Federal Register Vol. 80, No.125,

On March 20, 2015, OPM published at 80 FR 15036, a notice in the Federal Register to revise the normal cost percentages under the Federal Employees' Retirement System (FERS) Act of 1986, Public Law 99-335, 100 Stat. 514, as amended, based on economic assumptions and demographic factors adopted by the Board of Actuaries of the Civil Service Retirement System. Under 5 U.S.C. 8461(i), the demographic factors and economic assumptions require corresponding changes in factors used to produce actuarially equivalence when required by the FERS Act. As a result, on April 3, 2015, at 80 FR 18159, OPM published a proposed rule in the Federal Register to revise the table of reduction factors in Appendix A to subpart C of part 843, Code of Federal Regulations, for early commencing dates of survivor annuities for spouses of separated employees who die before the date on which they would be eligible for unreduced deferred annuities. OPM received no written comments on the proposed rule.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order (E.O.) 12866, as amended by E.O. 13258 and E.O. 13422.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect retirement payments to surviving current and former spouses of former employees and Members who separated from Federal service with title to a deferred annuity.

For the reasons stated in the preamble, the Office of Personnel Management amends 5 CFR part 843 as follows:

This final rule incorporates by reference into Part 431 the following industry standards:

(1) AHRI Standard 310/380-2014 (“AHRI 310/380-2014”), (Supersedes ANSI/AHRI 310/380-2004), “Standard for Packaged Terminal Air-Conditioners and Heat Pumps,” published February 2014.

(2) ANSI/ASHRAE Standard 16-1983 (RA 2014), (“ANSI/ASHRAE 16”), “Method of Testing for Rating Room Air Conditioners and Packaged Terminal Air Conditioners,” ASHRAE reaffirmed July 3, 2014.

(3) ANSI/ASHRAE Standard 58-1986 (RA 2014), (“ANSI/ASHRAE 58”), “Method of Testing for Rating Room Air-Conditioner and Packaged Terminal Air-Conditioner Heating Capacity,” ASHRAE reaffirmed July 3, 2014.

(4) ANSI/ASHRAE Standard 37-2009, (“ANSI/ASHRAE 37”) (Supersedes ANSI/ASHRAE Standard 37-2005), “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment,” ASHRAE approved June 20, 2009; ANSI approved June 25, 2009.

You can obtain copies of AHRI standards from the Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Boulevard, Suite 500, Arlington, VA 22201, 703-524-8800, or www.ahrinet.org. You can obtain copies of ASHRAE standards from the American Society of Heating, Refrigerating and Air-Conditioning Engineers, 1791 Tullie Circle, NE. Atlanta, GA 30329, 404-636-8400, or www.ashrae.org.

Title III, Part C 1 of the Energy Policy and Conservation Act of 1975 (EPCA or “the Act”), Public Law 94-163 (42 U.S.C. 6291-6309, as codified), added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment.2 This equipment includes packaged terminal air conditioners (PTACs) and packaged terminal heat pumps (PTHPs), the subjects of this document.

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.

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

In addition, if DOE determines that a test procedure amendment is warranted, it must publish a proposed test procedure and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6314(b)) Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered equipment as determined under the existing test procedure. (42 U.S.C. 6314(a)(4))

DOE's test procedures for PTACs and PTHPs are codified at Title 10 of the Code of Federal Regulations (CFR) section 431.96. The test procedures were established on December 8, 2006, in a final rule that incorporated by reference the American National Standards Institute's (ANSI) and Air-Conditioning, Heating, and Refrigeration Institute's (AHRI) Standard 310/380-2004, “Standard for Packaged Terminal Air-Conditioners and Heat Pumps” (“ANSI/AHRI 310/380-2004”). 71 FR 71340, 71371. ANSI/AHRI 310/380-2004 is incorporated by reference at 10 CFR 431.95(a)(3) and it references (1) the ANSI and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 16-1983 (RA 99), “Method of Testing for Rating Room Air Conditioners and Packaged Terminal Air Conditioners” (“ANSI/ASHRAE 16”); (2) ANSI/ASHRAE Standard 58-1986 (RA 99), “Method of Testing for Rating Room Air-Conditioner and Packaged Terminal Air-Conditioner Heating Capacity” (“ANSI/ASHRAE 58”); and (3) ANSI/ASHRAE Standard 37-1988, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment” (“ANSI/ASHRAE 37”).

On May 16, 2012, DOE published a final rule for commercial heating, air-conditioning, and water-heating equipment (“ASHRAE equipment”), which included amendments to the test procedures for PTACs and PTHPs. These amendments incorporated a number of sections of ANSI/AHRI 310/380-2004 by reference. 77 FR 28928, 28990.

On February 22, 2013, DOE published a notice of public meeting and availability of framework document to consider potential amendment of energy conservation standards for PTACs and PTHPs (“February 2013 Framework Document”). 78 FR 12252. In the February 2013 Framework Document, DOE sought comments on issues pertaining to the test procedures for PTACs and PTHPs, including equipment break-in, wall sleeve sealing, pre-filling the condensate drain pan, barometric pressure correction, and differences between the test methods of ANSI/ASHRAE 16 and ANSI/ASHRAE 37. In response to the February 2013 Framework Document, interested parties provided comments responding to the requests for comment regarding test procedure issues.

On February 26, 2013, members of the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) unanimously decided to form a working group to engage in a negotiated rulemaking effort on the certification of commercial heating, ventilation, and air conditioning (HVAC) equipment (10 CFR part 431, subparts D, E and F), water heating (WH) equipment (10 CFR part 431, subpart G), and refrigeration equipment (10 CFR part 431, subpart C). A notice of intent to form the Commercial Certification Working Group (“Working Group”) was published in the Federal Register on March 12, 2013. DOE received 35 nominations for the Working Group. 78 FR 15653. On April 16, 2013, the Department published a notice of open meeting that announced the first meeting and listed the 22 nominees DOE selected to serve as members of the Working Group along with two members from ASRAC and one DOE representative. 78 FR 22431. Following a series of open meetings, the Working Group published a set of recommendations, and DOE issued the Certification of Commercial HVAC, WH, and Refrigeration Equipment NOPR (“Certification of Commercial Equipment NOPR”) on February 14, 2014 summarizing the Working Group's recommendations for certification requirements. 79 FR 8886. The group recommended a number of test procedure items related to PTACs and PTHPs that were not proposed in the Certification of Commercial Equipment NOPR, including 1) a proposal for a standardized wall sleeve to be used during testing, and 2) a proposal for a standardized filter for testing, both of which are discussed in this final rule.

In February 2014, AHRI published AHRI Standard 310/380-2014, “Standard for Packaged Terminal Air-Conditioners and Heat Pumps,” (“AHRI 310/380-2014”), which updates and supersedes the ANSI/AHRI 310/380-2004 referenced by the current test procedure.

On March 13, 2014, DOE published a NOPR (“March 2014 NOPR”) proposing amendments to the DOE PTAC and PTHP test procedures (10 CFR 431, Subpart F), specifically to specify an optional break-in period, explicitly require that wall sleeves be sealed, allow for the pre-filling of the condensate drain pan, require that the cooling capacity for PTACs and PTHPs be determined by testing pursuant to ANSI/ASHRAE 16, and require testing with 14-inch deep wall sleeves and the filter option most representative of a typical installation. 79 FR 14186. DOE held a public meeting on April 28, 2014, to hear oral comments on and solicit information relevant to the March 2014 NOPR.

On July 3, 2014, ASHRAE reaffirmed ANSI/ASHRAE 16 and ANSI/ASHRAE 58 and republished the standards to correct errata that existed in previous versions. These errata corrections do not change the procedures. The reaffirmed 2014 versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 58 are not referenced by the updated AHRI Standard 310/380-2014 test procedure published in February 2014.

With respect to this rulemaking, DOE determined that none of the adopted amendments change the measured energy use of PTACs and PTHPs when compared to the current test procedures. (42 U.S.C. 6314(a)(4); 10 CFR 431.96)

This final rule fulfills DOE's obligation to periodically review its test procedures for all covered equipment, including PTACs and PTHPs, at least once every 7 years and either amend the applicable test procedures or publish a determination in the Federal Register not to amend them. (42 U.S.C. 6314(a)(1))

In this final rule, DOE amends the test procedures for PTACs and PTHPs in 10 CFR 431, Subpart F, to reference certain sections of the industry test procedures AHRI 310/380-2014, ANSI/ASHRAE Standard 16-1983 (RA 2014), ANSI/ASHRAE 37-2009, and ANSI/ASHRAE 58-1986 (RA 2014), and to specify an optional break-in period, explicitly require that wall sleeves be sealed, allow for the pre-filling of the condensate drain pan, require that measurements of cooling capacity be conducted using electrical instruments accurate to +/−0.5% of reading, and require testing with 14-inch deep wall sleeves and the filter option most representative of a typical installation.

The amendments explicitly allow PTAC and PTHP manufacturers the option of using a break-in period (up to 20 hours) before conducting the test procedures. In this regard, DOE adds AHRI 310/380-2014 to the list of commercial air-conditioner standards at 10 CFR 431.96(c), which currently provides an optional break-in period of up to 20 hours for other commercial air-conditioner equipment types. Any PTAC or PTHP manufacturer that elects to use a break-in period must certify the duration of the break-in period it used for each basic model in the certification report for such basic models. DOE will use the same break-in period for any DOE-initiated testing as the manufacturer used in its certified ratings. In the case an alternate efficiency determination method (AEDM) is used to develop the certified ratings, DOE will use the maximum 20-hour break-in period, which will provide the unit sufficient time to stabilize and achieve optimal performance.

The amended test method requires that, as part of the set-up for testing, testers seal gaps between wall sleeves and the test facility dividing wall. This requires the PTAC or PTHP wall sleeve to be sealed per manufacturer specifications as provided in the installation manual or, if none, by using a standard sealing method.

The amended test method allows pre-filling of the condensate drain pan with water before running the DOE test procedures. This amendment allows the unit to reach steady state more quickly, which may decrease the burden and cost of testing.

In the March 2014 NOPR, DOE proposed to modify the test procedures to require ANSI/ASHRAE 16 as the test method for measuring the cooling capacity of PTACs and PTHPs. 79 FR at 14190-91 (March 13, 2014). The proposal would have disallowed testing to determine cooling capacity by psychrometric testing in accordance with ANSI/ASHRAE 37, which is currently allowed by the DOE test procedures. Interested parties commented that the differences in test results between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 are small, and provided data to support their claims. Interested parties also commented that the requirement of a calorimetric test using ANSI/ASHRAE 16 places additional burdens on manufacturers in the form of significant capital expenditures to construct test facilities compliant with ANSI/ASHRAE 16. Based on these comments, DOE determined that disallowing psychrometric testing (such as that conducted using ANSI/ASHRAE 37) would place additional burden on manufacturers. As a result, in this final rule, DOE does not require the use of ANSI/ASHRAE 16 as the sole test method acceptable for measuring the cooling capacity of PTACs and PTHPs.

The amended test method requires that measurements of cooling capacity be conducted using electricity measuring instruments accurate to +/− 0.5% of reading. DOE believes this tighter requirement for electricity measurement accuracy will help to ensure consistency between tests conducted using ANSI/ASHRAE 16 and ANSI/ASHRAE 37, which have differing requirements for electrical instrumentation accuracy. Section 5.4.2 of ANSI/ASHRAE 16 requires that instruments for measuring electrical inputs be accurate to +/− 0.5% of the quantity measured, while section 5.4.2 of ANSI/ASHRAE 37 requires accuracy to +/− 2.0% of the quantity measured, which represents allowing up to 1.5% greater uncertainty in measurements of input power and efficiency. The amendment requiring +/− 0.5% accuracy is consistent with the March 2014 NOPR proposal to require use of ANSI/ASHRAE 16 as the sole test method acceptable for measuring the cooling capacity of equipment.

The amended test method requires testing using a 14-inch deep wall sleeve and the air filter that is shipped with the tested unit. If no filter is supplied with the unit, the amended test procedures require testing using an off-the-shelf filter rated at Minimum Efficiency Reporting Value (MERV)-1. These amendments remove testing variability resulting from the use of non-standard accessories.

DOE prefers to reference the most recent industry standards, where possible. Therefore, this final rule updates the DOE test procedures for PTACs and PTHPs to reference AHRI 310/380-2014 instead of the superseded ANSI/AHRI 310/380-2004. DOE also incorporates by reference the recently updated ANSI/ASHRAE 16-1983 (RA 2014) and ANSI/ASHRAE 58-1986 (RA 2014), as well as the 2009 version of ANSI/ASHRAE 37. The amended test procedure directly incorporates by reference these three ASHRAE standards, allowing use of ANSI/ASHRAE 16-2014 or ANSI-ASHRAE 37-2009 for determination of cooling mode ratings and ANSI/ASHRAE 58-2014 for determination of heating mode ratings.

DOE determined that these changes to the PTAC and PTHP test procedures do not result in any additional burden to manufacturers or result in any changes to the current measured energy efficiency of covered equipment. Rather, the changes provide additional clarification regarding how to conduct the DOE test procedures.

Break-in, also called run-in, refers to the operation of equipment prior to testing to cause preliminary wear in the compressor, which may improve measured performance. DOE understands that many labs commonly incorporate a break-in period before the start of efficiency tests for air conditioning equipment. DOE's May 16, 2012 final rule for ASHRAE equipment added a specification in the test procedures for several types of commercial air conditioning and heating equipment that allows an optional break-in period of up to 20 hours and requires that manufacturers record the duration of the break-in period. The May 16, 2012 final rule included amendments to the test procedures for PTACs and PTHPs. However, DOE did not apply this optional break-in period provision to PTACs or PTHPs in the May 16, 2012 final rule. 77 FR 28928, 28991.

In the March 2014 NOPR, DOE proposed to allow an optional break-in period of up to 20 hours applicable to testing of PTACs and PTHPs. DOE also proposed to add a certification reporting requirement to indicate the duration of the break-in period for tests used to support certification. DOE requested comments on these proposals and, if commenters supported longer break-in periods, data demonstrating that longer break-in periods make a significant impact on efficiency measurements for this equipment. 79 FR at 14188-89 (March 13, 2014).

In response, AHRI commented that a break-in period is necessary, but recommended that the break-in period be a minimum of 24 hours and a maximum of 72 hours to provide for more consistent and accurate efficiency measurements. (AHRI, No. 8 at p. 1) 3 The California Investor Owned Utilities 4 (CA IOUs) supported DOE's proposal to amend the DOE test procedures to include an optional break-in period. (CA IOUs, No. 9 at p. 3) The CA IOUs indicated that they would support AHRI in using a longer break in period if it would provide a better indication of equipment's steady state performance. (CA IOUs, Public Meeting Transcript, No. 5 at p. 17) 5 Goodman Manufacturing Company (Goodman) requested that DOE allow a break-in time of up to 72 hours (instead of up to 20 hours, as DOE proposed) and cited two research papers describing the break-in behavior of scroll compressors in support of its request.6 7 DOE examined these papers and observed that the conclusions presented in the papers comparing the changes in unit efficiency (as measured by the energy efficiency ratio, or EER) to break-in time are based on analytical models of compressor wear rather than actual test data. DOE notes that the conference paper authored by H.E. Khalifa 7 provides a caveat alongside its data, stating that it is not advisable to apply the data to compare different families of compressors (e.g., scroll compressors versus rotary compressors) or different designs of equipment.8 As Goodman noted in its comment presenting these studies, the data in this conference paper pertain to scroll compressors, which are not used in PTAC and PTHP applications. As such, DOE does not view the papers as evidence that break-in periods exceeding 20 hours provide additional efficiency improvements for PTAC or PTHP equipment. DOE has not found evidence that break-in periods exceeding 20 hours increase the tested efficiency measurements for a PTAC or PTHP. A maximum break-in period of 20 hours will align the break-in provision for PTAC and PTHP equipment with other commercial air conditioners and heat pumps. DOE does not believe that the request for a 72-hour break-in period has been adequately justified with data showing the effect of a longer break-in period on PTAC and PTHP equipment.

Therefore, in this final rule, DOE adds PTACs and PTHPs to the list of commercial air-conditioning and heating equipment for which a break-in period of up to 20 hours prior to testing is allowed.

DOE did not receive any comments on its related proposal to add a certification reporting requirement to indicate the duration of the break-in period. Thus, DOE requires manufacturers to provide the duration of the break-in period used during testing to support the development of the certified ratings in the certification report. As such, DOE modifies the certification requirements for PTACs and PTHPs that were proposed on February 14, 2014 (79 FR 8886, 8900) to require the manufacturer to include the break-in period in the certification report. DOE notes that manufacturers must maintain records underlying their certified rating, which must reflect this optional break-in period duration pursuant to 10 CFR 429.71.

PTACs and PTHPs are tested in a testing facility incorporating a room simulating indoor conditions and a room simulating outdoor ambient conditions. The rooms are separated by a dividing wall with an opening through which a wall sleeve is mounted to hold the test sample. In most cases, the wall sleeve and test sample are placed in the opening, and any remaining gaps between the dividing wall and the wall sleeve around the unit are filled with insulating material. Under the current test procedures, the gaps between the wall sleeve and the dividing wall may also be sealed with duct tape. Regarding sealing for air leakage, ANSI/ASHRAE 16 states, “Interior surfaces of the calorimeter compartments shall be of nonporous material with all joints sealed against air and moisture leakage.” (Section 4.2.8). This statement does not explicitly require that gaps between the wall and the test sample's wall sleeve be sealed.

ANSI/ASHRAE 16 also states, “The air conditioner shall be installed in a manner similar to its normal installation” (Section 4.2.2). In normal practice, PTACs and PTHPs are installed within wall sleeves that are permanently installed and sealed to the external wall of a building. However, the set-up of the DOE test procedures does not allow for the permanent installation of wall sleeves in the partition cavity. Thus, during testing, the wall sleeve is not necessarily air-sealed to the wall as it would be in a normal installation in the field. Air leakage between the outdoor and indoor rooms through gaps between the wall sleeve and the dividing wall can reduce the measured capacity and efficiency, contributing to test results unrepresentative of field operation.

In the March 2014 NOPR, DOE proposed to require that test facilities, when installing PTACs and PTHPs in the test chamber, seal all potential leakage gaps between the wall sleeve and the dividing wall. DOE sought comments on the sealing of PTAC and PTHP wall sleeves to the test facility dividing wall, including whether the type or method of sealing (e.g., duct tape) should be specified, and whether a test could be developed that, with reasonably low test burden, could be performed to verify an adequate seal. 79 FR at 14189 (March 13, 2014)

In response, Goodman agreed with the proposed clarification that any gaps or area between wall sleeves and walls should be sealed, and stated that the method of sealing should not be specified. (Goodman, No. 7 at p. 2) AHRI recommended that the wall sleeve be sealed to the test facility dividing wall in accordance with the manufacturer's installation instructions and, if not possible to seal in accordance with the provided instructions, the test procedures should specify that adhesive tape, such as duct tape or brown packaging tape, be used to seal the entire perimeter of the wall sleeve to the test facility diving wall. (AHRI, No. 8 at p. 2) The CA IOUs commented that sealing the test chamber is good practice, but that it is not important to prescribe how sealing is accomplished. (CA IOUs, No. 5 at p. 21) DOE notes that field instructions for sealing the sleeve to the building are inconsistent with equipment testing, because field installation involves permanently sealing the sleeve to the building penetration, whereas the tested unit and its sleeve are intended to be removed after testing. Furthermore, DOE did not propose a particular sealing method such as adhesive tape, since methods other than use of adhesive tape may be just as effective for providing a temporary seal.

In this final rule, DOE requires that any area(s) between the wall sleeve and the insulated partition between the indoor and outdoor rooms must be sealed to eliminate all air leakage through this area, but DOE does not specify the method used to achieve the seal.

Most PTACs and PTHPs transfer the condensate that forms on the evaporator to a condensate pan in the unit's outdoor-side where a water slinger integrated with the outdoor fan distributes the water over the air-inlet side of the condenser. This process results in evaporative cooling that enhances the cooling of the outdoor coil in air-conditioning mode. At the beginning of a test, there may be no water in the condensate pan. As the test progresses and the unit approaches an equilibrium state of operation, the condensate level in the drip pan will rise and stabilize at a constant level. It can take several hours to reach this steady state.

To accelerate the testing process, test facilities typically add water to the condensate pan at the beginning of the test rather than wait for the unit to generate sufficient condensate to stabilize. The current test procedures do not indicate whether this practice is allowed during efficiency testing.

In the March 2014 NOPR, DOE proposed to add a provision in its test procedures at 10 CFR 431.96 to allow manufacturers the option of pre-filling the condensate drain pan before starting the efficiency test. The proposed provision did not specify requirements regarding the water purity or the water temperature that is to be used. DOE sought comments on pre-filling the condensate drain pan, including whether the type and/or temperature of the water used should be specified in the test procedures and/or recorded in the test data underlying the results. 79 FR at 14189-14190 (March 13, 2014).

In response, the CA IOUs and Goodman supported DOE's proposal to adopt test procedure amendments that allow pre-filling of the condensate pan. (CA IOUs, No. 9 at p. 3; Goodman, No. 7 at p. 2)

AHRI recommended that DOE specify in the test procedures that the condensate pan be filled with distilled water between 70 °F and 85 °F and that the condensate pan water temperature at steady state operation be documented in the test reports underlying the certification. However, AHRI also stated in their comment that the mineral content of the water is not a concern because the short test period would not allow for scaling to build up. (AHRI, No. 8 at p. 2) AHRI did not provide data showing that the temperature of the water used to prefill the pan will impact the test results. Also, if, as AHRI acknowledges, the mineral content of the water used to initially fill the pan is not a concern, it is unclear why using distilled water as opposed to tap water would make any difference to the measurement.

Private citizen Mike Haag commented that assisting the unit with achieving steady state might mask issues with the cooling of the system. (Mike Haag, No. 2 at p. 1) DOE notes that the DOE test procedures measure cooling efficiency at steady state conditions, and test reports do not record the amount of time taken to achieve steady state. Thus, pre-filling the condensate pan with water to accelerate the achievement of steady state conditions would not mask any issues that would otherwise be identified by the test procedures.

In this final rule, DOE adds the proposed provision in its test procedures at 10 CFR 431.96 to allow manufacturers the option of pre-filling the condensate drain pan before starting the efficiency test. This provision does not include requirements regarding the purity or temperature of the water used to fill the pan.

In February 2014, AHRI published AHRI 310/380-2014 superseding ANSI/AHRI 310/380-2004, which is referenced by the current DOE test procedure. ANSI/AHRI 310/380-2004 and AHRI 310/380-2014 both indicate that either ANSI/ASHRAE 16 or ANSI/ASHRAE 37 may be used to determine cooling capacity.

ANSI/ASHRAE 16 specifies a calorimetric test method involving measurement of the electric resistance heater power input needed to exactly balance a test sample's cooling capacity. ANSI/ASHRAE 37 specifies a psychrometric test method which calculates capacity based on the air flow rate and the air inlet and outlet conditions on the indoor side of the test sample. The two test methods have differences that could influence test results, particularly for units for which outgoing evaporator air can recirculate back to the evaporator air inlet. When using ANSI/ASHRAE 37, the air leaving the evaporator section is collected in a duct that transfers the air to instrumentation for measuring its temperature, moisture content, and flow rate (see, e.g., Figure 1 of ANSI/ASHRAE 37). Such collection of the air can prevent recirculation to the air inlet, thus potentially eliminating an equipment inefficiency and resulting in a measurement indicating higher efficiency.

Another difference between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 is that the two methods have different requirements for electrical instrumentation accuracy. Section 5.4.2 of ANSI/ASHRAE 16 requires that instruments for measuring electrical inputs be accurate to +/- 0.5% of the quantity measured. Section 5.4.2 of ANSI/ASHRAE 37 requires that instruments for measuring electrical inputs be accurate to +/−2.0% of the quantity measured. The consistency of PTAC and PTHP testing may be improved by requiring all efficiency tests to be conducted using only one of the two ASHRAE standards. On the other hand, such an approach may increase test burden, particularly for those manufacturers that currently use one particular test method.

In the March 2014 NOPR, DOE described experimental testing conducted using three PTAC units. DOE tested all three units at a third-party testing lab under both ANSI/ASHRAE 16 and ANSI/ASHRAE 37. The test results showed that differences in the calculated EER between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 ranged from 0.4 to 1.0 Btu/h-W, depending on the unit. These values represent differences in the calculated EER between ANSI/ASHRAE 16 and ANSI/ASHRAE 37 ranging from 4.1 percent to 9.7 percent of the lower EER value calculated by the two test methods. DOE stated in the March 2014 NOPR that these results did not support a conclusion that the two methods of test generate consistent results. 79 FR at 14190 (March 13, 2014). Based in part on these results, DOE proposed in the March 2014 NOPR to require that only ANSI/ASHRAE 16 be used when conducting a cooling mode test for PTACs and PTHPs. DOE sought comment on its proposal to designate ANSI/ASHRAE 16 as the sole test method for determining cooling capacity. Specifically, DOE was interested in the potential test burden on manufacturers. DOE also sought information on whether there are PTAC or PTHP manufacturers that conduct a significant number of tests using ANSI/ASHRAE 37. 79 FR at 14190-91 (March 13, 2014).

In response, neither AHRI nor Goodman supported the removal of ANSI/ASHRAE 37 from the DOE test procedures. Both AHRI and Goodman disagreed with DOE's assessment of the differences between test results achieved using ANSI/ASHRAE 16 and ANSI/ASHRAE 37. (AHRI, No. 8 at p. 3; Goodman, Public Meeting Transcript, No. 5 at p. 27) AHRI stated that it has observed good correlation in testing between calorimetric and psychrometric rooms for the purposes of rating PTAC and PTHP equipment. (AHRI, No. 8 at p. 3) Goodman stated that it has not observed large differences in test results between ANSI/ASHRAE 16 and ANSI/ASHRAE 37. (Goodman, Public Meeting Transcript, No. 5 at p. 27) Goodman presented data from trial tests comparing (1) three units tested in Goodman's calorimetric chamber and then tested in Goodman's psychrometric chamber, and (2) five units tested in a third party calorimetric test chamber and then tested in Goodman's psychrometric test facility. For these eight units, the maximum variation in measured EER between the calorimetric test and the psychrometric test was 2.5%. (Goodman, No. 7 at p. 3-6). These data provided by Goodman suggest that the potential discrepancies between calorimetric and psychrometric tests are much smaller than suggested by the NOPR-stage DOE testing described above. DOE agrees that Goodman's test results provide an indication that calorimetric and psychrometric tests can provide consistent results. DOE notes that Goodman used a larger sample size of eight units in its experimentation compared to the sample size of three units that DOE used in its NOPR-stage experiments described above.

Both AHRI and Goodman commented that the requirement of a calorimetric test places additional burdens on manufacturers. AHRI commented that it is an additional burden to build a calorimeter room and to re-test units that were previously tested psychrometrically. (AHRI, Public Meeting Transcript, No. 5 at p. 34) Goodman believes the elimination of psychrometric testing would place an additional burden on manufacturers in the form of significant capital expenditure requirements, as well as a significant testing burden increase. Goodman commented that new test facilities often cost up to $750,000 and have construction lead times of a year or more, and that calorimetric tests may take 2.5 times as long as psychrometric tests. (Goodman, No. 7 at p. 6)

DOE acknowledges that it underestimated the burden that would be imposed on manufacturers by eliminating psychrometric testing from the PTAC and PTHP test procedures. In response to the comments above, DOE accepts that it would be burdensome to manufacturers if DOE required use of ANSI/ASHRAE 16 for all PTAC and PTHP testing. Further, the additional data provided by Goodman show that discrepancies between the calorimetric and psychrometric test methods are less pronounced than DOE's NOPR-stage test data suggested. Hence, this final rule does not eliminate the optional use of ANSI/ASHRAE 37 to determine cooling capacity.

As noted above, ANSI/ASHRAE 16 and ANSI/ASHRAE 37 have different requirements for electrical instrumentation accuracy. A single requirement for electricity measurement accuracy is necessary to maintain consistency between tests conducted using ANSI/ASHRAE 16 and ANSI/ASHRAE 37. In the March 2014 NOPR, DOE proposed to require ANSI/ASHRAE 16 as the sole test method acceptable for measuring the cooling capacity of equipment. If this proposal were adopted, it would have imposed a requirement that electricity measurement instrumentation used in cooling capacity tests be accurate to +/−0.5% of reading, since +/- 0.5% of reading is the requirement specified in ANSI/ASHRAE 16. As described above, stakeholders opposed the proposed requirement of ANSI/ASHRAE 16 as the sole test method for cooling capacity tests based on the burden of constructing calorimetric test chambers. None of the stakeholder comments raised concerns regarding the more stringent electrical measurement accuracy requirements of ANSI/ASHRAE 16. In this final rule, DOE does not eliminate testing using ANSI/ASHRAE 37, but DOE retains the more stringent electrical measurement accuracy requirement. Specifically, the final rule adds this requirement in the DOE regulatory language, indicating that tests be conducted using electricity measuring instruments accurate to +/- 0.5% of reading in spite of the incorporation by reference of other portions of ANSI/ASHRAE 37. DOE does not expect this requirement to pose additional test burden since electrical meters that achieve this level of accuracy are readily available and are already in use at many test facilities. This requirement does not represent a change that would alter the measurements as compared with the current DOE test procedure; rather, it ensures the accuracy of measurements.

In the NOPR, DOE proposed to adopt only those parts of ANSI/AHRI 310/380-2004 relevant for the DOE test procedure, specifically sections 3, 4.1, 4.2, 4.3, and 4.4. Additionally, DOE proposed to directly incorporate by reference those industry test methods that were previously incorporated via ANSI/AHRI 310/380-2004, such as ANSI/ASHRAE 16-1999 and ASHRAE 58-1999.

In response to the NOPR, Goodman commented that DOE should consider updated versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 37. Goodman conceded that it was unlikely ANSI/ASHRAE 37 would be updated in time to be incorporated in this Final Rule, but encouraged DOE to accommodate ANSI/ASHRAE 16 which Goodman expected would be finalized in 2014. (Goodman, No. 7 at p. 7) DOE agrees that, when possible, it should include the most up to date version of industry test methods.

In July 2014, ASHRAE reaffirmed both ANSI/ASHRAE 16, a test method for measuring cooling performance of PTACs and PTHPs, and ANSI/ASHRAE 58, a test method for measuring heating performance of PTHPs. While Goodman commented that it expected some changes in ANSI/ASHRAE 16 (Goodman, No. 7 at p. 7), DOE reviewed the reaffirmed standard and did not discern substantive differences between the 2009 and 2014 versions. The test methods described in the 2014 reaffirmations of both ANSI/ASHRAE 16 and ANSI/ASHRAE 58 are identical to their 1999 and 2009 versions—the later reaffirmed versions correct errata that existed in previous versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 58. These corrections do not change the test procedures.

Further, in February 2014 AHRI published AHRI 310/380-2014, which supersedes ANSI/AHRI 310/380-2004. In an effort stay current with industry testing methodologies, DOE is updating its referenced industry standard. In alignment with the NOPR, DOE is only adopting the sections of AHRI 310/380-2014 relevant for the DOE test procedure. For cooling performance, this includes sections 3, 4.1, 4.2, 4.3, and 4.4. For measurement of heating performance, DOE is adopting section 3, 4.1, 4.2, 4.3, and 4.4 except for subsection 4.2.1.2(b), which allows ANSI/ASHRAE 37 as an optional method for verifying the standard heating rating of equipment. The March 2014 NOPR did not propose the use of ANSI/ASHRAE 37 as a method for verifying the standard heating rating of equipment and thus, DOE is excluding this provision in this final rule. Where this final rule refers to the sections of AHRI 310/380-2014 to be used for measurement of heating performance, it omits section 4.2.1.2(b) so as not to allow the use of ANSI/ASHRAE 37 for verifying the standard heating rating of equipment.

Finally, AHRI 310/380-2014 references the 2009 versions of ANSI/ASHRAE 16, ANSI/ASHRAE 58, and ANSI/ASHRAE 37. As previously stated, DOE is directly incorporating by reference those industry test methods that were previously referenced in ANSI/AHRI 310/380—ANSI/ASHRAE 16, ANSI/ASHRAE 58, and ANSI/ASHRAE 37 . Therefore, in this final rule, DOE is incorporating by reference ANSI/ASHRAE 37-2009, which is referenced in AHRI 310/380-2014 for measuring cooling performance. Although DOE's previous test method, ANSI/AHRI 310/380-2004, incorporated ANSI/ASHRAE 37-1988, DOE's review of the two editions of ANSI/ASHRAE 37 confirmed that, for the purposes of measuring cooling performance for PTACs and PTHPs, the test methods are essentially identical. Also, rather than incorporating by reference the 1999 reaffirmations of ANSI/ASHRAE 16 and ANSI/ASHRAE 58, this final rule amends the test procedure to incorporate by reference ANSI/ASHRAE 16-1983 (RA 2014) and ANSI/ASHRAE 58-1986 (RA 2014)—as mentioned above, these more recent versions of ANSI/ASHRAE 16 and ANSI/ASHRAE 58 prescribe test procedures identical to the older 2009 and 1999 versions.

The DOE test procedures provide limited guidance on the type of wall sleeve that should be used during testing. The wall sleeve is technically part of the PTAC or PTHP (see, e.g., the definition of PTAC in 10 CFR 431.92), and it provides an outer case for the main refrigeration and air-moving components. In the field, the wall sleeves are often installed in the building, and the cooling/heating assembly slides into and out of this case. For standard size PTACs and PTHPs, the wall sleeve measures 42 inches wide and 16 inches high; however, wall sleeves come in a range of depths.

Some manufacturers offer extended wall sleeves up to 31 inches deep that can be used with any of their standard size PTACs or PTHPs. DOE believes that the use of varying test sleeve depths can affect measured test results, due to the effect the sleeve depth has on airflow and fan performance. DOE's test procedures, in section 4.3 of ANSI/AHRI 310/380-2004, provide some limited guidance about the wall sleeve that should be used during testing; section 4.3 of ANSI/AHRI 310/380-2004 states that “standard equipment shall be in place during all tests, unless otherwise specified in the manufacturer's instructions to the user.” Section 4.3 of the updated AHRI 310/380-2014 provides the same limited guidance. However, there currently is no guidance for units for which installation instructions allow sleeves of different depths.

DOE's survey of wall sleeve sizes on the market showed that the most common wall sleeve depth is 14 inches. While DOE has no data indicating the impact of testing with a maximum-depth sleeve as opposed to a standard-depth sleeve, DOE expects that there may be an incremental reduction in efficiency associated with use of a sleeve as deep as 31 inches. The Working Group discussed the issue of varying wall sleeve sizes and voted to adopt the position that units should be tested using a standard 14 inch sleeve. (ASRAC to Negotiate Certification Requirements for Commercial HVAC, WH, and Refrigeration Equipment, Docket No. EERE-2013-BT-NOC-0023, No. 53 at pg. 17)

In the March 2014 NOPR, DOE proposed to add a provision to 10 CFR 431.96 to require testing using a wall sleeve with a depth of 14 inches (or the wall sleeve option that is closest to 14 inches in depth that is available for the basic model being tested). 79 FR at 14191 (March 13, 2014). This final rule adopts the Working Group recommendation. DOE sought comment on whether there are any PTACs or PTHPs that cannot be tested using a 14 inch deep wall sleeve. Id. AHRI and Goodman supported the proposal to require testing using 14-inch deep wall sleeves. (AHRI, No. 8 at p. 2; Goodman, No. 7 at p. 3) DOE did not receive any comments describing units that cannot be tested with 14-inch deep wall sleeves.

In this final rule, DOE adopts its proposal to add a provision to 10 CFR 431.96 to require testing using a wall sleeve with a depth of 14 inches (or the wall sleeve option that is closest to 14 inches in depth that is available for the basic model being tested).

The DOE test procedures provide limited guidance on the type of air filter that should be used during testing. PTACs or PTHPs generally ship with an air filter to remove particulates from the indoor airstream. There is currently no description in the DOE test procedures of the type of filter to be used during testing. While some PTACs and PTHPs only have one filter option, some PTACs and PTHPs are shipped with either a standard filter or a high efficiency filter. A high efficiency filter will impose more air flow restriction, which can incrementally decrease air flow and thus the capacity and/or efficiency of the unit.

DOE considered whether to specify filters with a particular MERV rating for use with the test, such as MERV-2 or MERV-3 levels of filtration. However, DOE noted that the filter efficiencies offered in PTACs and PTHPs generally are not specified using a standard metric. Furthermore, some PTACs are sold with higher-efficiency “standard-option” filters than others. Moreover, verification that the filter used in the test complies with any such requirement would not be possible without implementation of standardized requirements for labeling of filters and reporting of filter efficiencies and/or adopting a filter efficiency test as part of the test procedures, all of which would impose additional burden. The Working Group was also aware of this issue, and also discussed the issue of varying air filter efficiency. The Working Group voted to adopt the position that units should be tested “as shipped” with respect to selecting a filter option (Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) to Negotiate Certification Requirements for Commercial HVAC, WH, and Refrigeration Equipment, Docket No. EERE-2013-BT-NOC-0023, No. 53 at p. 16).

In the March 2014 NOPR, DOE proposed to add a provision to 10 CFR 431.96 to require testing using the standard or default filter option that is packaged and shipped with the PTAC or PTHP unit being tested. 79 FR at 14191 (March 13, 2014). This proposal was consistent with the Working Group's recommendations. For those models that are not shipped with a filter, DOE proposed to require the use of an off-the-shelf MERV-3 filter for testing. DOE sought comment on whether a MERV-3 filter is appropriate for testing PTACs and PTHPs that do not ship with filters. 79 FR at 14191 (March 13, 2014).

In response, Goodman recommended that DOE specify a MERV rating lower than MERV-3 because MERV-3 filters may significantly reduce airflow. (Goodman, No. 7 at p. 3) AHRI commented that MERV-1 filters, which are electrostatic, self-charging woven panel filters, may be more representative of filters found in PTACs or PTHPs. (AHRI, No. 8 at p. 2) DOE accepts this feedback and will reduce the MERV rating for filters to be used when testing units shipped without a filter.

In this final rule, DOE adds a provision to 10 CFR 431.96 to require testing using the standard or default filter option that is shipped with most units of a given basic model. For those models that are not shipped with a filter, DOE requires the use of an off-the-shelf MERV-1 filter for testing.

The DOE test procedures, in Section 6.1.3 of referenced ANSI/ASHRAE 16, allows for adjustment of the capacity measurement based on the tested barometric pressure: “The capacity may be increased 0.8% for each in. Hg below 29.92 in. Hg.” Theoretically, air is less dense when barometric pressure is lower, such as at higher altitudes. As a result, air mass flow generated by fans and blowers may be less at higher altitudes, which may affect the measured cooling performance. However, there are other competing effects that may negate this decrease and DOE has not seen data that definitively demonstrate the impact of barometric pressure on measurements of the cooling performance of PTACs or PTHPs.

In the March 2014 NOPR, DOE did not propose to amend or remove the barometric pressure provision. DOE sought comments or data on the barometric pressure correction specifically used for PTACs and PTHPs. 79 FR at 14191 (March 13, 2014). Goodman and AHRI responded in support of DOE's position to retain the barometric pressure correction. (Goodman, No.7 at p. 3; AHRI, No. 8 at p. 2) DOE received no comments providing data that either supported or refuted the validity of the barometric pressure correction.

In this final rule, DOE does not amend or remove the provision allowing for adjustment of the capacity measurement based on the tested barometric pressure.

The current DOE test procedures for PTACs and PTHPs measure cooling efficiency and heating efficiency in terms of EER and coefficient of performance (COP), respectively. Both of these metrics measure the efficiency of the unit running steadily at maximum cooling or heating output settings.

In the March 2014 NOPR, DOE did not propose to adopt either a part-load or seasonal efficiency metric for the cooling mode that considers part-load performance, or a seasonal efficiency metric for the heating mode that considers electric resistance heating for PTACs or PTHPs. DOE sought comments regarding this proposal, including any information regarding seasonal load patterns for PTACs and PTHPs in both cooling and heating modes. 79 FR at 14192 (March 13, 2014).

In response, Goodman and AHRI supported DOE's proposal to not develop seasonal efficiency metrics. (Goodman, No. 7 at p. 6; AHRI, No. 8 at p. 3) AHRI commented that a part-load performance metric would not be representative of PTAC and PTHP equipment operating cycles. (AHRI, Public Meeting Transcript, No. 5 at p. 46) The CA IOUs commented that they would like the test procedures to characterize performance at full-load and part-load. (CA IOUs, Public Meeting Transcript, No. 5 at p. 7) The CA IOUs commented that they are content with using a single metric for the purposes of rating equipment, but that they would like additional test conditions to be measured and reported according to a standard test procedure. The CA IOUs commented that this additional information would help them to distinguish new equipment models with good low-temperature performance that are becoming available. (CA IOUs, Public Meeting Transcript, No. 5 at p. 43)

DOE believes that the existing EER and COP metrics, both for full-load operation, provide an adequate indication of PTAC and PTHP efficiency. DOE does not currently have information indicating the magnitude of energy that might be saved if part-load or full-season metrics were developed. ASAP and ACEEE encouraged DOE to begin a collaboration with AHRI to develop a test method to measure the part-load performance of PTACs and PTHPs. (ASAP & ACEEE, No. 6 at p. 1) DOE may consider support and/or development of such test methods in the future.

In this final rule, DOE has not adopted seasonal efficiency metrics for cooling or heating performance for PTACs or PTHPs.

The Federal energy conservation standard levels for PTAC and PTHP equipment are calculated based on the certified cooling capacity of the equipment. (10 CFR 431.97(c)) The DOE test procedures for PTACs and PTHPs specifies the methods that may be used to determine the cooling capacity and energy efficiency of PTACs and PTHPs. (10 CFR 431.96(b)) Testing conducted for assessment and enforcement measures the cooling capacity of test units pursuant to the test requirements of 10 CFR part 431, and uses the measured cooling capacity as the basis for calculation of EER for the test units. The minimum allowed EER (and the minimum allowed COP for PTHP units) of a test unit is calculated using the certified cooling capacity of the test unit as the basis for calculation. For various reasons, the measured cooling capacity of equipment may deviate from the certified cooling capacity of the equipment. Small deviations of the measured cooling capacity from the certified cooling capacity are expected due to variability in manufacturing conditions. However, large deviations from the certified cooling capacity indicate that the certified cooling capacity and, by extension, the minimum allowed efficiency that is calculated based on the certified cooling capacity, do not accurately represent the unit being tested. In cases where the measured cooling capacity of a test unit deviates outside of an acceptable tolerance, it is appropriate to recalculate the minimum efficiency for the test unit based on the measured cooling capacity of the test unit (or the average of the measured cooling capacities of the samples tested, if more than one is tested).

In the March 2014 NOPR, DOE proposed regulatory text amendments describing how DOE will select the cooling capacity values that are used to calculate the minimum allowable EER for a basic model. The proposed amendments to 10 CFR 429.134 would establish a provision requiring use of the certified cooling capacity as the basis for calculation of minimum allowed EER if the average measured cooling capacity is within five percent of the certified cooling capacity. The proposed amendments would require use of the average measured cooling capacity as the basis for calculation of minimum allowed EER if the average measured cooling capacity is not within five percent of the certified cooling capacity. 79 FR at 14197 (March 13, 2014).

In response to the proposed amendments, AHRI questioned whether the five percent allowance between tested and rated values is a two-sided tolerance. (AHRI, Public Meeting Transcript, No. 5 at p. 54) Goodman agreed in concept with the proposed requirement that measured cooling capacity be within five percent of the certified cooling capacity, but Goodman suggested that the requirement be one‐sided, such that the certified cooling capacity would be used to determine the minimum efficiency unless the measured cooling capacity is less than 95% of the certified cooling capacity, in which event the measured cooling capacity would be used to determine the minimum efficiency level. (Goodman, No. 7 at p. 6)

DOE clarifies that the proposed five percent allowance between tested and rated values is a two-sided tolerance. This means that units with average measured cooling capacity below 95% or above 105% of the certified cooling capacity would require use of the average measured cooling capacity as the basis for calculation of minimum allowed EER.

DOE notes that if the proposed provision used a one-sided tolerance as Goodman suggested, then units with a measured cooling capacity above their certified cooling capacity would be held to an efficiency standard determined by their certified cooling capacity. With a one-sided tolerance, units having a measured cooling capacity that is above 105% of their certified cooling capacity would be held to a calculated minimum EER that is more stringent than the minimum EER calculated using a two-sided tolerance as DOE proposed. DOE does not seek to impose more stringent standards on units that exceed their certified cooling capacity.

In this final rule, DOE adopts its proposal to add a provision to 10 CFR 429.134 that requires assessment and enforcement testing to measure the total cooling capacity of the basic model pursuant to the test requirements of 10 CFR part 431 for each unit tested. The provision requires that results of the measurement(s) be averaged and compared to the value of cooling capacity certified by the manufacturer. The adopted provision considers the certified cooling capacity to be valid only if the measurement is within five percent of the certified cooling capacity. If the certified cooling capacity is valid, that cooling capacity will be used as the basis for calculation of minimum allowed EER for the basic model. If the certified cooling capacity is not valid, the average measured cooling capacity will be used as the basis for calculation of minimum allowed EER for the basic model.

DOE received additional comments that are not classified in the discussion sections above. Responses to these additional comments are provided below.

The CA IOUs recommended that DOE require the reporting of power factor 9 for all operating modes (i.e., active, standby, and off) at every temperature point for which EER and COP are rated. (CA IOUs, No. 9 at p. 2-3) The DOE test procedures do not address the measurement of performance during standby mode and off mode. The DOE test procedures also do not describe the measurement of the power factor of PTAC and PTHP equipment. Therefore, DOE is not adopting this reporting requirement.

The CA IOUs commented that they would like DOE to explore adding test procedure specifications for units containing gas-fired components, since ANSI/AHRI 310/380-2004 excludes such units. (CA IOUs, No. 9 at p. 1-2) DOE notes that EPCA defines a “packaged terminal air conditioner” as “a wall sleeve and a separate unencased combination of heating and cooling assemblies specified by the builder and intended for mounting through the wall. It includes a prime source of refrigeration, separable outdoor louvers, forced ventilation, and heating availability by builder's choice of hot water, steam, or electricity.” (42 U.S.C. 6311(10)(A)) EPCA defines a “packaged terminal heat pump” as “a packaged terminal air conditioner that utilizes reverse cycle refrigeration as its prime heat source and should have supplementary heat source available to builders with the choice of hot water, steam, or electric resistant heat.” (42 U.S.C. 6311(10)(B)) These definitions include units with heating provided by hot water, steam, or electric resistant heat, but they do not include units containing gas-fired components. As such, DOE does not have the authority to regulate units with gas-fired components.

In amending a test procedure, EPCA directs DOE to determine to what extent, if any, the test procedure would alter the measured energy efficiency or measured energy use of a covered product. (42 U.S.C. 6314(a)(4)) The test procedure amendments for PTACs and PTHPs incorporated by this final rule do not contain changes that will materially alter the measured energy efficiency of equipment. DOE did not receive any comments suggesting that the test procedure amendments will alter the measured energy efficiency of equipment. Rather, most of the proposed changes represent clarifications that will improve the uniform application of the test procedures for this equipment. Any change in the rated efficiency associated with these clarifications, if any, is expected to be de minimis.

DOE's test procedure amendments incorporated by this final rule are effective 30 days after publication of the final rule in the Federal Register. Consistent with 42 U.S.C. 6314(d), any representations of energy consumption of PTACs and PTHPs must be based on any final amended test procedures 360 days after the publication of the test procedures final rule.

The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.

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

DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This rule prescribes test procedures that will be used to test compliance with energy conservation standards for the products that are the subject of this rulemaking. DOE has concluded that the rule will not have a significant impact on a substantial number of small entities.

The Small Business Administration (SBA) considers an entity to be a small business if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121, which relies on size standards and codes established by the North American Industry Classification System (NAICS). The threshold number for NAICS classification for 333415, which applies to air conditioning and warm air heating equipment and commercial and industrial refrigeration equipment, is 750. Searches of the SBA Web site 10 to identify manufacturers within these NAICS codes that manufacture PTACs and/or PTHPs did not identify any small entities that could be affected by the test procedure modifications adopted in the final rule.

For the reasons explained below, DOE has concluded that the test procedure amendments contained in this final will not have a significant economic impact on any manufacturer, including small manufacturers. The rule amends DOE's test procedures to specify an optional break-in period, explicitly require that wall sleeves be sealed to prevent air leakage, allow for the pre-filling of the condensate drain pan, and require testing with 14-inch deep wall sleeves and the filter option most representative of a typical installation. These tests can be conducted in the same facilities used for the current energy testing of these products and do not require testing in addition to what is currently required. The break-in period is optional and may result in improved energy efficiency of the unit; the break-in typically is conducted outside of the balanced-ambient calorimeter facility. DOE expects that manufacturers will require minimal time to set the PTACs and PTHPs up for break-in, which requires that the units simply be plugged in and powered on. Further, manufacturers will only incur the additional time for the break-in step if it is beneficial to testing. In this case, the cost will be minimal due to the nature of the break-in procedure and the fact that it is not typically conducted within the test chamber.

Material costs associated with the test procedure amendments adopted in this final rule are expected to be negligible, as air sealing the wall sleeves can be accomplished with typically available lab materials. Further, DOE expects that manufacturers typically seal the wall sleeves in their current testing, because not doing so could result in measurements indicating a lower efficiency. Also, there are no additional costs associated with the requirement to use a 14-inch wall sleeve and/or the standard filter that typically comes with the unit. In addition, pre-filling of the condensate pan is expected to reduce test time by 2-4 hours, which would reduce testing costs by approximately $375-750 per test. Thus, DOE determined that the test procedure amendments adopted by this final rule will not impose a significant economic impact on manufacturers.

This notice adds one additional item to the certification report requirements for PTACs and PTHPs: The duration of the break-in period. However, providing this additional item in certification reports is not expected to impose a significant economic impact.

For these reasons, DOE concludes and certifies that this final rule will not have a significant economic impact on a substantial number of small entities, so DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE has provided its certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

Manufacturers of PTACs and PTHPs must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for PTACs and PTHPs, including any amendments adopted for those test procedures on the date that compliance is required. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including PTACs and PTHPs. See 10 CFR part 429. The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

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

In this final rule, DOE amends its test procedures for PTACs and PTHPs. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this rule amends an existing rule without affecting the amount, quality or distribution of energy usage, and, therefore, will not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A5 under 10 CFR part 1021, subpart D, which applies to any rulemaking that interprets or amends an existing rule without changing the environmental effect of that rule. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

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

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

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

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will 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.

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

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). 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 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 OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

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

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

The modifications to the test procedures addressed by this action incorporate testing methods contained in the following commercial standards: AHRI 310/380-2014, ANSI/ASHRAE Standard 16-1983 (RA 2014), ANSI/ASHRAE Standard 37-2009, and ANSI/ASHRAE Standard 58-1986 (RA 2014). DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (i.e., whether they were developed in a manner that fully provides for public participation, comment, and review.) DOE has consulted with both the Attorney General and the Chairman of the FTC about the impact on competition of using the methods contained in these standards and has received no comments objecting to their use.

In this final rule, DOE is incorporating by reference four industry standards related to the testing of packaged terminal air conditioners and heat pumps. These industry standards include AHRI Standard 310/380-2014, “Standard for Packaged Terminal Air-Conditioners and Heat Pumps;” ANSI/ASHRAE Standard 16-1983 (RA 2014), “Method of Testing for Rating Room Air Conditioners and Packaged Terminal Air Conditioners;” ANSI/ASHRAE Standard 37-2009, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment;” and ANSI/ASHRAE Standard 58-1986 (RA 2014) “Method of Testing for Rating Room Air-Conditioner and Packaged Terminal Air-Conditioner Heating Capacity.”

AHRI Standard 310/380-2014 is an industry accepted test standard that specifies definitions and general testing requirements for packaged terminal air conditioners and heat pumps. AHRI Standard 310/380-2014 references ANSI/ASHRAE Standard 16, ANSI/ASHRAE Standard 37, and ANSI/ASHRAE Standard 58 for the detailed testing methodologies. AHRI Standard 310/380-2014 is readily available on AHRI's Web site at http://www.ahrinet.org/App_Content/ahri/files/standards%20pdfs/ANSI%20standards%20pdfs/AHRI_310_380-2014-CSA_C744-4.PDF.

ANSI/ASHRAE Standard 16-1983 (RA 2014) and ANSI/ASHRAE Standard 37-2009 specify methods for determining the cooling performance of packaged terminal air conditioners. ANSI/ASHRAE Standard 16-1983 (RA 2014) specifies a calorimetric test method involving measurement of the electric resistance heater power input needed to exactly balance a test sample's cooling capacity. ANSI/ASHRAE Standard 37-2009 specifies a psychrometric test method which calculates capacity based on the air flow rate and the air inlet and outlet conditions on the indoor side of the test sample. ANSI/ASHRAE Standard 16-1983 (RA 2014) is readily available at ASHRAE's Web site at: http://www.techstreet.com/ashrae/products/1881836. ANSI/ASHRAE Standard 37-2009 is also readily available on ASHRAE's Web site at: http://www.techstreet.com/ashrae/products/1650947.

ANSI/ASHRAE Standard 58-1986 (RA 2014) specifies a test method for measuring heating performance of packaged terminal heat pumps. ANSI/ASHRAE Standard 58-1986 (RA 2014) is readily available on ASHRAE's Web site at: http://www.techstreet.com/ashrae/products/1650947.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

For the reasons stated in the preamble, DOE amends parts 429 and 431 of Chapter II, Subchapter D, of Title 10 the Code of Federal Regulations as set forth below:

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency Airworthiness Directive 2015-0102-E, dated June 8, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 2000EX airplanes. The MCAI states:

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the identified unsafe condition could result in engine inlet ice accretion with possible ice separation in volumes beyond engine ingestion capability. These conditions could lead to engine damage or engine shutdown. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-1988; Directorate Identifier 2015-NM-085-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 120 airplanes of U.S. registry.

We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $10,200, or $85 per product.

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

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

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

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at McNary Field, Salem, OR.

On May 1, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to modify Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and remove Class E surface area airspace designated as an extension at McNary Field, Salem, OR (80 FR 24858). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and removes Class E surface area airspace as an extension at McNary Field, Salem, OR. A review of the airspace revealed an increase and reconfiguration of the airspace is needed for IFR operations due to cancellation of the Turno non-directional radio beacon (NDB) and cancellation of the NDB approach. Class D airspace and Class E surface area airspace extends upward from the surface to and including 2,700 feet within a 4-mile radius northeast of McNary Field, within a 6.2-mile radius southeast of the airport, and within an 8.1-mile radius southeast to northwest of the airport, excluding airspace within 1.2 miles of Independence State Airport, OR. Class E airspace extending upward from 700 feet above the surface is amended to within a 6.5-mile radius northeast of McNary Field, within an 8.2-mile radius southeast of the airport, and within a 9.1-mile radius southeast to northwest of the airport, excluding airspace within 1.2 miles of Independence State Airport, OR. This action enhances the safety and management of controlled airspace within the NAS.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment

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

The Coast Guard will enforce the Safety Zone; Gary Air and Water Show listed as item (e)(33) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone encompasses all waters of Lake Michigan bounded by a line drawn from 41°37.250′ N., 087°16.763′ W.; then east to 41°37.440′ N., 087°13.822′ W.; then north to 41°38.017′ N., 087°13.877′ W.; then southwest to 41°37.805′ N., 087°16.767′ W.; then south returning to the point of origin. This zone will be enforced on July 9, 2015 until July 14, 2015, from 8:30 a.m. until 5:00 p.m. on each day.

All vessels must obtain permission from the Captain of the Port Lake Michigan, or a designated on-scene representative to enter, move within, or exit this safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.

This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port Lake Michigan, or a designated on-scene representative may be contacted via VHF Channel 16 during the event.

The Coast Guard will enforce the Safety Zone; Start of the Chicago to Mackinac Race listed as item (e)(45) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone encompasses all waters of Lake Michigan in the vicinity of Navy Pier at Chicago IL, within a rectangle that is approximately 1500 by 900 yards. The rectangle is bounded by the coordinates beginning at 41°53′15.1″ N., 087°35′25.8″ W.; then south to 41°52′48.7″ N., 087°35′25.8″ W.; then east to 41°52′49.0″ N., 087°34′26.0″ W.; then north to 41°53′15″ N., 087°34′26″ W.; then west, back to point of origin. This zone will be enforced on July 10, 2015 from 2 p.m. until 4:30 p.m. and on July 11, 2015 from 9 a.m. until 3 p.m.

All vessels must obtain permission from the Captain of the Port Lake Michigan, or a designated on-scene representative to enter, move within, or exit this safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.

This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port Lake Michigan, or a designated on-scene representative may be contacted via VHF Channel 16 during the event.

The Coast Guard will enforce the Safety Zone; Michigan City Summerfest Fireworks listed as item (e)(35) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone encompasses all waters of Michigan City Harbor and Lake Michigan within the arc of a circle with a 800-foot radius from the fireworks launch site located in position 41°43.700′ N., 086°54.617′ W. This zone will be enforced on July 4, 2015, from 8:45 p.m. until 9:45 p.m.

All vessels must obtain permission from the Captain of the Port Lake Michigan, or a designated on-scene representative to enter, move within, or exit this safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.

This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port Lake Michigan, or a designated on-scene representative may be contacted via VHF Channel 16 during the event.

The Coast Guard will enforce the safety zones listed in 33 CFR 165.160 on the specified dates and times as indicated in Table 1 below. This regulation was published in the Federal Register on November 9, 2011 (76 FR 69614).

Under the provisions of 33 CFR 165.160, vessels may not enter the safety zones unless given permission from the COTP or a designated representative. Spectator vessels may transit outside the safety zones but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide mariners with advanced notification of enforcement periods via the Local Notice to Mariners and marine information broadcasts. If the COTP determines that a safety zone need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the safety zone.

The Coast Guard will enforce the Celebration Freedom Fireworks safety zone listed as item (e)(13) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone will encompass all waters of Lake Macatawa in the vicinity of Kollen Park within the arc of a circle with a 1600-foot radius of a center launch position at 42°47.440′ N., 086°07.621′ W. (NAD 83). This zone will be enforced from 10 p.m. until 11:50 p.m. on July 4, 2015. Should inclement weather force a cancellation of the fireworks on July 4, 2015, this zone will be enforced from 10 p.m. until 11:50 p.m. on July 6, 2015.

All vessels must obtain permission from the Captain of the Port Lake Michigan, or the on-scene representative to enter, move within, or exit the safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated representative.

This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard will provide the maritime community with advance notification for the enforcement of this zone via Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port Lake Michigan or an on-scene representative may be contacted via Channel 16, VHF-FM.

Table of Contents I. General Information II. Background III. Revision in the April 8, 2013 Submittal That Is the Subject of This Document IV. EPA's Analysis of SIP Revision V. Consideration of Section 110(l) of the Clean Air Act VI. Final Action VII. Incorporation by Reference VIII. Statutory and Executive Order Reviews I. General Information A. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through http://regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

d. Describe any assumptions and provide any technical information and/or data that you used.

e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

Sections 110(a)(2) and 110(l) of the CAA require that a state provide reasonable notice and public hearing before adopting a SIP revision and submitting it to us. To provide for public comment, the North Dakota Department of Health (NDDH), after providing notice, offered to hold a public hearing for the alternative monitoring plan for MRYS Unit 1. No one requested a public hearing so a hearing was not conducted. No one provided comments on the plan. Following the comment period and legal review by the North Dakota Attorney General's Office, NDDH adopted the alternative monitoring plan for MRYS Unit 1 as a SIP revision on March 1, 2013. The Governor submitted the SIP revision to EPA on April 8, 2013. EPA acted separately on a portion of the April 8, 2013 submittal that revised Chapter 2, Section 2.15, Respecting Boards. 78 FR 45866, July 30, 2013.

Minnkota Power Cooperative, Inc. (Minnkota) currently operates MRYS Unit 1, a coal-fired electric generating unit located near Center, North Dakota. Unit 1 was constructed in the late 1960's and began operating in 1970. Minnkota is required to continuously monitor the opacity of emissions from Unit 1 according to 40 CFR part 51, appendix P, and North Dakota SIP Chapter 8, Source Surveillance.

The revision in the April 8, 2013 submittal to be addressed in this document included a revision to SIP Chapter 8, Source Surveillance, to provide an alternative monitoring plan for MRYS Unit 1. In May 1977, NDDH modified the permit to operate for Unit 1 requiring the installation and operation of continuous opacity monitoring (COM) equipment for emissions at Unit 1, and the opacity has been continuously monitored since the compliance date of August 30, 1978.

In 2006, Minnkota entered into a consent decree with NDDH and EPA to settle allegations of noncompliance under the Prevention of Significant Deterioration Program. As part of this settlement, Minnkota was required to control sulfur dioxide emissions from Unit 1. Minnkota has installed a wet scrubber which treats all of the flue gas from Unit 1 and achieves 95% reduction of the inlet sulfur dioxide. However, the large amount of moisture from the scrubber has made monitoring of the opacity in accordance with the requirements of 40 CFR part 51, appendix P, section 3.1.1 infeasible. Specifically, water droplets contained in the flue gas could potentially result in the existing continuous opacity monitor's overstating the true opacity.

Because of this change in circumstances, Minnkota requested alternative monitoring requirements for MRYS Unit 1 under 40 CFR part 51, appendix P, sections 6.0 and 6.1. NDDH agreed with Minnkota that such alternative monitoring procedures and requirements were warranted given that the excess moisture in the stack from the wet scrubber interferes with the COM and makes the COM data inaccurate. As a result, NDDH revised SIP Chapter 8, “Source Surveillance,” Section 8.3, “Continuous Emission Monitoring Requirements for Existing Stationary Sources, including amendments to Permits to Operate and Department Order.” The revision provided for a new Section 8.3.2, “Continuous Opacity Monitoring for M.R. Young Station Unit 1 Main Boiler.” This new section provides alternative monitoring procedures and requirements for MRYS Unit 1.

Under North Dakota Administrative Code (NDAC) 33-15-03-01.2, MRYS Unit 1 is subject to a 20% opacity limit, except for one 6-minute period per hour in which up to 40% opacity is allowed. Without the scrubber, Minnkota was able to comply with the 20% opacity limit with limited exceedances. We obtained monthly exceedance report data from the State which indicate that opacity readings greater than the 20% standard occurred only 0.30 percent of the time for the 2008 through 2010 three-year average.1 The State has indicated that the addition of the wet scrubber would be expected to reduce visible emissions further.

Under the alternative monitoring plan, Minnkota will ensure compliance with the opacity limit through the use of a continuous emissions monitoring system (CEMS) for particulate matter (PM) as well as periodic visible emissions reading using test method 9 from 40 CFR part 60, appendix A. Minnkota must comply with specific monitoring, recordkeeping, and reporting requirements of 40 CFR 60 as listed in the alternative monitoring plan in Section 8.3.2 for both the PM CEMS and the visible emissions testing. Among these requirements are:

1. Minnkota must conduct weekly Method 9 tests for six consecutive weeks during regular source operation. If compliance with opacity is demonstrated from the weekly tests, Minnkota can begin conducting monthly tests. If excess emissions are identified, the tests revert to a weekly frequency.

2. Minnkota must monitor the filterable PM emission rate with PM CEMS. The PM emission rate may not exceed 0.052 lb/MMBtu (pounds per one million British Thermal Units) (3-hour average).

3. Minnkota must keep records of all PM and visible emissions readings and must keep these records for at least five years.

4. Minnkota must submit quarterly excess emissions reports for both the PM CEMS and visible emissions readings. The reports must also list any time periodic monitoring is not conducted as outlined in Section 8.3.2. Minnkota must also submit annual certifications indicating compliance with the visible emission limit.

Minnkota has developed a Compliance Assurance Monitoring (CAM) plan for PM in accordance with 40 CFR 64. The CAM plan indicates that 20% opacity occurs with a filterable PM emission rate of 0.062 lb/MMBtu. The alternative monitoring plan sets the filterable PM emission limit at 0.052 lb/MMBtu (3-hour average) with a 20% visible emission limit (6-minute average). The PM emission limit thus allows for a modest safety margin when compared to the 0.062 lb/MMBtu emission rate. For the purposes of this SIP revision, the PM CEMS is used only for demonstrating compliance with the visible emissions standard. This SIP revision does not cover monitoring for demonstrating compliance with the particulate matter emission limit for this unit.2

Once the SIP revision is approved by EPA, NDDH will begin the procedures required under NDAC 33-15-14-06(6)(e) to modify the source's Title V permit by incorporating the alternative monitoring requirements into the permit. NDDH will then have the authority to enforce the SIP revision like any other permit condition.

We agree that the addition of the wet scrubber at MRYS Unit 1 necessitates an alternate means of demonstrating opacity compliance, and that the wet scrubber will further reduce visible emissions from this unit. We have evaluated the SIP revision that North Dakota submitted for this purpose and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. On October 8, 2013, by operation of law under CAA section 110(k)(1)(B), the SIP revision was deemed to have met the minimum “completeness” criteria found in 40 CFR part 51, appendix V.

We are also satisfied that this SIP revision will ensure that Minnkota complies with the requirements of 40 CFR 51.214 and 40 CFR part 51, appendix P, to continuously monitor opacity emissions, and that it will be adequate to ensure that Minnkota complies with the SIP opacity limits for MRYS Unit 1. We reviewed the alternative monitoring plan—in particular, the PM emission limit of 0.052 lb/MMBtu (3-hour average)—in conjunction with the CAM plan, and we agree that this limit will ensure equivalency of monitoring methods and compliance with the opacity limit as required by our regulations. Furthermore, it is unlikely that the opacity limits will be exceeded, as the consent decree PM emission limit of 0.03 lb/MMBtu would be triggered first.3

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirements of the CAA. There are no nonattainment areas in North Dakota. The revision to SIP Chapter 8 regarding the alternative monitoring plan for MRYS Unit 1 adequately details monitoring parameters, frequency of monitoring, the PM emission limit, recordkeeping, and reporting requirements to ensure that the source can comply with requirements to continuously monitor opacity emissions, and the revision will be adequate to ensure that Minnkota complies with the SIP opacity limits for MRYS Unit 1. Therefore, this revision does not interfere with attainment or maintenance of the NAAQS or other applicable requirements of the CAA.

EPA is approving a revision to the North Dakota SIP that the Governor of North Dakota submitted on April 8, 2013. Specifically, EPA is approving an alternative monitoring plan for MRYS. The plan relates to continuous opacity monitoring for Unit 1 at MRYS. EPA acted previously on a portion of the April 8, 2013 submittal that revised Chapter 2, Section 2.15, Respecting Boards. 78 FR 45866, July 30, 2013.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial revision and anticipates no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective August 31, 2015 without further notice unless the Agency receives adverse comments by July 30, 2015. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, 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 the North Dakota Department of Health rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

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

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).

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 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. 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 August 31, 2015. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended to read as follows:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. On May 13, 2015 we published a direct final rule approving a Texas State Implementation Plan (SIP) revision for control of volatile organic compound (VOC) emissions from degassing of storage tanks, transport vessels and marine vessels (80 FR 27251). The direct final rule was published without prior proposal because we anticipated no adverse comments. We stated in the direct final rule that if we received relevant adverse comments by June 12, 2015 we would publish a timely withdrawal in the Federal Register. We received relevant adverse comments and accordingly are withdrawing the direct final rule. In a separate subsequent final rulemaking we will address the comments received.

I. Does this action apply to me?

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. 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:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to a modified SNUR must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export the chemical substance that is the subject of a final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

In the Federal Register of April 9, 2015 (80 FR 19037) (FRL-9924-10), EPA proposed amendments to the SNURs for 24 chemical substances in 40 CFR part 721 subpart E. This action would require persons who intend to manufacture or process these chemical substances for an activity that is designated as a significant new use by these amended rules to notify EPA at least 90 days before commencing that activity. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. The proposed rule included 23 chemical substances where EPA determined, based on new information, there is no need to require additional notice from persons who propose to engage in identical or similar activities, or a rational basis no longer exists for the findings that activities involving the substance may present an unreasonable risk of injury to human health or the environment required under section 5(e)(1)(A) of the Act. The proposed rule also included a chemical substance, P-01-781, where EPA is modifying the chemical identity information. EPA is issuing a final SNUR amendment for 21 of the 24 chemical substances. For 20 of those chemical substances, EPA received no public comments and is issuing the SNURs as proposed. For the chemical substance subject to the SNUR at 40 CFR 721.10182, EPA received three public comments supporting the proposed SNUR amendments. One of those comments also asked EPA to clarify if the final modified rule would allow uses of the chemical substance either alone or as a component in a blend in retail food, cold storage, transport and industrial refrigeration units; commercial refrigeration, ice machines, and refrigerated vending machines produced by original equipment manufacturers; and servicing, repair, and recharging refrigeration units at grocery stores, convenience stores, transport, and cold storage facilities. As described in the proposed rule, EPA had already evaluated stationary refrigeration uses in a previous SNUN, S-14-11 and did not determine that those uses caused significant adverse health effects. After publication of the proposed rule, EPA reached decision on an additional SNUN, S-15-5, for this chemical substance for stationary and transport refrigeration uses currently not allowed in the SNUR. Because the Agency expects transport refrigeration uses will have similar exposures to those for stationary uses and the hazard findings have not changed, EPA did not determine that those uses caused significant adverse health effects. Therefore the final SNUR amendment will allow the transport refrigeration uses described in S-15-5 and the stationery refrigeration uses described in S-15-5 and S-14-11, which includes the uses described by the commenter. As described in the proposed rule EPA is now amending the SNURs pursuant to 40 CFR 721.185.

EPA received public comments for the proposed SNUR amendments for the remaining three chemical substances of the 24 included in the proposed rule subject to SNURs at 40 CFR 721.5575, 721.9675, and 721.10515. EPA will address these three proposed SNUR amendments in a separate action.

Upon conclusion of the review of the 21 chemical substances in this SNUR amendment, EPA designated certain activities as significant new uses. Under § 721.185, EPA may at any time amend a SNUR for a chemical substance which has been added to subpart E of 40 CFR part 721 if EPA makes one of the determinations set forth in § 721.185. Amendments may occur on EPA's initiative or in response to a written request. Under § 721.185(b)(3), if EPA concludes that a SNUR should be amended, the Agency will propose the changes in the Federal Register, briefly describe the grounds for the action, and provide interested parties an opportunity to comment. Pursuant to § 721.185 and as described in Unit IV of the proposed rule for the 20 chemical substances EPA determined, based on new information, there is no need to require additional notice from persons who propose to engage in identical or similar activities, or a rational basis no longer exists for the findings that activities involving the substance may present an unreasonable risk of injury to human health or the environment required under section 5(e)(1)(A) of the Act. This rule also includes a chemical substance, P-01-781, where EPA is modifying the chemical identity information.

If uses begun after the proposed rule was published were considered ongoing rather than new, any person could defeat the SNUR by initiating the significant new use before the final rule was issued. Therefore EPA has designated the date of publication of the proposed rule as the cutoff date for determining whether the new use is ongoing. Consult the Federal Register Notice of April 24, 1990 (55 FR 17376) for a more detailed discussion of the cutoff date for ongoing uses.

Any person who began commercial manufacture or processing activities of the chemical substances in this rule for any of the significant new uses designated in the proposed SNUR after the date of publication of the proposed SNUR, must stop that activity before the effective date of the final rule. Persons who ceased those activities will have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires, before engaging in any activities designated as significant new uses. If a person were to meet the conditions of advance compliance under § 721.45(h), the person would be considered to have met the requirements of the final SNUR for those activities.

EPA recognizes that TSCA section 5 does not require the development of any particular test data before submission of a SNUN. The two exceptions are:

1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).

2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).

In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In this case, EPA recommends persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.” The Organisation for Economic Co-operation and Development (OECD) test guidelines are available from the OECD Bookshop at http://www.oecdbookshop.org or SourceOECD at http://www.sourceoecd.org. ASTM International standards are available at http://www.astm.org/Standard/index.shtml.

The recommended testing specified in Unit IV. of the proposed rule may not be the only means of addressing the potential risks of the chemical substance. However, SNUNs submitted without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

• Potential benefits of the chemical substances.

• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

EPA evaluated the potential costs of SNUN requirements for potential manufacturers and processors of the chemical substances in the rule. The Agency's complete Economic Analysis is available in the docket under docket ID number EPA-HQ-OPPT-2014-0649.

This action will modify SNURs for 21 chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993).

According to PRA, 44 U.S.C. 3501 et seq., an Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable. EPA is amending the table in 40 CFR part 9 to list the OMB approval number for the information collection requirements contained in this rule. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB's implementing regulations at 5 CFR part 1320. This Information Collection Request (ICR) was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), to amend this table without further notice and comment.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601 et seq.), that promulgation of a SNUR does not have a significant economic impact on a substantial number of small entities where the following are true:

1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

2. The SNUN submitted by any small entity would not cost significantly more than $8,300.

A copy of that certification is available in the docket for this rule.

This rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit VI and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:

• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

• Submission of the SNUN would not cost any small entity significantly more than $8,300.

Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this final rule. As such, EPA has determined that this rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq.).

This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).

This rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this rule.

This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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).

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Sixth Report and Order in EB Docket No. 04-296, FCC 15-60, adopted on June 1, 2015 and released on June 3, 2015. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

1. In the EAS Operational Issues NPRM, 1 we proposed that EAS Participants must be capable of receiving and processing a national location code, and that “six zeroes” be designated as that code. We explained that adoption of a “six zeroes” location code would bring additional consistency to the EAS alert distribution hierarchy, and, along with our requirement that header codes not be “amended, extended or abridged,” could enable more precise geo-targeting of EAS alerts. We also explained that adoption of “six zeroes” as the national location code could have the additional long-term benefit of ensuring the desired harmony between our EAS rules and industry CAP standards, which, in turn, will facilitate the integration of the EAS into IP-based alerting systems such as IPAWS.

2. Commenters unanimously supported our adoption of the “six zeroes” national location code. For the reasons set forth herein, we agree and accordingly adopt “six zeroes” as the national location code for any future nationwide EAS test, as well as for any future nationwide EAS alerts. The rule we adopt today requires that EAS Participants' EAS encoder/decoder equipment be capable of processing “000000” in the location code field as a header code indicating that the alert is relevant to the entire United States.

3. Implementation of “six zeroes” as the national location code will present negligible costs to EAS Participants because most EAS equipment deployed in the field already supports the “six zeroes” national location code or would require only a software update to provide such support. For example, NCTA asserts that cable providers may have to engage in firmware updates and testing to verify that the new code functions within their systems. For this reason, NCTA asserts that adopting “six zeroes” as the national location code will present cable service provider EAS Participants with approximately $1.1 million in aggregated capital and operational costs for the entire cable industry. Similarly, in the EAS Operational Issues NPRM, we estimated that costs confronting broadcasters also would approach $1.1 million, for an aggregate cost of $2.2 million for the implementation of “six zeroes” as the national location code. No commenter challenges our estimated costs for either cable providers or broadcasters. Moreover, commenters agree this cost is justified by the benefits.

4. Use of “six zeroes” as the national location code promises to improve the efficacy of the EAS. Adoption of “six zeroes” as the national location code has the long-term benefit of ensuring consistency between the EAS rules and industry CAP standards, which already recognize “six zeroes” as the national location code. This, in turn, will facilitate the integration of the EAS into the IP-based IPAWS. We note that use of a “six zeroes” location code is also consistent with our requirement that EAS header codes not be “amended, extended, or abridged.” We have observed that using a single locality's location code for a national alert can cause confusion. We also recognize that to issue an alert for the entire United States without recourse to a national location code would require two separate alerts because the EAS alert headers can only hold thirty-one distinct location codes. Thus, we agree with Trilithic that the use of a single national location code simplifies our national alerting infrastructure. Finally, Monroe opines that “use of a national location code would provide improved geo-targeting of an EAN should the President wish to address a particular part of the country rather than the nation as a whole.” In light of these benefits, we find that adoption of a “six zeroes” national location code serves the public interest in promoting the effective use of the EAS.

5. In the EAS Operational Issues NPRM, we proposed to amend our rules to allow use of the NPT for future EAS testing as a less burdensome and potentially less confusing alternative to the EAN. We also recognized that the NPT could be tailored in different ways, with different costs and benefits, and sought further comment on what operational requirements the Commission should require for the NPT to facilitate effective and minimally burdensome testing. Specifically, we sought to develop a more robust record on whether the NPT should: (a) Have the same two-minute maximum duration and limited priority as all other non-EAN EAS event codes; or (b) fully emulate the EAN in its mandatory priority and indefinite length. We stated that our intent was to provide FEMA with maximum flexibility to test the EAS in the most appropriate manner, while also articulating a clear and feasible standard for EAS Participants and other stakeholders. In this regard, we noted that, unlike an EAN-emulating NPT, an NPT that shares the priority and two-minute limit of other alert event codes would accommodate FEMA's stated desire to perform a national EAS test in the near future, and would do so at a dramatically lower cost than an EAN-emulating NPT. We sought comment, in the alternative, on how the cost of conducting another EAN-based nationwide test, including any outreach specifically tied to use of the EAN, would compare with the costs of conducting a test with an NPT that fully emulates the EAN. We also noted that an NPT with limited duration and priority would have all of the benefits of full-EAN emulation, except that it would not test the reset function triggered by an alert lasting longer than two minutes. Finally, the Commission sought comment on whether the reset functionality triggered by an alert lasting longer than two minutes was testable in a test bed.

6. Commenters unanimously agree that the NPT—not the EAN, and not an NPT that is reprogrammed to fully emulate the EAN—should be the national test event code. Accordingly, and for reasons discussed in further detail below, we adopt the NPT as the test event code for the purpose of nationwide EAS testing, and further require that the NPT as used in such tests be limited in duration to two minutes or less, and have normal priority. In order to comply with FEMA's stated intent that the NPT be disseminated with the “same immediacy as the EAN,” we further require that the NPT be retransmitted immediately upon receipt. We also reiterate that any national or occasional “special” EAS tests referred to in the part 11 rules that use the NPT will replace the required monthly test (RMT) of the EAS for any month in which such an NPT-based test is scheduled.

7. The record indicates that the cost of upgrading EAS equipment to allow the NPT to function in the manner we adopt today will not be significant. The NPT is already present in Section 11.31 of the EAS rules as a required event code and, as such, has already been programmed into most EAS equipment. According to EAS equipment manufacturers, “the NPT code is already recognized by virtually all existing EAS devices or can be easily enabled by EAS [P]articipants through simple reconfigurations of the code filters on their encoder devices.” The costs that EAS Participants must incur as a result of our requirements are limited to those incurred by the relatively small number of EAS Participants who will have to manually change the settings of their EAS equipment to automatically respond to the NPT. Any additional regulatory costs that are imposed by this requirement will be further offset by the reduction in regulatory burdens that will result from broadcast, cable and satellite EAS Participants not having to explain to the public through video replacement slides and other outreach efforts that the alert displayed on the screen is not an actual alert.

8. We contrast the minimal costs imposed by the NPT functionality we require today with those that EAS Participants would incur were the NPT to fully emulate the EAN. Commenters argue that full-EAN emulation would require three years to implement, and would cost at least $3.3 million more than implementing an NPT with standard duration and priority. During that time, firmware in EAS equipment would need to be modified such that an NPT would take priority over all other alerts and to avoid triggering the reset functionality that automatically ends an alert after two minutes. The standards and other proprietary protocols governing the operation of downstream equipment also would need to be updated. That equipment would then need to be upgraded, tested, and deployed in order to achieve operational readiness for an EAS test with an EAN-emulating NPT. We also note that an NPT with maximum priority would supersede any live alert that may be delivered in an area of the country subject to the test. We believe that this would be inconsistent with the life-saving purpose of the EAS. For these reasons, we decline to adopt an NPT that fully emulates the EAN.

9. We agree with commenters' assertions that an NPT that shares the priority and two minute time limit of all other event codes will still advance the most important goal of this proceeding, namely, to ready the national alerting infrastructure for a test that FEMA intends to conduct in the near future. Further, we agree with commenters that an NPT with the characteristics we require today will “sufficiently test the reliability of the EAS dissemination ecosystem, providing adequate data for the Commission and FEMA to fully assess the hierarchy and dissemination of EAS alerts throughout the EAS system, via both legacy and CAP-enabled EAS devices.” We also agree with commenters that the approach we take today has the benefit of being “clearly marked as a test, preventing any public confusion.” As noted earlier, the use of the EAN in conjunction with the first nationwide test necessitated extensive outreach to ensure that the public understood that the event was only a test; none of this outreach would be required with the use of the NPT. Finally, as commenters suggest, we note that it may be possible for FEMA to test EAS equipment's ability to successfully process the priority and duration elements of an EAN in a test bed, thus ensuring that all elements of the system are tested.

10. As the Bureau reported in the EAS Nationwide Test Report, of the EAS Participants who submitted test result data, the vast majority chose to use the voluntary, temporary, electronic filing system employed for the first nationwide EAS test, rather than to submit paper filings. The data available from the electronic reporting system allowed the Commission to generate reports on EAS Participants' monitoring assignments at all points throughout the EAS' national distribution architecture that would not have been feasible with paper filings alone. As a result of the positive response to this temporary electronic filing system and the enhanced analytics it enabled, the EAS Nationwide Test Report recommended that the Commission develop a permanent electronic reporting system based on the system used during the first nationwide EAS test to provide a similarly efficient mechanism to expedite the filing of test result data by EAS Participants. Subsequently, at its March 20, 2014 meeting, the Communications Security, Reliability, and Interoperability Council (CSRIC) also recommended that the Commission develop a federal government database to contain EAS Participants' monitoring assignments.

11. In the EAS Operational Issues NPRM, we proposed an improved electronic filing system and related database, the ETRS, based on the system the Commission used for the first nationwide EAS test. Use of this new system would be mandatory for EAS Participants, and the system would offer improvements over the prior version of the system designed to further expedite filing and minimize burdens on EAS Participants. As proposed, the ETRS would follow the structure of the system used in 2011, and be composed of three forms. Form One would ask each EAS Participant for identifying and background information, including EAS designation, EAS monitoring assignments, facility location, equipment type, contact information, and other relevant data. Form Two would ask each EAS Participant whether it received the Nationwide EAS Test alert code and, if required to do so, whether the EAS Participant propagated the alert code downstream. Form Three would ask each EAS Participant to submit detailed information regarding its receipt and propagation, if applicable, of the alert code, including an explanation of any complications in receiving or propagating the code.

12. We also proposed certain improved processing procedures for the ETRS based on lessons learned from the first nationwide EAS test. In particular, we proposed that EAS Participants: (1) Would have the capability to review filings prior to final submission and to retrieve previous filings to correct errors; (2) would not be required to input data into the ETRS that EAS Participants have previously provided to the Commission elsewhere; and (3) would receive a filing receipt upon successful completion of the required report. We further proposed to revise our rules to integrate the identifying information provided by Form One of the new ETRS into the State EAS Plans filed pursuant to Section 11.21 of the Commission's EAS rules, and to consolidate those State EAS Plans into an EAS Mapbook. Finally, we proposed that EAS Participants submit Form One, the self-identifying portion of the ETRS, within one year of the effective date of the reporting rules, and to update the information that EAS Participants are required to supply in Form One on a yearly basis, and as required by any updates or waivers to State EAS Plans.

13. Commenters unanimously support the Commission's ETRS proposal because it eases the data-entry burden on EAS Participants and facilitates effective analysis of the EAS infrastructure. We agree, and therefore adopt a revised version of the ETRS, as described below. Although the ETRS we adopt today largely resembles the 2011 version, it also contains certain improvements supported by commenters. For example, in order to minimize EAS Participants' filing burden, the ETRS database will be pre-populated with the types of identifying information (e.g., broadcaster call letters and geographic location of transmitters) that EAS providers have provided in the Universal Licensing System and related FCC databases. We find that pre-populating the ETRS in this manner is technically feasible and will encourage timely filings by streamlining the process and reducing burdens on filers significantly. We thus require that the ETRS have this functionality. Further, we agree that EAS Participants should be able to review their filings prior to final submission, to retrieve previous filings to correct errors for thirty days after submission, and to provide filers with a filing receipt verifying submission of a completed report. We also agree that the integration of ETRS data into the EAS Mapbook will “ease the data-entry burden on EAS Participants and make the best use of the Commission's time and resources,” and that the advent of ETRS gives the Commission the tool it needs to create the data tables necessary to complete it. The EAS Mapbook will also allow the Commission to maintain a centralized database containing all EAS monitoring assignments and alert distribution pathways, enabling new analyses of alert distribution at the national, state, and local levels. Accordingly, we require that the ETRS have the capability to create maps that indicate the propagation of an EAN throughout the EAS architecture. Finally, subsequent to any nationwide EAS test, we require EAS Participants to submit detailed information regarding their receipt and propagation, if applicable, of the alert code, including an explanation of any complications in receiving or propagating the code.

14. In order to address commenters' concerns expressed in the record, we adopt the following additional requirements for the ETRS:

• The ETRS will require a filer to identify itself as a radio broadcaster, television broadcaster, cable system, wireless cable system, Direct Broadcast Satellite (DBS), Satellite Digital Audio Radio Service (SDARS), wireline video system, or “other,” instead of the previous options (limited to “broadcaster” or “cable operator”).

• The ETRS will reflect that the Physical System ID (PSID) is not necessarily equivalent to the geographic area in which an EAS Participant delivers emergency alerts. In addition to a PSID field, the system will include a new field called “Geographic Zone” so that EAS Participants can provide more granular information, if appropriate. For example, when the applicable PSID includes multiple geographic areas that span across counties or states, one ETRS filing for a PSID containing multiple “Geographic Zones” will be accepted.

• The ETRS will permit EAS Participants to supply latitude and longitude information as separate fields, using the North American Datum of 1983 (NAD83).

• The ETRS will require filers to supply contact information related to the individual who completes the form.

• The ETRS will allow for batch filing to facilitate more efficient reporting, consistent with the record on this issue.

• EAS Participants will be required to attest to the truthfulness of their filings in the ETRS, and are reminded that they are responsible for the accuracy of the information they file with the Commission, including any pre-populated data.

15. We find that the ETRS will minimize filing burdens on EAS Participants. In comparison to equivalent paper filings, the costs associated with requiring EAS Participants to file test result data in ETRS will be minimal, and the database improvements we adopt today are aimed at streamlining the filing process and reducing these costs even further. Most of the information that we propose EAS Participants submit to the ETRS has already been populated in other FCC databases, and thus compliance with the ETRS merely requires EAS Participants to review and update the pre-populated data fields to ensure the information is accurate and up to date. For the few data fields that EAS Participants must complete, we conclude that compliance would entail a one-time cost of approximately $125.00 per EAS Participant. This $125.00 figure for the cost of complying with ETRS filing requirements is based on the cost of filing in the comparable system used for the first nationwide EAS test, a cost which has already been reviewed and approved by the Office of Management and Budget in the Paperwork Reduction Act analysis. We also note that no commenter objects to this figure. Accordingly, we conclude that the aggregate cost for all EAS Participants to file test result data with the Commission is approximately $3.4 million.

16. We decline to make several changes to the ETRS proposal that were requested in the record. We do not agree that EAS Participants should only be required to report test results once. The purpose of “day of test” reporting is to provide an instant “yes/no” answer to whether the test worked for a particular EAS Participant. In the aggregate, such reporting provides the Commission and its Federal partners with near to near real-time situational awareness of all or any portion of the system. We believe that the burden of supplying such “yes/no” information is small compared to the benefit of knowing, in close to real time, any specific geographic areas where a national test has not been successful. For example, such instant reporting would allow the Commission and FEMA to map a particular area where a test may have failed and immediately identify any point of failure within the EAS alert distribution hierarchy that may have caused downstream failures. We also do not agree that a streamlined waiver process is necessary for those few EAS Participants who do not have Internet access and may need to file their test results on paper. While the Commission recognizes that some areas of the nation may lack widespread Internet access, we believe that it is unnecessary to develop a streamlined waiver process for this reason alone. We believe the existing waiver process under Section 1.3 of the Commission's rules is sufficient and will review such requests accordingly.

17. Further, we will not, as Consumer Groups suggest, allow the ETRS to be used as a mechanism for consumer feedback about EAS accessibility and other test outcomes. The ETRS is a filing system for EAS Participants to facilitate increased understanding and improved analysis of the EAS alert distribution hierarchy, as well as for EAS Participants to identify or report any complications with the receipt or propagation of emergency alerts. As we discuss in further detail below, however, because of the importance of making EAS alerts more accessible, we will monitor all EAS accessibility complaints filed with the Commission through the normal channels. We also direct the Bureau, in coordination with the Consumer and Governmental Affairs Bureau (CGB) and other relevant Commission Bureaus and Offices, to establish a mechanism to receive public feedback on the test.

18. We also do not adopt the suggestion that, because the ETRS database will be used to construct the EAS Mapbook, State Emergency Coordination Committees (SECCs) must be granted access to the ETRS beyond that envisioned by the presumptively confidential nature of ETRS filings. It is not feasible to provide SECCs with such access without compromising the confidentiality of EAS Participant's filings, or risking that the SECC might unintentionally delete or corrupt a filing. Rather, we will, upon request from an SECC, provide the SECC with a report of their state's aggregated data. SECCs can use these reports to remedy monitoring anomalies evident from EAS Participant filings in their state.

19. Finally, we find that the implementation of the ETRS will be best accomplished by the Bureau. Accordingly, we direct the Bureau to implement the ETRS pursuant to the principles and requirements we discuss above. We direct the Bureau to release a subsequent public notice, providing additional information regarding the implementation of the ETRS closer to the launch date of the ETRS, and as subsequently required for future EAS tests and State EAS Plan filings.

20. The EAS provides a critical means of delivering life- and property-saving information to the public. The Commission's rules ensure that this information is delivered to the public in an accessible manner, primarily by requiring that EAS Participants deliver EAS alerts in both audio and visual formats. The visual display of an EAS alert is generally presented as a page of fixed text, but it can also be presented as a video crawl that scrolls along the top of the screen.

21. The EAS visual message that was transmitted during the first nationwide EAS test was inaccessible to some consumers. For example, stakeholders noted that the visual message in some of the video crawls scrolled across the screen too quickly, or the font was otherwise difficult to read. Others stated that both the audio and visual presentation of the national EAS test message were inconsistent.

22. In the EAS Operational Issues NPRM, we proposed to amend the EAS rules to require that the EAS video crawl meet minimum accessibility requirements for crawl speed, completeness and placement. Our proposed accessibility rules for the EAS video crawls were based upon our quality requirements for closed captions. Specifically, we proposed that the video crawl: (1) Be displayed on the screen at a speed that can be read by viewers; (2) be displayed continuously throughout the duration of any EAS activation; (3) not block other important visual content on the screen; (4) utilize a text font that is sized appropriately for legibility; (5) prevent overlap of lines of text with one another; and (6) position the video crawl adequately so it does not run off the edge of the video screen. We also sought comment on methods of ensuring that EAS audio and EAS visual elements contained essentially the same information.

23. Commenters agree that the EAS visual message, at a minimum, must be accessible if the EAS is to fulfill its purpose of informing all Americans, including Americans with disabilities, of imminent dangers to life and property. Commenters suggest, however, that given the complexity of the EAS alert distribution infrastructure, further discussion and collaboration is necessary and that the Commission should refrain from adopting accessibility requirements at this time. We observe that the Commission tasked the CSRIC with examining the operational issues—including recommended methods to improve alert accessibility—identified in the EAS Operational Issues Public Notice that arose out of the first nationwide EAS test, but the CSRIC did not make specific recommendations on accessibility standards.

24. The Commission is committed to public/private partnership, and has consistently sought to collaborate with stakeholders and to provide EAS Participants with the opportunity to suggest (and take action on) solutions to EAS technical issues. However, given the life-saving importance of the EAS, we cannot afford to delay adoption of minimum rules in favor of further collaboration alone. Viewers are entitled to expect that the EAS visual message be legible to the general public, including people with disabilities. Accordingly, we agree with Consumer Groups that we must adopt a set of baseline accessibility requirements to ensure that EAS messages are accessible to all Americans. We will assess compliance with these minimum requirements through careful monitoring of the informal complaint and consumer inquiry processes, followed by enforcement action to the extent necessary.

25. Display Legibility. First, in addition to requiring that the EAS visual message, whether video crawl or block text, be displayed in a manner that is consistent with our current rules (i.e., “at the top of the television screen or where it will not interfere with other visual messages”), we amend Sections 11.51(d), (g)(3), (h)(3) and (j)(2) of the Commission's EAS rules to require that the visual message also be displayed in a size, color, contrast, location, and speed that is readily readable and understandable.

26. While parties do not agree on a common definition of ideal crawl speed or font size for the EAS video crawl, there is agreement in the record that alert legibility is essential to ensure the effectiveness of the alerts. For the purposes of our rules, we do not mandate a specific crawl speed or font size, nor do we believe such specificity is necessary at this time. Instead, we afford EAS Participants the flexibility to implement this requirement in accordance with their particular best practices and equipment capabilities. We expect EAS Participants to determine and implement effective practices that will ensure alert legibility. While we acknowledge commenters' statements that not all EAS devices are capable of crawling text, EAS Participants that use devices that display block text must nonetheless generate such text in a manner that remains on the screen for a sufficient length of time to be read.

27. Completeness. We also amend Sections 11.51(d), (g)(3), (h)(3) and (j)(2) of the Commission's EAS rules to require that the EAS visual message be displayed in its entirety at least once during any EAS alert message. It would be confusing and potentially dangerous for anyone to be deprived of any portion of the EAS visual message while that alert is being delivered; EAS equipment must be capable of delivering such a basic service. On the other hand, we agree with commenters that the completeness requirement, as originally proposed in the EAS Operational Issues NPRM, should not be adopted. In the NPRM, we proposed to revise Section 11.51(d) of the Commission's EAS rules to require that the EAS video crawl be displayed continuously throughout the duration of any EAS activation. We note, however, that EAS equipment is not always capable of controlling the duration of the video crawl, and further, even if it were, non-Presidential alerts are designed to last no longer than two minutes. It would be inconsistent with the design of the system and a significant burden on EAS Participants to require that the video crawl last for the duration of the event that prompted the EAS alert, (which could potentially last for hours). Nonetheless, because EAS equipment is already capable of ensuring that an EAS visual message is displayed in its entirety at least once during any EAS message, and because doing so will avoid public confusion and dangers to life and property, we amend our rules accordingly to require that any EAS visual message be displayed in full at least one during the pendency of an EAS alert message. In addition, EAS Participants should display any EAS visual message in its entirety more than once, if possible, in order to ensure that viewers are able to re-read and capture the information conveyed by the visual message.

28. Placement. As we note above, we reiterate our requirement that the EAS visual message shall “be displayed at the top of the television screen or where it will not interfere with other video messages,” and we amend Section 11.51(d), (g)(3), (h)(3) and (j)(2) to require that the visual message not (1) contain overlapping lines of EAS text or (2) extend beyond the viewable display except for crawls that intentionally scroll on and off of the screen. We are persuaded by the weight of the record that the placement requirement we proposed in the EAS Operational Issues NPRM, which stated that the EAS visual message shall not “block other important visual content on the screen,” should not be adopted. Such a requirement would be inappropriate in light of commenters' assertions that, unlike closed caption producers, EAS Participants and equipment manufacturers cannot know where to place a video crawl on a screen in a way that will not interfere with non-EAS emergency information or regularly scheduled programming. On the other hand, Trilithic asserts that EAS Participants can render alerts that do not contain overlapping lines of EAS text, and do not run off the edge of the video screen (except for crawls that intentionally scroll on and off of the screen). According to Trilithic, these placement requirements are “reasonable expectations and would help ensure that viewers are able to read and understand the text.” We adopt these placement requirements accordingly.

29. Enforcement Standard. We acknowledge that the creation and delivery of an accessible visual message is not solely within the control of any one entity, and often requires coordination and execution among many connected parties and equipment in the EAS alert distribution chain. While we agree with commenters' assertions that EAS equipment is responsible for deriving the visual message from the EAS header codes or CAP text that an alert originator places within an alert, it remains the responsibility of the EAS Participant to purchase part 11-compliant equipment and to ensure that its equipment operates in a manner compliant with our part 11 rules.

30. The minimum accessibility rules we adopt today establish clear guidelines for the acceptable appearance of an EAS visual message, in order to ensure that EAS Participants offer accessible EAS video crawls and block text. We direct the Bureau to monitor the informal complaint process for complaints pertaining to EAS visual messages and, where appropriate, bring any potential noncompliance to the attention of the Enforcement Bureau for its review. We also note that, subsequent to a nationwide EAS test, EAS Participants must provide information in the ETRS regarding any complications in receiving or propagating the alert test. Such complications would include any failure to comply with the minimum accessibility requirements we adopt today.

31. Finally, we disagree with those commenters who argue that our adaptation of the Commission's minimum accessibility rules in the Closed Captioning Quality Report and Order to fit EAS visual messages is inappropriate because, unlike captions, the production of EAS visual messages is not within the control of the EAS Participants. We recognize that EAS visual messages are produced differently from closed captions, that the presentation of such a visual message can be affected by equipment downstream of the EAS Participant, and that there is no real time opportunity for EAS Participants to edit the text. At the same time, however, the rules we adopt today are technology neutral and do not necessitate that EAS visual messages be produced similarly to closed captions. The EAS accessibility rules we adopt today and our closed captioning requirements only share the foundational requirement that on-screen text be legible, complete, and appropriately placed. Further, we note that several commenters agree that the closed captioning rules can inform the formatting of the EAS visual message. In light of the importance of EAS visual messages, we find that it is reasonable to adopt rules that ensure that EAS video crawls and block text are at least as legible, complete, and appropriately placed as are closed captions.

32. We expect that the minimal accessibility rules we adopt today should have little impact on the operations of EAS equipment manufacturers whose equipment already produces a legible, complete, and appropriately placed EAS visual message, and on EAS Participants who deploy certified EAS equipment at their facilities. Accordingly, we do not anticipate that our revised rules will impose significant costs and burdens upon the majority of EAS Participants. As Trilithic notes, “[m]any of the proposed requirements for . . . [visual message] accessibility require minimal changes and cost.” Further, we are not dictating the precise formatting of the EAS visual message, but rather, we are adopting rules that provide EAS Participants and equipment manufacturers with flexibility to meet our minimum requirements in the most cost-effective manner for their systems.

33. Audiovisual Synchronicity. We decline to adopt rules requiring audiovisual synchronicity at this time. We agree with commenters that alert originators have primary control over audiovisual synchronicity because they are the only party in a position to initiate a message that contains identical audio and text elements. We also agree that downstream equipment in control of the audio presentation “is not always the same equipment used to control the video presentation” and further study would be required to determine how to coordinate these disparate elements of the alert distribution hierarchy. We further agree with Trilithic that message originators should be “free to include as much important information in both mediums as can be made to fit, which may not always result in identical content.” As commenters suggest, we expect that EAS Participants and equipment manufacturers will work together to develop methods to improve audiovisual synchronicity, including the increased use of CAP, to the extent that it does not interfere with alert quality. Accordingly, we encourage EAS Participants to develop a greater capacity to generate both the audio and the visual elements of alerts in a manner that provides viewers with equal information within the same or similar timeframes. We will revisit the need for specific rules addressing this matter in the future if it is brought to our attention that problems with audiovisual synchronicity are impeding access to EAS alerts.

34. We note that FEMA has already addressed and corrected the primary audio quality problems experienced during the first nationwide EAS test, i.e., a technical malfunction that occurred at the National Primary level that affected the underlying quality of EAS audio nationwide. However, as we stated in the EAS Operational Issues NPRM, we are concerned that the audio and visual elements should convey the same message. Accordingly, consistent with the overall accessibility rules we adopt today, including the requirements for the visual portion of an EAS alert, we require that the audio portion of any EAS alert must play in full at least once during any EAS message. Furthermore, we expect the audio portion of an EAS message to be delivered in a manner and cadence that is sufficient for the consumer who does not have a hearing loss to readily comprehend it. We will continue to monitor future EAS activations and tests to determine whether we need to adopt any additional rules to ensure that the audio portion of an EAS message is accessible.

35. Text-to-Speech. The Commission currently allows text-to-speech (TTS) to be used as a method of providing audio for EAS alerts. We agree with commenters that while TTS is an appropriate technology for rendering alert audio in some cases, and may support audiovisual parity when combined with CAP text, we do not mandate its use at this time. The technology is maturing, but mandating its use may require extensive and costly changes to EAS equipment for small EAS Participants. Nonetheless, given the critical and urgent nature of emergency information, as recommended by Wireless RERC, we encourage its use to construct EAS audio from the EAS header codes, especially when no separate audio file is provided by the alert originator, in order to provide access to the emergency information by individuals who are blind or visually impaired. We will continue to monitor the feasibility of adopting TTS requirements as the technology continues to evolve. In particular, as part of the workshop we direct the Bureau to convene below, stakeholders should examine, among other issues, the state of TTS technology, including ongoing research and development and readiness for reliable, cost-effective implementation as part of EAS.

36. Workshop to Promote Accessibility and Wider Use of EAS. In addition to the accessibility rules we adopt today, we direct the Bureau to continue collaborative efforts to ensure that the EAS is accessible and widely utilized. Specifically, we direct the Bureau to collaborate with FEMA and other relevant EAS stakeholders by hosting a workshop within three months of the adoption date of this order. The object of this workshop will be to ensure that EAS remains a reliable and effective resource for all Americans by addressing and making recommendations regarding two key issues: Increasing the flexibility of the EAS to expand its use by emergency managers at the state and local levels, and the improvement of alert accessibility. The workshop should discuss methods to empower and encourage state and local emergency managers to utilize the EAS and Wireless Emergency Alert (WEA) system more widely for localized alerts and exercises. The workshop also should build upon cumulative efforts to improve the accessibility of EAS visual messages by examining, inter alia, the technical feasibility of improving the synchronicity of EAS audio with the EAS visual crawl, as well as the readiness of TTS technology for increased usage in national and local alerting. The Commission may refer additional issues arising out of the workshop to the CSRIC and other FCC federal advisory committees, as appropriate.

37. In this Section, we conclude that the benefits of the rules we adopt today exceed their associated implementation costs. In the EAS Operational Issues NPRM, we sought comment on the specific costs and benefits associated with the implementation of our proposed rules establishing essential operational improvements to the EAS. Although the proposed rules covered a wide range of issues associated with the EAS, each with its own cost of development and deployment, we expected that their implementation would present a one-time, maximum aggregate cost of $13.6 million, and that all proposed rules shared the common expected benefit of saving human lives, reducing injuries, mitigating property damage, and minimizing the disruption of our national economy on an ongoing basis.

38. No commenter opposes our analysis of the costs or benefits associated with implementation of our proposed rules. In large part, we adopt the rules proposed in the EAS Operational Issues NPRM. The rules we adopt today present EAS Participants with minimum implementation costs and a significant degree of implementation flexibility. To the extent our final rules differ from the proposed rules, however, those differences should actually result in the same or lower costs for EAS Participants. In particular, because we adopt NPT rules that do not require the use of the EAN (or an NPT that emulates the use of the EAN), the maximum costs of implementing our requirements will be $6.6 million less than originally proposed. Accordingly, we find that the upper bound of the cost of compliance with the rules we adopt today is $7 million, rather than $13.6 million as initially proposed.

39. With regard to benefits, we find that the EAS is a resilient public alert and warning tool that is essential to help save lives and protect property during times of national, state, regional, and local emergencies. Although the EAS, as tested in 2011, works largely as designed, the improvements we adopt today are responsive to operational inconsistencies uncovered by the first nationwide EAS test. These operational inconsistencies, left unaddressed, would adversely affect the continued efficacy of the system. These rules also will enable the Commission to improve its ability to collect, process and evaluate data about EAS alerting pathways, and will lead to higher quality alerts for every American. In sum, the rules we adopt today will preserve safety of life through more effective alerting. We find, therefore, that it is reasonable to expect that the improvements to the EAS that will result from the rules we adopt today will save lives and result in numerous other benefits that are less quantifiable but still advance important public interest objectives.

40. National Location Code and NPT Rules Compliance Timeline. We conclude that EAS Participants should be given up to twelve months from the effective date of the rule amendments requiring use of the national location code and NPT rules to come into compliance with these amendments. In light of the fact that FEMA intends to conduct a nationwide EAS test “in the near future,” and that such a test will use both the NPT and the “six zeroes” location code, it is imperative that we ensure that EAS Participants are capable of processing a test with these characteristics as rapidly as possible. In the EAS Operational Issues NPRM, we addressed this concern by proposing to require compliance with the national location code and NPT requirements we proposed within six months from the effective date of their codification into our rules. Some commenters, such as Monroe and Verizon, agree that a period as short as six months could be sufficient to implement our rules. NCTA and AT&T, on the other hand, argue that a six-month timeline would not provide EAS Participants with sufficient time to develop, test, and deploy the required system updates, and argue instead for a twelve-month implementation timeline. Specifically, AT&T asserts that their “Approval For Use” process, that is standardized throughout the AT&T networks, must take at least one year to complete, because it is an iterative process, especially in the new Internet Protocol TV markets in which they operate, whereby their engineers failure test EAS equipment programming, then send the product back to the manufacturer for further updates if they find errors, and then retest the updated equipment recursively until one hundred percent certainty can be established that the device will perform as expected within their system. According to AT&T, this is not the kind of process that can be accelerated merely by the increased expenditure of resources.

41. Our goal in this and related rulemakings is to ensure that the EAS is efficient and secure, and we acknowledge that this goal would not be furthered by requiring any EAS Participant to short circuit their testing process for new rules. Accordingly, we provide herein that EAS Participants are granted a period of up to, but no longer than, twelve months in which to come into compliance with the national location code and NPT requirements that are reflected in the rule amendments we adopt today. This twelve-month period will run from the effective date of these rule amendments, which is thirty days after their publication in the Federal Register.

42. ETRS Compliance Timeline. We require EAS Participants to complete the identifying information initially required by the ETRS filing requirement we adopt today within sixty days of the effective date of the ETRS rules we adopt today, or within sixty days of the launch of the ETRS, whichever is later. We agree that the requirement for EAS Participants to provide ETRS identifying information within sixty days of adoption of these rules would be a reasonable time period, but that it makes sense for the compliance triggering event to be the date on which the ETRS becomes operational. We further require EAS Participants to update their identifying information concurrently with any update to their EAS State Plans, and require EAS Participants to complete the “day of test” portion of their filing obligation within 24 hours of any test, and the remainder of the filing obligation within forty-five days of the next EAS nationwide test, the same timeline that we successfully implemented for the first nationwide EAS test.

43. We believe it is reasonable for EAS Participants to complete their filings on this timeline because no equipment changes or attendant processes are required in order to achieve compliance with this rule. Furthermore, the electronic filing system should allow EAS Participants to complete their filing obligation even more quickly than they did for the first nationwide test, in which we adopted the same compliance timeline for submitting test data.

44. Accessibility Compliance Timeline. We also provide herein that EAS Participants will be given a period of up to, but no longer than, six months in which to come into compliance with the display legibility, completeness and placement requirements that are reflected in the rule amendments we adopt today. This six-month period will run from the effective date of these rule amendments, which is thirty days after their publication in the Federal Register. We note that NCTA avers that EAS Participants generally are already compliant with the majority of accessibility rules as proposed in the EAS Operational Issues NPRM. While Trilithic argues that our proposed completeness rule would require significantly longer than a year to implement, because EAS equipment is not capable of controlling the duration of the EAS visual crawl, we do not require the EAS visual crawl to last for the duration of the EAS activation and, as such, Trilithic's argument is now inapplicable. On the other hand, we also decline to adopt a shorter timeframe for implementation of these accessibility requirements, as urged by some consumer groups. We fully recognize the exigency of providing accessible alerts to all Americans, and it is for that reason that we adopt these accessibility rules today, but it would be counterproductive to require compliance with these rules sooner than we reasonably could expect that EAS Participants would generally be able to meet such requirements. Commenters generally did not object to implementing the accessibility rules we proposed in the EAS Operational Issues NPRM within six months. We therefore find that six months will provide sufficient time for EAS Participants to comply with the EAS accessibility rules we adopt today.

45. As required by the Regulatory Flexibility Act of 1980 (RFA),2 the Commission has prepared a Final Regulatory Certification (Certification) for the Sixth Report and Order. The Certification is set forth as Appendix E. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the Sixth Report and Order and the Certification to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

46. The Sixth Report and Order contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding.

47. We note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” 3 In addition, we have described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the FRFA in Appendix B, infra.

This document announces that, on June 22, 2015, OMB approved, for a period of six months, the information collection requirements contained in the Commission's Second E-rate Modernization Order, FCC 14-189, published at 80 FR 5961, February 4, 2015. The OMB Control Number is 3060-0806. The Commission publishes this notice as an announcement of the effective date of the rule § 54.503(c)(1).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on June 22, 2015, for the information collection requirements contained in the Commission's rules at 47 CFR 54.503(c)(1).

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0806.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0806.

OMB Approval Date: June 22, 2015.

OMB Expiration Date: December 31, 2015.

Title: Universal Service-Schools and Libraries Universal Service Program, FCC Forms 470 and 471.

Form Number: FCC Forms 470 and 471.

Respondents: State, local or tribal government public institutions, and other not-for-profit institutions.

Number of Respondents and Responses: 82,000 respondents; 82,000 responses.

Estimated Time per Response: 3.5 hours for FCC Form 470 (3 hours for response; 0.5 hours for recordkeeping; 4.5 hours for FCC Form 471 (4 hours for response; 0.5 hours for recordkeeping).

Frequency of Response: On occasion and annual reporting requirements, and recordkeeping requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151-154, 201-205, 218-220, 254, 303(r), 403, and 405.

Total Annual Burden: 334,000 hours.

Total Annual Cost: N/A.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: There is no assurance of confidentiality provided to respondents concerning this information collection. However, respondents may request materials or information submitted to the Commission or to the Administrator be withheld from public inspection under 47 CFR 0.459 of the FCC's rules.

Needs and Uses: The FCC Form 470 is used by applicants to seek competitive bids on eligible services from service providers. The Commission revised OMB 3060-0806 to conform the FCC Form 470 to changes implemented in the Second E-Rate Modernization Order (WC Docket No. 13-184, FCC 14-189; 80 FR 5961, February 4, 2015).

The Federal Employees Health Benefits (FEHB) Program was established in 1960 and provides health insurance to over eight million Federal employees, annuitants, and their family members. Chapter 89 of Title 5 United States Code, which authorizes the FEHB Program, allows OPM to contract with health insurance carriers to provide coverage under certain types of plans. FEHB contracts are either community-rated or experience-rated. In community-rated contracts, the overall premium is based on the carrier's standard rating methodology, taking into account factors in the larger geographic area or “community.” In experience-rated contracts, the FEHB carrier considers actual “experience” or medical costs of the group of covered lives. The two types of contracts are regulated under different sections of the FEHB Acquisition Regulation (FEHBAR). Premiums are determined according to distinct processes and plan performance is evaluated differently.

On December 15, 2014, the Office of Personnel Management (OPM) published a proposed rule inviting comments on amendments to the FEHB Program regulations to amend OPM's assessment of plan performance. The 30-day comment period ended on January 14, 2015. OPM received 8 responses containing multiple comments. The comments are summarized and discussed below.

OPM received several comments requesting additional information on measurement criteria such as specific weighted measurement percentages, evaluation methods, measurement criteria, and measurement timelines, and requested opportunities to comment on these criteria. Commenters requested that OPM clarify the specific weights and measures within the regulation so they can better plan for the assessment period, and to more clearly adhere to the traditional regulatory structure for a weighted guidelines structured approach. Due to the evolving nature of clinical quality measures, and OPM's need to focus performance on policy-driven measures to be determined annually, it is no longer appropriate to retain fixed weights and measures in regulation. As stated in the proposed rule-making, OPM intends to retain the weighted guidelines structured approach as a regulatory framework and to provide applicable measurement criteria through advance carrier letter guidance with opportunity for comment, followed by incorporation of the measurement criteria as a contract amendment. Since 2014, OPM has issued three carrier letters (CL 2014-19, CL 2014-28, and CL 2015-10). Carrier Letter 2015-10 specifically addresses the types of questions about measurement criteria addressed in the comments. OPM intends to provide carriers with transparency which will allow the new performance assessment system to retain flexibility and to mature over time. A number of commenters requested reasonable lead time and turnaround times after release of measures and assigned weights that will be the subject of performance and performance assessments. OPM intends to keep plans informed in a timely manner as we identify measurement criteria for future years so plans can have sufficient time to prepare for performance that will be evaluated in the following assessment cycle. We also highly encourage feedback and communication through our mailbox at [email protected]. For these reasons, OPM is not amending the rule in response to these comments.

One commenter recommended that OPM seek to improve health care quality by offering enrollees access to high quality, accredited health care networks and prescription benefit managers. Another commenter recommended that OPM add plan accreditation as an element to the clinical quality, customer service, and resource use factors. OPM addressed plan accreditation in Carrier Letter (2014-10). The vast majority of FEHB health plans already meet OPM's accreditation requirement. However, not all health plan accreditors incorporate annual measurement of clinical quality, customer service, or resource use into their accreditation framework. OPM's plan performance assessment system standardizes this component of performance measurement for all FEHB plans. Contract Officers may also take plan performance on accreditation milestones into account in the Contract Oversight section. For these reasons, OPM is not amending the rule in response to this comment.

One commenter requested OPM consider waiving the performance adjustment if a plan exceeds a Medical Loss Ratio threshold. OPM is not amending the rule in response to this comment. We believe it would not be appropriate for OPM to waive the performance expectations for those carriers that do not achieve their margin targets due to higher than expected claim loss. While we understand the performance adjustment is a concern, using it to cover the excess of the Medical Loss Ratio threshold is not the intent of the proposed assessment system.

OPM received a comment recommending that experience rated carriers have the option for a cost plus incentive or fee contract. OPM is not amending the rule in response to this comment. OPM is not proposing to amend the types of contracts with which it contracts. For experience rated carriers, this rulemaking simply amends the performance assessment system used to determine the service charge.

One commenter recommended that the performance assessment system should provide rewards and resources to allow plans to improve. Another commenter noted its understanding that OPM was comparing the quality indicators it proposes to incorporate into its performance assessment system with quality indicators relied upon by other large purchasers to influence payments to plans, and therefore recommended that OPM consider a different performance approach similar to that of Medicare Advantage plans quality rating programs. OPM did not propose to adopt the same mechanism that others use for influencing payments to plans, and declines to adopt these recommendations.

One commenter recommended safeguards for FEHB experience rated contracts that allow them a minimum service charge payment of a negotiated percentage of the prior year's service charge, with the option to reset the minimum payment every 3 years with reference to a percentage of the average service charge paid over the prior three years. OPM is not amending the rule in response to this comment. As described in the proposed rule, we believe making adjustments to the service charge based on plan performance in the areas identified to be measured is critical in allowing the assessment system to grow, evolve, and remain flexible. However, in Carrier Letter 2015-10, we have addressed a minimum adjustment methodology for carriers that achieve a performance score that is below a threshold.

Several commenters requested additional information on Contract Oversight with concerns about specific components within this performance area and the objectivity of assessment in this performance area compared to the other three quantified performance areas. OPM has issued guidance on this issue in our Carrier Letters (2014-28) and (2015-10). Carrier Letter 2015-10 specifically addresses Contract Oversight measurement. As described in the proposed rule, OPM's purpose is to establish a program-wide assessment system that allows performance-based criteria to be linked to health plan premium disbursements. OPM will assess performance for the Contract Oversight performance area using many sources of information, most of which are used with discretion in the current processes for the service charge and incentive performance criteria. For these reasons, OPM is not amending the rule in response to these comments.

OPM received several comments that the proposed rule omitted group size as an element. The prior group size element under Contract cost risk (1615.404-70(a)(2)) was omitted because OPM is replacing the current profit analysis factors with a new framework. However, OPM has allowed a minimum adjustment methodology for carriers that achieve a performance score that is below a threshold. The methodology is designed based on group size and is described in detail in Carrier Letter (2015-10).

One commenter requested OPM provide quarterly performance reports in order to inform carriers and allow them to make corrections or improvements to ensure better performance each year. OPM plans to use an annual evaluation cycle since many measures are collected annually, and not quarterly. Three of the new performance areas, Clinical Quality, Customer Service, and Resource Use, are based on measures contained in annual evaluation systems. OPM is committed to transparency with regard to the performance assessment system and has plans to make available a dashboard that carriers may use to view their individual performance ratings and overall scores. For these reasons, OPM declines to accept this comment.

We received one comment regarding the use of HEDIS and CAHPS measures to measure performance. The commenter stated that the health carrier does not have direct control to influence the decisions of the patient and their family or their health care providers, and recommended attributing modest weight to these measures. This commenter further asserted that CAHPS is an experience survey which measures perception rather than satisfaction, that HEDIS and CAHPS reflect successful data collection efforts and not necessarily quality improvement, and that CAHPS recently stopped its survey of members for whom Medicare is primary, which will negatively impact FEHB results. Other commenters recommended the use of other measurement tools and voiced their concerns that HEDIS and CAHPS measure the carrier's entire book of commercial business and not just the FEHB program. OPM is not amending the proposed rule in response to these comments. OPM's intention with the proposed performance assessment system is to build on already established requirements for FEHB Carriers to report evaluations by HEDIS and CAHPS. The goal of the new performance assessment system is to build on the quality initiatives OPM has implemented in recent years, such as public reporting of HEDIS scores.

We want to incentivize carriers who achieve high performance in areas such as clinical quality, customer service and resource use. While HEDIS and CAHPS measure the carrier's entire book of business, and may be imperfect measures of customer satisfaction, they are well recognized national measurement systems in the health insurance arena. Our goal is to ensure that FEHB enrollees receive the highest quality services, and we believe the data from HEDIS and CAHPS best serves the purpose of recognizing good health plan performance. In addition, our methodologies for specific measures have been purposefully selected to prioritize those that are most actionable at the health plan level. Therefore, for the initial Performance Assessment year, we believe that using HEDIS and CAHPS reports as our evaluation best reflects our goals of evaluating plan performance against national commercial benchmarks. We welcome feedback and suggestions from carriers on other externally validated measures for consideration in future years.

We received one comment that the proposed change to 1652.232-71 was a drafting error and should be withdrawn. OPM agrees this is a drafting error and withdraws the proposed language. OPM is not changing the current procedure that allows an experience-rated plan to draw down the service charge from the Contingency Reserve through its Letter of Credit Account. We are simply changing the calculation of that service charge based on the plan's performance assessment.

One individual recommended that the new assessment system include a measure that requires FEHB to provide services comparable to those available under Medicare. This rule-making is intended to address plan performance, not the types of services available under health plans. All FEHB plans provide essential health benefits identified by the Affordable Care Act. Therefore, OPM is not amending the proposed rule in response to this comment.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation affects only health insurance carriers under the Federal Employees Health Benefits Program.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

For the reasons set forth in the preamble, OPM amends chapter 16 of title 48 CFR (FEHBAR) as follows:

The snapper-grouper fishery of the South Atlantic includes snowy grouper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The commercial ACL (equivalent to the commercial quota) for snowy grouper in the South Atlantic is 82,900 lb (37,603 kg), gutted weight, for the current fishing year, January 1 through December 31, 2015, as specified in 50 CFR 622.190(a)(1).

Under 50 CFR 622.193(b)(1), NMFS is required to close the commercial sector for snowy grouper when the commercial ACL (commercial quota) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS projects that commercial landings of South Atlantic snowy grouper, as estimated by the Science and Research Director, will reach the commercial ACL by June 30, 2015. Accordingly, the commercial sector for South Atlantic snowy grouper is closed effective 12:01 a.m., local time, June 30, 2015, until 12:01 a.m., local time, January 1, 2016.

The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having snowy grouper on board must have landed and bartered, traded, or sold such snowy grouper prior to 12:01 a.m., local time, June 30, 2015. During the commercial closure, harvest and possession of snowy grouper in or from the South Atlantic EEZ is limited to the bag and possession limits, as specified in § 622.187(b)(2)(ii) and (c)(1). Also during the commercial closure, the sale or purchase of snowy grouper taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of snowy grouper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, June 30, 2015, and were held in cold storage by a dealer or processor.

For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and the sale and purchase provisions of the commercial closure for snowy grouper would apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of snowy grouper and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.193(b)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the commercial sector for snowy grouper constitutes 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), as such procedures would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect snowy grouper since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL (commercial quota). Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL (commercial quota).

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

Regulations governing the summer flounder fishery are in 50 CFR 648.100 through 50 CFR 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.10(c)(1)(i).

The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan provided a mechanism for summer flounder quota to be transferred from one state to another (December 17, 1993; 58 FR 65936). Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider the criteria in § 648.102(c)(2)(i) when evaluating requests for quota transfers or combinations.

North Carolina has agreed to transfer 7,340 lb (3,329 kg) of its 2015 commercial summer flounder quota to Virginia. This transfer was prompted by landings of a North Carolina vessel that was granted safe harbor in Virginia due to mechanical failure on May 3, 2015. As a result of these landings, a quota transfer is necessary to account for an increase in Virginia landings that would have otherwise accrued against the North Carolina quota.

The Regional Administrator has determined that the criteria set forth in § 648.102(c)(2)(i) have been met. The transfer is consistent with the criteria because it will not preclude the overall annual quota from being fully harvested, the transfer addresses an unforeseen variation or contingency in the fishery, and the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act. The revised summer flounder commercial quotas for calendar year 2015 are: Virginia, 2,401,568 lb (1,089,330 kg); and North Carolina, 2,976,243 lb (1,350,001 kg).

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

Background

This final rule implements the SBRM Omnibus Amendment management measures developed and submitted by the New England and Mid-Atlantic Regional Fishery Management Councils, which were approved by NMFS on behalf of the Secretary of Commerce on March 13, 2015. A proposed rule for this action was published on January 21, 2015 (80 FR 2898), with public comments accepted through February 20, 2015.

Section 303(a)(11) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that all Fishery Management Plans (FMPs) “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” The purpose of the amendment is to: Address the Appellate Court's remand by minimizing the discretion allowed in prioritizing allocation of observers when there are insufficient funds; explain the methods and processes by which bycatch is currently monitored and assessed for fisheries in the region; determine whether these methods and processes need to be modified and/or supplemented; establish standards of precision for bycatch estimation for these fisheries; and, thereby, document the SBRM established for all fisheries managed through the FMPs of the Greater Atlantic Region. Extensive background on the development of the SBRM Omnibus Amendment, including the litigation history that precipitated the need for the amendment, is provided in the proposed rule and supporting environmental assessment. For brevity, that information is not repeated here.

As detailed below (in the sections titled Bycatch Reporting and Monitoring Mechanisms and Analytical Techniques and Allocation of At-sea Fisheries Observers), this action incorporates by reference provisions of the SBRM Omnibus Amendment and EA/FONSI/RIR, identified formally as the Standardized Bycatch Reporting Methodology: An Omnibus Amendment to the Fishery Management Plans of the Mid-Atlantic and New England Regional Fishery Management Councils, completed March 2015 by the New England Fishery Management Council, Mid-Atlantic Fishery Management Council, National Marine Fisheries Service Greater Atlantic Regional Fisheries Office, and National Marine Fisheries Service Northeast Fisheries Science Center. To ensure that the public can readily access and understand the provisions that are incorporated by reference, the full SBRM Omnibus Amendment is available online at www.greateratlantic.fisheries.noaa.gov, and from the Greater Atlantic Regional Fisheries Office or either the New England or Mid-Atlantic Fishery Management Councils (see ADDRESSES).

This final rule for the SBRM Omnibus Amendment establishes an SBRM for all FMPs administered by the Greater Atlantic Regional Fisheries Office comprised of seven elements: (1) The methods by which data and information on discards are collected and obtained; (2) the methods by which the data obtained through the mechanisms identified in element 1 are analyzed and utilized to determine the appropriate allocation of at-sea observers; (3) a performance measure by which the effectiveness of the SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days; (4) a process to provide the Councils with periodic reports on discards occurring in fisheries they manage and on the effectiveness of the SBRM; (5) a measure to enable the Councils to make changes to the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments; (6) a description of sources of available funding for at-sea observers and a formulaic process for prioritizing at-sea observer coverage allocations to match available funding; and (7) measures to implement consistent, cross-cutting observer service provider approval and certification procedures and to enable the Councils to implement either a requirement for industry-funded observers or an observer set-aside program through a framework adjustment rather than an FMP amendment. These measures are described in detail as follows.

This final rule incorporates by reference the SBRM Omnibus Amendment's use of the status quo methods by which data and information on discards occurring in Greater Atlantic Region fisheries are collected and obtained. The SBRM uses sampling designs developed to minimize bias to the maximum extent practicable. The Northeast Fisheries Observer Program (NEFOP) is the primary mechanism to obtain data on discards in all Greater Atlantic Region commercial fisheries managed under one or more of the regional FMPs. All subject FMPs require vessels permitted to participate in Federal fisheries to carry an at-sea observer upon request. All data obtained by the NEFOP under this SBRM are collected according to the techniques and protocols established and detailed in the Fisheries Observer Program Manual and the Biological Sampling Manual, which are available online (www.nefsc.noaa.gov/fsb/). Data collected by the NEFOP include, but are not limited to, the following items: Vessel name; date/time sailed; date/time landed; steam time; crew size; home port; port landed; dealer name; fishing vessel trip report (FVTR) serial number; gear type(s) used; number/amount of gear; number of hauls; weather; location of each haul (beginning and ending latitude and longitude); species caught; disposition (kept/discarded); reason for discards; and weight of catch. These data are collected on all species of organisms caught by the vessels. This includes species managed under the regional FMPs or afforded protection under the Endangered Species Act or Marine Mammal Protection Act, but also includes species of non-managed fish, invertebrates, and marine plants. The SBRM will incorporate data collection mechanisms implemented by NMFS and affected states as part of the Marine Recreational Information Program (MRIP) for information on recreational fishery discards.

This final rule incorporates by reference the SBRM Omnibus Amendment's use of the existing methods by which the data obtained through the mechanisms included above are analyzed and utilized to determine the appropriate allocation of at-sea observers across the subject fishing modes, including all managed species and all relevant fishing gear types in the Greater Atlantic Region. At-sea fisheries observers will, to the maximum extent possible and subject to available resources, be allocated and assigned to fishing vessels according to the procedures established through the amendment. All appropriate filters identified in the amendment will be applied to the results of the analysis to determine the observer coverage levels needed to achieve the objectives of the SBRM. These filters are designed to aid in establishing observer sea day allocations that are more meaningful and efficient at achieving the overall objectives of the SBRM.

This action incorporates by reference the intention of the SBRM Omnibus Amendment to ensure that the data collected under the SBRM are sufficient to produce a coefficient of variation (CV) of the discard estimate of no more than 30 percent. This standard is designed to ensure that the effectiveness of the SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days. Each year, the Regional Administrator and the Science and Research Director will, subject to available funding, allocate at-sea observer coverage to the applicable fisheries of the Greater Atlantic Region sufficient to achieve a level of precision (measured as the CV) no greater than 30 percent for each applicable species and/or species group, subject to the use of the filters noted above.

This final rule incorporates by reference the SBRM Omnibus Amendment's requirements for NMFS to prepare an annual report for the Councils on discards occurring in Greater Atlantic Region fisheries, and to work with the Councils to develop a report every 3 years that evaluates the effectiveness of the SBRM. Once each year, the Science and Research Director will present to the Councils a report on catch and discards occurring in fisheries in the Region. Details about the information to be included in the annual discard reports are included in the amendment. The specific elements of the discard report may change over time to adjust to the changing needs of the Councils. Every 3 years, the Regional Administrator and the Science and Research Director will appoint appropriate staff to work with staff appointed by the executive directors of the Councils to obtain and review available data on discards and to prepare a report assessing the effectiveness of the SBRM.

This rule implements regulations to enable the Councils to make changes to specific elements of the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments. Framework adjustments and annual specification packages provide for an efficient yet thorough process to modify aspects of the SBRM if a Council determines that a change is needed to address a contemporary management or scientific issue in a particular FMP. Such changes to the SBRM may include modifications to the CV-based performance standard, the means by which discard data are collected/obtained in the fishery, the stratification (modes) used as the basis for SBRM-related analyses, the process for prioritizing observer sea-day allocations, reporting on discards or the performance of the SBRM. Such changes may also include the establishment of a requirement for industry-funded observers and/or observer set-aside provisions.

This rule incorporates by reference the SBRM Omnibus Amendment process to identify the funds that will be made available annually for SBRM, and how to prioritize the available observer sea-days if the funding provided to NMFS for such purposes is insufficient to fully implement the SBRM across all fishing modes. This measure is intended to limit the discretion the agency has in determining when funds are insufficient and how to reallocate observers under insufficient funding scenarios to address the concerns raised by the Court of Appeals in Oceana v. Locke. 1

Under the new prioritization process, the amount of money available for the SBRM will be the funding allocated to the Region under four specific historically-appropriated observer funding lines (less deductions for management and administrative costs). Of these, the funds made available by Congressional appropriation through the Northeast Fisheries Observers funding line must be dedicated to fund the proposed SBRM. In fiscal years 2011-2014, the Northeast Fisheries Observers funding line made up 53 percent to 59 percent of all observer funds for the Greater Atlantic Region under these four funding lines. Amounts from three of the funding lines are allocated among the fisheries in the five NMFS regions, including the Greater Atlantic Region, to meet national observer program needs. The total amount of the funds allocated for the Greater Atlantic Region from these three funding lines will constitute the remainder of the available SBRM funds. In fiscal year 2014, the amount appropriated under the Northeast Fisheries Observers funding line was $6.6 million, and another $5.9 million was made available for fisheries in the Greater Atlantic region under the other three funding lines. Funding in fiscal year 2015 for the Greater Atlantic Region under the other three funding lines is expected to be consistent with past allocations of these funds. Historically, the available funding has been insufficient to fully fund the SBRM to meet the performance standard. If the available funding continues to be insufficient to fully fund the SBRM, the amendment establishes a non-discretionary formulaic processes for prioritizing how the available observer sea-days would be allocated to the various fishing modes to maximize the effectiveness of bycatch reporting and bycatch determinations.

This final rule implements regulatory changes to establish consistent, cross-cutting observer service provider approval and certification procedures and measures to enable the Councils to implement either a requirement for industry-funded observers and/or an observer set-aside program through a framework adjustment, rather than an FMP amendment.

This final rule also makes minor modifications to the regulations under authority granted the Secretary under section 305(d) of the Magnuson-Stevens Act to ensure that FMPs are implemented as intended and consistent with the requirements of the Magnuson-Stevens Act. This action corrects the list of framework provisions under the Atlantic Surfclam and Ocean Quahog FMP at § 648.79(a)(1) to also include, “the overfishing definition (both the threshold and target levels).” This text was inadvertently removed from the regulations by the final rule to implement annual catch limits and accountability measures for fisheries managed by the Mid-Atlantic Fishery Management Council (76 FR 60606, September 29, 2011). The regulations at § 648.11(h)(5)(vii) are revised to remove reference to the requirement that observer service providers must submit raw data within 72 hours. The final rule to implement Framework 19 to the Atlantic Sea Scallop FMP (73 FR 30790, May 29, 2008) incorrectly stated the time an observer service provider has to provide raw data collected by an observer to NMFS, and this correction better reflects the Council's intent for that action.

This action also implements a consistent deadline for payment of industry-funded observers in the scallop fishery. Previously, there was not a specific due date for payment of industry-funded observers following an observed trip. We are implementing a deadline of 45 days after the end of an observed fishing trip as a due date for payment for all industry-funded observer services rendered in the scallop fishery.

A minor change has been made to the proposed regulatory text. As stated in the proposed rule, this amendment proposed to implement consistent, cross-cutting observer service provider and certification procedures and measures. To do this, several paragraphs within § 648.11(h) were proposed to be revised for consistency and to remove references that were specific to the current industry-funded scallop observer program. However, the specific provision at § 648.11(h)(5)(viii)(A) only applies to the industry-funded scallop observer program, and the reference to scallop vessels in that paragraph should not have been removed. Therefore, this final rule clarifies that this paragraph applies specifically to scallop vessels.

A total of 11 individual comment letters with 15 distinct categories of comments were received on the proposed rule and SBRM Omnibus Amendment.

Comment 1: One member of the public expressed general support for the action as an overhaul of bycatch reporting methods.

Response: NMFS appreciates the support for the proposed action, although the comment did not address any specific provision of the SBRM Omnibus Amendment or its proposed rule.

Comment 2: A letter from the Cape Cod Commercial Fishermen's Alliance, an organization representing commercial fishermen, expressed concern with how the SBRM would trigger prioritization when funding is insufficient and the subsequent impact to the Northeast multispecies sector management program, and urged disapproval of the amendment. The group stated that the proposed SBRM is overly complicated and expensive; that it will hinder industry efforts to develop alternative monitoring solutions including electronic monitoring; that it will eliminate supplemental observer coverage on midwater trawl vessels fishing in groundfish closed areas; and that it negatively impacts the groundfish at-sea monitoring program and could put the Northeast multispecies sector system at risk because the system is heavily reliant on appropriate monitoring.

Response: NMFS acknowledges the prioritization process trigger may result in observer funding—previously used by the Agency to discretionarily fund at-sea monitoring, electronic monitoring, and/or supplemental coverage of midwater-trawl vessels—being used exclusively for SBRM if the funding amounts are insufficient to realize the level of coverage estimated to achieve the 30-percent CV performance standard. This is a direct result of efforts to address the specific finding of the U.S. Appeals Court in Oceana v. Locke that the Agency had too much discretion to determine the available funding for SBRM. The impacts of this change on other monitoring priorities are real and will require adjusting expectations and evaluating whether other sources of funding for these priorities may be possible. NMFS has developed annual agency-wide guidance regarding how observer funding is allocated across regions to meet SBRM and other observer needs.

The groundfish sector at-sea monitoring program is separate from the SBRM and is specific to the Northeast Multispecies FMP. The at-sea monitoring program provides supplemental monitoring within this fishery to address specific management objectives of the New England Fishery Management Council. The SBRM Omnibus Amendment does not specifically modify the groundfish sector at-sea monitoring program or its objectives, including the requirement for the groundfish industry to pay for its portion of costs for at-sea monitors if the Federal government does not. The groundfish at-sea monitoring provisions were developed by the Council and have been in place since 2010. To date, we have been able to provide sufficient funding for the groundfish sector at-sea monitoring program such that industry did not have to pay for at-sea monitoring. With the constraints imposed by this final rule, funds previously used to cover groundfish sector at-sea monitoring will now be required to fund SBRM. It may be necessary for the Council to develop alternatives to ensure accountability with sector annual catch entitlements when there are funding shortages that reduce available at-sea monitoring coverage below the rates needed to ensure a CV of 30 percent.

Electronic monitoring has been viewed as one possible means of addressing observer funding shortages. In recent years, NMFS has worked with groundfish sectors to develop and evaluate monitoring alternatives, including electronic monitoring. While electronic monitoring is not currently sufficiently developed or suitable to be a viable replacement for at-sea observers for the purpose of the SBRM for fisheries administered by the Greater Atlantic Regional Fisheries Office, there are circumstances where it may be appropriate to address other monitoring purposes. NMFS is committed to working with our industry partners to continue development and implementation of electronic monitoring to the extent that it meets management objectives and funding is available. The SBRM can be amended at any time in the future to incorporate other monitoring means such as electronic monitoring.

In recent years, the Northeast Multispecies FMP has authorized mid-water trawl vessels to fish in the groundfish closed areas if they carried observers. The SBRM Omnibus Amendment may result in the unavailability of the funds previously used for this coverage because the funds must first go to the SBRM requirements. The requirement for midwater trawl vessels to have an observer to fish in the groundfish closed areas, however, is not changed by this amendment. Accordingly, without funds to provide this supplemental observer coverage, fewer midwater trawl trips will have access to these areas.

Comment 3: Two nongovernmental environmental organizations, Oceana, Inc., and Earthjustice, both stated the amendment uses outdated catch data from 2004 and does not meet various legal requirements.

Response: NMFS disagrees with the commenters' assertion that the amendment uses outdated data. Where new data would not provide additional insight or value in the amendment, the analysis from the 2007 SBRM amendment was maintained. When new data informed decision making in the amendment, NMFS used the most recent data available. Much of the amendment describes a system of statistical calculations that remain valid and appropriate even when newer data are not analyzed to provide context. The descriptions of the fisheries and fishing modes and the analysis of the impacts of alternatives uses catch data from 2012. Other analysis used more recent data. Some analyses in Chapter 5 of the Omnibus Amendment Environmental Assessment are illustrative examples of the sample size analysis used to determine how many observer sea-days are needed to achieve the 30-percent CV performance standard, and the bycatch rate analysis that uses data from observed fishing trips to estimate bycatch across the whole fishery. These analyses are conducted each year with updated data as a part of the SBRM process. The validity of these examples is not dependent on using data from a specific fishing year. The detailed analysis and description of the process that was conducted and presented in the 2007 SBRM amendment is still valid today. Recreating this work for this specific action would have taken a significant amount of time and effort, but would not have provided any additional insight into the SBRM process. Therefore, updated analysis was conducted and added to the document where needed to reflect the changes in the fisheries since the initial 2007 SBRM amendment was developed and implemented.

Comment 4: Oceana and Earthjustice assert that the action does not contain a sufficient range of reasonable alternatives including a no-action alternative, and that some alternatives were improperly rejected from consideration, including using non-managed species as drivers of observer coverage and use of electronic monitoring as a component of the SBRM. Oceana states the SBRM would have significant impacts and should require a full environmental impact statement (EIS) under the National Environmental Policy Act (NEPA).

Response: NMFS disagrees with the commenters' claim that the amendment does not meet the legal requirements of the NEPA, including that the amendment does not properly address cumulative impacts, does not have an adequate no-action alternative, does not have an adequate range of alternatives, and that it requires an EIS. Consistent with NEPA, Council for Environmental Quality (CEQ) regulations, and NOAA administrative policy, NMFS and the Councils collaborated to prepare an EA to evaluate the significance of the environmental impacts expected as a result of the management measures considered in the SBRM Omnibus Amendment. The results of this assessment are provided in section 8.9.2 of the amendment, which supports the finding of no significant impacts (FONSI) signed by the agency on March 10, 2015. The commenters provide no evidence that the conclusion in the FONSI is not supported by the facts presented in the EA for this finding. NMFS asserts that the EA considers a sufficient range of alternatives to satisfy the requirements of NEPA. As described throughout the amendment (the Executive Summary, chapters 6, 7, and 8), the alternatives considered by the Councils were structured around seven specific elements that together comprise the Greater Atlantic Region SBRM. Multiple alternatives were developed and considered for each element and, in some cases, various sub-options were also developed and considered. Section 7.3 of the amendment explicitly provides a discussion of the expected cumulative effects associated with this action. NMFS asserts that this treatment of cumulative effects is consistent with CEQ regulations and current NOAA policy.

Oceana presented these same contentions before the Court in its challenge to the 2007 SBRM amendment (Oceana v. Locke, 725 F. Supp. 2d 46 (D.D.C. 2010) reversed on other grounds (Oceana v. Locke, 670 F. 3d 1238 (DCC. 2011)). In that case, the U.S. District Court thoroughly reviewed their arguments and concluded that an EA for the 2007 SBRM amendment was consistent with NEPA. The Court specifically stated that, “NMFS sufficiently considered the issue of cumulative effects and concluded that any potential downstream impacts were not `reasonably foreseeable and directly linked' to the Amendment” 2 and that “NMFS' consideration of alternatives in the EA was sufficient to meet the requirements of NEPA.” 3

While some components of the amendment remain essentially unchanged from the 2007 SBRM amendment, several components, including the affected environment and cumulative impacts analyses have been updated to account for changes since 2007. NMFS asserts that the amendment continues to meet all legal requirements, including NEPA.

NMFS disagrees with the commenters' assertion that alternatives were improperly listed as considered but rejected. When the Councils initiated this action, they explicitly supported the previous Council decisions regarding the range of alternatives, including the alternatives considered but rejected. Both Councils directed the plan development team for this action specifically to focus on the legal deficiencies identified by the Court of Appeals and some minor revisions suggested by the 3-year review report. Given the primary scope of this action to specifically focus on the Court's remand, alternatives previously considered but rejected in the 2007 amendment were deemed considered and rejected for this action. Chapter 6.8 of the SBRM Omnibus Amendment reiterates the discussion of why each alternative was considered but rejected in the prior action, and explains how each does not meet the purpose and need of the SBRM Omnibus Amendment. The commenters offer no new information or circumstances that show these alternatives should have not been rejected from further consideration for this action.

Comment 5: Oceana states that the adoption of annual catch limits and associated accountability measures in recent years has significantly changed the data collection needs for management and that the SBRM needs to fully discuss and meet all bycatch monitoring needs of each FMP, including inseason actions. Oceana asserts the annual discard reports described in the SBRM Omnibus Amendment will not provide bycatch data at a level of detail necessary to meet all management priorities of the Councils.

Response: NMFS disagrees with Oceana's claim that the SBRM Omnibus Amendment does not meet the monitoring needs of annual catch limits and accountability measures mandated by the Magnuson-Stevens Act. The Magnuson-Stevens Act requires each Council to develop annual catch limits for each of its managed fisheries. Further guidance on annual catch limit requirements was issued by NMFS in 2009 (74 FR 3178). The SBRM is designed to meet the statutory requirements to establish a mechanism for collecting bycatch information from each fishery and estimating the discards of each species on an annual basis, to effectively monitor these annual catch limits. The SBRM forms the basis for bycatch monitoring in the Region, but need not address all monitoring requirements of all fishery management plans. Oceana conflates the Magnuson-Stevens Act requirement for annual catch limits (ACLs), which are typically set for the whole stock at an annual level, and assessed after the conclusion of each fishing year, with the Councils' prerogative to manage fisheries using smaller scale requirements such as sub-ACLs for groundfish sector fisheries and other fisheries that may trigger inseason management actions. The specific monitoring requirements of these management programs may be addressed outside of the SBRM with separate observer or monitoring requirements. Most FMPs that use in-season actions to open or close fisheries use landings data to make that determination, and do not rely on near real-time estimates of discards. When the New England Council designed the Northeast multispecies sector program, it recommended NMFS monitor catch, including discards, at the sector level and require measures designed to allow for inseason management actions. To meet this need, the Council created the sector at-sea monitoring program. The sector at-sea monitoring program requires additional monitoring coverage, beyond SBRM targets, which can then provide the additional information the Council determined was necessary for its groundfish-specific management objectives. If there is a need for more finely-tuned monitoring requirements in a particular fishery, the FMP for that fishery can be amended to address those requirements, including increasing monitoring or observer coverage over and above the SBRM levels. For example, the Industry-Funded Monitoring Omnibus Amendment currently under development by the New England and Mid-Atlantic Councils includes measures intended to facilitate the monitoring of incidental catch limits or bycatch events in the Atlantic Herring and the Atlantic Mackerel, Squids, and Butterfish FMPs. NMFS has determined that unless a specific FMP has requirements for such additional monitoring, the SBRM is sufficient for monitoring bycatch for the purposes of assessing total catch against annual catch limits. The commenters have not provided any evidence that the SBRM would not be sufficient to provide the estimated bycatch component of the total annual catch of a fishery that is used to monitor ACLs. Nor have they submitted any recommendations or alternatives that were not considered.

Comment 6: Oceana and Earthjustice claim the SBRM Omnibus Amendment does not adequately discuss the potential for bias in observer data that could adversely affect estimated bycatch. The commenters' are critical of the 30-percent CV standard, and suggest this level of precision is not sufficient for bycatch estimates. Supporting this contention, both groups cite a technical review of the 2007 SBRM Amendment by Dr. Murdoch McAllister of the University of British Columbia.

Response: NMFS disagrees with Oceana's contention that the amendment does not sufficiently address the issue of potential bias in observer data and the alleged impact of such bias on the accuracy of bycatch estimations. Chapter 5 of the SBRM Omnibus Amendment discusses at length and in detail bias and precision issues as they relate to the SBRM. As discussed in the SBRM Omnibus Amendment and described below, new research and analysis has been conducted since 2007 of potential observer bias and the implications for discard estimation.

Oceana cites the Agency's analysis of at-sea monitoring requirements for the Northeast multispecies sector fishery,4 but draws an unsupported conclusion about potential bias in observed trips versus unobserved trips. An analysis contained in that report examined if there were indications of an observer effect on groundfish trips using trawl or gillnet gear that could result in either systematic or localized biases, meaning that the observer data used to generate discard estimates may not be representative. This study essentially looked for differences in performance when a vessel carried an observer and when it did not. This analysis found evidence for some difference in fishing behavior between observed and unobserved groundfish trips; however, the analysis does not conclude whether the apparent differences would necessarily result in discard rates on unobserved trips that are different (higher or lower) than on observed trips. If the discard rate is unchanged, then the apparent differences would not affect total discard estimates. Additional analysis included in the report found that even if there is some bias, the discard rate for the groundfish sector trips studied would need to be five to ten times higher on unobserved trips for total catch to exceed the acceptable biological catch. None of the analyses conducted to date suggest behavioral differences on observed versus unobserved trips of this magnitude. In any event, the analysis for the Northeast multispecies sector fishery is not directly relevant for all fisheries covered by the SBRM.

Oceana made similar claims of potential bias about the 2007 SBRM amendment, but the U.S. District Court found that the amendment contained an extensive consideration of bias, precision, and accuracy. Commenters do not add any additional information or analysis that contradicts the finding of the District Court. NMFS, nevertheless, supports continued analysis of potential sources of bias, and the SBRM can be modified in the future to address any shortcomings that are identified.

NMFS disagrees with the commenters' contention that the choice of a 30-percent CV performance standard is inappropriate. The rationale for a 30-percent CV performance standard is explained in Chapters 5 and 6.3 of the SBRM Omnibus Amendment and in the 2004 NMFS technical memorandum “Evaluating bycatch: A national approach to standardized bycatch monitoring programs” (NMFS-F/SPO-66). The commenters' cite a technical review of the 2007 SBRM amendment to argue that this level of precision would not be suitable for stock assessments. However, the cited section of the technical review refers to a level of variability in estimates of total catch, while the SBRM is addressing the variability in estimated discards of a species group in a single fishing mode. For most fisheries in the Greater Atlantic Region, discards are a relatively small portion of total catch, and the subdivision by different fishing modes would result in estimates of total discards with much lower total variability. This error on the part of the commenters about relevant scale is a common and understandable confusion about precision. Oceana made a similar argument before the U.S. District Court in its challenge to the 2007 SBRM Amendment. In that case, the Court found that NMFS's decision to use a 30-percent CV, and the agency's response to the technical review, was reasonable and did not violate the Magnuson-Stevens Act or any other applicable law. In its most recent comments, Oceana provides no new information or analysis that contradicts the Court's conclusion.

Comment 7: Oceana and Earthjustice state that the proposed prioritization process is not a sufficient response to the Appeals Court order in Oceana v. Locke. Oceana states the proposed funding trigger is not sufficiently distinct from the status quo. In the opinion of the commenters, the amendment does not adequately explain: Why only the named funding lines would be used for SBRM and not others; whether other discretionary sources of money exist; how the agency might handle new funding lines that might be applicable; and what the term “consistent with historic practice” means. Oceana suggests that the amendment must consider other sources of potential funding including other Federal funding sources and development of new industry-funding alternatives. Oceana states that the prioritization of observer coverage should affect catch buffers, and refers to National Standard 1 guidance to argue that any change in the anticipated precision of discard estimates should be directly tied to the uncertainty buffers around allowable catch.

Response: NMFS disagrees with the commenters' contentions that the prioritization process does not address the Court's finding in Oceana v. Locke. Contrary to Oceana's assertion, the prioritization funding trigger places real and significant restrictions on the Agency's discretion to determine the available funding for the SBRM. The four funding lines identified in the amendment where chosen because they represent the primary sources of observer funding in the Greater Atlantic Region, and had been used to fund the SBRM in previous years. By committing the Region to use the funds available in those specific lines to support the SBRM, NMFS is creating a transparent mechanism for determining under what circumstances the SBRM prioritization process would be triggered.

The Agency is not contending that it has no discretion in how to spend any other funding lines, or that there are no other funding lines that may be available to support other monitoring priorities in the Region. NMFS must maintain some flexibility to use appropriated funding to respond to appropriations changes and changes in conditions and priorities within the Region and across the country. To do otherwise would be irresponsible and could be counter to legal requirements and jeopardize the Agency's mission. NMFS acknowledges that Congressional appropriations may change over time. The SBRM Amendment does not speculate about potential future changes in existing or potential future funding lines. The provisions of the SBRM prioritization process may be adjusted to incorporate future changes through an FMP framework action. Framework adjustment development would occur through established Council public participation processes. NMFS has developed annual agency-wide guidance that further explains how and why specific funding decisions are made for SBRM programs and other observer needs throughout the country.

Oceana expresses confusion regarding the meaning of the phrase “consistent with historic practice” used in the amendment. To provide context, this phrase is intended to reflect that not every dollar allocated to the Region through the specified funding lines will necessarily be converted into observer sea-days. All funding lines to regional offices and science centers are subject to standard overhead deductions that are used to support shared resources and infrastructure that do not receive their own appropriation of funds, such as building rent and maintenance, utilities, shared information technology, etc. In addition, the cost of the SBRM includes more than just observer sea-days. Additional costs include, but are not limited to, shore-side expenses to support the observer program, training of observers, and development of improved sampling procedures. These expenses will necessarily vary from year to year, and it was not practicable to try to enumerate all possible expenses that may be needed to support the SBRM. The intent of specifying that funds will be used “consistent with historic practice” means that these additional costs will be incurred at levels that are consistent with what has occurred in the past such that not all specified funds will be converted to observer sea-days.

NMFS rejects Oceana's contention that the amendment must include an alternative for the fishing industry to pay for any funding shortfall. Industry-funded monitoring programs are complex and must be carefully tailored to each specific fishery as a management/policy decision in each specific FMP. As stated in Chapter 1 of the SBRM Omnibus Amendment, the SBRM is a methodology to assess the amount and type of bycatch in the fisheries and not a management plan for how each fishery operates. It is not necessary or practicable to develop such programs for all of the fisheries in the Region through this action. The Councils have the flexibility to consider industry-funded programs, to meet SBRM or other monitoring priorities, on a case by case basis, depending on the needs and circumstances of each fishery.

NMFS disagrees with Oceana's repeated assertions that the anticipated precision of estimated discards must be directly tied to changes in the uncertainty buffers around catch limits. Each data source has a certain degree of uncertainty associated with it. The specific amount of uncertainty can only be estimated and cannot be parsed into specific amounts at different catch levels of different species in different fisheries. NMFS' National Standard 1 guidelines recommend the use of buffers around catch thresholds to account for these various sources of management and scientific uncertainty (74 FR 3178; January 16, 2009). The Councils have adopted control rules and/or make use of scientific and technical expertise so that these buffers address numerous sources of potential uncertainty that may be present in these catch limits into a single value. Each source of uncertainty may vary and the buffers are set conservatively to account for this variability and the complex interplay that may exist between sources of uncertainty. To propose adjusting these buffers to automatically account for changes in the precision estimate for one component of the total catch, in this case discards of a specific species in a specific fishing mode, misunderstands the general nature of these buffers and the complexities they are intended to address. The precision of a discard estimate does not necessarily reflect the magnitude or importance of that estimate. A very small amount of estimated discards could be very imprecise without having a significant impact on total catch. Similarly, if a species is discarded by several fishing modes, a change in precision in one mode may not significantly affect the precision of the total estimated discards for that stock. How the variability in discard estimates impacts the scientific uncertainty of overall catch estimates is outside the scope of this action and is best considered on a case by case basis, through the Councils' acceptable biological catch (ABC) control rules and Scientific and Statistical Committees. NMFS acknowledges that, in certain cases, the magnitude or importance of estimated discards may be cause for ABC control rules and/or Scientific and Statistical Committees to specifically consider discard estimate precision and underlying uncertainty when recommending an ABC, but not formulaically as the commenter suggests.

NMFS disagrees with Oceana's claim that the SBRM Omnibus Amendment fails to mandate that data be reported in a rational manner useful for fisheries management. As described in Chapter 1 of the SBRM amendment, the SBRM is a general, over-arching methodology for assessing bycatch in all fisheries managed by the New England and Mid-Atlantic Fishery Management Councils to meet the requirements of the Magnuson-Stevens Act. It is not designed as a specific, real-time quota monitoring process. The amendment specifies minimum components to include in the annual discard reports, and anticipates that the format and content of these reports will evolve over time. The 2007 SBRM amendment was very prescriptive of the detailed information to be included in the annual discard reports. However, this resulted in annual discard reports with over 1,000 pages of tables. While these reports contained a lot of information, they were not as useful for management as intended. The revised SBRM Omnibus Amendment calls for annual discard reports to contain more summarized data that could be presented in different ways. We intend to work with the Councils on an ongoing basis to ensure these reports continue to provide the information fishery managers need in a format that is useful in their work. As explained in Chapters 1 and 2 of the Omnibus Amendment, fishing modes are used as the operational unit for assigning observer coverage because it reflects information that is available when a vessel leaves the dock. While data may be collected by fishing mode, the calculated discards can be reported in multiple ways. NMFS looks forward to working with the Councils to prepare annual discard reports that provide needed information to support their management decisions.

Comment 8: Earthjustice claims the importance filters remove coverage from important fleets, and the SBRM must not prevent NMFS from paying for the government costs of new industry-funded monitoring programs. The commenter also asserts that the implications of the amendment on supplemental observer coverage of mid-water trawl fisheries were first discussed in August 2014, after the Councils had taken final action. The commenter urges the agency to disapprove the amendment and initiate scoping for a new amendment and EIS.

Response: NMFS disagrees with the commenter's contention that the importance filters create a situation that “is not only absurd and irrational, but entirely inconsistent with the needs of the fishery” with regard to monitoring the bycatch of river herring and shad species caught in the midwater trawl fisheries. As described in Chapter 6.2.3 of the amendment, the importance filters are a tool to aid in establishing observer sea day allocations that are more meaningful and efficient at achieving the overall objectives of the SBRM. As the commenter acknowledges, midwater trawl vessels that incidentally catch these species typically retain and land them, and as such, those fish are not bycatch as defined by the Magnuson-Stevens Act. Therefore, such incidental catch is outside of the mandate of the SBRM. Not all monitoring priorities must be part of the SBRM. In cases where a Council determines monitoring of incidental catch of specific species is a management priority, NMFS works with the Council to design and evaluate monitoring options, including at-sea observers or monitors, dockside sampling, electronic monitoring, or other options that best address the needs of the specific fishery.

NMFS acknowledges the commenter's concern that the agency may not be able to fully fund the government's costs associated with a future industry-funded monitoring program. One of the goals of another initiative, the Industry-Funded Monitoring Omnibus Amendment, currently under development by the Councils is to create a process for prioritizing available appropriated government and industry funds to efficiently provide supplemental monitoring for management goals beyond the SBRM. Currently, the agency may not use private funds to finance the costs of fundamental government obligations in a manner that is not consistent with the Antideficiency Act, Miscellaneous Receipts Statute, and other appropriations laws or rules. In the Industry-Funded Monitoring Omnibus Amendment, the New England and Mid-Atlantic Councils are considering how to prioritize and coordinate government funds necessary for supporting at-sea observers and other monitoring needs consistent with the Councils' recommendations for industry-funded observer programs outside of the SBRM requirements. Development of this process would ensure that when funds are available, they will be used consistent with the priorities regarding observer coverage and monitoring needs established by the Councils. NMFS will continue to work to identify potential funding sources that could be utilized to support the Councils' monitoring priorities.

NMFS disagrees with the commenter's assertion that the implications of how the SBRM impacts at-sea observer coverage in other fisheries were first discussed in August 2014. NMFS staff gave a special presentation about the funding of the Northeast Fisheries Observer Program at both the New England and Mid-Atlantic Council meetings in April 2014. These presentations highlighted the sources of funding and potential effect of the proposed SBRM funding trigger on available SBRM coverage and other monitoring programs previously funded by the effected funding lines. This message was then reiterated during the presentation of the SBRM Omnibus Amendment at the same meetings, before the Councils voted to take final action on the amendment.

Comment 9: The Center for Biological Diversity, an environmental group, submitted a letter focusing on the potential impact of the SBRM on endangered species. The commenter suggests that the allocation of observers should be focused on the conservation status of potential bycatch species, particularly those that are overfished, undergoing overfishing, or have been identified as endangered, threatened, or species of concern. The group also asserted that the amendment does not adequately consider potential adverse effects on endangered species.

Response: NMFS disagrees with the commenter's assertion that the SBRM should be driven primarily by the conservation status of the potential bycatch species. Section 303(a)(11) of the Magnuson-Stevens Act requires that each FMP “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery” regardless of the conservation status of the species caught in the fishery. As stated in Chapter 1.3 of amendment, the primary purpose of bycatch reporting and monitoring is to collect information that can be used reliably as the basis for making sound fisheries management decisions for all managed species in the Greater Atlantic Region, including stock assessments and annual catch accounting. Figure 1 in Appendix H of the SBRM Omnibus Amendment illustrates that beyond a certain point, increased observer coverage provides diminishing returns as far as improved precision of estimated discards. As a result, prioritizing observer coverage by conservation status could risk sacrificing the precision of bycatch estimates for several species to achieve a marginal improvement in one, which is unlikely to meet the stated objectives of this action.

NMFS disagrees with the commenter's contention that the SBRM Omnibus Amendment does not adequately consider adverse effects to endangered species. As discussed in Chapter 5 of the amendment, the SBRM applies the 30-percent CV performance standard to species afforded protection under the Endangered Species Act, as it does for species managed under a FMP. This has been the case since the implementation of the 2007 SBRM Amendment. Since that time, the agency has continued to effectively use discard estimates for these species for management purposes, including monitoring incidental take limits, and there is no information indicating these estimates are inadequate. The SBRM Omnibus Amendment is primarily administrative in nature and is not expected to result in any changes in fishing effort or behavior, fishing gears used, or areas fished, and therefore will not adversely affect endangered and threatened species in any manner not considered in prior consultations.

Comment 10: One commercial fisherman expressed frustration with how observer coverage and at-sea monitors are allocated across the groundfish fleet. The commenter suggested assigning observers based on the amount of bycatch rather than the estimated variance in discards. The commenter was also very concerned about the potential cost to vessels of industry-funded monitoring.

Response: As described in Chapter 5 of the SBRM Omnibus Amendment, the target observer coverage rates are calculated based on the variance of discards (i.e., the CV performance standard) rather than on total amount of discards from any one fishing mode. This approach is designed to provide a suitable level of precision in discard estimates to meet the requirements of the Magnuson-Stevens Act. The SBRM focuses on providing a statistically rigorous sampling of fishing activity, which will provide a more precise estimate of total discards, rather than a direct measurement or census of discards. Thus, it is intended to provide a better measurement of overall discards, rather than trying to directly observe a high volume of discards that might lead to a less precise estimate of total discards when unobserved trips are factored in. The comment regarding the potential burden that paying for at-sea monitors would place on the groundfish industry is addressed under Comment 2, above.

Comment 11: One commercial fisherman expressed concerns that the proposed funding trigger would be too restrictive on the use of certain observer funds and would prevent funds from being used to cover the groundfish industry costs for at-sea monitors as it has in the past.

Response: NMFS agrees with this individual's observation. Funds previously used to cover groundfish at-sea monitors may be fully committed to the SBRM process by the amendment's measures to the extent that SBRM funding amounts are insufficient to realize the level of observer coverage estimated to achieve the 30-percent CV performance standard. Additional detail on this comment is addressed in the response to Comment 2, above.

Comment 12: One member of the public wrote in support of the proposed 45-day payment period for observer services to the scallop fishing fleet, and suggested that such a payment period be specified in any future action to develop industry-funded observer programs. The commenter also suggested that the proposed rule at § 648.11(h)(5)(vii)(A) incorrectly states that an observer has 24 hours for electronic submission of observer data after a trip has landed, and that the correct time should be 48 hours.

Response: This comment refers to one of three minor modifications to the regulations in the proposed rule that are not part of the SBRM Omnibus Amendment, but were proposed under authority granted the Secretary under section 305(d) of the Magnuson-Stevens Act to ensure that FMPs are implemented as intended and consistent with the requirements of the Magnuson-Stevens Act. NMFS agrees that a clear payment deadline is valuable for both the observer service providers and the vessel operators who are contracting observer services.

The requirement to submit electronic observer data within 24 hours reflects the current regulations. NMFS acknowledges that current practice is to allow 48 hours for electronic submission of observer data. The proposed rule did not specifically propose addressing this inconsistency, and as a result there was no opportunity for public comment. Therefore, NMFS is not changing this regulation in this rule. There may be other areas within this section of the regulations where current practice has evolved away from the specific provisions in the regulations. NMFS may address these inconsistencies in a future rulemaking.

Comment 13: A letter from The Nature Conservancy expressed support for improving fishery monitoring systems and cited the benefits of accurate and reliable data. The commenter urged NMFS to clarify the agency's intention to take steps necessary to implement additional tools for collecting timely and accurate fishery-related data, including the use of electronic monitoring. In particular, the commenter urged the agency to ensure that the SBRM support, and not hinder, the earliest possible implementation of electronic monitoring. The commenter also expressed support for the SBRM review and reporting process, and requested that the triennial review include a broader set of stakeholders beyond NMFS and the Councils.

Response: NMFS acknowledges that the funding-related prioritization trigger may require some funding sources that have previously been used to support development of electronic monitoring to be used exclusively for the SBRM. This may delay implementation of electronic monitoring in the Region. The commenter cited the recent adoption of electronic monitoring requirements to monitor bluefin tuna bycatch in the pelagic longline fishery under the Consolidated Atlantic Highly Migratory Species FMP as evidence that electronic monitoring is ready to meet the bycatch monitoring goals of the SBRM. NMFS is very supportive of the new electronic monitoring program to monitor bycatch of bluefin tuna in the pelagic longline fishery. Lessons learned in the implementation of the bluefin tuna program should help inform other electronic monitoring programs in the future. However, a technology that is suitable for identification of bycatch of a distinctive species by a specific gear type, such as bluefin tuna in the pelagic longline fishery, may not yet be as suitable or affordable for monitoring more complex bycatch situations covered by the SBRM, such as differentiating flounder species in a multispecies trawl fishery, or providing length and weight data (all of which would be essential for electronic monitoring to effectively replace observers under the SBRM). Electronic monitoring is a technological tool that may be used to serve monitoring purposes that may differ between fisheries. The suitability and manner of using this tool for a particular purpose must be considered in the context of each proposed program. NMFS supports the continued development of electronic monitoring and will continue to evaluate its applicability as a component of a comprehensive SBRM and other coverage purposes.

The team that conducted the 3-year review of the SBRM in 2011 included staff from the Northeast Fisheries Science Center, the Greater Atlantic Regional Fisheries Office, the New England and Mid-Atlantic Fishery Management Councils, and the Atlantic States Marine Fisheries Commission. Because much of the data analyzed as part of the 3-year review are confidential under the Magnuson-Stevens Act, the team was limited to individuals authorized to access such information. The annual discard reports as well as the final 3-year review report present information in a format consistent with data confidentiality requirements and are all publically available. NMFS and the Councils will consider how additional stakeholders might be included in the next review in a way that could allow their input without compromising the confidentiality of catch and discard data.

Comment 14: The Marine Mammal Commission submitted a letter requesting NMFS include additional information in the final rule about whether the SBRM has implications for observer programs under the Marine Mammal Protection Act (MMPA). In addition, the letter noted particular support for the proposed use of a non-discretionary formulaic process for prioritizing available observer sea-days, and the provision to facilitate the future development of an industry-funded observer program through a framework adjustment.

Response: NMFS appreciates the commenter's support for the use of a non-discretionary formulaic process for prioritizing available observer sea-days, and the provision to facilitate the future development of an industry-funded observer program through the FMP's framework adjustment process. Observer programs explicitly funded to support the MMPA are not affected by this amendment. NMFS receives dedicated funding for observers under the MMPA, which is a separate funding allocation from the SBRM program. Because the funding for these MMPA observers is outside of the funding lines dedicated to the SBRM, the allocation of MMPA observers is not directly subject to the observer allocation process or prioritization process described in the SBRM Omnibus Amendment. The MMPA observers are allocated across fisheries based on the estimated likelihood of marine mammal interactions. At-sea observers allocated under the SBRM actually provide additional marine mammal observer coverage as they record and report any interactions with marine mammals that occur on observed fishing trips. Likewise, at-sea monitors in the groundfish sector program record any interactions they witness. Similarly, in the absence of a marine mammal interaction, MMPA observers record information about the trip and observed bycatch that contributes to our overall estimation of bycatch in Greater Atlantic fisheries. However, if a marine mammal is present, these observers are required to focus their attention on that marine mammal interaction, and monitoring of other bycatch becomes a secondary priority. For additional information about how marine mammal interactions are monitored, please see the Greater Atlantic Region's Marine Mammal Program Web site at: www.greateratlantic.fisheries.noaa.gov/Protected/mmp/.

Comment 15: The comments submitted by Environmental Defense Fund, an environmental organization, expressed concerns about the impact of the proposed SBRM on the continued development and implementation of electronic monitoring in the Region. The commenter expressed concern that the amendment should have included electronic monitoring as an explicit component of the SBRM. The group asserts that 100-percent electronic monitoring would reduce uncertainty in catch data and improve stock assessments, and that electronic monitoring could provide a lower sea-day cost than current at-sea observers. The group is critical that the proposed funding trigger is not properly explained and would prevent funds from being available for electronic monitoring or to cover the government costs associated with any future industry-funded monitoring programs.

Response: The responses above to Comment 3, Comment 4, and Comment 9 address many of the points raised by the commenter. NMFS does not agree with the commenter's characterization of the potential cost savings with electronic monitoring at this time. The commenter promotes the potential for a lower cost per sea-day with electronic monitoring than with at-sea observers, but also advocates for 100-percent electronic monitoring on every fishing trip. This is a substantial increase in coverage rate when compared to the current SBRM using at-sea observers. The affordability of electronic monitoring has yet to be determined. Electronic monitoring costs will be determined largely by the purpose and scope of particular electronic monitoring coverage and the available technology to meet those needs. Even at a potentially lower cost per day, the increase in coverage to 100 percent of trips would likely result in a program that is significantly more expensive than the SBRM is currently. This does not take into account that electronic monitoring is not yet considered robust enough to replace observers for bycatch monitoring in some gears types or for identifying all bycatch to the species level. In addition, some amount of at-sea observer coverage is likely to still be required to collect biological samples, which would further increase the costs. NMFS will continue to support development of electronic monitoring as a potential tool where it is fitting and appropriate.

The Administrator, Greater Atlantic Region, NMFS, determined that the SBRM Omnibus Amendment is necessary for the conservation and management of Greater Atlantic fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: