any new information collection burden under the Paperwork Reduction Act. See 44 U.S.C 3501. The Office of Management and Budget (OMB) has previously approved the information collection activities contained in the existing regulation at 40 CFR part 55 and, by extension, this update to part 55, and has assigned OMB control number 2060-0249. 1 This action does not impose a new information burden under the Paperwork Reduction Act because this action only updates the state rules that are incorporated by reference into 40 CFR part 55, Appendix A.

Part 55 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

On December 13, 2023 (88 FR 86312), the EPA proposed to approve a section 111(d) State Plan submitted by the SRCAA on July 18, 2022, for existing large municipal waste combustors. SRCAA's submitted State Plan was in response to the May 10, 2006, promulgation of the amended emission guidelines (EG) requirements for Large MWC, 40 CFR part 60, subpart Cb (71 FR 27324). Included within the State Plan are regulations under SRCAA Regulation I, Article VI, Section 6.17, entitled “Standards for Municipal Solid Waste Combustors,” effective July 7, 2022. On July 18, 2022, SRCAA submitted the State Plan.

We proposed to partially approve this plan because we determined that it complies with the relevant CAA requirements, except requirements applicable to fluidized bed combustors and air curtain incinerators. Because these requirements were omitted, we also proposed to partially disapprove the State Plan submittal. Our proposed action contains more information on the plan and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

For the reasons discussed in our proposed rulemaking and in this action, we are finalizing the partial approval and partial disapproval of SWCAA's State Plan for large MWC, which includes SRCAA Regulation I, Article VI, Section 6.17, effective July 7, 2022. Upon the effective date of this action, SWCAA's State Plan will apply to designated large MWC, as defined in 40 CFR 60.32b, in Spokane County, Washington, with the exception of fluidized bed combustors and air curtain incinerators, which will remain subject to Federal Plan requirements under 40 CFR part 62, subpart FFF. We are finalizing this approval because we have determined the State Plan meets the applicable requirements under 40 CFR part 60, subparts B and Cb, except for the requirements noted as the basis for our partial disapproval above.

In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing regulatory text that includes the incorporation by reference of SRCAA Regulation I, Article VI, Section 6.17, “Standards for Municipal Solid Waste Combustors” with an effective date of July 7, 2022. These regulatory provisions are part of the CAA State Plan applicable to existing Large MWC in Spokane County, Washington as discussed in Section I of this preamble. They establish requirements related to emission limitations, compliance times, testing, monitoring, reporting, and recordkeeping applicable to Large MWC in Spokane County, Washington that commenced construction on or before September 20, 1994. These provisions set forth requirements meeting criteria required by the amended Emissions Guidelines for existing Large MWC codified at 40 CFR part 60, subpart Cb. The EPA has made, and will continue to make, the entire SRCAA State Plan, generally available through https://www.regulations.gov, Docket No. EPA-R10-OAR-2023-0224, and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). This incorporation by reference has been approved by the Office of the Federal Register, and the State Plan is Federally enforceable under the CAA as of the effective date of this final rule.

In reviewing State Plan submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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 an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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 communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements Executive Order 12898 and defines EJ as, among other things, the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, or Tribal affiliation, or disability in agency decision-making and other Federal activities that affect human health and the environment.”

The air agency did not evaluate environmental justice considerations as part of its submittal; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area. 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 Executive Order 12898 of achieving environmental justice for communities with EJ concerns.

In addition, the SRCAA State Plan is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, this rule would not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 25, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 62 as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Federal Register Office's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2023-0596 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before February 25, 2025. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2023-0596, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/where-send-comments-epa-dockets.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, are available at http://www.epa.gov/dockets.

In the Federal Register of July 1, 2024 (89 FR 54398) (FRL-11682-05-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3F9067) by Bayer CropScience LP, 800 N Lindbergh Blvd., St. Louis, MO 63167. The petition requested to amend 40 CFR part 180 by establishing a tolerance for residues of ethiprole in or on the raw agricultural commodity sugarcane at 0.1 parts per million (ppm).

That document referenced a summary of the petition, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, EPA has revised the tolerance from 0.1 ppm to 0.07 ppm. The reason for this change is explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . . ”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for ethiprole including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with ethiprole follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemaking of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemaking, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published tolerance rulemakings for ethiprole, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to ethiprole and established tolerances for residues of that chemical. EPA is incorporating previously published sections of those rulemakings that remain unchanged, as described further in this rulemaking. Specific information on the risk assessment conducted in support of this action, including on the studies received and the nature of the adverse effects caused by ethiprole, can be found in the document titled “ Ethiprole. Human Health Risk Assessment for Tolerance without U.S. Registration in/on Imported Sugarcane” which is available in the docket for this action at https://www.regulations.gov.

Toxicological profile. For a discussion of the Toxicological Profile of ethiprole, see Unit III.A. of the rulemaking published in the Federal Register of June 28, 2019 (84 FR 30933) (FRL-9985-41).

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern used for the safety assessment of ethiprole, see Unit III.B. of the June 28, 2019, rulemaking.

Exposure assessment. Much of the exposure assessment remains unchanged from the rulemaking published in the June 28, 2019, rulemaking, although the new exposure assessment incorporates the additional dietary exposure from the petitioned-for tolerance. Other changes are described below.

Acute and chronic dietary exposure assessments were conducted using DEEM-FCID Version 4.02. This software uses 2005-2010 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). Unrefined acute and chronic dietary exposure and risk assessments were conducted using tolerance-level residues, empirical and default processing factors, and assuming 100% crop treated.

Drinking water and non-occupational exposures. There are no registered or proposed U.S. uses of ethiprole. As a result, estimated drinking water concentrations (EDWCs) were not included in the dietary exposure and risk assessments because residues of ethiprole and its degradates are not anticipated to be present in U.S. drinking water.

A residential handler and residential post-application assessment is not necessary since the action is to establish an import tolerance without a U.S. registration on sugarcane.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to ethiprole and any other substances and ethiprole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that ethiprole has a common mechanism of toxicity with other substances.

In 2016, EPA's Office of Pesticide Programs released a guidance document titled, Pesticide Cumulative Risk Assessment: Framework for Screening Analysis ( https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/pesticide-cumulative-risk-assessment-framework ). This document provides guidance on how to screen groups of pesticides for cumulative evaluation using a two-step approach beginning with the evaluation of available toxicological information and if necessary, followed by a risk-based screening approach. This framework supplements the existing guidance documents for establishing common mechanism groups (CMGs) and conducting cumulative risk assessments (CRAs).

Ethiprole is a phenyl-pyrazole insecticide. As part of the ongoing process to review registered pesticides, the Agency intends to apply this framework to determine if the available toxicological data for ethiprole suggests a candidate CMG may be established with other pesticides. If a CMG is established, a screening-level toxicology and exposure analysis may be conducted to provide an initial screen for multiple pesticide exposure.

Safety Factor for Infants and Children. EPA continues to conclude that there is reliable data showing that the safety of infants and children would be adequately protected if the Food Quality Protection Act (FQPA) safety factor were reduced from 10X to 1X. The reasons for that decision are articulated in Unit III.D. of the June 28, 2019, rulemaking.

Aggregate risks and determination of safety. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the acute population-adjusted dose (aPAD) and chronic population-adjusted dose (cPAD). Short-, intermediate-, and chronic-term aggregate risks are evaluated by comparing the estimated total food, water, and residential exposure to the appropriate points of departure to ensure that an adequate margin of exposure (MOE) exists.

Acute dietary (food only) risks are below the Agency's level of concern of 100% of the aPAD; they are 2.4% of the aPAD for all infants (less than 1 year old), which is the population subgroup with the highest exposure estimate. Chronic dietary (food only) risks are below the Agency's level of concern of 100% of the cPAD; they are 6% of the cPAD for all infants less than one year old, which is the population subgroup with the highest exposure estimate.

The short- and intermediate-term aggregate risks combine chronic dietary (food and drinking water) and short- and intermediate-term residential exposures. Since there are no U.S. registrations, aggregate risk is the same as the chronic dietary risk, which is below the Agency's level of concern.

Because ethiprole is classified as “Suggestive Evidence of Carcinogenicity, but Not Sufficient to Assess Human Carcinogenicity Potential,” EPA has concluded that a cancer aggregate assessment was not required.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to ethiprole residues.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the June 28, 2019, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

Codex, Canada, and Mexico have not established MRLs for residues of ethiprole on sugarcane commodities; therefore, there are no harmonization issues at this time.

Review of the field trial data determined one of the nine independent sugarcane field trials was to be a replicate; therefore, the residues were averaged, and the pair of sites was taken to be one independent trial. The Organization for Economic Cooperation and Development (OECD) MRL calculator recommended a tolerance of 0.07 ppm for residues of ethiprole in sugarcane.

Therefore, a tolerance is established for residues of ethiprole in or on sugarcane at 0.07 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, titled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, titled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or to Executive Order 13045, titled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, titled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal governments, on the relationship between the National Government and the States or Tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, titled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, titled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides, and pests, Reporting and recordkeeping requirements.

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

In FR Doc. 2024-24271, appearing on page 93040 in the Federal Register of Monday, November 25, 2024, the following corrections are made:

1. On page 93040, in the first column, in the DATES section, the date “November 25, 2026” is corrected to read “January 19, 2027.”

This document corrects the final rule document published at 89 FR 71848, September 4, 2024. It corrects the ending date for the per-minute Supplemental Compensation Rate for CA-assisted IP CTS in 47 CFR 64.641(c)(2) to June 30, 2029 from the erroneous June 30, 2027.

Accordingly, 47 CFR part 64 is corrected by making the following correcting amendment:

During its normal regulatory review, GSA discovered that several of the Office of Management and Budget (OMB) Control Numbers (No.) listed in the General Services Administration Acquisition Regulation (GSAR) reference table at 501.106 were either omitted, incorrect, or had been updated ( i.e., Federal Acquisition Regulation (FAR) OMB Control Nos. (9000 series) that are applicable to GSA acquisition requirements). For any OMB Control No. added to the table via this final rule, an approved OMB Control No. already existed. However, the approved OMB Control No. was simply not reflected at 501.106 as intended.

GSAR 511.171 and the corresponding OMB Control No. 3090-0300 are added to the table.

GSAR 511.204(c) is updated to remove the paragraph (c); it will now read as 511.204.

GSAR 514.201-1 is updated to remove the subsection 1; it will now read as 514.201.

GSAR 515.209-70(b) is updated to remove the subsection 70; it will now read as 515.209.

GSAR 516.506 is updated to add OMB Control No. 3090-0163.

GSAR 516.506 and the corresponding OMB Control Numbers are updated to reflect the inclusion of 3090-0163. The other OMB Control Nos. associated with GSAR 516.506 remain the same.

GSAR 532.111 and the corresponding OMB Control No. 3090-0080 are added to the table.

GSAR 532.908 and the corresponding OMB Control No. 3090-0080 are added to the table.

GSAR 536.572 and the corresponding OMB Control No. 3090-0308 are added to the table.

GSAR 536.7002-4 and the corresponding OMB Control No. 3090-0274 are added to the table.

GSAR 536.7107 and the corresponding OMB Control No. 3090-0320 are added to the table.

GSAR 538.273 and the corresponding OMB Control Numbers are updated to reflect the removal of 3090-0262, and the inclusion of 3090-0248 and 3090-0302. The other OMB Control Nos. associated with GSAR 538.273 remain the same.

GSAR 546.302-71 is updated to remove the subsection 71; it will now read as 546.302.

Clause 552.204-9 and the corresponding OMB Control Nos. 3090-0283 and 3090-0287 are added to the table.

Clause 552.211-13(a) is updated to remove the paragraph (a); it will now read as 552.211-13.

Clause 552.211-70(b) is updated to remove the paragraph (b) and revise the OMB Control No.; it will now be read as 552.211-70 with OMB Control No. 9000-0062.

Clause 552.232-5 is updated with the corresponding OMB Control Nos. 9000-0070 and 9000-0102 removed and replaced with 9000-0073. The other OMB Control No. associated with 552.232-5 remains the same.

Clause 552.223-70 is changed to clause 552.223-72, which is associated with OMB Control No. 3090-0205.

Clause 552.236-15 is updated with the corresponding OMB Control No. changed to 9000-0062.

Clause 552.238-74 and the corresponding OMB Control No. 3090-0250 are added to the table.

Clause 552.238-77 and the corresponding OMB Control No. 3090-0250 are added to the table.

Clause 552.238-85 and the corresponding OMB Control Nos. 3090-0235 and 3090-0306 are added to the table.

Clause 552.238-86 and the corresponding OMB Control No. 3090-0250 are added to the table.

Clause 552.238-91 and the corresponding OMB Control No. 3090-0250 are added to the table.

Clause 552.238-100 and the corresponding OMB Control No. 3090-0250 are added to the table.

Clause 552.238-103 and the corresponding OMB Control No. 3030-0248 are added to the table.

Clause 552.238-104 and the corresponding OMB Control No. 3090-0250 are added to the table.

Clause 552.238-107 and the corresponding OMB Control No. 3090-0250 are added to the table.

Clause 552.238-108 and the corresponding OMB Control No. 3090-0250 are added to the table.

Provision 552.238-118 and corresponding OMB Control No. 3090-0303 are added to the table.

Clause 552.238-119 and the corresponding OMB Control No. 3090-0303 are added to the table.

Provision 552.270-1 and the corresponding OMB Control No. 3090-0086 are added to the table.

GSAR 570.117 and the corresponding OMB Control No. 3090-0086 are added to the table.

GSAR 570.702 and the corresponding OMB Control No. 3090-0086 are added to the table.

GSAR 570.703(c) is updated to remove the paragraph (c); it will now read as 570.703.

GSAR 570.802(b) and (c) are updated to remove the paragraphs (b) and (c); it will now read as 570.802.

GSA Form GSA-176 and its corresponding OMB Control No. 3090-0287 are added to the table.

GSA Form GSA-308 and its corresponding OMB Control No. 3090-0027 are added to the table.

GSA Form GSA-850 and its corresponding OMB Control No. 3090-0283 are added to the table.

GSA Form GSA-2419 is updated with the corresponding OMB Control No. changed to 9000-0073.

GSA Form GSA-3665 and its corresponding OMB Control No. 3090-0283 are added to the table.

Lastly, GSA Form GSA-7437 and its corresponding OMB Control No. 3090-0274 are added to the table. OMB Control No. Update to GSAR Provision 552.270.1.

Further review identified that the OMB Control No. referenced in GSAR provision 552.270-1 was incorrect.

The current OMB Control No. 3090-0163 referenced in GSAR provision 552.270-1(f) is not accurate and is not needed in the provision. This OMB Control No. applies to procurement-related information collections associated with solicitations issued for various supplies and services in accordance with the Federal Acquisition Regulation (FAR) Part 12, 14, 15 and 16 procedures.

3090-0163 was therefore replaced with OMB Control No. 3090-0086 in the table at 501.106 as it is specific to GSA lease solicitation information, which is used to obtain information about property being offered for lease to house Federal agencies and to obtain pricing information regarding offered services and lease commissions. Therefore, OMB Control No. 3090-0086 is more appropriate for the GSAR prescription 570.702 and GSAR provision 552.270-1.

GSAR provision 552.270-1 is amended to remove the paragraph (f), which currently references the incorrect OMB Control No. Additionally, including an OMB Control No. is not a normal convention for a provision or clause; therefore, to be consistent with GSAR provisions and clauses, this paragraph is removed.

The statute that applies to the publication of the GSAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This rule is not required to be published for public comment because GSA is not issuing a new regulation; rather, this rule is technical in nature and is merely updating information in the table located at GSAR 501.106 and removing an incorrect OMB Control No. reference at GSAR provision 552.270-1.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has determined this rule is not a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) does not apply to this rule because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1). Accordingly, no regulatory flexibility analysis is required and none has been prepared.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under the Office of Management and Budget Control Numbers referenced in the rule.

Therefore, GSA amends 48 CFR parts 501 and 552 as set forth below:

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

On July 3, 2024 NMFS published the proposed rule to authorize the taking of marine mammals incidental to the Q8 bulkhead repair and replacement project at NAVSTA Norfolk. During the 30-day comment period of the proposed rule NMFS received two comments. NMFS responded to the two comments in the original final rule (89 FR 81848, October 9, 2024).

NMFS published the final rule on October 9, 2024 (89 FR 81848), which allows for authorization of the take of small numbers of four marine mammal species incidental to the Q8 bulkhead repair and replacement project. This project involves work on the bulkhead from Piers 12 and 14 to restore function of this Navy dock system. Vibratory and impact hammers will be used for pile removal and installation. Sounds produced from these pile removal and installation activities may result in the incidental take of marine mammals, by Level B harassment only. Approximately 378 piles will be removed and 836 piles will be installed. Work will be conducted in 3 phases over 212 non-consecutive days to complete the pile removal and installation activities.

The original effective dates finalized in the rule (89 FR 81848, October 9, 2024) were January 1, 2025 through December 31, 2029. Recently, the Navy's construction schedule has been delayed, and as such, the Navy has requested NMFS delay and modify the effective dates. This final rule will delay the effective date from January 1, 2025 to August 4, 2025 and modify the expiration date from December 31, 2029 to August 3, 2030. This delay and modification of effective dates do not change the duration of the incidental take regulations or change any of the findings and take estimates or the requirements for mitigation, monitoring, and reporting, in the original final rule.

The Assistant Administrator for Fisheries (AA) finds that there is good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because prior notice and opportunity for public comment on this temporary delay is unnecessary and contrary to the public interest. Such procedures are unnecessary because the final rule that published on October 9, 2024 (89 FR 81848), has already been subject to notice and comment, and all that remains is to notify the public of this delay and modification to the effective dates of the previously noticed regulations. Providing additional prior notice and opportunity for public comment is contrary to the public interest because there is a need to immediately implement this action to delay the original January 1, 2025 effective date and modify the expiration date of the regulations contained in 50 CFR 217.231. Failure to modify the effective dates risks a potential lapse in coverage for the Navy's construction activities for the Q8 bulkhead repair and replacement project at NAVSTA Norfolk.

For reasons set forth in the preamble, NMFS amends 50 CFR part 217 as follows:

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the FMP prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of both 50 CFR part 600 and 50 CFR part 679.

The final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024) set the 2025 Bering Sea (BS) pollock TAC at 1,325,000 metric tons (mt), the 2025 BSAI Atka mackerel TAC at 66,165 mt, the 2025 BS Pacific cod TAC at 132,726 mt, and the 2024 Aleutian Islands (AI) Pacific cod TAC at 8,080 mt. In December 2024, the Council recommended a 2025 BS pollock TAC of 1,375,000 mt, which is more than the 1,325,000 mt TAC established by the final 2024 and 2025 harvest specifications for groundfish in the BSAI. The Council also recommended a 2025 BSAI Atka mackerel TAC of 82,000 mt, which is more than the 66,165 mt TAC established by the final 2024 and 2025 harvest specifications for groundfish in the BSAI. Furthermore, the Council recommended a 2025 BS Pacific cod TAC of 133,602 mt, and an AI Pacific cod TAC of 8,694 mt, which is more than the BS Pacific cod TAC of 132,726 mt, and more than the AI Pacific cod TAC of 8,080 mt established by the final 2024 and 2025 harvest specifications for groundfish in the BSAI. The Council's recommended 2025 TACs, and the area and seasonal apportionments, are based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2024, which NMFS has determined is the best scientific information available for these fisheries.

Steller sea lions occur in the same location as the pollock, Atka mackerel, and Pacific cod fisheries and are listed as endangered under the Endangered Species Act. Pollock, Atka mackerel, and Pacific cod are a principal prey species for Steller sea lions in the BSAI. The seasonal apportionment of pollock, Atka mackerel, and Pacific cod harvest is necessary to ensure the groundfish fisheries are not likely to cause jeopardy of extinction or adverse modification of critical habitat for Steller sea lions. NMFS published regulations and the revised harvest limit amounts for pollock, Atka mackerel, and Pacific cod fisheries to implement Steller sea lion protection measures to insure that groundfish fisheries of the BSAI are not likely to jeopardize the continued existence of the western distinct population segment of Steller sea lions or destroy or adversely modify their designated critical habitat (79 FR 70286, November 25, 2014).

In accordance with § 679.25(a)(1)(iii), (a)(2)(i)(B), and (a)(2)(iv), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the November 2024 SAFE report for these fisheries, the current BSAI pollock, Atka mackerel, and Pacific cod TACs are incorrectly specified. Pursuant to § 679.25(a)(1)(iii), the Regional Administrator is adjusting the 2025 BS pollock TAC to 1,375,000 mt, the 2025 BSAI Atka mackerel TAC to 82,000 mt, the 2025 BS Pacific cod TAC to 133,602 mt, and the 2025 AI Pacific cod TAC to 8,694 mt. Therefore, table 2 of the final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024) is revised consistent with this adjustment.

Pursuant to § 679.20(a)(5)(i) and (iii), table 5 of the final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024) is revised for the 2025 BS and AI allocations of pollock TAC to the directed pollock fisheries, the Community Development Quota (CDQ) directed fishing allowances (DFA), and the incidental catch allowance (ICA) consistent with this adjustment.

Pursuant to § 679.20(a)(8), table 8 of the final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024) is revised for the 2025 seasonal and spatial allowances, gear shares, CDQ reserve, incidental catch allowance, jig, BSAI trawl limited access, and Amendment 80 allocations of the BSAI Atka mackerel TAC consistent with this adjustment.

Pursuant to § 679.20(a)(7), table 10 of the final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024) is revised for the 2025 gear shares and seasonal allowances of the BSAI Pacific cod TAC, CDQ DFAs, and Pacific cod trawl cooperatives (PCTC) DFAs consistent with this adjustment.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would allow for harvests that exceed the appropriate allocations for pollock, Atka mackerel, and Pacific cod in the BSAI based on the best scientific information available. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 9, 2024.

Without this inseason adjustment, NMFS could not allow the fishery for pollock, Atka mackerel, and Pacific cod in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until January 13, 2025.

NMFS manages the groundfish fishery in the GOA according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679.

The 2024 Pacific cod TAC specified for catcher vessels using trawl gear in the Central Regulatory Area of the GOA is 6,293 metric tons (mt), as established by the final 2024 and 2025 harvest specifications for groundfish in the GOA (89 FR 15484, March 4, 2024).

The 2024 Pacific cod TAC specified for catcher vessels greater than or equal to 50 feet (15.2 m) length overall using hook-and-line gear is 1,015 mt as established by the final 2024 and 2025 harvest specifications for groundfish in the GOA (89 FR 15484, March 4, 2024).

The 2024 Pacific cod TAC specified for catcher/processors using trawl gear is 635 mt as established by the final 2024 and 2025 harvest specifications for groundfish in the GOA (89 FR 15484, March 4, 2024). The final 2024 and 2025 harvest specifications also establishes a directed fishing closure for catcher/processors using trawl gear.

The Administrator, Alaska Region, NMFS has determined that catcher vessels using trawl gear will not be able to harvest 230 mt of the 2024 Pacific cod TAC allocated to those vessels under § 679.20(a)(12)(i)(B)( 4 ).

Therefore, in accordance with § 679.20(a)(12)(ii)(B), NMFS apportions 100 mt of Pacific cod from catcher vessels using trawl gear to the annual amount specified for catcher vessels greater than or equal to 50 feet (15.2 m) length overall using hook-and-line gear and 130 mt of Pacific cod from catcher vessels using trawl gear to the annual amount specified for catcher/processors using trawl gear.

The harvest specifications for 2024 Pacific cod included in the final 2024 and 2025 harvest specifications for groundfish in the Central Regulatory Area of the GOA (89 FR 15484, March 4, 2024) is revised as follows: 6,063 mt to catcher vessels using trawl gear, 1,115 mt to catcher vessels greater than or equal to 50 feet (15.2 m) length overall using hook-and-line gear, and 765 mt to catcher/processors using trawl gear.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would allow for harvests that exceed the originally specified apportionment of the Pacific cod TAC. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 19, 2024.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.