Federal Register Vol. 80, No.211,

Federal Register Volume 80, Issue 211 (November 2, 2015)

Page Range67261-67620
FR Document

80_FR_211
Current View
Page and SubjectPDF
80 FR 67619 - National College Application Month, 2015PDF
80 FR 67617 - National Alzheimer's Disease Awareness Month, 2015PDF
80 FR 67615 - National Adoption Month, 2015PDF
80 FR 67421 - Government In the Sunshine Act Meeting NoticePDF
80 FR 67421 - Government in the Sunshine Act Meeting NoticePDF
80 FR 67399 - Public Water System Supervision Program Revision for the State of OklahomaPDF
80 FR 67413 - Notice To Propose the Redesignation of the Service Delivery Area for the Wampanoag Tribe of Gay Head (Aquinnah)PDF
80 FR 67416 - Notice on Outer Continental Shelf Oil and Gas Lease SalesPDF
80 FR 67277 - Organization; Mergers, Consolidations, and Charter Amendments of Banks or AssociationsPDF
80 FR 67277 - Farm Credit Administration Board Policy StatementsPDF
80 FR 67400 - Proposed Information Collection Request; Comment Request; Tips and Complaints Regarding Environmental Violations (Renewal)PDF
80 FR 67399 - Notice of Public Meeting of the Interagency Steering Committee on Radiation Standards (ISCORS)PDF
80 FR 67398 - Proposed CERCLA Administrative Cost Recovery Settlement; Ashue Road Site, Wapato, Yakima County, WAPDF
80 FR 67481 - Qualification of Drivers; Exemption Applications; VisionPDF
80 FR 67397 - Notice of a Public Meeting of the National Drinking Water Advisory CouncilPDF
80 FR 67476 - Qualification of Drivers; Exemption Applications; VisionPDF
80 FR 67472 - Agency Information Collection Activities; Extension of a Currently-Approved Information Collection: Annual Report of Class I and Class II Motor Carriers of Property (OMB 2139-0004)PDF
80 FR 67472 - Qualification of Drivers; Exemption Applications; VisionPDF
80 FR 67423 - President's Committee on the International Labor Organization Charter RenewalPDF
80 FR 67469 - South Carolina Disaster Number SC-00032PDF
80 FR 67416 - Wind Energy Research Lease Issuance on the Atlantic Outer Continental Shelf Offshore VirginiaPDF
80 FR 67471 - Fine Arts Committee Notice of MeetingPDF
80 FR 67346 - Fisheries of the Exclusive Economic Zone Off Alaska; Inseason Adjustment to the 2015 Gulf of Alaska Pollock Seasonal ApportionmentsPDF
80 FR 67470 - Contingent Waiver of Certain Sanctions Related to the Joint Comprehensive Plan of ActionPDF
80 FR 67315 - Visas: Procedures for Issuing VisasPDF
80 FR 67415 - The Performance Review BoardPDF
80 FR 67412 - Agency Information Collection Activities; Proposed Collection; Public Comment RequestPDF
80 FR 67406 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 67415 - 30-Day Notice of Proposed Information Collection: Supplement to Application for Federally Assisted HousingPDF
80 FR 67437 - Clarification of Licensee Actions in Support of Enforcement Guidance for Tornado-Generated MissilesPDF
80 FR 67435 - SHINE Medical Technologies, Inc.; Notice of HearingPDF
80 FR 67264 - Cyber Security Event NotificationsPDF
80 FR 67386 - Endangered and Threatened Species; Recovery PlansPDF
80 FR 67404 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 67404 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 67403 - Notice of Termination, 10461 First East Side Savings Bank, Tamarac, FloridaPDF
80 FR 67403 - Notice of Termination, 10466 Hometown Community Bank, Braselton, GeorgiaPDF
80 FR 67396 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Servicing of Motor Vehicle Air Conditioners (Renewal)PDF
80 FR 67470 - SOUTH CAROLINA Disaster Number SC-00031PDF
80 FR 67382 - Export Verification Program: Microbiological Testing of Ready-To-Eat Products Destined for CanadaPDF
80 FR 67434 - President's Committee on the Arts and the Humanities: Meeting #71PDF
80 FR 67394 - Combined Notice of FilingsPDF
80 FR 67392 - Combined Notice of Filings #2PDF
80 FR 67392 - Combined Notice of Filings #1PDF
80 FR 67408 - The Drug Supply Chain Security Act Implementation: Product Tracing Requirements for Dispensers-Compliance Policy; Updated Guidance for Industry, AvailabilityPDF
80 FR 67395 - Baker County, Oregon; Notice of Availability of Environmental AssessmentPDF
80 FR 67384 - Caribbean Fishery Management Council; Public Hearings; CorrectionPDF
80 FR 67490 - The Long Island Rail Road Company-Abandonment Exemption-in Queens County, NYPDF
80 FR 67401 - Agency Information Collection Activities: Submission for OMB Review; Comment Request (3064-0072, -0093, -0095, -0117, -0145, -0152 & -0161)PDF
80 FR 67383 - New England Fishery Management Council; Public MeetingsPDF
80 FR 67489 - CSX Transportation, Inc.-Abandonment Exemption-in Floyd County, KYPDF
80 FR 67407 - Proposed Information Collection Activity; Comment RequestPDF
80 FR 67389 - North Pacific Fishery Management Council; Public MeetingPDF
80 FR 67437 - New Postal ProductPDF
80 FR 67438 - New Postal ProductPDF
80 FR 67386 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
80 FR 67384 - New England Fishery Management Council; Public MeetingPDF
80 FR 67439 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
80 FR 67483 - Notice of Receipt of Petition for Decision That Nonconforming 2006 Mercedes-Benz SL Passenger Cars (Manufactured Before September 1, 2006) Are Eligible for ImportationPDF
80 FR 67428 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
80 FR 67427 - Proposed Extension of Information Collection; Fire Protection (Underground Coal Mines)PDF
80 FR 67432 - Preparations for the 30th Session of the UN Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS)PDF
80 FR 67423 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
80 FR 67405 - Submission for OMB Review; Subcontract ConsentPDF
80 FR 67411 - Information To Support a Claim of Electromagnetic Compatibility of Electrically Powered Medical Devices; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
80 FR 67313 - Medical Devices; Immunology and Microbiology Devices; Classification of Gastrointestinal Microorganism Multiplex Nucleic Acid-Based AssayPDF
80 FR 67409 - Bioequivalence Recommendations for Progesterone; Draft Guidance for Industry; AvailabilityPDF
80 FR 67420 - Certain Electric Skin Care Devices, Brushes and Chargers Therefore, and Kits Containing the Same: Notice of a Commission Determination Not To Review an Initial Determination Granting-in-Part Complainant's Motion for Leave To Amend the Amended Complaint and Notice of InvestigationPDF
80 FR 67414 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed MeetingPDF
80 FR 67414 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 67414 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingsPDF
80 FR 67416 - Certain Vision-Based Driver Assistance System Cameras, Components Thereof, and Products Containing the Same: Notice of the Commission's Determination Finding No Violation of Section 337; Termination of the InvestigationPDF
80 FR 67492 - Proposed Collection; Comment Request for Consumer Tipping Survey StudyPDF
80 FR 67491 - Advisory Council to the Internal Revenue Service; MeetingPDF
80 FR 67491 - Proposed Collection; Comment Request for Form 4506-APDF
80 FR 67302 - Standards for Business Practices of Interstate Natural Gas Pipelines; Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public UtilitiesPDF
80 FR 67394 - Cave Run Energy, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
80 FR 67393 - El Dorado Irrigation District; Notice of Availability of Environmental AssessmentPDF
80 FR 67395 - Tennessee Gas Pipeline Company, L.L.C.; Notice of ApplicationPDF
80 FR 67452 - Submission for OMB Review; Comment RequestPDF
80 FR 67464 - Submission for OMB Review; Comment RequestPDF
80 FR 67467 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Provide Additional Details Regarding the Requirement That Participants Participate in Annual Testing of Business Continuity and Disaster Recovery PlansPDF
80 FR 67464 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Certificate of Incorporation and Bylaws of its Parent CompanyPDF
80 FR 67461 - Self-Regulatory Organizations; C2 Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Certificate of Incorporation and Bylaws of Its Parent CompanyPDF
80 FR 67450 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Provide Additional Details Regarding the Requirement That Members Participate in Annual Testing of Business Continuity and Disaster Recovery PlansPDF
80 FR 67443 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Deleting Rule 410B Governing Reporting Requirements for Off-Exchange TransactionsPDF
80 FR 67454 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Deleting Rule 410B Equities Governing Reporting Requirements for Off-Exchange TransactionsPDF
80 FR 67446 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change Relating to Complex Orders, as Modified by Amendment No. 1PDF
80 FR 67457 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change Relating to Complex Orders, as Modified by Amendment No. 1PDF
80 FR 67440 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Unify Procedures for the Handling of Resting Orders in a Security Subject to a Trading Halt, Pause or Suspension on the ExchangePDF
80 FR 67319 - Revisions to Air Plan; Arizona; Stationary Sources; New Source ReviewPDF
80 FR 67485 - Hazardous Materials: Explosive Approvals-Compliance With Special Provision 347PDF
80 FR 67335 - Approval of Air Quality State Implementation Plans (SIP); State of Iowa; Infrastructure SIP Requirements for the 2008 Lead National Ambient Air Quality Standard (NAAQS)PDF
80 FR 67439 - Product Change-Priority Mail Negotiated Service AgreementPDF
80 FR 67390 - Agency Information Collection Activities; Comment Request; Perkins Discretionary Grant Performance ReportPDF
80 FR 67391 - Agency Information Collection Activities; Comment Request; Mathematics and Science Partnerships ProgramPDF
80 FR 67389 - Joint Statement of Principles on Student Loan ServicingPDF
80 FR 67316 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, Portsmouth and Chesapeake, VAPDF
80 FR 67351 - Energy LabelingPDF
80 FR 67285 - Energy Labeling RulePDF
80 FR 67261 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Direct Grant ProgramsPDF
80 FR 67421 - Notice of Lodging of Proposed Consent Decree Under The Clean Air Act, Emergency Panning and Community Right-To-Know Act, Clean Water Act, and The Resource Conservation and Recovery ActPDF
80 FR 67435 - SES Performance Review BoardPDF
80 FR 67422 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection; Application for Import Quota for Ephedrine, Pseudoephedrine, and Phenylpropanolamine DEA Form 488PDF
80 FR 67317 - Safety Zone; Grounded Vessel, Atlantic Ocean, Port St. Lucie, FLPDF
80 FR 67337 - Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions; Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction ContextPDF
80 FR 67401 - SES Performance Review Board-Appointment of MembersPDF
80 FR 67348 - Airworthiness Directives; Airbus AirplanesPDF
80 FR 67576 - Medicaid Program; Methods for Assuring Access to Covered Medicaid ServicesPDF
80 FR 67377 - Medicaid Program; Request for Information (RFI)-Data Metrics and Alternative Processes for Access to Care in the Medicaid ProgramPDF
80 FR 67417 - Wooden Bedroom Furniture From China; Institution of a Five-Year ReviewPDF
80 FR 67433 - Distribution of 2014 DART Sound Recordings Fund Royalties (Copyright Owners and Featured Artists Subfunds)PDF
80 FR 67344 - Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction ContextPDF
80 FR 67422 - Meeting of the Coordinating Council on Juvenile Justice and Delinquency PreventionPDF
80 FR 67496 - Pesticides; Agricultural Worker Protection Standard RevisionsPDF

Issue

80 211 Monday, November 2, 2015 Contents Agriculture Agriculture Department See

Food Safety and Inspection Service

Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Joint Statement of Principles on Student Loan Servicing, 67389-67390 2015-27775 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicaid Program: Methods for Assuring Access to Covered Medicaid Services, 67576-67612 2015-27697 PROPOSED RULES Medicaid Program: Request for Information: Data Metrics and Alternative Processes for Access to Care in the Medicaid Program, 67377-67381 2015-27696 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67406-67407 2015-27859 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67407-67408 2015-27833 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, Portsmouth and Chesapeake, VA, 67316-67317 2015-27774 Safety Zones: Grounded Vessel, Atlantic Ocean, Port St. Lucie, FL, 67317-67319 2015-27751 Commerce Commerce Department See

National Oceanic and Atmospheric Administration

Copyright Royalty Board Copyright Royalty Board NOTICES Distribution of 2014 DART Sound Recordings Fund Royalties (Copyright Owners and Featured Artists Subfunds), 67433-67434 2015-27645 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Subcontract Consent, 67405-67406 2015-27819 Education Department Education Department RULES Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Direct Grant Programs, 67261-67264 2015-27766 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Mathematics and Science Partnerships Program, 67391-67392 2015-27778 Perkins Discretionary Grant Performance Report, 67390-67391 2015-27779 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Iowa; Infrastructure SIP Requirements for the 2008 Lead National Ambient Air Quality Standard, 67335-67336 2015-27783 Pesticides; Agricultural Worker Protection Standard Revisions, 67496-67574 2015-25970 Revisions to Air Plans: Arizona; Stationary Sources; New Source Review, 67319-67334 2015-27785 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Servicing of Motor Vehicle Air Conditioners, 67396-67397 2015-27849 Tips and Complaints Regarding Environmental Violations, 67400-67401 2015-27892 Meetings: Interagency Steering Committee on Radiation Standards, 67399-67400 2015-27886 National Drinking Water Advisory Council, 67397-67398 2015-27883 Proposed CERCLA Administrative Cost Recovery Settlements: Ashue Road Site, Wapato, Yakima County, WA, 67398 2015-27885 Public Water System Supervision Programs: Oklahoma, Revision, 67399 2015-27901 Equal Equal Employment Opportunity Commission NOTICES Senior Executive Service Performance Review Board; Member Appointments, 67401 2015-27733 Farm Credit Farm Credit Administration RULES Board Policy Statements, 67277-67285 2015-27893 Organization: Mergers, Consolidations, and Charter Amendments of Banks or Associations, 67277 2015-27895 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 67348-67351 2015-27725 Federal Communications Federal Communications Commission RULES Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, 67344-67346 2015-27632 Expanding the Economic and Innovation Opportunities of Spectrum through Incentive Auctions; Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, 67337-67344 2015-27738 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67401-67403 2015-27836 Terminations of Receiverships: First East Side Savings Bank, Tamarac, FL, 67403 2015-27851 Hometown Community Bank, Braselton, GA, 67403-67404 2015-27850 Federal Energy Federal Energy Regulatory Commission RULES Standards for Business Practices of Interstate Natural Gas Pipelines; Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public Utilities, 67302-67312 2015-27806 NOTICES Applications: Tennessee Gas Pipeline Co., LLC, 67395-67396 2015-27803 Combined Filings, 2015-27842 67392-67395 2015-27843 2015-27844 Environmental Assessments; Availability, etc.: Baker County, OR, 67395 2015-27839 El Dorado Irrigation District, 67393 2015-27804 Preliminary Permit Applications: Cave Run Energy, LLC, 67394 2015-27805 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Report of Class I and Class II Motor Carriers of Property, 67472 2015-27880 Qualification of Drivers; Exemption Applications: Vision, 67472-67483 2015-27879 2015-27882 2015-27884 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 2015-27769 67404 2015-27853 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 67404-67405 2015-27768 2015-27852 Federal Trade Federal Trade Commission RULES Energy Labeling, 67285-67302 2015-27772 PROPOSED RULES Energy Labeling, 67351-67377 2015-27773 Food and Drug Food and Drug Administration RULES Medical Devices: Immunology and Microbiology Devices; Classification of Gastrointestinal Microorganism Multiplex Nucleic Acid-Based Assay, 67313-67314 2015-27817 NOTICES Guidance: Bioequivalence Recommendations for Progesterone, 67409-67411 2015-27816 Information to Support a Claim of Electromagnetic Compatibility of Electrically Powered Medical Devices, 67411-67412 2015-27818 The Drug Supply Chain Security Act Implementation -- Product Tracing Requirements for Dispensers -- Compliance Policy, 67408-67409 2015-27841 Food Safety Food Safety and Inspection Service NOTICES Export Verification Program: Microbiological Testing of Ready-To-Eat Products Destined for Canada, 67382-67383 2015-27846 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Subcontract Consent, 67405-67406 2015-27819 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Indian Health Service

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67412-67413 2015-27860
Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Supplement to Application for Federally Assisted Housing, 67415 2015-27858 Performance Review Board, 67415-67416 2015-27861 Indian Health Indian Health Service NOTICES Proposed Redesignation of the Service Delivery Area for the Wampanoag Tribe of Gay Head (Aquinnah), 67413 2015-27898 Interior Interior Department See

Ocean Energy Management Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67491-67492 2015-27808 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Consumer Tipping Survey Study, 67492-67493 2015-27810 Meetings: Advisory Council to the Internal Revenue Service, 67491 2015-27809 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Wooden Bedroom Furniture from China, 67417-67420 2015-27661 Investigations; Determinations, Modifications and Rulings, etc.: Certain Electric Skin Care Devices, Brushes and Chargers Therefore, and Kits Containing the Same, 67420-67421 2015-27815 Certain Vision-Based Driver Assistance System Cameras, Components Thereof, and Products Containing the Same, 67416-67417 2015-27811 Meetings; Sunshine Act, 2015-27923 67421 2015-27924 Justice Department Justice Department See

Justice Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Import Quota for Ephedrine, Pseudoephedrine, and Phenylpropanolamine, 67422 2015-27761 Proposed Consent Decrees under the Clean Air Act, Emergency Panning and Community Right-to-Know Act, Clean Water Act, and the Resource Conservation and Recovery Act, 67421-67422 2015-27765
Justice Programs Justice Programs Office NOTICES Meetings: Coordinating Council on Juvenile Justice and Delinquency Prevention, 67422-67423 2015-27488 Labor Department Labor Department See

Mine Safety and Health Administration

See

Occupational Safety and Health Administration

NOTICES Charter Renewals: President's Committee on the International Labor Organization, 67423 2015-27878
Library Library of Congress See

Copyright Royalty Board

Mine Mine Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Fire Protection (Underground Coal Mines), 67427-67428 2015-27822 Petitions for Modification: Application of Existing Mandatory Safety Standards, 67423-67432 2015-27820 2015-27823 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Subcontract Consent, 67405-67406 2015-27819 National Endowment for the Arts National Endowment for the Arts NOTICES Meetings: President's Committee on the Arts and the Humanities, 67434-67435 2015-27845 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Highway National Highway Traffic Safety Administration NOTICES Petitions for Import Eligibility: Nonconforming 2006 Mercedes-Benz SL Passenger Cars, 67483-67485 2015-27824 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 67414-67415 2015-27813 National Institute of Biomedical Imaging and Bioengineering, 67414 2015-27814 National Institute of Diabetes and Digestive and Kidney Diseases, 67414 2015-27812 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Inseason Adjustment to the 2015 Gulf of Alaska Pollock Seasonal Apportionments, 67346-67347 2015-27864 NOTICES Endangered and Threatened Species Recovery Plans, 67386-67389 2015-27854 Meetings: Caribbean Fishery Management Council; Public Hearings; Correction, 67384-67386 2015-27838 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review, 67386 2015-27829 New England Fishery Management Council, 2015-27827 67383-67384 2015-27835 North Pacific Fishery Management Council, 67389 2015-27832 National Transportation National Transportation Safety Board NOTICES Senior Executive Service Performance Review Board, 67435 2015-27762 Nuclear Regulatory Nuclear Regulatory Commission RULES Cyber Security Event Notifications, 67264-67277 2015-27855 NOTICES Guidance: Clarification of Licensee Actions in Support of Enforcement Guidance for Tornado-Generated Missiles, 67437 2015-27857 Hearings: SHINE Medical Technologies, Inc.; Construction Permit Application, 67435-67437 2015-27856 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Meetings: U.N. Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals; Preparations, 67432-67433 2015-27821 Ocean Energy Management Ocean Energy Management Bureau NOTICES Outer Continental Shelf Oil and Gas Lease Sales: List of Restricted Joint Bidders, 67416 2015-27896 Wind Energy Research Lease Issuance on the Atlantic Outer Continental Shelf Offshore Virginia, 67416 2015-27875 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Hazardous Materials: Explosive Approvals -- Compliance with Special Provision 347, 67485-67489 2015-27784 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 2015-27764 67437-67439 2015-27830 2015-27831 Postal Service Postal Service NOTICES Product Changes: Priority Mail Negotiated Service Agreement, 2015-27776 67439 2015-27781 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Adoption Month (Proc. 9354), 67613-67616 2015-28035 National Alzheimer's Disease Awareness Month (Proc. 9355), 67617-67618 2015-28036 National College Application Month (Proc. 9356), 67619-67620 2015-28037 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67439-67440 2015-27826 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2015-27801 67452-67454, 67464 2015-27802 Self-Regulatory Organizations; Proposed Rule Changes: C2 Exchange, Inc., 67461-67464 2015-27798 C2 Options Exchange, Inc., 67446-67450 2015-27794 Chicago Board Options Exchange, Inc., 67457-67461, 67464-67467 2015-27793 2015-27799 Chicago Stock Exchange, Inc, 67440-67443 2015-27792 Fixed Income Clearing Corp., 67450-67452 2015-27797 New York Stock Exchange, LLC, 67443-67446 2015-27796 NYSE MKT, LLC, 67454-67456 2015-27795 The Depository Trust Co., 67467-67469 2015-27800 Small Business Small Business Administration NOTICES Disaster Declarations: South Carolina; Amendment 3, 67469 2015-27876 South Carolina; Amendment 4, 67469 2015-27847 South Carolina; Amendment 6, 67470 2015-27848 State Department State Department RULES Procedures for Issuing Visas, 67315-67316 2015-27862 NOTICES Contingent Waiver of Certain Sanctions Related to the Joint Comprehensive Plan of Action, 67470-67471 2015-27863 Meetings: Fine Arts Committee, 67471 2015-27871 Surface Transportation Surface Transportation Board NOTICES Abandonment Exemptions: CSX Transportation, Inc., Floyd County, KY, 67489-67490 2015-27834 The Long Island Rail Road Co., Queens County, NY, 67490-67491 2015-27837 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

See

Surface Transportation Board

Treasury Treasury Department See

Internal Revenue Service

Separate Parts In This Issue Part II Environmental Protection Agency, 67496-67574 2015-25970 Part III Health and Human Services Department, Centers for Medicare & Medicaid Services, 67576-67612 2015-27697 Part IV Presidential Documents, 67613-67620 2015-28035 2015-28036 2015-28037 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

80 211 Monday, November 2, 2015 Rules and Regulations DEPARTMENT OF EDUCATION 2 CFR Part 3474 34 CFR Parts 74, 75, 76, 77, 80, 101, 206, 222, 225, 226, 270, 280, 299, 300, 303, 350, 361, 363, 364, 365, 367, 369, 370, 373, 377, 380, 381, 385, 396, 400, 426, 460, 491, 535, 606, 607, 608, 609, 611, 614, 628, 636, 637, 642, 643, 644, 645, 646, 647, 648, 650, 654, 655, 661, 662, 663, 664, 682, 692, 694, and 1100 RIN 1890-AA19 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Direct Grant Programs AGENCY:

Department of Education.

ACTION:

Final regulations.

SUMMARY:

The Secretary adopts as final regulations of the Department the interim final regulations that were published on December 19, 2014. This action adopts the OMB guidance in title 2 of the CFR as final regulations of the Department. The Secretary amends the interim final regulations to correct technical errors contained in the amendments.

DATES:

These regulations are effective December 2, 2015.

FOR FURTHER INFORMATION CONTACT:

Phillip Juengst, U.S. Department of Education, 400 Maryland Avenue SW., Room 6056, PCP, Washington, DC 20202-4450. Telephone: (202) 245-8030 or by email: [email protected]

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: Executive Summary

Purpose of This Regulatory Action: On December 19, 2014, all of the Federal award-making agencies published a joint Interim Final Rule (IFR) in the Federal Register, implementing the Office of Management and Budget's (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal awards (Uniform Guidance). The purpose of this action is to adopt the Uniform Guidance in 2 CFR part 200, except for 2 CFR 200.102(a), CFR 200.207(a). This adoption gives regulatory effect to the OMB guidance and supplements that guidance, as needed, for the Department. The authority to amend chapter XXXIV of title 2 of the Code of Federal Regulations and subtitle A and chapters I, II, III, IV, V, and VI of title 34 of the Code of Federal Regulations is 20 U.S.C. 1221e-3, 3474, and 2 CFR part 200, unless otherwise noted.

Summary of the Major Provisions of This Regulatory Action: This rule allows the Department to incorporate into regulation and thus bring into effect the Uniform Guidance as required by OMB and reduces administrative burden and risk of waste, fraud, and abuse for the funds awarded by the Department through grants and cooperative agreements.

Costs and Benefits: The Secretary believes that these regulations do not impose significant costs on entities that would receive assistance through Department of Education programs. The benefits of the regulations far outweigh any potential costs incurred by entities. The benefits of the amendments in these regulations include eliminating duplicative and conflicting guidance contained in eight previously separate sets of OMB guidance documents; streamlining reporting requirements; reducing burden for entities that have never received an indirect cost rate; and setting standard business processes using data definitions to reduce administrative burden on non-Federal entities that conduct business with multiple federal agencies.

On December 19, 2014, the Secretary published an IFR for these amendments in the Federal Register (79 FR 75871).

Except for minor editorial and technical revisions, there are no differences between the IFR and these final regulations.

Technical Changes

The Secretary makes two amendments to the interim final regulations to correct errors made in the adoption of the Uniform Guidance. First, in amending § 75.135 to reference the Uniform Guidance, the Department failed to amend paragraph (b) of that section to reference the correct requirement in part 200. Second, in amending 34 CFR part 75, the Department inadvertently removed § 75.263 when we should have just revised the cross references in that section to refer to the appropriate citation in the Uniform Guidance. These two errors are corrected in these final regulations.

Public Comment: In response to our invitation in the IFR, one party submitted comments directed at the Department's proposed adoption of the interim final regulations in 2 CFR part 200. Generally, we do not address technical and other minor changes raised by the comments.

Analysis of Comments and Changes: An analysis of the comments follows.

Comment: The commenter requested clarification on whether or not the Department would grant local educational agencies (LEAs) a one-year grace period for implementing the procurement standards in 2 CFR 200.317 through 200.326. The commenter also sought clarity on the specific date that the procurement standards would go into effect for LEAs after the grace period.

Discussion: The Uniform Guidance regulations, as adopted by the Department, 79 FR 75872 (December 19, 2014) authorize all non-Federal entities (including LEAs) to delay implementation of the procurement requirements in 2 CFR 200.318 through 200.326 for one fiscal year after the regulations would otherwise apply to a grant. A recent technical amendment to the Uniform Guidance expanded that grace period to two years. See 80 FR 54407 (September 10, 2015). As such, each LEA will have the option of delaying implementation of the procurement standards until the end of its second fiscal year that begins after the effective date of the Uniform Guidance (December 26, 2014). For LEAs with a fiscal year that ends on June 30, 2015 that decide to defer implementation for the full two years, the LEA's new procurement standards would not have to be effective until July 1, 2017.

Changes: None.

Comment: The commenter requested clarification of the phrase “tangible personal benefit” in 2 CFR 200.318(c)(1).

Discussion: The phrase “tangible personal benefit” is new language added to the general conflict of interest section of the general procurement standards that existed previously under the Education Department General Administrative Regulations (EDGAR) 34 CFR 80.36(b)(3) and OMB Circular A-102. The language was expanded from just “financial or other interest in” to also include “or a tangible personal benefit from” a firm considered for a contract from a grantee. This new language stresses the importance of ensuring that employees who select, award, and administer contracts supported by a Federal award are free from any real or apparent conflict of interest, including financial interests and other non-financial benefits that result in a personal benefit for the employee (such as improved employment opportunities, business referrals, political influence, etc.).

Changes: None.

Comment: The commenter expressed concern regarding the conflict of interest rules in 2 CFR 200.319(a), specifically with regard to vendors with specialized expertise that may collaborate with grant applicants, because these vendors would be excluded from competing for a contract (if the applicant is awarded a grant) due to their organizational conflict of interest. The commenter requested that the Department issue guidance allowing vendors to provide minimal input to applicants, such as LEAs, for the purpose of informing a Request for Proposal (RFP) and to not prohibit these vendors from competing for the RFP because of a conflict of interest.

Discussion: The Department understands that an LEA may need to inform itself about the capacity and capability of potential contractors in order to prepare an RFP. In the course of doing so, an LEA may contact a number of vendors to collect information necessary for developing the RFP, as long as the LEA poses its request for information broadly so that any potential vendor has an opportunity to provide input. Soliciting input from one or two vendors would create, in most cases, an unfair competitive advantage constituting an organizational conflict of interest.

Changes: None.

Comment: The commenter raised concerns with regard to the prohibition of using “brand name” instead of “an equal” product in order to avoid restrictive competition under 2 CFR 200.319(a)(6). Specifically, the commenter noted that in some cases, a school may have already invested in a particular technology infrastructure or selected a particular instructional framework and it would be impractical or impossible to switch to another product or instructional approach. The commenter requested that the Department issue guidance to clarify when specifying a “brand name” might be appropriate and not considered a restriction on competition under 2 CFR 200.319(a)(6).

Discussion: The new procurement requirements in the Uniform Guidance do not require an LEA to abandon a technology or instructional approach just because a similar technology or instructional approach would cost less. The Department also understands that in some limited situations, specifying a “brand name” may not restrict competition under 2 CFR 200.319(a)(6). If an LEA has already invested in a particular infrastructure or instructional framework, specifying a “brand name” compatible with the infrastructure or framework may be appropriate. However, the procurement regulations are designed to ensure competition so the selected proposal is most advantageous to the program, with price and other factors considered. Thus, the LEA needs to compete to find the lowest cost supplier of the technology or instructional approach (other factors) desired by the LEA. The Department will consider developing additional guidance on this issue.

Changes: None.

Comment: The commenter noted two instances in which it believes that procurement by noncompetitive proposals (sole sourcing) should be allowed under 2 CFR 200.320(f)(1) where “the item is available only from a single source.” The first situation involves instances where an LEA has an existing technology infrastructure or instructional framework and requires specific hardware or software; the second situation involves instances where schools engage in pilot trials for educational technologies or instructional strategies or materials and want to “scale up” the piloted product.

Discussion: Generally, procurement by noncompetitive proposals is procurement through solicitation of a proposal from only one source. The use of this procurement method is permitted under very limited circumstances, but one basis for an authorized sole source contract is when the item is available only from a single source (2 CFR 200.320(f)(1)). If particular software or hardware is required because of an LEA's existing technology infrastructure or instructional framework and the hardware or software is truly only available from one source, noncompetitive procurement may be appropriate. The LEA must maintain records documenting the rationale for why sole sourcing was used (2 CFR 200.318(i)). If the desired software or hardware is available from more than one vendor, the LEA must use a competitive process, as described in 2 CFR 200.320(d).

LEAs that engage in pilot trials of educational technologies or instructional materials that then wish to “scale up” are not exempted from competitive procurement. Procurement transactions must be conducted in a manner providing full and open competition, as described in 2 CFR 200.319. If an LEA wants to experiment with a new educational technology or instructional strategy or material, it may do so without violating conflict of interest requirements by holding an open procurement competition, identifying the specifications for the technology, strategy, or material and stating the initial contract would be for a pilot of that product with an option to “scale up” the product if the pilot proves successful.

Changes: None.

Comment: The commenter raised concerns regarding the cost and efficiency of competitive bidding required under 2 CFR 200.320, noting that it would be more cost effective for the LEA to perform a cost analysis rather than use a Request for Proposal (RFP) process. The commenter encouraged the Department to allow for instances when the small purchase procedures could be used for procurements that exceed the Simplified Acquisition Threshold, including when the item is a commercially available product.

Discussion: The Department has allowed for limited instances when small purchase procedures may be used for procurements that exceed the simplified acquisition threshold. These limited instances are specified in a section in EDGAR that was established in 2013, 34 CFR 75.135, which authorizes discretionary grant applicants to use the informal small purchase procedures to procure evaluation service providers and providers of any other service that is essential to the grant, provided that the service provider is identified in the grant application. The service provider must be needed to meet a statutory, regulatory, or priority requirement related to the competition. See the final rulemaking document, published at 78 FR 49352, August 13, 2013, for a fuller discussion of the requirements in § 75.135. These limited exceptions do not include allowing the use of small purchase procedures just because an item is a commercial (off the self) product and not one that is custom-built based on unique specifications.

Changes: None.

Comment: The commenter sought clarification from the Department on whether or not price comparison under 2 CFR 200.323 could be considered a form of price competition, such that a non-federal entity would not be required to negotiated price as a separate element.

Discussion: Price comparison is not a form of price competition that would exempt a non-federal entity from negotiating profit as a separate element of the price.

Changes: None.

Comment: The commenter sought clarification on the definition of “procurement” for determining whether or not the transaction meets the small purchase or simplified acquisition threshold.

Discussion: The word “procurement” is used consistently throughout the Uniform Guidance and the Department does not intend to use that term differently in its implementation of the Uniform Guidance. The simplified acquisition threshold is the “dollar amount below which a non-Federal entity may purchase property or services using small purchase methods” (2 CFR 200.88). If a non-Federal entity seeks to acquire property or services that have an anticipated dollar value exceeding the simplified acquisition threshold, the non-Federal entity must use a competitive process and cannot use small purchase procedures unless the procurement meets the requirements of 34 CFR 75.135. Procurement actions must not be split into separate procurements to avoid competition thresholds.

Changes: None.

After consideration of all the comments regarding the IFR, the Secretary makes no changes to the regulations adopting the Uniform Guidance that were published on December 19, 2014 except for the two technical amendments discussed earlier in this preamble.

Executive Orders 12866 and 13563 Regulatory Impact Analysis

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, or tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Paperwork Reduction Act of 1995

These regulations do not contain any information collection requirements.

Intergovernmental Review

These regulations are subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for these regulations.

Assessment of Educational Impact

In the IFR we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.

Based on the response to the IFR and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Dated: October 27, 2015. Arne Duncan, Secretary of Education.

For the reasons discussed in the preamble, and under the authority of 5 U.S.C. 301 and the authorities listed below, the interim rule amending chapter XXXIV of 2 CFR and subtitle A and chapter I of title 34 of the Code of Federal Regulations, which was published at 79 FR 75871 on December 19, 2014, is adopted as a final rule with the following changes:

Title 34—Education Subtitle A—Office of the Secretary, Department of Education PART 75—DIRECT GRANT PROGRAMS 1. The authority citation for part 75 continues to read as follows: Authority:

20 U.S.C. 1221e-3 and 3474, unless otherwise noted.

§ 75.135 [Amended]
2. Section 75.135(b) is amended by removing “34 CFR 80.36(d)(1),” and adding in its place “2 CFR 200.320(b),”.
3. Section 75.263 is added to read as follows.
§ 75.263 Pre-award costs; waiver of approval.

A grantee may, notwithstanding any requirement in 2 CFR part 200, incur pre-award costs as specified in 2 CFR 200.308(d)(1) unless—

(a) ED regulations other than 2 CFR part 200 or a statute prohibit these costs; or

(b) The conditions of the award prohibit these costs.

(Authority: 20 U.S.C. 1221e-3 and 3474; 2 CFR 200.308(d)(1))
[FR Doc. 2015-27766 Filed 10-30-15; 8:45 am] BILLING CODE 4000-01-P
NUCLEAR REGULATORY COMMISSION 10 CFR Part 73 [NRC-2014-0036] RIN 3150-AJ37 Cyber Security Event Notifications AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is adopting new cyber security regulations that govern nuclear power reactor licensees. This final rule codifies certain reporting activities associated with cyber security events contained in security advisories issued by the NRC. This rule establishes new cyber security event notification requirements that contribute to the NRC's analysis of the reliability and effectiveness of licensees' cyber security programs and plays an important role in the continuing effort to provide high assurance that digital computer and communication systems and networks are adequately protected against cyber attacks, up to and including the design basis threat.

DATES:

Effective Date: This final rule is effective December 2, 2015. Compliance Date: Compliance with this final rule is required by May 2, 2016, for those licensed to operate under parts 50 and 52 of Title 10 of the Code of Federal Regulations (10 CFR) and subject to § 73.54.

ADDRESSES:

Please refer to Docket ID NRC-2014-0036 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2014-0036. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Robert H. Beall, Office of Nuclear Reactor Regulation, telephone: 301-415-3874, email: [email protected], U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION: Table of Contents: I. Background II. Discussion III. Opportunities for Public Participation IV. Public Comment Analysis V. Section-by-Section Analysis VI. Regulatory Flexibility Certification VII. Regulatory Analysis VIII. Backfitting and Issue Finality IX. Cumulative Effects of Regulation X. Plain Writing XI. Environmental Assessment and Final Finding of No Significant Environmental Impact XII. Paperwork Reduction Act XIII. Congressional Review Act XIV. Criminal Penalties XV. Compatibility of Agreement State Regulations XVI. Availability of Guidance XVII. Availability of Documents I. Background

On July 9, 2008, in SECY-08-0099, “Final Rulemaking—Power Reactor Security Requirements” (Agencywide Documents Access and Management System (ADAMS) Accession No. ML081650474), the NRC staff recommended the Commission approve a final rule amending the NRC's Power Reactor Security Requirements. The NRC staff also recommended removing sections in the Power Reactor Security Requirements rule on new and revised security notification requirements in § 73.71 and appendix G of part 73 of title 10 of the Code of Federal Regulations (10 CFR), “Reportable Safeguards Events,” and placing them in a new proposed enhanced weapons rulemaking. In SRM-SECY-08-099, dated December 17, 2008 (ADAMS Accession No. ML083520252), the Commission approved the Power Reactor Security final rule and the bifurcation of the security notification requirements in § 73.71 and appendix G to 10 CFR part 73 to the new proposed enhanced weapons rule.

On June 27, 2010, in SECY-10-0085, “Proposed Rule: Enhanced Weapons, Firearms Background Checks and Security Event Notifications” (ADAMS Accession No. ML101110121), the NRC staff recommended delegating to the Office of the Executive Director for Operations the authority to issue new cyber security notification changes in the proposed enhanced weapons rule for publication in the Federal Register, as well as issue draft implementing guidance on the proposed rule. On October 19, 2010, in SRM-SECY-10-0085, “Proposed Rule: Enhanced Weapons, Firearms Background Checks and Security Event Notifications” (ADAMS Accession No. ML102920342), the Commission directed the NRC staff to publish a proposed rule implementing requirements for enhanced weapons, revised physical security event notifications, and adding new cyber security event notifications. This proposed rule was published in the Federal Register for comment on February 3, 2011 (76 FR 6199). The public was provided a total of 180 days to review and comment on the proposed rule and associated guidance.

In SECY-12-0125, “Interim Actions to Execute Commission Preemption Authority Under Section 161A of the Atomic Energy Act of 1954, as Amended,” dated September 20, 2012 (ADAMS Accession No. ML12171A089), the NRC staff reported their discussions with the U.S. Department of Justice on the need to revise the Firearms Guidelines to limit the firearms background check requirement to only licensees that apply for preemption authority. Subsequently in SRM—SECY-12-0125, dated November 12, 2012 (ADAMS Accession No. ML12326A653), the Commission directed the NRC staff to revise the Firearms Guidelines accordingly, and publish a supplemental proposed enhanced weapons rule for public comment as soon as possible.

On December 20, 2013, in COMSECY-13-0031, “Bifurcation of the Enhanced Weapons, Firearms Background Checks, and Security Event Notifications Rule” (ADAMS Accession No. ML13280A366), the NRC staff informed the Commission of its plan to bifurcate the cyber security event notifications from the Enhanced Weapons rule due to delays resulting from the Firearms Guidelines revision. The bifurcation would allow the NRC staff to prepare a separate final rule for cyber security event notifications, therefore avoiding any further delay associated with the aforementioned Firearms Guidelines revision. In addition, this action would supplement the existing cyber security requirements (i.e., § 73.54, “Protection of Digital Computer and Communication Systems and Networks”) included in the 2009 power reactor security rule (76 FR 6199; February 3, 2011).

As part of the 2011 proposed enhanced weapons rule, the NRC received comments on the proposed cyber security event notification requirements. Changes between the proposed rule and this final cyber security event notifications rule reflect those public comments. Additionally, Draft Regulatory Guide (DG)-5019, Revision 1, “Reporting and Recording Safeguards Events” (ADAMS Accession No. ML100830413), was published for public comment on February 3, 2011 (76 FR 6085). The portions of the DG related to cyber security event notifications were also separated out from the original draft guide, and are now included in a new final regulatory guide (RG) (RG 5.83, “Cyber Security Event Notifications,” ADAMS Accession No. ML14269A388). Changes between DG-5019, Revision 1, and RG 5.83 reflect public comment. This approach (i.e., publish draft guidance with proposed rules and final guidance with final rules) is consistent with the agency's efforts to incorporate enhancements in the rulemaking process to address Cumulative Effects of Regulation (CER), as approved by SRM—SECY-0032, “Consideration of the Cumulative Effects of Regulation in the Rulemaking Process,” dated October 11, 2011 (ADAMS Accession No. ML112840466).

II. Discussion

The NRC is adding cyber security event notification requirements for nuclear power reactor facilities. These additions are necessary because cyber security event notification requirements were not included in the NRC's final rule that added § 73.54, “Protection of Digital Computer and Communication Systems and Networks,” to the NRC's regulations (74 FR 13926; March 27, 2009). Section 73.54 requires power reactor licensees to establish and maintain a cyber security program that provides high assurance that digital computer and communication systems and networks are adequately protected against cyber attacks, up to and including the design basis threat as described in § 73.1. Cyber security event notification requirements will contribute to the NRC's analysis of the reliability and effectiveness of licensees' cyber security programs and play an important role in the continuing effort to protect digital computer and communication systems and networks associated with: Safety-related and important-to-safety functions; security functions; emergency preparedness functions, to include offsite communications; and support systems and equipment which, if compromised, would adversely impact safety, security, and emergency preparedness (SSEP) functions. Notifications conducted and written reports generated by licensees will be used by the NRC to respond to emergencies, monitor ongoing events, assess trends and patterns, identify precursors of more significant events, and inform other NRC licensees of cyber security-related events, enabling them to take preemptive actions, if necessary (e.g., increase their security posture). In addition, timely notifications assist the NRC in achieving its strategic communications mission by informing the U.S. Department of Homeland Security (DHS) and Federal intelligence and law enforcement agencies of cyber security-related events that could: (1) Endanger public health and safety or the common defense and security, (2) provide information for threat-assessment processes, or (3) generate public or media inquiries.

The terrorist attacks of September, 11, 2001, demonstrated that adversaries were capable of simultaneously attacking multiple sectors of critical infrastructure. After those attacks, the NRC issued several Security Orders, as well as the Design Basis Threat (DBT) final rule (72 FR 12705; March 19, 2007) and the Power Reactor Security final rule (74 FR 13926; March 27, 2009). These Orders and final rules were steps taken by the NRC to ensure adequate protection of the public health and safety and common defense and security. The DBT final rule, in § 73.1, “Purpose and Scope,” describes in general terms the types of attacks licensees must protect against in order to prevent radiological sabotage and to prevent theft or diversion of strategic special nuclear material. An adversary attribute included under the DBT for radiological sabotage is a cyber attack, which is a type of attack that adversaries could remotely launch against multiple targets (i.e., nuclear power reactors) simultaneously. The Power Reactor Security final rule included specific requirements to provide high assurance that digital computer and communication systems and networks are adequately protected against cyber attacks (§ 73.54). The addition of cyber security event notification requirements supplements § 73.54 by enabling the timely notifications of potential and/or imminent cyber attacks directed against licensees. This allows for more timely assessment and dissemination of threat information, and improves the NRC's ability to respond and take the actions necessary to mitigate the adverse impacts of cyber attacks directed against licensees.

Separating the cyber security event notification requirements from the Power Reactor Security proposed rule narrowed the applicability to licensees subject to the requirements of § 73.54, which applies to operating nuclear power plants after the effective date of the final cyber security rule. Under the original proposed rule published on October 26, 2006 (71 FR 62664), cyber security event notifications were included with other event notifications (physical security, enhanced weapons, etc.) requiring a broader range of applicability (e.g., Fuel Cycle Facilities).

The NRC considered other options for licensees to report cyber attacks to the NRC. The NRC considered taking no additional regulatory actions and relying upon the continuation of voluntary reporting initiatives currently in place through security advisories. These voluntary reporting initiatives have allowed the NRC to identify certain cyber security-related events that might have had a negative impact upon licensees (e.g., vendor software updates containing malware) as well as provided licensees with threat information that assist them in protecting against cyber security-related threats. However, the security advisories are not mandatory requirements and do not provide timeliness requirements (one-hour, four-hour, eight-hour), which can be instrumental in the NRC's ability to respond to cyber security-related events, to evaluate cyber security-related activities for threat implications, and to accomplish the agency's strategic communications mission.

III. Opportunities for Public Participation A. Public and Stakeholder Meetings

As part of its comprehensive assessment of the NRC's cyber security event notification regulations and guidance development for this rule, the NRC staff held two meetings with internal and external stakeholders.

On June 1, 2011, staff held a public meeting to discuss the proposed Enhanced Weapons, Firearms Background Checks, and Security Event Notifications rulemaking, which included the cyber security event notification requirements. The meeting was in workshop format, and was held at the NRC Headquarters in Rockville, Maryland; it was attended by more than 50 people. Additional individuals remotely participated in the meeting through audio teleconferencing and webinar. Presenters at the meeting included NRC staff, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Investigations (FBI). Since the NRC was not accepting public comments, the meeting was not transcribed; however, a meeting summary and the handouts from the meeting are available in ADAMS under Accession No. ML111720007.

The NRC staff also met with internal and external stakeholders on July 31, 2014. This public meeting was to discuss the draft final rule implementation date for the cyber security event notification requirements. The public meeting was held at the NRC Headquarters in Rockville, Maryland, and it was attended by six individuals in person and eight individuals remotely through audio teleconferencing and webinar. The NRC staff presented the current status of the draft final cyber security event notifications rule and the draft final implementation date. The NRC transcribed the meeting in order to capture public input on the draft final implementation date. The feedback from this meeting, as well as all the previous interactions, informed the NRC's schedule for the implementation of the new cyber security event notification requirements. The meeting summary, handouts, and a transcript of the meeting are available in ADAMS under Accession No. ML14240A404.

B. Opportunity for Public Comment

The proposed rule was published in the Federal Register on February 3, 2011 (76 FR 6199), and the public comment period closed on August 4, 2011. On the same day the NRC also published a separate notice requesting comment on DG-5019, Revision 1, “Reporting and Recording Safeguards Events.” The NRC received a total of 14 submittals on the proposed rule and draft guidance relating to enhanced weapons, firearms background checks and security event notifications (which included cyber security event notifications). The majority of comments came from the Nuclear Energy Institute (NEI) on behalf of the nuclear power reactor licensees.

IV. Public Comment Analysis

The proposed enhanced weapons rule was published February 03, 2011 (76 FR 6199), and the public comment period closed on August 04, 2011. On the same day the NRC also published a separate notice requesting comment on DG-5019, Revision 1, “Reporting and Recording Safeguards Events.”

The NRC received 14 submittals on the proposed rule and draft guidance. The NRC also received one comment on the proposed implementation date during the July 31, 2014, public meeting. Comments specific to cyber security event notifications in the proposed enhanced weapons rule and DG-5019, Revision 1, were identified and are addressed in this final rule. The comments specific to the proposed rule on Enhanced Weapons, Firearms Background Checks, and Security Event Notifications (76 FR 6200) are not addressed in this final rule and will be addressed in a subsequent rulemaking. In addition, certain event notification comments in the proposed rule that were generic (e.g., comments referring to four-hour notifications in general) are addressed for cyber security events in this final rule. The submittals containing comments specific to cyber security event notifications were consolidated into a single document (ADAMS Accession No. ML14226A596) that assigns the comment designators (e.g., NEI-155) used in this final rule. In the proposed rule and draft guidance, the cyber security event notifications aligned with physical security event notifications with a focus on compensated and uncompensated events. However, based on public comments, the final rule and regulatory guidance now aligns more closely with § 73.54 with a focus on adverse impacts to SSEP functions.

A. Public Comments on Proposed Rule

Comment 1: One commenter stated that neither § 73.71 nor appendix G to 10 CFR part 73 contains an effective date for cyber security reporting requirements, and recommended that the reporting requirements align with the date the cyber security plan becomes effective. [NEI-155]

Response: The NRC disagrees with this comment. Notification of a cyber security event is necessary to assist the NRC in assessing and evaluating issues with potential cyber security-related implications in a timely manner, determining the significance and credibility of the identified issue(s), and providing recommendations and/or courses of action to NRC management. Currently, licensees are reporting certain cyber security events voluntarily to the NRC. However, because this is done voluntarily there could be certain cyber security events that may not be reported to the NRC in a timely manner or reported at all. The cyber security event notifications final rule removes the voluntary aspects of reporting certain cyber security events, provides regulatory stability, and ensures the NRC is notified in a timely manner.

Prompt notification of a cyber attack could be vital to the NRC's ability to take immediate action in response to a cyber attack and, if necessary, to notify other NRC licensees, Government agencies, and critical infrastructure facilities, to defend against a multiple sector (e.g., energy, financial, etc.) cyber attack. Like the attacks of September 2001, a cyber attack has the capability to be launched against multiple targets simultaneously or spread quickly throughout multiple sectors of critical infrastructure. In light of these potential consequences, the NRC does not want to delay the implementation of the cyber security event notification final rule to match the effective date of each licensee's cyber security plan (i.e., Milestone 8) because those cyber security plans may not be fully effective for several years.

The final rule will become effective 30 days after publication in the Federal Register. The compliance date will be 180 days after publication (consistent with the implementation schedule described in the proposed rule) to allow licensees time to revise their event notification procedures and train personnel on event notifications specific to cyber security (i.e., identification, reporting). The cyber security event notification final rule is consistent with existing notification processes (i.e., §§ 50.72 and 73.71) and aligns closely with § 73.54 (e.g., adverse impacts to SSEP functions) as well as current voluntary reporting activities associated with cyber security requiring less time for implementation. In addition, the cyber security event notification final rule complements the implementation of Milestones 1 through 7. For example, the identification of critical systems and critical digital assets (Milestone 2), the implementation of a deterministic one-way device (Milestone 3), and access controls for portable media devices (Milestone 4) are all programs that when properly implemented and maintained, should identify and mitigate adverse impacts to SSEP functions. The cyber security event notification final rule requires licenses to notify the NRC when a cyber attack caused or could have caused an adverse impact to SSEP functions. These factors, along with the importance of the NRC strategic communications mission of informing the DHS and Federal intelligence and law enforcement agencies of cyber security-related events that could: 1) Endanger public health and safety or the common defense and security, 2) provide information for threat-assessment processes, or 3) generate public or media inquiries, support the need for the 180-day implementation schedule.

Comment 2: One commenter indicated that critical digital assets (CDAs) that are not part of a target set should not have the same sensitivity as those CDAs that are contained within a target set. [NEI-156]

Response: The NRC disagrees with this comment. The NRC staff has recognized that a graded approach to controls required for CDAs is warranted based on the ability to detect and mitigate the consequences of a cyber attack. However, the cyber security event notification requirements focus on events that have or could have an adverse impact to SSEP functions, and thereby incorporates consideration of protections that prevent successful cyber attacks. Therefore, the notification requirements cover all CDAs and critical systems within the scope of § 73.54, which includes: Safety-related and important-to-safety functions; security functions; emergency preparedness functions, including offsite communications; and support systems and equipment which, if compromised, would adversely impact safety, security, or emergency preparedness functions.

Comment 3: Two commenters recommended that the four-hour notification events should be incorporated into the eight-hour notification events, therefore eliminating the four-hour notification events. One commenter specifically recommended that suspicious events be moved from four-hour to eight-hour notifications. [NEI-17, 161, Hardin-2]

Response: The NRC agrees in part, with this comment. The NRC agrees that suspicious cyber security events (i.e., activities that may indicate intelligence gathering or pre-operational planning related to a cyber attack) should be moved from four-hour notifications to eight-hour notifications. However, notifications with a local, State, or other Federal agency is consistent with existing NRC regulations at § 50.72(b)(2)(xi). In addition, unsuccessful cyber attacks has been clarified to align more closely with § 73.54 and addresses cyber attacks that could have caused an adverse impact to SSEP functions and remains a four-hour notification so the NRC can conduct additional notifications as appropriate (e.g., other NRC licensees, Federal law enforcement agencies, the intelligence community) to mitigate the effects of a widespread cyber attack, or use as part of the National threat assessment process. Furthermore, unauthorized operation and tampering events have been clarified to address suspected or actual cyber attacks initiated by personnel with physical or electronic access and were moved in the final rule to four-hour notifications due to the implications of an internal threat. Accordingly, the NRC has revised the rule language and associated guidance consistent with this approach to address the broader recommendation of aligning more closely with § 73.54.

Comment 4: One commenter suggested adding the word “significant” in front of cyber security events. [NEI-167]

Response: The NRC disagrees with this comment. Prefacing the phrase “cyber security events” with “significant” does not add clarity to the rule. The NRC is requiring only those cyber security events associated with actual or potential adverse impacts to be reported. The NRC has changed the rule text and associated guidance to align more closely with § 73.54 and distinguishes cyber security events by whether an adverse impact has occurred (or not) to SSEP functions as a result of a cyber attack.

Comment 5: One commenter suggested removing the requirement in appendix G of 10 CFR part 73 regarding the recording of events in a safeguards event log. The commenter suggested licensees use the corrective action program instead of using a separate log. [NEI-18, 194, 202]

Response: The NRC agrees with this comment. The cyber security plan for each licensee describes the use of the corrective action program to track, trend, correct, and prevent recurrence of cyber security failures and deficiencies. Therefore, the cyber security event notification rule text (§ 73.77) has been revised to require licensees to use their corrective action program to record vulnerabilities, weaknesses, failures and deficiencies in their cyber security program. Regulatory Guide 5.83 has also been revised to reflect this change.

Comment 6: The NRC received a comment regarding the use of the term “compensatory” in the context of cyber security, stating that the term is unclear, and is not defined in the two cyber security plan (CSP) templates, Appendix A of RG 5.71, and Appendix A of NEI 08-09. [NEI-153, 165]

Response: The NRC agrees with this comment. The term “compensatory” is not defined in either CSP template or in other NRC guidance related to cyber security. Based on public comments, the NRC has developed a different approach for determining cyber security event notifications, one that is based on whether the cyber attack caused an adverse impact (or not) to SSEP functions. The final rule and RG 5.83 have been revised to reflect this new approach.

Comment 7: The NRC received one comment pertaining to use of the term “uncompensated” in the context of cyber security, stating that the term is unclear, and is not defined within the CSP. In addition, one of the commenters also stated that the term “failure” in the context of cyber security required clarification. [NEI-164, 207]

Response: The NRC agrees with this comment. The terms “uncompensated” and “failure” have been removed from the final rule language. Based on public comments, the NRC has developed a different approach for determining cyber security event notifications, one that is based on whether the cyber attack or event caused an adverse impact (or not) to SSEP functions. Regulatory Guide 5.83 has been revised to reflect this new approach.

Comment 8: One commenter proposed changes to the rule language, paragraph I.(h)(1) in appendix G of 10 CFR part 73, adding the terms “credible,” “malicious,” and “radiological sabotage” to add clarity. The commenter recommended rewriting the event to add in part, “a credible threat to commit or cause a malicious act to modify, destroy, or compromise any systems, networks, or equipment that falls within the scope of 10 CFR 73.54 of this part where a compromise of these systems has resulted or could result in radiological sabotage.” [NEI-157, 206]

Response: The NRC disagrees with this comment. Based on public comments, the NRC developed a different approach for determining cyber security event notifications, one that is based on whether a cyber attack caused an adverse impact (or not) to SSEP functions. This approach aligns more closely with § 73.54 and the terms “credible,” “malicious,” and “radiological sabotage” are not needed to provide clarity under this approach. Regulatory Guide 5.83 has been revised to reflect this new approach.

Comment 9: One commenter proposed revising the proposed rule language in paragraph I.(h)(2) in appendix G of 10 CFR part 73 to include language regarding the defense-in-depth protective strategies required by § 73.54(c)(2). [NEI-158]

Response: The NRC agrees with this comment. The NRC evaluated the proposed rule language and determined that items to be reported under this section are duplicative. Based on public comments, the NRC developed a different approach for determining cyber security event notifications, one based on whether the cyber attack caused an adverse impact (or not) to SSEP functions. Regulatory Guide 5.83 has been revised to reflect this approach.

Comment 10: One commenter proposed language to paragraph I.(c)(1) in appendix G of 10 CFR part 73 to report only instances of suspicious or surveillance activity or attempts to access systems, networks, or equipment that is within the scope of § 73.54. Additionally, the commenter recommended deleting proposed language that would include reporting of additional types of events like potential tampering or potential destruction of networks, systems, or equipment. [NEI-159]

Response: The NRC disagrees with this comment. The commenter's reference to paragraph I.(c)(1) in appendix G of 10 CFR part 73 appears to be misquoted. The changes proposed by the commenter would amend paragraph II.(c)(1) in appendix G. The NRC believes that surveillance activities are captured within activities that indicate intelligence gathering or pre-operational planning and should be reported, and has made appropriate changes to this final rule. The NRC has clarified and relocated this requirement to the eight-hour notifications, now designated as § 73.77(a)(3). Additionally, the NRC moved the reporting of potential tampering, or potential destruction of networks, systems or equipment from this requirement and they are now captured under § 73.77(a)(1), (a)(2)(i), and (a)(2)(ii) of this final rule.

Comment 11: One commenter indicated that paragraph I.(c)(2) in appendix G of 10 CFR part 73 in the proposed rule text should be completely removed because it duplicates other proposed rule text. [NEI-160]

Response: The NRC agrees in part, with this comment. The commenter's reference to paragraph I.(c)(2) in appendix G of 10 CFR part 73 appears to be misquoted. The changes proposed by the commenter would amend paragraph II.(c)(2) in appendix G. The final rule text has been revised to remove all duplicative language and is aligned more closely with the requirements in § 73.54 (i.e., adverse impacts to SSEP functions). This revised requirement is designated as § 73.77(a)(2)(i). Regulatory Guide 5.83 has been revised to reflect this change.

Comment 12: One commenter proposed changes to paragraph III in appendix G of 10 CFR part 73 to clarify the language under eight-hour reportable events to be consistent with § 73.54(c)(1), which implements security controls to protect CDAs and critical systems from cyber attacks. [NEI-162]

Response: The NRC agrees in part, with this comment. Based on public comments, the NRC developed an approach that aligns more closely with § 73.54. The implementation of security controls to protect CDAs from cyber attacks as described in § 73.54(c)(1) is designed to prevent adverse impacts to SSEP functions. Therefore, in the final rule, a cyber attack that adversely impacted SSEP functions requires notification within one hour after discovery, and cyber attacks that could have caused an adverse impact to SSEP functions requires notification within four hours after discovery due to the potential consequences of these events. Regulatory Guide 5.83 has been revised to reflect this new approach.

Comment 13: One commenter recommended adding “that would” to a proposed 24-hour recordable event provision in paragraph IV.(a)(2) in appendix G of 10 CFR part 73. Specifically, the commenter recommended that the proposed appendix G provision regarding compensated security events state in part as follows:

(a) Any failure, degradation, or discovered vulnerability in a safeguards system, had compensatory measures not been established, that could . . . (2) Degrade the effectiveness of the licensee's or certificate holder's cyber security program that would allow unauthorized or undetected access to any systems, networks, or equipment that fall within the scope of § 73.54 of this part.

The commenter stated that this re-worded provision would better align with another proposed provision in paragraph I.(h)(2) in appendix G of 10 CFR part 73. [NEI-163]

Response: The NRC disagrees with this comment. Adding the words, “that would” to the rule text changes the context of the type of events that are required to be recorded. However, based on other public comments, the NRC re-evaluated the 24-hour recordable events for cyber security event notifications and developed an approach that aligns more closely with the CSP requirements. Under this approach, as reflected in the new § 73.77(b)(1) provision being added as part of this final rule, licensees will be required to use their corrective action program to record vulnerabilities, weaknesses, failures, and deficiencies in their cyber security program within twenty-four hours of their discovery. Regulatory Guide 5.83 has been updated to reflect this change.

Comment 14: One commenter recommended revising the proposed rule language to align exactly with the rule language in § 73.54(a)(2), which discusses protecting digital assets from cyber attacks that would adversely impact the operations of SSEP functions. Specifically, the commenter notes that the reporting rule text uses the word “could” instead of “would.” [NEI-168]

Response: The NRC agrees in part, with this comment. The NRC agrees that the reporting rule text should align more closely with § 73.54. However, the NRC disagrees with changing the word “could” to “would,” because these words are correctly used in their respective rules. Section 73.54 addresses hypothetical future cyber attacks that must be protected against, while this rule describes notifications that licensees are required to issue after an event has already occurred. Further, there are different types of cyber attacks that licensees are required to report. One type of attack required to be reported is a cyber attack that adversely impacted SSEP functions. This type of attack is to be reported within one-hour after discovery. Another type required to be reported is a cyber attack that could have caused an adverse impact to SSEP functions; this type of attack is to be reported within four-hours after discovery. The NRC has revised RG 5.83 to reflect this new approach that aligns more closely with § 73.54 regarding adverse impacts to SSEP functions.

Comment 15: One commenter proposed deleting the requirement in paragraph II.(c)(2) in appendix G of 10 CFR part 73 because the commenter believes it is duplicated in paragraph I.(h)(2) in appendix G. [NEI-169]

Response: The NRC agrees that the proposed paragraph II.(c)(2) in appendix G of 10 CFR part 73 is similar to paragraph I.(h)(2) in appendix G; therefore, the NRC has revised the final rule to make it clear exactly what types of cyber attacks are reported to the NRC. Specifically, the final rule language reflects a different approach for determining cyber security event notifications, eliminates duplicative requirements, and provides clarity based on whether the attack caused an adverse impact (or not) to SSEP functions. Regulatory Guide 5.83 has been revised to reflect this new approach.

Comment 16: One commenter proposed rule language in paragraph I.(h)(2) in appendix G of 10 CFR part 73 that would change events that “could” allow unauthorized or undetected access into systems, networks, or equipment to events that “would” allow unauthorized or undetected access into systems, networks, or equipment. [NEI-170]

Response: The NRC disagrees with this comment, but has, for other reasons, revised the requirement in the final rule. The objective of this reporting requirement is not to have licensees confirm with the NRC that a cyber attack has occurred. Rather, the objective is to report conditions in which such an attack could have occurred. The NRC continues to believe that licensees should report events or circumstances that could have resulted in undetected or compromised conditions at the facility. However, the NRC staff evaluated the language in the proposed rule and determined that items reported under this section were duplicative and therefore removed this requirement from the final rule text. Regulatory Guide 5.83 was revised to reflect this change.

Comment 17: One commenter recommended four and eight-hour notifications be consolidated into “within 24-hours” to mitigate event reporting violations. [B&W-30]

Response: The NRC disagrees with this comment. The four and eight-hour notifications include cyber attacks and activities (i.e., precursors to an attack) where the timeliness of information allows the NRC to conduct additional notifications (to DHS, other NRC licensees), assists the Federal Government and/or other NRC licensees to take mitigative measures to prevent a widespread cyber attack, and allows the NRC to respond to public and/or media inquiries. In addition, notifications to a local, State or other Federal agency is consistent with existing NRC regulations at § 50.72(b)(2)(xi).

Comment 18: One commenter recommended clarification on cyber security event notification requirements regarding exclusion of licensees not subject to § 73.54. [NFS-11, 12]

Response: The NRC agrees with this comment. The final rule text was revised and clarified to only apply to licensees subject to the provisions of § 73.54.

Comment 19: One commenter recommended that “one-hour notifications” should be related to a specific threat or attempted threat to the facility, and events that do not pose an actual threat should be “eight-hour notifications.” [NEI-22, 33]

Response: The NRC disagrees with this comment. Based on public comments, the NRC developed a different approach for determining cyber security event notifications, one that is based on whether a cyber attack caused an adverse impact (or not) to SSEP functions. Cyber attacks that adversely impacted SSEP functions are now one-hour notifications. Cyber attacks that could have caused an adverse impact to SSEP functions are now four-hour notifications, and activities that may indicate intelligence gathering or pre-operational planning related to a cyber attack are now eight-hour notifications.

Comment 20: One commenter recommended adding the word “malevolent” to proposed requirements describing an unauthorized operation or tampering event to rule out human error events. [NEI-31, 48]

Response: The NRC disagrees with this comment. The word “malevolent” is unnecessary because, under the new approach, notification of such events is not based on the intent of the act, but based on the potential consequences of the event (i.e., adverse impact (or not) to SSEP functions). No change has been made to the final rule based on this comment.

Comment 21: One commenter recommended clarifying requirements regarding law enforcement interactions. The commenter recommended that notifications that could result in public or media inquiries should not duplicate notifications made under other NRC regulations such as § 50.72(b)(2)(xi). [NEI-35]

Response: The NRC agrees with this comment. The final rule has been revised to eliminate duplication of notifications made under other NRC regulations. Regulatory Guide 5.83 has been revised to reflect this change.

Comment 22: One commenter recommended clarification regarding retraction of reports determined later to be invalid. The commenter stated that the notification may not be invalid, but later be determined it does not meet the threshold of a one-, four-, or eight-hour notification (i.e., recordable event). [NEI-40]

Response: The NRC agrees with this comment. The final rule and RG 5.83 have been revised to clarify that retraction of reports can include valid reports which later do not meet the threshold of a one-, four-, or eight-hour notification.

Comment 23: One commenter recommended adding the term “malicious intent” to each of the eight-hour reportable events regarding unauthorized operation or tampering events. [NEI-53, 112]

Response: The NRC disagrees with this comment. The term “malicious intent” is unnecessary because, under the new approach, notification of such events is not based on the intent of the act, but based on the potential consequences of the event (i.e., adverse impact (or not) to SSEP functions).

Comment 24: One commenter recommended that cyber attack reporting needs to be synchronized with NEI 08-09 and RG 5.71 to ensure reporting criteria are well-defined. [NEI-69]

Response: The NRC agrees with this comment. The final rule reflects an approach that aligns more closely with § 73.54 and RG 5.71 and provides additional clarity on cyber security event notification criteria (i.e., adverse impact to SSEP functions). Regulatory Guide 5.83 has also been revised to reflect this new approach.

Comment 25: One commenter recommended deleting the requirements and guidance for written follow-up reports on several reporting events (four and eight-hour notifications). [NEI-117]

Response: The NRC disagrees with this comment. Submission of written follow-up reports is consistent with existing NRC regulations and provides the NRC with information that may not have been available at the time of the notification.

Comment 26: One commenter recommended that the final rule require licensees to notify their local FBI Joint Terrorism Task Force (JTTF) of suspicious events as contained in voluntary guidance documents and eliminate or reduce the timeliness of reporting such events to the NRC. [Hardin-3]

Response: The NRC disagrees with this comment. The reporting of events to the FBI JTTF is voluntary and as such, does not have a timeliness requirement. This final rule requires notification to the NRC within a stated time for activities that may indicate intelligence gathering or pre-operational planning related to a cyber attack. Notifications of activities that may indicate intelligence gathering or pre-operational planning related to a cyber attack will be evaluated and forwarded as appropriate by the NRC to federal law enforcement agencies and the intelligence community as part of the National threat assessment process.

B. Public Comments on Draft Guide-5019

Comment 1: One commenter proposed removing the terms such as “could,” “likelihood,” and “likely to” from DG-5019. [NEI-21, 166]

Response: The NRC disagrees with this comment. The use of the terms “could,” “likelihood,” and “likely to” within DG-5019 is consistent with existing NRC reporting guidelines (NUREG-1022, “Event Report Guidelines for 10 CFR 50.72 and 50.73” (ADAMS Accession No. ML13032A220)).

Comment 2: One commenter proposed revising section 2.3.2, item r, of DG-5019 to include, “Confirmed cyber attacks on computer systems that adversely affected safety, security, and emergency preparedness systems are reportable” instead of, “may adversely affect” and removing item aa of section 2.3.2 due to redundancy. [NEI-171]

Response: The NRC agrees with this comment. The staff evaluated both items in section 2.3.2 of DG-5019 and revised RG 5.83 to reflect the proposed changes.

Comment 3: One commenter proposed revising section 2.3.2, item bb.(2), of DG-5019 to include the word “cyber” before security program and security measures. [NEI-172]

Response: The NRC agrees with this comment, yet has, for other reasons removed this material from the final guidance. The final guidance reflects changes made to the final rule that aligns more closely with § 73.54 (i.e., adverse impacts to SSEP functions), and in the process, the NRC staff determined that item bb.(4) was no longer required.

Comment 4: One commenter proposed revising section 2.3.2, item bb.(3), of DG-5019 to state that events caused inadvertently by an individual and not resulting in a threat to facility security, would be a recordable event, and events caused by a cyber attack resulting in an adverse impact to SSEP functions would be a one-hour reportable event. [NEI-173]

Response: The NRC agrees with this comment. The item was revised in RG 5.83 to distinguish recordable inadvertent non-threatening events from those cyber attacks causing adverse impacts, which are one-hour notifications.

Comment 5: One commenter recommended moving section 2.3.2, item bb.(4) from (one-hour notification examples) to section 2.6.2 (eight-hour notification examples) in DG-5019 regarding attempts by unauthorized persons. [NEI-174]

Response: The NRC disagrees with this comment, yet has, for other reasons, removed this material from the final guidance. The final guidance reflects changes made to the final rule that aligns more closely with § 73.54 (i.e., adverse impacts to SSEP functions), and in the process, staff determined that item bb.(4) was no longer required.

Comment 6: One commenter recommended moving section 2.3.2, item bb.(5), (one-hour notification examples) to section 2.6.2 (eight-hour notification examples) in DG-5019 regarding cyber attacks thwarted by security controls. [NEI-175]

Response: The NRC disagrees with this comment, yet has, for other reasons, removed this material from the final guidance. The final guidance reflects changes made to the final rule that aligns more closely with § 73.54 (i.e., adverse impacts to SSEP functions), and in the process, staff determined that item bb.(5) was no longer required.

Comment 7: One commenter proposed removing the terms “unauthorized software” and “firmware” from section 2.3.2, item cc, because of redundancy with the term malware. [NEI-176]

Response: The NRC disagrees with this comment, but for other reasons, the guidance has been revised. There is a difference between malware, and unauthorized software, or firmware, and therefore there is no redundancy. However, the staff re-evaluated the language and determined the example is not consistent with § 73.54 and RG 5.71. Therefore, the example was not included in RG 5.83.

Comment 8: One commenter proposed changes to section 2.3.2, item dd, of DG-5019 where the result was changed from compromising the CDA to an adverse impact to SSEP functions. [NEI-177]

Response: The NRC agrees with the proposed changes to the item; however, due to changes in the final rule language, this item was clarified and moved to a four-hour notification example within RG 5.83.

Comment 9: One commenter recommended removing section 2.3.2, item ee, of DG-5019, because there are no NRC regulations covering “sensitive cyber security data.” [NEI-178]

Response: The NRC agrees with this comment. The item has been removed from RG 5.83.

Comment 10: One commenter recommended clarifying section 2.3.2, item ff, of DG-5019, and proposed the term “cyber intrusion detection capability” instead of the term “cyber intrusion detection system.” [NEI-179]

Response: The NRC disagrees with this comment, yet has, for other reasons, removed this material from the final guidance. The item was not included in RG 5.83 because it was not consistent with § 73.54 and RG 5.71.

Comment 11: One commenter recommended section 2.3.2, item hh, of DG-5019 be revised to be consistent with § 73.54(a)(2) by removing the term uncompensated. [NEI-181]

Response: The NRC disagrees with this comment, yet has, for other reasons, removed this material from the final guidance. The staff reviewed the item and determined it was not consistent with 10 CFR 73.54 and RG 5.71 and removed it from RG 5.83.

Comment 12: The NRC received several comments regarding redundant material within section 2.3.2., item hh, of DG-5019. [NEI-180, 182, 185]

Response: The NRC agrees with this comment. Staff removed items gg, ii and ll from section 2.3.2 in RG 5.83 because they were redundant with item hh regarding unauthorized access to CDAs.

Comment 13: One commenter recommended moving section 2.3.2, item jj, of DG-5019 from the one-hour notification examples to the four-hour notification examples in section 2.5.2 regarding discovery of falsified identification badges. [NEI-183]

Response: The NRC agrees in part with this comment, that the item should be moved. However, under the new approach, this item is consistent with eight-hour notifications (i.e., activities that may indicate intelligence gathering or pre-operational planning related to a cyber attack) and was moved in final guidance to the eight-hour notification examples.

Comment 14: One commenter recommended revising section 2.3.2, item kk, of DG-5019 replacing the term “could” with “would.” [NEI-184]

Response: The NRC disagrees with this comment, yet has, for other reasons, removed this material from the final guidance. The NRC staff re-evaluated this item, determined it was not consistent with the final rule, and deleted it from RG 5.83.

Comment 15: One commenter recommended removing section 2.3.2, item mm, of DG-5019 because it duplicates 2.3.2, item y, regarding safeguards reporting requirements. [NEI-186]

Response: The NRC agrees with this comment. The item has been removed from RG 5.83.

Comment 16: One commenter recommended removing section 2.3.2, item nn, of DG-5019 because there are no NRC requirements for maintaining cyber security response personnel staffing levels. [NEI-187]

Response: The NRC agrees with this comment. The item has been removed from RG 5.83.

Comment 17: One commenter recommended revising section 2.3.2, item oo, of DG-5019 to change the phrase, “could increase the likelihood of an attempted attack” to the phrase, “would result in an attack.” [NEI-188]

Response: The NRC disagrees with this comment, yet has, for other reasons, revised this material in the final guidance. This item has been revised in RG 5.83 to include any event that allows unauthorized or undetected access to a CDA that could be exploited in an attack to be reported within four hours of discovery.

Comment 18: One commenter recommended adding new examples to sections 2.3.2 and 2.5.2 of DG-5019. One example, (section 2.3.2) involved discovery of unauthorized user IDs and unauthorized configurations to cyber controls (e.g., firewall port opening, etc.). The other example (section 2.5.2) involved unauthorized attempts to probe CDAs including the use of social engineering techniques. [NEI-189, 190]

Response: The NRC agrees with the examples provided, and based on final rule text changes (cyber attacks initiated by personnel with physical or electronic access and activities that may indicate pre-operational planning), these items were included in RG 5.83.

Comment 19: One commenter recommended revising section 2.5.2, item kk, of DG-5019 to include the word cyber before the term security controls. [NEI-191]

Response: The NRC agrees with this comment. The item was revised in RG 5.83 to include the word cyber before security controls.

Comment 20: One commenter recommended removing section 2.5.2, item mm, of DG-5019 because it is redundant to section 2.5.2, item kk. [NEI-192]

Response: The NRC agrees with this comment. The item has been removed from RG 5.83.

Comment 21: One commenter recommended revising section 2.5.2, item oo, of DG-5019 to add Levels 3 and 4 to the description so the item is consistent with the definition provided in the glossary for a CDA. [NEI-193]

Response: The NRC disagrees with this comment, but for other reasons has revised the final guidance. The definition of a CDA in RG 5.83 was revised for consistency with the definition provided in RG 5.71.

Comment 22: One commenter recommended revising section 2.5.2, item qq, of DG-5019 or removing it altogether because reporting the high number of malware attempts on lower security level networks that do not have the degree of protection of CDAs would be burdensome on the NRC and the licensee. [NEI-195]

Response: The NRC agrees with this comment. Based on final rule text changes, this item was revised in RG 5.83 narrowing the scope to attacks discovered or manifested on a CDA, critical system or protected network reducing the number of potential notifications on the licensee and the NRC.

Comment 23: One commenter recommended revising section 2.5.2, item rr, of DG-5019 to clarify the term “cyber systems.” [NEI-196]

Response: The NRC agrees with this comment. In RG 5.83 this item was revised for consistency with RG 5.71 and uses the terms “critical systems” and “CDAs.”

Comment 24: One commenter recommended removing the 15-minute reference in section 2.5.2, item ss, of DG-5019. [NEI-197]

Response: The NRC agrees with this comment. The final rule text does not contain any 15-minute notifications related to cyber security, and therefore, this item was revised in the final guidance to a four-hour notification example.

Comment 25: One commenter recommended revising or removing the paragraph before section 2.6.2, item h, in DG-5019 regarding cyber security events that interrupt or degrade the facility's SSEP functions. [NEI-198]

Response: The NRC agrees with this comment, yet has, for other reasons removed this material from the final guidance. The final guidance reflects changes made to the final rule that aligns more closely with § 73.54 (i.e., adverse impacts to SSEP functions), and in the process, staff determined that this item was no longer required.

Comment 26: One commenter recommended revising section 2.6.2, item I, of DG-5019. The commenter recommended removing the term “failed” because a CDA could fail for non-malicious reasons and not be the result of a cyber attack or unauthorized activity. [NEI-199]

Response: The NRC agrees with this comment. There are many reasons a critical digital asset can fail that are not related to unauthorized activity or cyber attacks. Regulatory Guide 5.83 has been revised to reflect this change.

Comment 27: One commenter recommended revising section 5.3, item n, of DG-5019 because the term “compensated” is not defined. [NEI-200]

Response: The NRC agrees with this comment. This item was removed from RG 5.83.

Comment 28: One commenter recommended clarifying section 5.3, item o, of DG-5019 regarding individuals who are incorrectly authorized access to a CDA. [NEI-201]

Response: The NRC agrees with this comment. This item was removed from RG 5.83.

Comment 29: One commenter recommending adding items to section 5.3 of DG-5019 to include examples of cyber events that are compensated as proposed by paragraph IV.(a) in appendix G of 10 CFR part 73. [NEI-203]

Response: The NRC disagrees with this comment. The final rule language reflects a different approach, one based on whether the cyber attack or event caused an adverse impact (or not) to SSEP functions, instead of whether the cyber attack or event was compensated or uncompensated. Regulatory Guide 5.83 has been revised to reflect this new approach.

Comment 30: One commenter recommended changes to the definitions provided in the glossary of DG-5019. The commenter proposed changing “cyber attack” to be consistent with the definition provided in NEI 08-09 and changing “CDA” to only include digital computer, communication systems, and networks that fall within level 3 or 4 boundaries as well as a general comment that all definitions in the glossary be synchronized with code requirements and regulatory guides. [NEI-138, 204, 205]

Response: The NRC agrees in part with this comment. The definitions of cyber attack and CDA in RG 5.83 have been revised to synchronize with the definitions in RG 5.71, not NEI 08-09.

Comment 31: Two commenters proposed a definition of the term “discovery time of” in DG-5019. The commenters suggested discovery occurs after initial notifications are made and a determination made that the event meets applicable reporting requirements. [NEI-19, B&W-29]

Response: The NRC disagrees with this comment. Internal notifications and gathering information to make a determination as to whether it meets applicable reporting requirements could take several hours, or even days, depending on the amount of information needed to reach a conclusion. The time to report an event is upon recognition; the licensee can withdraw a report (based on subsequent analysis of the circumstances) without prejudice to its security performance indicators. No changes have been made to the guidance.

Comment 32: One commenter stated that the cyber security plan templates published by the NRC and NEI do not contain guidance for licensees to differentiate between events that are recordable versus reportable. [NEI-20, 154]

Response: The NRC agrees with this comment. Neither cyber security plan template issued by the NRC or NEI contains guidance for licensees on which events are recordable or reportable. However, DG-5019 provided guidance to licensees on events that are reportable and recordable related to cyber security event notifications. Consistent with Commission policy, the NRC is publishing with this final rule, final guidance, RG 5.83, “Cyber Security Event Notifications,” which provides guidance to licensees on an acceptable method for meeting regulatory requirements. The final guidance has been revised to provide examples that differentiate between events that are reportable and recordable.

Comment 33: One commenter recommended revisions to NRC Form 366. The commenter recommended the NRC specify the type of content licensees should include in the abstract section of the form. [NEI-44, 118]

Response: The NRC disagrees with this comment. The NRC's Form 366 will not be revised. Regulatory Guide 5.83 will provide the specific type of content that should be included in the abstract section of NRC's Form 366.

Comment 34: One commenter recommended clarifying the guidance regarding elicitation of information from facility personnel relating to security or safe operation of the facility. The commenter suggested adding the phrase “non-routine” regarding the elicitation of information to distinguish general public or media inquiries from elicitations that could be indicative of suspicious activity. [NEI-52, 95, 99]

Response: The NRC agrees with this comment. Regulatory Guide 5.83 has been revised to provide a distinction between common inquiries (e.g., public and media inquiries) and uncommon inquiries (e.g., activities that may indicate intelligence gathering or pre-operational planning related to a cyber attack).

Comment 35: One commenter recommended clarifying the examples of one-hour notifications and including “real life” examples. [NEI-71]

Response: The NRC agrees with this comment. The NRC staff reviewed previous “real life” examples and included them in final guidance. In addition, the new approach for one-hour notifications (i.e., adverse impacts to SSEP functions) provides additional clarity.

Comment 36: One commenter recommended changes to the examples involving the compromise of CDAs. The commenter stated that section 2.3.2 of DG-5019, items (aa) and (bb) were duplicative, and that two supporting examples (4 and 5) were not within the scope of one-hour notifications (i.e., adverse impact to SSEP functions). [NEI-94]

Response: The NRC agrees with this comment. Regulatory Guide 5.83 has been revised to delete one of the duplicate items and to remove the two supporting examples from the remaining item.

Comment 37: One commenter recommended moving an example related to unauthorized attempts to steal business secrets or sensitive information to the cyber security event notification examples. [NEI-100]

Response: The NRC disagrees with this comment. The final rule reflects an approach that aligns more closely with § 73.54 and RG 5.71, and provides clarity to cyber security event notification criteria. Unauthorized attempts to access business and trade sensitive information is outside the scope of § 73.54, and no changes to the rule or RG 5.83 were made based on this comment

Comment 38: One commenter recommended clarifying the example regarding unsubstantiated cyber threats related to harassment, including threats that could represent tests of response capabilities. The commenter stated the example was confusing and too broad in scope. [NEI-111]

Response: The NRC agrees with this comment. The NRC has revised the example to clarify the scope of the cyber attacks to be reported (i.e., a cyber attack that could have caused an adverse impact to SSEP functions).

Comment 39: One commenter requested NRC clarify the guidance on unplanned missed cyber vulnerability assessments. [NEI-131]

Response: The NRC agrees with this comment. Regulatory Guide 5.83 was revised to clarify the treatment of missed cyber vulnerability assessments. The CSP states the periodicity that cyber vulnerability assessments are performed (quarterly). If a cyber vulnerability assessment exceeds the periodicity specified in the CSP, it would be considered a 24-hour recordable event.

C. Public Comments on Proposed Implementation Date From July 31, 2014, Public Meeting

Comment 1: One commenter raised a concern that by issuing the Cyber Security Event Notifications (CSEN) final rulemaking now it may delay full implementation of § 73.54 because of the impact on resources. The commenter stated that licensees may have to divert some resources from implementing the cyber security program to implementing the CSEN requirements.

Response: The NRC agrees in part with this comment. The NRC staff recognizes that this rule will have an impact on licensee resources (similar skillsets required for CSEN and cyber security program implementation). The NRC staff acknowledges this and is conducting CER related activities in an effort to minimize the impact (e.g., conducting a public meeting on the implementation date during final rulemaking, issuing final guidance with the final rule). In addition, the CSEN final rule is consistent with existing notification processes (i.e., §§ 50.72 and 73.71) and aligns closely with § 73.54 and the current voluntary reporting initiatives thereby reducing the level of impact on implementation. However, the CSEN final rule removes the voluntary aspect of reporting certain cyber security events and provides regulatory stability and ensures the NRC is notified in a timely manner while maintaining its strategic communications mission outlined in the framework of the National Infrastructure Protection Plan developed by the DHS (see http://www.dhs.gov/sites/default/files/publications/National-Infrastructure-Protection-Plan-2013-508.pdf). Prompt notification of a cyber attack could be vital to the NRC's ability to take immediate action in response to a cyber attack and, if necessary, to notify other NRC licensees, Government agencies, and critical infrastructure facilities, to defend against a multiple sector cyber attack. A cyber attack has the capability to be launched against multiple targets simultaneously or spread quickly throughout multiple sectors of critical infrastructure; therefore, the NRC has not changed the 180-day implementation schedule.

V. Section-by-Section Analysis

The following section-by-section analysis discusses the final revisions to the NRC's regulations regarding cyber security, and explains how the final rule differs from the language in the proposed rule. This final rule adds a new section (§ 73.77) to 10 CFR part 73 and revises three existing sections (§§ 73.8, 73.22, and 73.54) to make conforming changes.

Section 73.8, Information Collection Requirements: OMB Approval

The NRC is amending § 73.8 to add § 73.77 to paragraph (b) that provides the approved information collection requirements contained in 10 CFR part 73 under control number 3150-0002. In addition, the NRC is amending § 73.8 to add § 73.77 to paragraph (c)(1) that provides that NRC Form 366 is approved under control number 3150-0104.

Section 73.22, Protection of Safeguards Information: Specific Requirements

The NRC is amending § 73.22(f)(3) to add the sentence, “Cyber security event notifications required to be reported pursuant to § 73.77 are considered to be extraordinary conditions” to the end of the paragraph.

Section 73.54, Protection of Digital Computer and Communication Systems and Networks

The NRC is amending § 73.54 to add a new paragraph (d)(4) that reads, “Conduct cyber security event notifications in accordance with the provisions of § 73.77.” This new requirement guides the licensee to the correct 10 CFR part 73 section for conducting cyber security event notifications.

Section 73.77, Cyber Security Event Notifications

The NRC has moved cyber security event notifications requirements that were proposed to be added to § 73.71 and appendix G to a newly created section (§ 73.77) within 10 CFR part 73.

Section 73.77(a)(1) requires licensees to notify the NRC within one-hour after discovery of a cyber attack that adversely impacted safety-related or important-to-safety functions, security functions, or emergency preparedness functions (including offsite communications); or that compromised support systems and equipment resulting in adverse impacts to safety, security, or emergency preparedness functions within the scope of § 73.54. This requirement differs from the proposed rule language, it has been revised to more closely align with § 73.54 and to remove the term “uncompensated cyber security events” because it was unclear and not defined within the CSP.

Section 73.77(a)(2) requires licensees to notify the NRC within four-hours.

Section 73.77(a)(2)(i) after discovery of a cyber attack that could have caused an adverse impact to safety-related or important-to-safety functions, security functions, or emergency preparedness functions (including offsite communications); or that could have compromised support systems and equipment, which if compromised, could have adversely impacted safety, security, or emergency preparedness functions within the scope of § 73.54. This requirement differs from the proposed rule; it has been revised to more closely align with § 73.54. In addition, the final rule distinguishes between four-hour and eight-hour notifications.

Section 73.77(a)(2)(ii) after discovery of a suspected or actual cyber attack initiated by personnel with physical or electronic access to digital computer and communication systems and networks within the scope of § 73.54. This requirement differs from the proposed rule; it has been revised to capture cyber attacks (e.g., tampering) that may not have any impact on SSEP functions, but may indicate an internal threat.

Section 73.77(a)(2)(iii) after notification of a local, State, or other Federal agency (e.g., local law enforcement, FBI, etc.) of an event related to implementation of their cyber security program. The final rule includes other types of agencies besides law enforcement (e.g., DHS, etc.) to maintain consistency with existing NRC reporting requirements (e.g., § 50.72).

Section 73.77(a)(3) requires licensees to notify the NRC within eight-hours after receipt or collection of information regarding observed behavior, activities, or statements that may indicate intelligence gathering or pre-operational planning related to a cyber attack against digital computer and communication systems and networks within the scope of § 73.54. Requirements for “suspicious cyber events” have been revised and moved from four-hour notifications in the proposed rule to eight-hour notifications in the final rule. This requirement now captures activities that are associated with precursors to a cyber attack (e.g., activities related to intelligence gathering or pre-operational planning).

Section 73.77(b) requires licensees to record certain cyber security events in their site corrective action program (CAP) within 24-hours of their discovery. The proposed rule required licensees to use a Safeguards Event Log; to prevent duplication of effort, the final rule requires licensees to use their site CAP.

Section 73.77(b)(1) requires licensees to use their site CAP to record vulnerabilities, weaknesses, failures, and deficiencies in their § 73.54 cyber security program. This requirement has been revised to align with NRC physical protection program requirements in § 73.55(b)(10) regarding the use of the site CAP to track, trend, correct, and prevent recurrence of failures and deficiencies.

Section 73.77(b)(2) requires licensees to record notifications made under paragraph (a) of § 73.77.

Section 73.77(c) provides the process for conducting cyber security event notifications.

Section 73.77(c)(1) has been revised from the proposed rule to include the Emergency Notification System (ENS) as the primary means for conducting notifications, instead of any available telephone system. Using the ENS is consistent with existing NRC regulations for conducting notifications (e.g., § 50.72).

Section 73.77(c)(3) in the final rule was revised to remove a reference to paragraph III in appendix A of 10 CFR part 73 that provided instructions on requesting a transfer to a secure phone. The current appendix A in 10 CFR part 73 does not contain a paragraph III and conforming changes to appendix A are not part of this final rule. Section 73.77(c)(3) was revised to reference appendix A and request transfer to a secure phone.

Sections 73.7(c)(6), “Declaration of emergencies,” and 73.77(c)(7), “Elimination of duplication,” were moved in the final rule from the “Written Security Follow-up Reports” section into the “Notification Process” section because they contain notification-specific information. In addition, due to the narrowed scope of this final rule, the proposed rule referenced several sections of the NRC's regulations (e.g., § 70.50) that are not being revised by this final rule.

Section 73.77(d), “Written security follow-up reports,” establishes the necessary regulatory framework to facilitate consistent application of Commission requirements for written security follow-up reports for cyber security event notifications.

VI. Regulatory Flexibility Certification

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

VII. Regulatory Analysis

The NRC has prepared a final regulatory analysis for this final rule. The analysis examines the costs and benefits of the alternatives considered by the NRC. The regulatory analysis is available as indicated in Section XVII., “Availability of Documents,” of this document.

VIII. Backfitting and Issue Finality

The final rule imposing new cyber security event notifications affects information collection and reporting requirements and is not considered to be a backfit, as presented in the charter for NRC's Committee to Review Generic Requirements. Therefore, a backfit analysis has not been completed for any of the provisions of this final rule.

IX. Cumulative Effects of Regulation

While the proposed rule was issued prior to the formal CER requirements promulgated by SRM-SECY-0032, the intent of CER was still met. For example, the draft guidance was issued for comment concurrent with the proposed rule, a public meeting was conducted during the development of the proposed rule, a public meeting on implementation was conducted during the final rule stage, and the final guidance will be issued with the final rule.

The NRC staff engaged external stakeholders at public meetings and by soliciting public comments on the proposed rule and draft guidance documents. A public meeting was held at NRC Headquarters on June 1, 2011, to discuss the proposed rule, the draft implementation plan, and draft guidance.

In addition, on July 31, 2014, a public meeting was held at the NRC Headquarters on the draft final implementation plan for the final rule (a type of meeting specifically contemplated by the NRC's CER effort). Prompt notification of a cyber attack is vital to the NRC's ability to take immediate action in response to a cyber attack, which contributes to protecting the public health and safety or the common defense and security. The NRC's strategic communications mission and the feedback from the public meetings informed the staff's recommended schedule for the final implementation date in the CSEN final rule.

A fundamental CER process improvement is to publish the final guidance with the final rule so as to support effective implementation. This final rulemaking accomplishes this by ensuring that final guidance is complete and available concurrent with this final rule publication in the Federal Register.

X. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

XI. Environmental Assessment and Final Finding of No Significant Environmental Impact

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(3)(iii). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

XII. Paperwork Reduction Act

This final rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These requirements were approved by the Office of Management and Budget (OMB), approval number 3150-0230 and 3150-0104.

The burden to the public for these information collections is estimated to average 39.4 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Send comments on any aspect of these information collections, including suggestions for reducing the burden, to the Freedom of Information Act, Privacy, and Information Collections Branch (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by email to [email protected] and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0230 and 3150-0104), Office of Management and Budget, Washington, DC 20503 or by email to [email protected]

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

XIII. Congressional Review Act

In accordance with the Congressional Review Act of 1996 (5 U.S.C. 801-808), the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

XIV. Criminal Penalties

For the purposes of Section 223 of the Atomic Energy Act of 1954, as amended (AEA), the NRC is issuing this final rule that would amend §§ 73.8, 73.22, and 73.54, and add § 73.77 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule would be subject to criminal enforcement. Criminal penalties as they apply to regulations in 10 CFR part 73 are discussed in § 73.81(a).

XV. Compatibility of Agreement State Regulations

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs,” approved by the Commission on June 20, 1997, and published in the Federal Register (62 FR 46517; September 3, 1997), this rule is classified as compatibility “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the AEA or the provisions of 10 CFR, and although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with a particular State's administrative procedure laws, but does not confer regulatory authority on the State.

XVI. Availability of Guidance

The NRC is issuing implementation guidance for this rule, RG 5.83, “Cyber Security Event Notifications” (Docket ID NRC-2014-0036). The guidance is available in ADAMS under Accession No. ML14269A388. Regulatory Guide 5.83 is intended to describe a proposed method that the NRC staff considers acceptable for use in complying with the NRC's regulations on cyber security event notifications. Because the regulatory analysis for the final rule provides sufficient explanation for the rule and the implementing guidance, a separate regulatory analysis was not prepared for the regulatory guide.

XVII. Availability of Documents

The documents identified in the following table are available to interested persons through the following methods, as indicated.

Document ADAMS
  • Accession No./
  • Federal Register
  • (FR) citation
  • SECY-10-0085—Proposed Rule: “Enhanced Weapons, Firearms Background Checks and Security Event Notifications” (RIN: 3150-AI49) (June 27, 2010) ML101110121 Staff Requirements—SECY-10-0085—Proposed Rule: Enhanced Weapons, Firearms Background Checks and Security Event Notifications (RIN: 3150-AI49) (October 19, 2010) ML102920342 Proposed Enhanced Weapons, Firearms Background Checks, and Security Event Notifications Rule (February 3, 2011) 76 FR 6199 DG-5019, “Reporting and Recording Safeguards Events” (February 3, 2011) 76 FR 6085 Summary of the June 1, 2011, Public Meeting to Discuss the Proposed Enhanced Weapons, Firearms Background Checks and Security Event Notifications Rulemaking (June 24, 2011) ML111720007 Bifurcation of the Enhanced Weapons, Firearms Background Checks, and Security Event Notifications Rule (December 20, 2013) ML13280A366 Staff Requirements—COMSECY-13-0031—Bifurcation of the Enhanced Weapons, Firearms Background Checks, and Security Event Notification Rule (January 22, 2014) ML14023A860 Regulatory Analysis for Final Rule on Cyber Security Event Notifications (10 CFR Part 73) ML14170B076 Summary of the July 31, 2014, Public Meeting to Discuss the Proposed Implementation Date of the Draft Cyber Security Event Notification Final Rule (August 29, 2014) ML14240A404 Regulatory Guide 5.83, “Cyber Security Event Notifications” (March 2015) ML14269A388 CSEN Public Comments Associated with Final Rule ML14226A596 Final Rule: Cyber Security Event Notification OMB Supporting Statement ML15203A233
    List of Subjects for 10 CFR Part 73

    Criminal penalties, Exports, Hazardous materials transportation, Incorporation by reference, Imports, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Security measures.

    For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 73.

    PART 73—PHYSICAL PROTECTION OF PLANTS AND MATERIALS 1. The authority citation for part 73 continues to read as follows: Authority:

    Atomic Energy Act of 1954, secs. 53, 147, 149, 161, 170D, 170E, 170H, 170I, 223, 229, 234, 1701 (42 U.S.C. 2073, 2167, 2169, 2201, 2210d, 2210e, 2210h, 2210i, 2273, 2278a, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.

    Section 73.37(b)(2) also issued under Sec. 301, Public Law 96-295, 94 Stat. 789 (42 U.S.C. 5841 note).

    2. In § 73.8, revise paragraphs (b) and (c)(1) to read as follows:
    § 73.8 Information collection requirements: OMB approval.

    (b) The approved information collection requirements contained in this part appear in §§ 73.5, 73.20, 73.21, 73.24, 73.25, 73.26, 73.27, 73.37, 73.38, 73.40, 73.45, 73.46, 73.50, 73.54, 73.55, 73.56, 73.57, 73.58, 73.60, 73.67, 73.70, 73.71, 73.72, 73.73, 73.74, 73.77 and appendices B, C, and G to this part.

    (c) * * *

    (1) In §§ 73.71 and 73.77, NRC Form 366 is approved under control number 3150-0104.

    3. In § 73.22, add a sentence to the end of paragraph (f)(3) to read as follows:
    § 73.22 Protection of Safeguards Information: Specific requirements.

    (f) * * *

    (3) * * * Cyber security event notifications required to be reported pursuant to § 73.77 are considered to be extraordinary conditions.

    4. In § 73.54, add paragraph (d)(4) to read as follows:
    § 73.54 Protection of digital computer and communication systems and networks.

    (d) * * *

    (4) Conduct cyber security event notifications in accordance with the provisions of § 73.77.

    5. Add § 73.77 to read as follows:
    § 73.77 Cyber security event notifications.

    (a) Each licensee subject to the provisions of § 73.54 shall notify the NRC Headquarters Operations Center via the Emergency Notification System (ENS), in accordance with paragraph (c) of this section:

    (1) Within one hour after discovery of a cyber attack that adversely impacted safety-related or important-to-safety functions, security functions, or emergency preparedness functions (including offsite communications); or that compromised support systems and equipment resulting in adverse impacts to safety, security, or emergency preparedness functions within the scope of § 73.54.

    (2) Within four hours:

    (i) After discovery of a cyber attack that could have caused an adverse impact to safety-related or important-to-safety functions, security functions, or emergency preparedness functions (including offsite communications); or that could have compromised support systems and equipment, which if compromised, could have adversely impacted safety, security, or emergency preparedness functions within the scope of § 73.54.

    (ii) After discovery of a suspected or actual cyber attack initiated by personnel with physical or electronic access to digital computer and communication systems and networks within the scope of § 73.54.

    (iii) After notification of a local, State, or other Federal agency (e.g., law enforcement, FBI, etc.) of an event related to the licensee's implementation of their cyber security program for digital computer and communication systems and networks within the scope of § 73.54 that does not otherwise require a notification under paragraph (a) of this section.

    (3) Within eight hours after receipt or collection of information regarding observed behavior, activities, or statements that may indicate intelligence gathering or pre-operational planning related to a cyber attack against digital computer and communication systems and networks within the scope of § 73.54.

    (b) Twenty-four hour recordable events. (1) The licensee shall use the site corrective action program to record vulnerabilities, weaknesses, failures and deficiencies in their § 73.54 cyber security program within twenty-four hours of their discovery.

    (2) The licensee shall use the site corrective action program to record notifications made under paragraph (a) of this section within twenty-four hours of their discovery.

    (c) Notification process. (1) Each licensee shall make telephonic notifications required by paragraph (a) of this section to the NRC Headquarters Operations Center via the ENS. If the ENS is inoperative or unavailable, the licensee shall make the notification via a commercial telephone service or other dedicated telephonic system or any other methods that will ensure a report is received by the NRC Headquarters Operations Center within the timeframe. Commercial telephone numbers for the NRC Headquarters Operations Center are specified in appendix A to this part.

    (2) Notifications required by this section that contain Safeguards Information may be made to the NRC Headquarters Operations Center without using secure communications systems under the exception in § 73.22(f)(3) for emergency or extraordinary conditions.

    (3) Notifications required by this section that contain Safeguards Information and/or classified national security information and/or restricted data must be made to the NRC Headquarters Operations Center using secure communications systems appropriate to the sensitivity/classification level of the message. Licensees making these types of telephonic notifications must contact the NRC Headquarters Operations Center at the commercial numbers specified in appendix A to this part and request a transfer to a secure telephone.

    (i) If the licensee's secure communications capability is unavailable (e.g., due to the nature of the security event), the licensee must provide as much information to the NRC as is required by this section, without revealing or discussing any Safeguards Information and/or Classified Information, in order to meet the timeliness requirements of this section. The licensee must also indicate to the NRC that its secure communications capability is unavailable.

    (ii) Licensees using a non-secure communications capability may be directed by the NRC Emergency Response management to provide classified information to the NRC over the non-secure system, due to the significance of the ongoing security event. In such circumstances, the licensee must document this direction and any information provided to the NRC over a non-secure communications capability in the written security follow-up report required in accordance with paragraph (d) of this section.

    (4) For events reported under paragraph (a)(1) of this section, the NRC may request that the licensee maintain an open and continuous communication channel with the NRC Headquarters Operations Center.

    (5) Licensees desiring to retract a previous security event report that has been determined to not meet the threshold of a reportable event must telephonically notify the NRC Headquarters Operations Center and indicate the report being retracted and basis for the retraction.

    (6) Declaration of emergencies. Notifications made to the NRC for the declaration of an emergency class shall be performed in accordance with § 50.72 of this chapter, as applicable.

    (7) Elimination of duplication. Separate notifications and reports are not required for events that are also reportable in accordance with §§ 50.72 and 50.73 of this chapter. However, these notifications should also indicate the applicable § 73.77 reporting criteria.

    (d) Written security follow-up reports. Each licensee making an initial telephonic notification of security events to the NRC according to the provisions of paragraphs (a)(1), (a)(2)(i), and (a)(2)(ii) of this section must also submit a written security follow-up report to the NRC within 60 days of the telephonic notification in accordance with § 73.4.

    (1) Licensees are not required to submit a written security follow-up report following a telephonic notification made under § 73.77(a)(2)(iii) or (a)(3).

    (2) Each licensee shall submit to the NRC written security follow-up reports that are of a quality that will permit legible reproduction and processing.

    (3) Licensees shall prepare the written security follow-up report on NRC Form 366.

    (4) In addition to the addressees specified in § 73.4, the licensee shall also provide one copy of the written security follow-up report addressed to the Director, Office of Nuclear Security and Incident Response, or the Director's designee. Any written security follow-up reports containing classified information shall be transmitted to the NRC Headquarters' classified mailing address as specified in appendix A to this part.

    (5) The written security follow-up report must include sufficient information for NRC analysis and evaluation.

    (6) Significant supplemental information which becomes available after the initial telephonic notification to the NRC Headquarters Operations Center or after the submission of the written security follow-up report must be telephonically reported to the NRC Headquarters Operations Center under paragraph (c) of this section and also submitted in a revised written security follow-up report (with the revisions indicated) as required under this section.

    (7) Errors discovered in a written security follow-up report must be corrected in a revised written security follow-up report with the revision(s) indicated.

    (8) The revised written security follow-up report must replace the previous written security follow-up report; the update must be complete and not be limited to only supplementary or revised information.

    (9) If the licensee subsequently retracts a telephonic notification made under this section as not meeting the threshold of a reportable event, and has not yet submitted a written security follow-up report then submission of a written security follow-up report is not required.

    (10) If the licensee subsequently retracts a telephonic notification made under this section as not meeting the threshold of a reportable event after it has submitted a written security follow-up report required by this paragraph, then the licensee shall submit a revised written security follow-up report in accordance with this paragraph.

    (11) Each written security follow-up report submitted containing Safeguards Information or Classified Information must be created, stored, marked, labeled, handled, and transmitted to the NRC according to the requirements of §§ 73.21 and 73.22 or with part 95 of this chapter, as applicable.

    (12) Each licensee shall maintain a copy of the written security follow-up report of an event submitted under this section as a record for a period of three years from the date of the report or until the Commission terminates the license for which the records were developed, whichever comes first.

    Dated at Rockville, Maryland, this 23rd day of October, 2015.

    For the Nuclear Regulatory Commission.

    Annette L. Vietti-Cook, Secretary of the Commission.
    [FR Doc. 2015-27855 Filed 10-30-15; 8:45 am] BILLING CODE 7590-01-P
    FARM CREDIT ADMINISTRATION 12 CFR Part 611 RIN 3052-AC72 Organization; Mergers, Consolidations, and Charter Amendments of Banks or Associations AGENCY:

    Farm Credit Administration.

    ACTION:

    Notice of effective date.

    SUMMARY:

    The Farm Credit Administration (FCA or our) amended our regulations related to mergers and consolidations of Farm Credit System banks and associations to clarify the merger review and approval process and incorporate existing practices in the regulations. In accordance with the law, the effective date of the rule is no earlier than 30 days from the date of publication in the Federal Register during which either or both Houses of Congress are in session.

    DATES:

    Effective Date: Under the authority of 12 U.S.C. 2252, the regulation amending 12 CFR part 611 published on August 24, 2015 (80 FR 51113) is effective November 2, 2015.

    FOR FURTHER INFORMATION CONTACT: Shirley Hixson, Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4318, TTY (703) 883-4056, or Laura McFarland, Senior Counsel, Office of General Counsel, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4071, TTY (703) 883-4056.
    SUPPLEMENTARY INFORMATION:

    The Farm Credit Administration (FCA or our) amended our regulations related to mergers and consolidations of Farm Credit System banks and associations to clarify the merger review and approval process and incorporate existing practices in the regulations. In accordance with 12 U.S.C. 2252, the effective date of the final rule is no earlier than 30 days from the date of publication in the Federal Register during which either or both Houses of Congress are in session. Based on the records of the sessions of Congress, the effective date of the regulations is November 2, 2015.

    (12 U.S.C. 2252(a)(9) and (10)) Date: October 27, 2015. Dale L. Aultman, Secretary, Farm Credit Administration Board.
    [FR Doc. 2015-27895 Filed 10-30-15; 8:45 am] BILLING CODE 6705-01-P
    FARM CREDIT ADMINISTRATION 12 CFR Chapter VI Farm Credit Administration Board Policy Statements AGENCY:

    Farm Credit Administration.

    ACTION:

    Notice of policy statements and index.

    SUMMARY:

    The Farm Credit Administration (FCA), as part of its annual public notification process, is publishing for notice an index of the 18 Board policy statements currently in existence. Most of the policy statements remain unchanged since our last Federal Register notice on October 22, 2014 (79 FR 63033), except for three as discussed below on Equal Employment Opportunity and Diversity, Travel, and Rules for the Transaction of Business of the FCA Board.

    DATES:

    November 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Dale L. Aultman, Secretary to Board, Farm Credit Administration, 1501 Farm Credit Drive, McLean Virginia 22102-5090, (703) 883-4009, TTY (703) 883-4056; or Mary Alice Donner, Senior Counsel, Office of General Counsel, Farm Credit Administration, 1501 Farm Credit Drive, McLean Virginia 22102-5090, (703) 883-4020, TTY (703) 883-4020. SUPPLEMENTARY INFORMATION:

    A list of the 18 FCA Board policy statements is set forth below. FCA Board policy statements may be viewed online at www.fca.gov/handbook.nsf.

    On August 18, 2015, the FCA Board updated FCA-PS-62 on, “Equal Employment Opportunity and Diversity.” The policy was published in the Federal Register on August 26, 2015 (80 FR 51806).

    On August 31, 2015, the FCA Board updated FCA-PS-44 on, “Travel” and FCA-PS-64 on, “Rules for the Transaction of Business of the Farm Credit Administration Board.” Those were not previously published in the Federal Register and are set forth below in their entirety.

    FCA Board Policy Statements FCA-PS-34 Disclosure of the Issuance and Termination of Enforcement Documents FCA-PS-37 Communications During Rulemaking FCA-PS-41 Alternative Means of Dispute Resolution FCA-PS-44 Travel FCA-PS-53 Examination Philosophy FCA-PS-59 Regulatory Philosophy FCA-PS-62 Equal Employment Opportunity and Diversity FCA-PS-64 Rules for the Transaction of Business of the Farm Credit Administration Board FCA-PS-65 Release of Consolidated Reporting System Information FCA-PS-67 Nondiscrimination on the Basis of Disability in Agency Programs and Activities FCA-PS-68 FCS Building Association Management Operations Policies and Practices FCA-PS-71 Disaster Relief Efforts by Farm Credit Institutions FCA-PS-72 Financial Institution Rating System (FIRS) FCA-PS-77 Borrower Privacy FCA-PS-78 Official Names of Farm Credit Institutions FCA-PS-79 Consideration and Referral of Supervisory Strategies and Enforcement Actions FCA-PS-80 Cooperative Operating Philosophy—Serving the Members of Farm Credit System Institutions FCA-PS-81 Ethics, Independence, Arm's-Length Role, Ex Parte Communications and Open Government Travel FCA-PS-44

    EFFECTIVE DATE: August 31, 2015

    EFFECT ON PREVIOUS ACTIONS: Originally adopted 13-JUN-91; amended 12-NOV-92; amended 08-JUL-11; amended 31-AUG-15.

    SOURCE OF AUTHORITY: 5 U.S.C. 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 12 U.S.C. 2242 (Section 5.8 of the Farm Credit Act of 1971, as amended), 41 CFR Part 301.

    THE FCA BOARD HEREBY ADOPTS THE FOLLOWING POLICY STATEMENT:

    Members of the Farm Credit Administration (FCA or Agency) Board are not subject to the same requirements regarding allowances for travel and subsistence that generally apply to officers and employees of the United States (§ 5.8 of the Farm Credit Act of 1971, as amended). Nevertheless, it is the general policy of the FCA Board (Board) that Board members will travel on official business in the most economical fashion reasonable under the circumstances.

    FCA Board members are subject to Federal laws, rules, and Executive Orders relating to conflicts of interest that may result from accepting gifts, including travel related expenses, from outside sources. Generally, Board members may not accept anything of value from:

    • A person seeking official action from, doing business with, or conducting activities regulated by the FCA, or

    • A person whose interests may be substantially affected by the performance or nonperformance of our official duties.

    Such persons are prohibited sources. (See Executive Order 12674, as amended; 5 U.S.C. 7353; and 5 CFR Part 2635, the Executive Branch-wide standards of ethical conduct issued by the Office of Government Ethics.) An organization is also a prohibited source if more than half of its members are prohibited sources.

    The gift rule under the standards of ethical conduct and the Agency's gift acceptance authority at 31 U.S.C. § 1353 outline the limited circumstances in which government officials may accept gifts and the payment of travel expenses from outside sources. Unless an exception applies, ethics rules prevent Board members from accepting gifts offered because of their official positions. Under no circumstances may Board members accept anything of value in return for being influenced in the performance of an official act. The aim of these rules is to prevent an actual conflict of interest or the appearance of a conflict and to uphold public confidence in the integrity of the Government and the Agency.

    Except as noted above, third parties may not pay for official Agency expenditures. Because the Agency is responsible for the cost of conducting official business, Board members will ensure that the Agency is billed directly for travel expenses whenever possible (for example, by using a Government issued credit card for travel expenses). On those occasions when direct Agency payment is impossible or impractical (for example, a large group business dinner arranged and paid for in advance by the organizer), Board members will promptly notify the Agency of the obligation and ensure that the payer is promptly reimbursed. Board Members recognize that it is important not to create the impression that a third party, particularly a prohibited source, is paying for their expenses.

    TRAVEL Transportation

    Board members will use less than first-class accommodations for all modes of transportation except in circumstances where:

    1. A Board member must use first-class accommodations because no other space accommodations are reasonably available or where other practical considerations exist (such as to accommodate a disability or other special need);

    2. Exceptional security circumstances require it;

    3. The conduct of Agency business requires it; or

    4. A Board member receives first-class travel benefits on an unsolicited basis from a carrier (such as free first-class coupons) and the benefit cannot be used by the Agency either in the present or the future, cannot be redeemed for cash value, and does not require the redemption of official miles. Under these circumstances, Board members can use the first-class benefit for either official or personal travel.

    Board members will use a commercial charter flight at Agency expense only when no commercially scheduled flights are available in time to meet the requirements of the travel or when the charter flight would be more economical than a commercial flight. Board members will avoid the use of private aircraft whenever possible and use them only where commercial or charter flights are not reasonably available or would impose undue hardships. When reporting travel expenses, Board members must adequately justify the use of a commercial charter flight, private aircraft, or first-class accommodations.

    Lodging

    When available and practical, Board members will book lodging at the Government rate or another available reduced rate at hotels and motels. When attending a convention, meeting, or other official activity, Board members will ordinarily obtain lodging at the hotel or motel holding the activity even if reduced rates are available elsewhere. Board members may also book more than one room when necessary for the conduct of official business on the premises.

    The Agency will not ordinarily reimburse Board members for lodging in the metropolitan Washington, DC, area unless they have relocated in a holdover status. However, lodging may be necessary to take full advantage of a conference.

    Other Expenses for Official Activities

    The FCA will reimburse Board members for the usual and reasonable expenses incurred as a consequence of official activities in the Washington, DC, metropolitan area and in other locations. The Agency will allow the repayment of expenses for:

    1. Transportation costs;

    2. Meal costs;

    3. Registration fees or other fees assessed for attendance or participation;

    4. The cost of miscellaneous supplies needed to participate in a particular function or activity; and

    5. Other costs we incur by participating in official activities.

    The Agency will not allow reimbursement of expenses for official activity incurred on behalf of other persons, including relatives, except as provided in the Board policy on Official Function (Representation and Reception) Expenses.

    Form of Payment

    Board members will arrange for official travel using the Agency's travel management system whenever possible. Although Board members may use cash to pay for official travel expenses and seek repayment from the Agency afterwards, whenever possible, the preferred method of payment will be the use of the Government-issued credit card for all official travel expenses.

    Receipts

    When filing claims for reimbursement of travel expenses, Board members will provide receipts for expenses as normally required of other FCA employees under the Federal Travel Regulation, which currently requires receipts for all lodging and travel expenses over $75. However, failure to provide a receipt as normally required is not grounds for denial of a claim. If a receipt is not available, Board members will provide a statement explaining the nature and amount of the expense and the reason for not having a receipt.

    COMBINING OFFICIAL BUSINESS TRAVEL WITH PERSONAL ACTIVITIES

    Although it is permissible to engage in personal activities while on official travel, the purpose of the trip must always be the need to conduct official business. The Agency pays for travel and related expenses incurred in performing official business. However, the Agency may not pay for personal expenses incurred while on official travel. Therefore, it is important to record and allocate expenses carefully to ensure that official expenses are clearly differentiated from personal expenses. Proper handling of Agency expenses is always important, but particularly so when engaging in personal activities while on official Agency business.

    The Board is aware that, in certain circumstances, engaging in personal activities while on official travel could create an appearance that personal activities, not official business, prompted the trip. When Board members take a trip to conduct official business, it is usually clear from the nature of the business that the trip is proper and necessary. If there are concerns that personal activities during the trip might suggest otherwise, Board members will consult the DAEO to avoid a possible appearance of impropriety. The Board understands that engaging in official travel that involves a given destination (for example, our home state) on a disproportionate basis may raise questions about whether the travel truly is necessary. Again, Board members will consult with the DAEO about such concerns.

    DATED THIS 31st DAY OF AUGUST, 2015

    BY ORDER OF THE BOARD

    Dale L. Aultman Secretary to the Board Rules for the Transaction of Business of the Farm Credit Administration Board FCA-PS-64

    EFFECTIVE DATE: August 31, 2015

    EFFECT ON PREVIOUS ACTION: Originally adopted by NV-94-05 (07-FEB-94)[FCA-PS-58]; corrected by memo 09-FEB-94; amended by NV-95-03 (13-JAN-95)[FCA-PS-64]; amended by NV-95-18 (20-MAR-95); amended by NV-95-46 (9-AUG-95); amended by BM-24-OCT-95-02; amended by NV-95-69 (02-JAN-96). See also 58 FR 6633, Feb. 1, 1993 and 59 FR 17537, Apr. 13, 1994; reaffirmed by NV-96-22 (30-MAY-96); amended by NV-96-36 (26-AUG-96); amended by NV-98-16 (8-MAY-98); amended by NV-99-09 (16-MAR-99); amended by NV-99-25 (24-SEP-99); amended by NV-11-15 (8-JUL-11); amended by NV-15-13 (31-AUG-15).

    SOURCE OF AUTHORITY: Sections 5.8, 5.9, 5.10, 5.11 and 5.17 of the Farm Credit Act of 1971, as amended.

    THE FARM CREDIT ADMINISTRATION (FCA) BOARD HEREBY ADOPTS THE FOLLOWING POLICY STATEMENT: RULES FOR THE TRANSACTION OF BUSINESS OF THE FARM CREDIT ADMINISTRATION BOARD PURPOSE, SCOPE, AND DEFINITIONS

    Section 1. Purpose and Scope. These Rules adopted under § 5.8(c) of the Farm Credit Act of 1971, as amended (Act), concerning the transaction of business of the Farm Credit Administration (FCA) Board (Board) supplement the statutes and regulations that govern the procedures and practice of the Board (including, without limitation, the Act, the Sunshine Act, and FCA regulations, 12 CFR part 600 et seq.). Unless otherwise provided in these Rules, or relevant statutes or regulations, this Board will transact its business in accordance with Robert's Rules of Order (Newly Revised) (most recent edition).

    Section 2. Definitions, Reporting Relationships, and Performance Appraisals.

    Act” means the Farm Credit Act of 1971, as amended.

    Board Member” means each of the three individuals appointed by the President, by and with the advice and consent of the Senate, to serve as Members of the Board, including the Chairman, unless the context requires otherwise. Each Board Member appraises the performance of his or her staff.

    Board Member Staff” means those employees reporting directly to a Board member such as executive or special assistants, and who are organizationally located within the Office of the Board.

    Chairman” means the Board Member designated by the President to serve as Chairman of the Board. The Chairman also serves as the Agency's Head and Chief Executive Officer (CEO). After consultation with the other Board Members, the Chairman appraises the performance of the Secretary, Equal Employment Opportunity Director, Designated Agency Ethics Official, Chief Operating Officer, and all Office Directors reporting directly to him or her.

    Designated Agency Ethics Official” (DAEO) means an employee of the FCA designated by the Head of the Agency to administer the provisions of Title I of the Ethics in Government Act of 1978, to coordinate and manage the Agency's ethics program, and to provide liaison with the Office of Government Ethics on all aspects of FCA's ethics program. The DAEO reports directly to the Chairman on the Agency's ethics program.

    Equal Employment Opportunity (EEO) Director” means an employee of the FCA designated by the Head of the Agency to administer the provisions of the Agency's EEO program as set forth in 29 CFR part 1614.

    General Counsel” (GC) means an employee of the FCA who serves as the chief legal officer of the Board. The GC reports to the Chairman concerning administrative matters and to the FCA Board on matters of Agency policy. By the nature of the position the GC, as appropriate and necessary, maintains special advisory relationships in confidence with the individual Board Members. The GC must also keep the FCA Board fully informed of all litigation in which the Agency is involved.

    Inspector General” (IG) means an appointed head of the Office of Inspector General (OIG), an independent component of the FCA, established by and responsible for adhering to the IG Act of 1978, as amended. The purpose of the IG is to promote economy, efficiency and effectiveness, and to prevent and detect fraud and abuse in the programs and operations of FCA.

    Office Director” means an employee of the FCA serving as head of an FCA Office, excluding the Inspector General unless specified.

    Secretary” means an employee of the FCA who serves as Secretary to the Board as appointed by the Chairman. The Secretary, or another FCA employee designated by the Chairman, serves as the parliamentarian for the Board. The Secretary keeps permanent and complete records and minutes of the acts and proceedings of the Board.

    Sunshine Act” means the Government in the Sunshine Act, 5 U.S.C. 552b.

    AMENDMENTS

    Section 1. The business of the Board will be transacted in accordance with these Rules, which may be amended from time to time: Provided, however, that upon agreement of at least two Board Members convened in a duly called meeting, the Rules may be waived in any particular instance, except that action may be taken on items at a Special Meeting only in accordance with Part I, Article I, § 3(b) of this policy.

    Section 2. These Rules may be changed or amended by the concurring vote of at least two Board Members upon notice of the proposed change or amendments having been given at least thirty days before such vote.

    Section 3. These Rules will be reviewed by the Board at least every five years or as needed.

    Section 4. The Secretary to the Board is hereby delegated authority to make technical, syntactical, and grammatical changes to any Board Policy, provided a redlined complete copy of the policy(ies) is given to each Board member that clearly details each change made at least 30 days prior to the effective date of the change. Any Board member may, within the 30 day period, stop the proposed changes(s) and, if a Board member so desires, put forth the matter for Board consideration.

    PART I—RULES FOR THE FCA BOARD MEETINGS

    Article I. Board Meetings.

    Article II. Board Action.

    Article III. Board and Chairman Delegations.

    ARTICLE I BOARD MEETINGS

    Section 1. Sunshine Act. All FCA Board meetings will be announced and conducted in conformance with the Government in Sunshine Act.

    Section 2. Presiding Officer. The Chairman will preside at each meeting. In the event the Chairman is unavailable, the other Board Member from the Chairman's political party will preside. If there is no other Board Member from the Chairman's political party, the Board Member serving the longest on the Board will preside.

    Section 3. Calls and Agenda.

    (a) Regular Meeting. The Secretary, at the direction of the Chairman, issues a call for items for the agenda to the other Board Members and the Office Directors of FCA. The Secretary provides to the Chairman a list of all the items submitted, including a list of outstanding notational votes and matters voted “not appropriate for notational vote.” The Chairman then establishes the agenda to be posted on the Agency's public notice board or on its public Web site at least 1 week before the meeting. The agenda will also be published in the Federal Register at least 3 calendar days before the meeting date. At each meeting, the Board votes to approve or amend the agenda established by the Chairman. The Board may amend the agenda to add items that the Board Members believe need to be considered at that meeting.

    (b) Special Meeting. Special meetings of the Board may be called:

    (1) By the Chairman; or

    (2) By the other two Board Members; or

    (3) If there is at the time a vacancy on the Board, by a single Board Member.

    Any call for a Special Meeting will specify the business to be transacted and state the place and time of such meeting. No business will be brought before a Special Meeting that has not been specified in the notice of call of such meeting without the unanimous consent of all Board Members.

    (c) Notice. The Secretary will give appropriate notice of any and all meetings and make the call for Special meetings. Reasonable efforts to provide such notice to Board Members will be made for all meetings of the Board, but failure of notice will in no case invalidate a meeting or any action taken during that meeting.

    Section 4. Board Materials. The Secretary will distribute complete Board Meeting Books to each Board Member and their staff at least three full business days before any Regular Meeting. There may be instances when the proposed Board meeting agenda approved by the Chairman may need to be amended prior to a Board meeting to include items that require Board action. In such instances the Secretary will update the Board meeting books with the newly approved item(s) and make the required Sunshine Act disclosures and notices as soon as possible. However, unless agreed to by all Board Members, no vote may be taken on an issue unless the necessary material has been provided to the Board Members not less than twenty-four hours before the meeting to consider such issue.

    Section 5. Supporting Documentation. The Secretary will maintain one copy of all Board Meeting Book material. All copies of the Board Meeting Book material for Closed Sessions provided to anyone other than the Secretary will be returned to the Secretary for disposal or maintained in a secure location approved by the Secretary. One copy of each Executive Summary provided to a Board Member will be provided to and maintained by the Secretary. Board Meeting Books and Executive Summaries are not part of the minutes of the Board unless expressly incorporated therein.

    Section 6. Telephone Conference. Any Board Member, including the Chairman, may participate in a meeting of the Board through the use of conference call telephone or similar equipment, provided that all persons participating in the meeting can simultaneously speak to and hear each other. Any Board Member so participating will be deemed present at the meeting for all purposes.

    Section 7. Public Attendance.

    (a) Attendance. Members of the public may attend all meetings of the Board except those meetings or portions of meetings that are closed as directed by the Board, consistent with the Sunshine Act.

    (b) Public Appearances before the Board. While members of the public are invited and encouraged to attend Board meetings, no member of the public has a right to speak in a Board meeting. However, the Board may, in its sole discretion, permit a member of the public to address the Board if he or she provides a written request and statement covering the intended subject matter at least fifteen days before the meeting.

    Section 8. Minutes.

    (a) Format. The format of minutes of the Board meetings, unless otherwise stated in these rules or relevant statutes or regulations, will comply with the most recent edition of Robert's Rules of Order and the Sunshine Act. The minutes will clearly identify the date, time, and place of the meeting, the type of meeting held, whether the meeting was open or closed, the identity of Board Members present and, where applicable, that they participated by telephone, and the identity of the Secretary and the GC in attendance, or, in their absence, the names of the persons who substituted for them. The minutes will contain a separate paragraph for each subject matter and will note all main motions or motions to bring a main motion before the Board, except any that were withdrawn. The minutes will not contain any reference to statements made unless a request is specifically made that a statement be made a part of the minutes, or if required by the Sunshine Act. The minutes of meetings will indicate the substance and disposition of any notational votes completed since the last meeting. Except in the case of a voice vote, the Secretary will record the vote of each Board Member on a question or will note a unanimous consent. The Chairman and the Secretary will sign the minutes of the Board meeting, indicating the date of approval by the Board.

    (b) Circulation. The Chairman and GC will review draft minutes. The Secretary will circulate draft minutes to all Board Members at least one week before their consideration at a Board Meeting. The Secretary will place in all Board Meeting Books copies of the minutes of the meetings of the Board to be voted on at a Board Meeting.

    ARTICLE II BOARD ACTION

    Section 1. Affirmative Vote Required. Action on any matter requires the affirmative vote of at least two Board Members, except as provided in Article III, § 1 of this Part.

    Section 2. Records of Board Action.

    (a) Meetings. The vote of each Board Member, including the Chairman, on a question voted on at a meeting will be recorded in the minutes. The Chairman may, if there is no objection, call for a voice vote on adjournment or other actions. If a voice vote is taken, its result will be recorded in the minutes.

    (b) Notational Votes. The Secretary will provide a summary of any action taken by notational vote to the Board Members and Chairman and the action taken will be reflected in the minutes of the next meeting of the Board.

    Section 3. Notational Voting.

    (a) Nothing in these Rules precludes the transaction of business by the circulation of written items (notational votes) to the Board Members.

    (b) The Board may use notational voting procedures to decide any matter that may come before it. Any Board Member may submit a motion to the Secretary for distribution as a notational vote. However, in view of the public policy of openness reflected in the Sunshine Act and the desire to allow any Board Member to present viewpoints to the other Board Members, any Board Member can veto the use of the notational voting procedure for the consideration of any particular matter by voting “not appropriate for notational vote.”

    (c) Upon submission of an item for notational vote, the Secretary will provide each Board Member a complete package of all relevant information and a notational vote ballot specifying the Board Member making the motion, the motion itself, and the deadline for return of the ballot. Within ten business days of receipt, or earlier if the motion requires, each Board Member will act on the matter by returning the ballot to the Secretary. Each Board Member is to indicate his/her position in writing on the ballot in the following manner: (1) Approve, (2) disapprove, (3) abstain, or (4) not appropriate for notational vote.

    (d) No partial concurrences or amendments are permitted; however, a Board Member may suggest a revision to the proponent of the motion, subject to compliance with the Sunshine Act, and the proponent may withdraw his or her motion at any time before receipt by the Secretary of all the ballots of all Board Members or the end of the time period provided for on the ballot.

    (e) A Board Member who is absent from the office may authorize a staff member to initial the ballot for him/her, provided that the Board Member has a designation memorandum on file with the Secretary.

    Section 4. Board Records. The Secretary will maintain the records of the Board including, without limitation, the minutes of the Board meetings and notational votes.

    ARTICLE III BOARD AND CHAIRMAN DELEGATIONS

    Section 1. Two Vacancies/Authority to Act. In the event two Board Members are not available by reason of recusal, resignation, temporary or permanent incapacitation, or death, to perform the duties of their offices, the Board hereby delegates to the remaining Board Member the authority to exercise, in his/her discretion, the authorities of the FCA granted to the Agency or the Board by statute, regulation or otherwise, except those authorities which are non-delegable. This delegation of authority does not include authority to establish general policy and promulgate rules and regulations, or any delegation expressly prohibited by statute. This delegation will include but is not limited to the exercise of the following powers:

    (a) The approval of actions of the Farm Credit System (System) institutions that are required by statute, regulations or otherwise to be approved by the FCA or its Board;

    (b) The exercise of all powers of enforcement granted to the FCA by statute, including but not limited to, the authorities contained in 12 U.S.C. 2154, 2154a, 2183, 2202a, and 2261-2274; and

    (c) Any actions or approvals required in connection with the conduct of a receivership or conservatorship of a System institution.

    Authorities delegated by this Section may be re-delegated, in writing, at the discretion of the remaining Board Member, to other FCA officers or employees.

    Section 2. National Security Emergencies. Pursuant to Executive Order 12656, as amended, in the event of a national security emergency, if the Chairman is unable to perform his or her duties for any reason, the Chairman, at his or her sole discretion, delegates to the following individuals, in the order mentioned and subject to being available, the authority to exercise and perform all the functions, powers, authority and duties of the Chairman in an acting capacity until such time as either the Chairman can resume his/her position or, if no longer able to serve as Chairman, the President of the United States designates a new Chairman:

    (a) Member of the Board of the Chairman's political party;

    (b) If there is no other Board Member from the Chairman's political party, the Board Member serving the longest on the Board;

    (c) General Counsel.

    The Chairman or Acting Chairman will ensure that FCA has an alternative location for its headquarters functions in the event a national security emergency renders FCA's headquarters inoperative. The Chairman or Acting Chairman may establish such branch office or offices of the FCA as are necessary to coordinate its operations with those of other government agencies.

    Section 3. Individual Assignments. To the extent consistent with law, the Board or the Chairman may offer another Member of the Board a special assignment and define the duties incident thereto, and the Chairman may delegate to another Board Member certain duties and responsibilities of the Chairman.

    Section 4. Other Delegations. The FCA Board may delegate such authorities as it deems necessary and appropriate. Such delegations are included in Attachments A and B to this policy.

    PART II—BOARD AND STAFF GOVERNANCE

    Article I. Board Governance.

    Article II. Staff Governance.

    ARTICLE I BOARD GOVERNANCE

    Section 1. General. The purpose of this Part is to ensure the efficient operation of the FCA in light of the various authorities and operational responsibilities of Board and the FCA Chairman and CEO.

    The Board recognizes that for the Agency to run efficiently, the Chairman/CEO must have sufficient latitude and discretion to direct the implementation of Board policies and run the Agency's day-to-day affairs. Notwithstanding such latitude, the other Board Members must have access to staff and must be able to request information from staff that they find necessary to fulfill their policy- and rulemaking responsibilities under the Act.

    The Chairman/CEO is always free to bring to the Board issues that do not require Board action. Conversely, the Board may involve itself in operational matters ordinarily reserved for the Chairman/CEO if it concludes that they rise to the level of policy due to their sensitivity, seriousness, or controversial nature.

    Section 2. Board Authorities. The Board, acting as a unit, must manage, administer, and establish policies for the FCA. The Board specifically approves the rules and regulations implementing the Act; provides for the examination, enforcement, and regulation of System institutions; provides for the performance of all the powers, functions, and duties vested in the FCA; and requires any reports deemed necessary from System institutions. The Board also adopts the FCA seal. Each Board Member has the authority to appoint and direct regular, full-time staff in his or her immediate office.

    Section 3. Chairman Authorities. The Chairman, in carrying out his or her responsibilities, is governed by the general policies adopted by the Board and by such regulatory decisions, findings, and policy determinations as the Board may by law be authorized to make.

    The Chairman, in carrying out policies as directed by the Board, acts as spokesperson for the Board and represents the Board and the FCA in official relations within the Federal Government. Under policies adopted by the Board, the Chairman must consult on a regular basis with the Secretary of the Treasury concerning the exercise of the System's powers under § 4.2 of the Act; the Board of Governors of the Federal Reserve System concerning the effect of System lending activities on national monetary policy; and the Secretary of Agriculture concerning the effect of System policies on farmer, ranchers, and the agricultural economy. As to third persons, all acts of the Chairman will be conclusively presumed to be in compliance with general policies and regulatory decisions, findings, and determinations of the Board.

    The Chairman enforces the rules, regulations, and orders of the Board. The Chairman designates attorneys to represent the Agency in any civil proceeding or civil action brought in connection with the administration of conservatorships and receiverships and in civil proceedings or civil actions when so authorized by the Attorney General under provisions of title 28 of the United States Code. The Chairman, subject to the approval of the Board, may establish one or more advisory committees in accordance with the Federal Advisory Committee Act.

    The Chairman may not delegate any of the foregoing powers without prior Board approval.

    The Chairman also exercises those powers conferred on the Head of the Agency, including the power to make certain designations.

    Section 4. CEO Authorities. The Chairman of the FCA Board is also the Agency's CEO. The CEO, in carrying out his or her responsibilities, directs the implementation of policies and regulations adopted by the Board and, after consultation with the Board, executes the administrative functions and duties of the FCA.

    “Consultation with the Board” is achieved when the Chairman/CEO makes a good faith attempt to seek advice, guidance, and input from the Board before taking significant action on matters related to the execution of administrative functions or duties.

    The Chairman as CEO runs the day-to-day operations of the Agency. This includes the power to implement the policies and regulations adopted by the Board, appoint personnel as necessary to carry out Agency functions, set staff pay and benefits and direct staff. As provided in § 5.11(b) of the Act, the Chairman/CEO appoints heads of major administrative divisions subject to the approval of the Board. In accordance with the IG Act, the IG is appointed by the FCA Board.

    The Chairman as CEO may designate to other FCA officers and employees the authority to exercise and perform those powers necessary for the day-to-day management of the Agency.

    ARTICLE II STAFF GOVERNANCE

    Section 1. Authority over Staff. The Chairman/CEO has authority to hire the personnel necessary to carry out the mission of the Agency and to direct staff, except that each Board Member is entitled to appoint and direct his or her regular, full-time staff within the constraints of the adopted budget for the Office of the Board.

    Subject to the approval of the Board, the Chairman/CEO appoints and removes the “heads of major administrative divisions.” The Board defines the “heads of major administrative divisions” as all Office Directors who are career appointees. The Board must approve the conversion of an existing career position to a non-career (political) position. In accordance with the IG Act, a removal of the IG may only be made upon the written concurrence of a 2/3 majority of the FCA Board.

    Section 2. Organization Chart. Consistent with its mandate to approve regulations and appointments outlined above, the Board approves the FCA organizational chart down through the Office level along with relevant functional statements for each Office. Authority to make organizational changes within any division rests with the Chairman/CEO, and may be delegated to the Chief Operating Officer or Office Directors. In accordance with the IG Act, the IG has personnel authority for the Office of the Inspector General.

    PART III—BOARD OPERATIONS

    Article I. Committee and Financial Operations, and Other Activities.

    Article II. Board Member Travel and Related Expenses.

    ARTICLE I COMMITTEE AND FINANCIAL OPERATIONS, AND OTHER ACTIVITIES

    Section 1. Committee Operations. To assist the Board in exercising its authority for oversight and approval of the Strategic Plan, the formulation of regulations and policy, and the monitoring and assessment of risk, the Board directs the formation of three committees.

    Each Committee Chair will be designated by the Chairman. Each committee will be comprised of the Board Members' Executive Assistants and such Agency staff as determined by the Committee Chair. The Committee Chair will designate a Coordinator with expertise in, or significant accountability for, the activities of the committee. Committees will meet as often as determined by the Committee Chair to achieve committee objectives. The Chairman may also approve the use of external consultants to assist the committees on an as-needed basis.

    (a) Strategic Planning Committee. The objective of this committee is to provide a forum for Board input on (1) the development of, and periodic updates to, the Strategic Plan, and (2) changes in processes and procedures that will improve the quality of this key Agency document.

    (b) Regulation and Policy Development Committee. The objective of this committee is to provide a forum to (1) obtain Board input throughout the entire process of developing, modifying, or eliminating individual regulations, (2) discuss changes in processes and procedures that will improve the Agency's regulation and policy development process, and (3) foster open discussion during the development and periodic update of the Agency's regulatory agenda.

    (c) Risk Committee. The objective of this committee is to provide a forum to (1) facilitate Board awareness of risks to the ongoing mission fulfillment and safety and soundness of the System and Farmer Mac, (2) ensure an integrated and coordinated Agency risk analysis process that effectively uses information from a wide variety of internal and external sources, and (3) foster open discussion about risks to the System and Farmer Mac and the implications of such risks for future Agency operations.

    Section 2. Financial Operations.

    Budget Approval. The Chairman, consistent with the provisions of the Act, other law and regulations, and applicable policy, oversees the development of budget proposals and causes the expenditure of funds within approved budgets to meet the Agency's mission and objectives. The Board approves an object class budget for the Agency as a whole and a budget for each office. Any reallocation of funds in excess of $100,000 requires FCA Board approval. Reallocation of funds of $100,000 or less requires the Chairman's approval (or that of the Chairman's designee). The Chief Financial Officer (CFO) will provide a monthly report to the Board on all budgetary reallocations that occur after the FCA Board approves a fiscal year budget. The CFO will also provide a quarterly budget report to the Board that discusses actual performance of the budgeted items. The quarterly report may be presented during regular Board meetings or during a Board briefing.

    The IG, in accordance with the IG Act, transmits a budget estimate specifying an aggregate amount for OIG operations, OIG training needs, and amounts for support of the Council of the Inspectors General on Integrity and Efficiency.

    Section 3. Other Board Operations.

    (a) Audit Resolution Process. The Chairman is responsible for overseeing the audit resolution process and, through a designee, for audit resolution implementation and follow-up. However, the Chairman must obtain Board approval of audit resolutions where the issue would normally require Board action. The Inspector General and Audit Follow-up Official will report to the Board the status of any unresolved audit recommendations, unimplemented management decisions, and other issues on a semiannual basis following the Inspector General's Semi-Annual Report to Congress.

    (b) Litigation. The Chairman has authority to undertake litigation to defend the Agency, consistent with established Board policy. The Board will approve litigation where the Agency is plaintiff, will approve recommendations to the Justice Department to pursue an appeal, and will approve positions advanced in litigation that conflict with existing Board policy or establish a significant new policy. The Chairman's authority to settle certain claims against the Agency have been delegated to the GC provided the GC consults with the Chairman.

    (c) Documents and Communications.

    (1) Approval, Review, and Consultation. The FCA Board is responsible for determining the Agency's position on policy. Board Policy Statements should be reviewed at least every five years.

    The Board must approve all documents published in the Federal Register, including proposed and final FCA regulations, except for notices of effective dates or technical corrections of regulations. Board approval is not necessary prior to Federal Register publication of Privacy Act systems notices or notices of other routine or administrative matters unless they raise policy issues requiring Board approval. Bookletters, informational memoranda, and other mass mailings to Farm Credit institutions (except documents listed in Attachment A) must be approved by the Board prior to distribution. Documents may be added to or deleted from Attachment A by Board approval.

    The issuance of a “no action” letter is a policy matter requiring Board approval. For the purposes of this statement, a “no action” letter is a statement to a Farm Credit institution that, notwithstanding any other provision of law or regulation, the Board will take no action against a System institution solely because it engaged in conduct specified in the letter.

    Authority to promulgate internal administrative issuances, including FCA Policies and Procedures Manual (PPM) issuances, rests with the Chairman and may be delegated to the Chief Operating Officer. The Chairman will provide the Board with final drafts of PPM issuances and other administrative issuances for an appropriate consultative period if those issuances relate to examination and supervision, audits, internal controls, the budget, the strategic planning process, regulation development, or personnel matters relating strictly to promotion or pay.

    (2) Signature Authority. Authority to sign official Board documents, including, but not limited to, proposed and final regulations, Federal Register notices, no-action letters, minutes, and other Board actions is delegated to the Secretary. After any action by the Board required under paragraph (c)(1) of this section, the Chairman has the authority to sign bookletters, informational memoranda, and other mass mailings to Farm Credit institutions. This signature authority may be delegated to senior staff members.

    (3) Correspondence. The Chairman approves and signs routine correspondence (that is, correspondence in the ordinary course of business), to members of Congress, correspondence responding to White House referrals, or other correspondence on behalf of the Board or the Agency. The Chairman may delegate approval and signature authority for such correspondence to the Chief Operating Officer or FCA Office Director when the subject matter involves congressional or White House case work. When the subject matter involves the presentation of an Agency position or policy relative to regulations, legislation, or any other significant matter, the Chairman may not delegate authority, and the correspondence must be approved by the Board, except that the Board need not approve a previously approved response or a restatement of previously adopted Board policy. Board approval does not apply when the Chairman is speaking only for him- or herself and includes the appropriate disclaimer. Likewise, on similar matters, Board Members should include appropriate disclaimers. The Chairman or the Chairman's designee has authority to sign acknowledgments or interim responses without Board approval, provided such responses contain no policy statements or only previously approved statements.

    (4) Authentication and Certification of Records and Documents. The Chairman designates the person authorized and empowered to execute, issue and certify under the seal of the FCA:

    • Statements authenticating copies of, or excerpts from official records and files of the FCA;

    • Effective periods of regulations, orders, instructions, and regulatory announcements on the basis of the records of the FCA;

    • Appointment, qualification, and continuance in office of any officer or employee of the FCA, or any conservator or receiver acting in accordance with the FCA receivership regulations at 12 CFR part 627 on the basis of the records of the FCA.

    The Chairman may further empower the designated official(s) to sign official documents and to affix the seal of the FCA thereon for the purpose of attesting the signature of officials of the FCA.

    ARTICLE II BOARD MEMBER TRAVEL AND RELATED EXPENSES

    Section 1. Pre-confirmation Travel. Travel expenses incurred by an FCA Board nominee that are solely for the purpose of attending his or her Senate confirmation hearings will be considered the personal expense of the nominee and will not be reimbursed by FCA. However, consistent with existing Government Accountability Office interpretations, the FCA will pay for a nominee's travel expenses to the Washington, DC metropolitan area (including lodging and subsistence), if payment is approved, in advance whenever practicable, by the Chairman based on a determination that the nominee's travel is related to official business that will result in a substantial benefit to the FCA. That determination will be made on a case-by-case basis and is within the sole discretion of the Chairman. The same standards and policies that apply to the reimbursement of Board Members' travel expenses will apply to the reimbursement of nominee's expenses. As part of the documentation for the approval process, the Chairman must execute a written finding that a nominee's travel would substantially benefit the FCA.

    Travel that may result in substantial benefit to the FCA could include meetings, briefings, conferences, or other similar encounters between the nominee and FCA Board Members, office directors, the Chief Operating Officer, or other senior congressional and executive branch officials, for the purpose of developing substantive knowledge about the FCA, its role, its interaction with other Government entities, or the institutions that it regulates. Meetings or briefings of this nature may enable a nominee to more quickly and effectively assume leadership at the Agency after confirmation by the Senate and could thus substantially benefit the Agency.

    Section 2. Board Member Relocation Relocation to the Agency

    Board Members will be reimbursed by FCA for travel and transportation expenses incurred in connection with relocation to their first official duty station. Reasonable expenses for which reimbursement, as approved by the Chairman/CEO, will be allowed generally include, but are not limited to the following:

    (a) Travel and per diem for the Board Member.

    (b) Travel, but not per diem, for immediate family of the Board Member.

    (c) Mileage if privately owned vehicle is used in travel; and

    (d) Transportation and temporary storage of household goods.

    Each relocation will be considered separately and all rates and allowances will be determined at the time of authorization, notwithstanding the limitations of 5 U.S.C., Chapter 57 and the Federal Travel Regulations, as provided in § 5.8(d) of the Act. Reimbursement of additional expenses may be authorized if warranted by specific circumstances. Board Members will be issued a specific prior written authorization by the Chief Operating Officer detailing the expenses that may be reimbursed.

    Relocation in Holdover Status

    It is in the Agency's best interest to maintain a full complement of Board Members. The Agency is sensitive to the uncertainty and extra expenses often incurred by Board Members that serve past the expiration of their official appointment and prior to their successor's appointment. In accordance with § 5.8(b) of the Act, a Board Member “shall continue to serve as such after the expiration of the member's term until a successor has been appointed and qualified.” To that end, a Board Member, not serving as FCA Chairman, in a holdover status may prefer to perform their official duties from another U.S. location outside of the Washington, DC area, recognizing that they still have an obligation to devote their full time and attention to the business of the Board as required by § 5.8(d) of the Act. In such a case, the Board Member's duty station may be changed from FCA headquarters to a new location. Such a Board Member will be reimbursed for regularly scheduled official travel to headquarters upon authorization by the Chief Operating Officer. For other official travel, Board Members that serve in continuation will be reimbursed subject to the Board travel policy outlined in PS-44.

    In addition, Board Members serving as a holdover who change their duty station will be reimbursed by FCA for travel and transportation expenses incurred in connection with relocation to their new location. Reimbursement for reasonable expenses, as approved by the Chief Operating Officer, will be limited to:

    (a) Travel and per diem for the Board Member.

    (b) Travel, but not per diem, for immediate family of the Board Member.

    (c) Mileage if privately owned vehicle is used in travel; and

    (d) Transportation and temporary storage of household goods.

    Board Members will be issued a specific prior written authorization by the Chief Operating Officer detailing the expenses that may be reimbursed.

    Section 3. Representation and Reception Fund. Section 5.15(a) of the Act allows the payment of FCA funds for official representation and reception expenses. Expenses incurred from official functions may be paid for with funds from the Representation and Reception (R&R) Fund only under this policy statement and decisions from the Department of Justice or guidance from the Comptroller General of the United States (Comptroller General).

    “Official functions” include meetings and other contacts with the public to explain or further the Agency's mission and typically are activities of the FCA Board, individual Board Members, or other FCA officials acting for the Board. For example, while extending official courtesies to the public on occasions associated with the mission of the Agency, FCA staff may use the R&R Fund to cover catering services, rental of facilities, receptions, coffee, snacks, refreshments, supplies, services and tips. Consistent with opinions of the Comptroller General, the FCA Board has determined, as a matter of policy, that it will not permit the R&R Fund to be used for events or functions in which attendance is restricted to Agency employees.

    Similarly, the R&R Fund may not be used for activities relating solely to “personal entertainment” (interpreted by the Comptroller General to include attendance at a sporting event or concert, for example) or for personal favors, even if the entertainment is enjoyed with, or is a favor given to, members of the public, such as Farm Credit System representatives.

    The FCA Board has determined, as a matter of policy, that the R&R Fund shall be a fund of last resort and shall not be used for expenses that can properly be classified as another type of Agency expense.

    The FCA Board will decide how much to budget for the R&R Fund. The FCA Board will approve any amount available for R&R expenses for the Chairman and each Board Member, and an amount available for general R&R expenses. The amount approved for use by the Chairman and each Board Member will be maintained in their budget code. The amount approved for general R&R will be maintained in a separate budget class code by the Secretary.

    DATED THIS 31st DAY OF AUGUST, 2015

    BY ORDER OF THE BOARD

    Dale L. Aultman Secretary to the Board Attachment A FCA Communications

    Part 1—Mass Communications that do not require review by the FCA Board prior to distribution to Farm Credit System Institutions:

    1. Issuances or revisions to:

    • The FCA Examination Manual, examination criteria, and examination procedures;

    • The FCA Uniform Call Report instructions;

    • Examination plans and general guidance provided to examiners, except those relating to Agency positions not previously approved by the Board.

    2. Requests for information on:

    • Call Reports, LARS, or similar data requests;

    • Young, beginning, and small farmers and ranchers reports;

    • Other reports as required by statute or determined necessary by the Board (consistent with Board instruction).

    3. Information that is being provided on:

    • Fraudulent activities;

    • Removals/suspensions/prohibitions;

    • Other related activities.

    4. Documents that have been issued by other Federal agencies including regulations, official staff commentary on regulations, and forms;

    5. FCA Handbook updates;

    6. Annual Report of Assessments and Expenses under 12 CFR 607.11;

    7. Office of Inspector General mailings for official purposes;

    8. Vacancy Announcements;

    9. PPM mailings.

    Part 2—Mass Communications that contain the following matters require review by the FCA Board prior to distribution to Farm Credit System Institutions:

    1. Agency policy;

    2. Agency legal interpretations;

    3. Substantive Agency positions on examination, corporate or accounting;

    4. No-action positions;

    5. Any communication listed in Part 1 containing any of the matters listed in Part 2 would also require review by the FCA Board prior to distribution.

    Attachment B Delegations

    1. The FCA Board delegates to the Chairman the authority to:

    a. Sign letters notifying the Chairman of the Boards of Farm Credit System institutions of final approval for any approved corporate application, after all conditions for final approval have been met and in accordance with applicable procedures;

    b. Execute and issue under the FCA seal the new charter or charter amendment document for such institutions; and

    c. Sign certificates of charter after new charters and charter amendments are executed.

    The Chairman may re-delegate the authority in item “a” to other FCA officers or employees as needed.

    2. The FCA Board delegates to the Chairman the authority to approve (preliminary and final) corporate applications from associations requesting to merge or consolidate provided the applications are deemed noncomplex, noncontroversial, and low risk.

    Applications for mergers or consolidations approved under authority of § 7.8 of the Act will be considered noncomplex, noncontroversial, and low risk if they meet all of the following criteria:

    a. The applicant association(s) has a current FIRS rating of 1, 2, or 3 (with no 3-rated association having a formal enforcement action);

    b. The continuing or resulting association(s) has a gross loan volume of $500 million or less;

    c. The application(s) is consistent with the Act and regulations governing its approval, and

    d. There are no policy or precedent-setting decisions embedded in the request.

    3. The FCA Board delegates to the Chairman the authority to approve, execute, and issue under the seal of the FCA, amendments to charters requested by Farm Credit associations, limited to name changes and/or headquarters relocations. The Chairman may redelegate this authority to other FCA officers or employees. However, all official charters or charter amendments must be signed by the Chairman and the Secretary and may not be delegated to other staff.

    Dated: October 27, 2015. Dale L. Aultman, Secretary, Farm Credit Administration Board. [FR Doc. 2015-27893 Filed 10-30-15; 8:45 am] BILLING CODE 6705-01-P
    FEDERAL TRADE COMMISSION 16 CFR Part 305 RIN 3084-AB15 Energy Labeling Rule AGENCY:

    Federal Trade Commission (“FTC” or “Commission”).

    ACTION:

    Final rule.

    SUMMARY:

    The Commission issues final amendments to expand coverage of the Lighting Facts label, require room air conditioner labels on packaging instead of the units themselves, enhance the durability of appliance labels, and improve plumbing disclosure requirements. This Notice completes the Commission's recent regulatory review of the Energy Labeling Rule.

    DATES:

    The amendments published in this document are effective on December 2, 2015, except for the amendments to § 305.11, which become effective November 2, 2016, and §§ 305.3(z), 305.8, 305.15, 305.20, and Appendix L, which become effective November 2, 2017.

    ADDRESSES:

    Relevant portions of this proceeding, including this document, are available at http://www.ftc.gov.

    FOR FURTHER INFORMATION CONTACT:

    Hampton Newsome, (202) 326-2889, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.

    SUPPLEMENTARY INFORMATION: I. Background

    The Commission issued the Energy Labeling Rule (“Rule”) in 1979,1 pursuant to the Energy Policy and Conservation Act of 1975 (EPCA).2 The Rule requires energy labeling for major home appliances and other consumer products to help consumers compare competing models. When first published, the Rule applied to eight product categories: Refrigerators, refrigerator-freezers, freezers, dishwashers, water heaters, clothes washers, room air conditioners, and furnaces. The Commission subsequently expanded the Rule's coverage to include central air conditioners, heat pumps, plumbing products, lighting products, ceiling fans, and televisions.3

    1 44 FR 66466 (Nov. 19, 1979) (Rule's initial promulgation).

    2 42 U.S.C. 6294. EPCA also requires the DOE to develop test procedures that measure how much energy appliances use and to determine the representative average cost a consumer pays for different types of energy.

    3See 52 FR 46888 (Dec. 10, 1987) (central air conditioners and heat pumps); 54 FR 28031 (July 5, 1989) (fluorescent lamp ballasts); 58 FR 54955 (Oct. 25, 1993) (certain plumbing products); 59 FR 25176 (May 13, 1994) (lighting products); 59 FR 49556 (Sep. 28, 1994) (pool heaters); 71 FR 78057 (Dec. 26, 2006) (ceiling fans); 76 FR 1038 (Jan. 6, 2011) (televisions).

    The Rule requires manufacturers to attach yellow EnergyGuide labels for many of the covered products and prohibits retailers from removing the labels or rendering them illegible. In addition, the Rule directs sellers, including retailers, to post label information on Web sites and in paper catalogs from which consumers can order products. EnergyGuide labels for covered products contain three key disclosures: Estimated annual energy cost (for most products); a product's energy consumption or energy efficiency rating as determined from Department of Energy (DOE) test procedures; and a comparability range displaying the highest and lowest energy costs or efficiency ratings for all similar models. For energy cost calculations, the Rule specifies national average costs for applicable energy sources (e.g., electricity, natural gas, oil) as calculated by DOE. The Rule sets a five-year schedule for updating comparability range and annual energy cost information.4 The Commission updates the range information based on manufacturer data submitted pursuant to the Rule's reporting requirements.

    4 16 CFR 305.10.

    II. Regulatory Review

    In a March 15, 2012 Federal Register Notice (77 FR 15298) (“Notice of Proposed Rulemaking” or “NPRM”), the Commission initiated a review of the Energy Labeling Rule seeking comment on several proposed improvements to the FTC's labeling requirements. The Commission completed the first stage of the regulatory review on January 10, 2013, by issuing final amendments to streamline data reporting and improve online disclosures as proposed in the March 2012 NPRM. On July 23, 2013 (78 FR 43974), the Commission followed those improvements with new labels to help consumers comparison shop for refrigerators and clothes washers after the implementation of upcoming changes to the Department of Energy (DOE) test procedures, as well as updates to the Rule's comparability ranges.

    III. Final Regulatory Review Issues

    On June 18, 2014 (79 FR 34642), the Commission published a Supplemental Notice of Proposed Rulemaking (SNPRM) seeking comments on a broad array of issues raised over the course of the review proceeding and proposing related amendments.5 These issues include expanded light bulb label coverage, an online label database, more durable labels for appliances, room and portable air conditioner box labels, ceiling fan labels, consolidated refrigerator ranges, updates to furnace labels, QR (“Quick Response”) Codes, television label updates, a range revision schedule, retailer responsibility, marketplace Web sites, set-top box labeling, clothes dryer labels, and plumbing products. Following the 2014 Notice, the Commission issued a final rule on December 29, 2014, related to heating and cooling equipment labels and a separate December 31, 2014 Notice seeking comment on labels for miscellaneous refrigerator products in response to recent test procedures proposed by DOE.6 The Commission also published updated comparability ranges for television labels on March 27, 2015 (80 FR 16259).

    5 The comments received in response to the SNPRM are here: https://www.ftc.gov/policy/public-comments/initiative-569. The comments included: Air-Conditioning, Heating, and Refrigeration Institute (#00016); Alliance Laundry Systems LLC (#00010); Amazon (#00005); American Lighting Association (#00009); American Gas Association (#00013); American Public Gas Association (#00012); Association of Home Appliance Manufacturers (#00014); Direct Marketing Association (#00007); Earthjustice (“Joint Commenters”) (#00017); Energy Solutions (#00018); Glickman (#00002); Goodman Global, Inc. (#00008); Laclede Gas (#00011); National Electrical Manufacturers Association (#00006); Nicholas (#00003); Plumbing Manufacturers International (#00004); Republic of Korea (#00019); and Whirlpool Corporation (#00015).

    6 79 FR 77868 (Dec. 29, 2014); 79 FR 78736 (Dec. 31, 2014).

    In the present Notice, the Commission concludes the regulatory review by issuing final amendments for expanded light bulb labeling, improvements to appliance and room air conditioner labels, and updates to plumbing requirements. In a separate Notice, the Commission proposes several amendments on issues that have arisen recently or require additional consideration, including a new online database, revised central air conditioner labels, refrigerator ranges, new ceiling fan labels, and revised labels for heating and cooling equipment in response to recent DOE efforts.

    A. Expanded Light Bulb Labeling

    Background: In the 2014 SNPRM (79 FR at 34643), the Commission proposed to expand the Lighting Facts label coverage to decorative and other specialty bulbs that have energy use and light output similar to general service bulbs already labeled under the Rule. For general service light bulbs,7 the Commission issued a new Lighting Facts labels in 2010 (75 FR 41696 (July 19, 2010)) that disclose information about the bulb's brightness, estimated annual energy cost, life, color appearance, and energy use.8 The requirements for these new labels cover most general service medium screw base incandescent, compact fluorescent, and LED (light-emitting diode) bulbs.9 The current Rule excludes several other consumer bulbs, such as decorative bulbs (e.g., globe and bent-tip decorative bulbs rated 40 watts or fewer), non-medium screw base bulbs, shatter resistant bulbs, and vibration service bulbs.10

    7 This document uses the terms lamp, light bulb, and bulb interchangeably. The Rule's definition of “general service lamp” in section 305.3(l) is consistent with EPCA's definition (42 U.S.C. 6291), except for the addition of two lamp categories (reflector lamps and three-way bulbs) excluded by the statute. See 75 FR 41696, 41698, n. 13 (Jul. 19, 2010) (explaining the Commission's decision to include these categories under the labeling requirements).

    8 16 CFR 305.15(b). The Energy Independence and Security Act of 2007 (EISA) directed the Commission to examine existing light bulb labeling requirements. Pub. L. 110-140; see 42 U.S.C. 6294(a)(2)(D)(iii). EISA amended the Energy Policy and Conservation Act (EPCA) (42 U.S.C. 6291 et seq.).

    9 16 CFR 305.3(l).

    10 16 CFR 305.3(l)(2), (n)(3)(ii). In 2011, the Commission proposed to expand the labeling coverage by including a broad array of additional bulb shapes generally available to consumers. 76 FR 45715 (Aug. 1, 2011). In response to comments received on that earlier Notice, the Commission revised its proposal in the 2014 Notice to focus coverage on specialty bulb types with energy use or light output similar to general service bulbs already covered by the Lighting Facts label. 79 FR at 34644.

    The 2014 SNPRM sought comment on labeling for specialty bulb types with energy use or light output similar to the general service bulbs already covered by the Lighting Facts label. The proposal set specific wattage and light output thresholds and excluded bulbs with shapes or uses not generally sought by typical consumers (e.g., mine service bulbs). It included special marking provisions for some bulbs and an abbreviated, single-label option for smaller packages often used for specialty bulbs. The proposal allowed manufacturers to use the Lighting Facts label for consumer light bulbs not covered by the proposed requirements, if they follow the Rule's content and format requirements. Finally, to avoid confusion, the Commission proposed implementing the expanded coverage by adding the term “specialty consumer lamp” to the Rule instead of amending the Rule's definition of “general service lamp.”

    Comments: The comments generally supported the SNPRM proposal. However, as discussed below, the comments offered suggestions about the scope of the proposal's coverage, test requirements, the label's location and size for smaller packages, and the compliance period. Commenters also raised issues about existing requirements.

    Benefits: The comments described several benefits the new label coverage provides to consumers. The Joint Commenters (several energy efficiency groups commenting together) and the California Utilities explained that the presence of uniform disclosures for brightness, operating cost, and lifetime information on additional products will enable consumers to quickly compare the growing number of specialty consumer lamps to competing general service lamps in the marketplace.11 They also noted the proposed lower wattage limit (30 watts) will ensure consumers receive accurate information about many lamps outside the scope of existing federal efficiency standards.

    11 According to DOE information cited by the Joint Commenters, the combined shipments of incandescent lamp types covered under the proposal have increased from 16.6 million units in 2010 to more than 18 million units in 2013.

    Coverage: Although the comments generally supported the proposal, they provided different views on the scope of the proposed coverage. The Joint Commenters repeated their earlier recommendation that the FTC require labels for all screw-based lamp products, not just the most common bulb shapes or socket fittings. In their view, consumers will benefit significantly from access to the Lighting Facts labels, even where the market for a particular lamp is small because high efficiency lighting technology is widely available.

    The National Electrical Manufacturers Association (NEMA) supported the proposed labeling for most lamps under the proposed coverage,12 but urged the Commission to exclude two proposed categories: intermediate screw base lamps and plant light lamps. NEMA argued that intermediate screw base lamp labeling would yield little consumer benefit because these products have very low sales volume, are often colored (e.g., red, green, etc.), and typically use only incandescent technology. Thus, in NEMA's view, labeling these lamps would not serve EPCA's directive to consider labeling changes “to help consumers understand lamp alternatives” because there are “no meaningful lamp alternatives.” 13 In addition, because wattage information routinely appears on these packages, consumers already receive adequate energy information to make informed choices.14 NEMA also urged the Commission to exclude plant light lamps, explaining that consumers do not generally use these bulbs for standard lighting applications due to their unique color spectrum. Also, in NEMA's view, given their low lumen output, these bulbs are not suitable for general illumination.

    12 NEMA noted that labels for vibration service, rough service, appliance and shatter resistant lamps “may inform a residential user of the lumen and life differences of vibration service, rough service, appliance and shatter resistant lamps, and this information may have some value for the consumer.”

    13Citing 42 U.S.C. 6294(a)(2)(D)(iii)(II).

    14 NEMA also noted that EPCA prohibits screw base adapters that would make these usable in medium screw base applications (see 42 U.S.C. 6302(a)(6)), so there is no potential loophole for these lamps to substitute for general service lamps.

    Label Size: NEMA also raised concerns about whether the proposed special label for small packages would fit on certain small packages for specialty bulbs, particularly blister packs, which often comprise a single piece of cardboard covered largely by the bulbs themselves. It recommended a provision allowing the required label on the back of these packages, with a brief reference to the label on the front. Alternatively, NEMA suggested that the Rule allow an 80% reduction in the label's size, similar to food labeling requirements. It also noted that, given the small size of candelabra bases, the 8-point FTC mercury disclosure (“Mercury disposal: epa.gov/cfl”) may not fit, and therefore urged alternatives such as a 5-point disclosure, a shortened disclosure, or the use of the mercury symbol only (encircled Hg) on the bulb's base.

    Testing: The comments also provided suggestions about testing. Because DOE generally does not require test procedures for the bulbs covered by these amendments, the Rule's basic substantiation provision would apply.15 The California Utilities noted the need to test newly-covered lamps will not pose significant burden because manufacturers already test these bulbs under industry-developed procedures and often display the relevant metrics on packages. However, the Joint Commenters argued that the absence of specific testing and reporting requirements raises concerns about the accuracy of label content. To address this concern, they recommended two measures to help ensure consumers have access to accurate information. First, they urged the Commission to consider applying current DOE test procedures for general service lamps to the new specialty category. Second, they recommended that the Commission require manufacturers to submit their labels through DOE's Compliance Certification and Management System (“CCMS”) Web site.

    15See 16 CFR 305.5(b) (“For any representations required by this part but not subject to Department of Energy requirements and not otherwise specified in this section, manufacturers and private labelers of any covered product must possess and rely upon a reasonable basis consisting of competent and reliable scientific tests and procedures substantiating the representation.”).

    Compliance Period: The comments also addressed the timing of the new label requirements. The Joint Commenters recommended an effective date of one year. They argued that, because the label information is routinely included in catalogs for specialty consumer lamps, significant testing will not likely be necessary for the new labels. Likewise, package redesign should not consume significant time because many manufacturers have already applied the Lighting Facts label to these lamps. These commenters also explained that an extended lead time would be inconsistent with EPCA deadlines for similar products in the past (e.g., one year for general service lamps) and past FTC deadlines (e.g., 18 months for Lighting Facts labels in announced in 2011). To the extent FTC determines that manufacturers need additional time, the Joint Commenters urged the Commission to consider a phased approach that gives priority to labeling specialty consumer lamp types with the highest sales volume and the greatest aggregate energy consumption.16

    16 The Joint Commenters also urged the Commission to clarify that the Rule's catalogue requirements (section 305.20) apply to specialty consumer lamps the same as general service lamps and repeated their earlier request for guidance on claims related to the “watt equivalency” of a bulb's light output (e.g., “60-watt equivalent). The Joint Commenters also identified a misnumbered paragraph in the Rule language in section 305.15. This has been corrected in the final language. The amendments also contain conforming changes to provisions for bulk packaging and cost representations in section 305.15(f)(5)&(6).

    Color Appearance: The Joint Commenters urged the Commission to require color ink on the label's “light appearance” bar, which depicts whether the bulb has a warm or cool appearance. They pointed to a recent Consumer Reports poll indicating that only 23% of respondents found the warm to cool scale helpful and argued that a color scale would be more meaningful. The Joint Commenters also noted that a dozen light bulbs recently tested by Consumer Reports all featured color ink somewhere on the package. In addition, a few manufacturers already provide a color graphic to communicate color temperature in addition to the black and white Lighting Facts label.

    Discussion: Consistent with the proposal in the SNPRM, the final rule requires Lighting Facts labels for specialty consumer bulbs with energy use or light output similar to the general service bulbs already covered by the Lighting Facts label. As discussed below, the final requirements differ from the proposal because they do not cover intermediate screw base lamps and plant light lamps and allow the label on the back of small blister packs for specialty bulbs.17 Manufacturers will have two years to phase in the new requirements. Online retailers and paper catalog sellers will have six months to post the new labels after these requirements become effective.18

    17 Consistent with SNPRM, the final rule does not alter the Rule's current definition of “general service lamp.” However, the Commission has changed to the definition of “fluorescent lamp ballast” to conform with an updated DOE definition for those products. See 76 FR 70548 (Nov. 14, 2011).

    18 The final rule language also clarifies that the catalog provisions of the Rule in section 305.20 apply to specialty consumer lamp labels. The 2014 SNPRM discussed such requirements but did not contain amendatory language. See 79 FR at 34661.

    The final rule sets specific thresholds for wattage and light output for covered bulbs and excludes certain bulbs for which labeling is not likely to provide substantial consumer benefit. The new rule includes special marking provisions for some bulbs and provides a smaller, single-label option for smaller packages. For consumer bulbs not covered by the requirements, manufacturers may use the Lighting Facts label if they follow the Rule's content and format requirements.

    The new requirements are consistent with EPCA's directive to develop labels that help consumers with their purchasing decisions.19 Under EPCA, the Commission can require labeling for any consumer product if such labeling is “likely to assist consumers in making purchasing decisions.” 20 Therefore, the Commission may look beyond EPCA's specific lamp definitions, which generally cover products subject to DOE's efficiency standards.21 Indeed, EPCA directed FTC to issue labeling requirements that “enable consumers to select the most energy efficient lamps which meet their needs.” 22 In addition, without specifying bulb coverage, the 2007 EPCA amendments encouraged the Commission to revise labels to help consumers “understand new high-efficiency lamp products” and allow them to choose products that meet their needs for light output, light quality, and lamp lifetime.23

    19 42 U.S.C. 6294(a)(2)(D), (a)(6).

    20 42 U.S.C. 6294(a)(6).

    21 42 U.S.C. 6291(30), 6292(a)(14). Recognizing that labeling may be appropriate for some products even in the absence of an efficiency standard, the Commission has already used this general authority to cover three-way incandescent bulbs and high-efficiency LED bulbs. See 75 FR at 41698.

    22 42 U.S.C. 6294(a)(2)(D)(i).

    23 42 U.S.C. 6294(a)(2)(D)(iii). The statute also directs the Commission to consider additional labeling changes to help consumers understand light bulb alternatives. Id.

    The Commission addresses the following specific issues raised during the proceeding: Product coverage, exclusions, package size, product markings, testing, voluntary labeling, compliance period, watt-equivalence claims, and color appearance.

    Coverage: The final rule covers lamp types with wattages and light output similar to currently covered general service bulbs. Specifically, the final rule defines “specialty consumer lamp” to cover bulbs that: (1) Are rated at 30 watts or higher or produce 310 lumens or more; (2) have a medium, candelabra, GU-10, or GU-24 base; and (3) do not meet the “general service lamp” definition.24 The 30-watt and 310-lumen thresholds are consistent with Congressionally-established benchmarks set by EPCA's definition of “general service lamps.” 25 Finally, the Rule covers specialty bulbs that look and operate like traditional incandescent bulbs, but are currently excluded from coverage, such as vibration-service lamps, rough service lamps, appliance lamps, and shatter resistant lamps (including a shatter proof lamp and a shatter protected lamp).

    24 On December 9, 2013 (78 FR 73737), DOE initiated a proceeding to consider whether to expand the current definition of “general service lamp.” The Commission will seek to ensure future labeling amendments harmonize with amended DOE definitions.

    25See 42 U.S.C. 6291(30)(C)-(D). Consistent with the statute, the coverage includes upper limits of 199 watts and 2,600 lumens.

    The final rule meets the statute's directive to provide labels that will assist consumers in purchasing the most efficient bulbs among common bulb types on store shelves. Specifically, the new labels will provide a means for consumers to compare the energy use, brightness, and other attributes of commonly available bulb types and technologies that are likely to appear side-by-side on store shelves with general service bulbs. The record suggests that the newly-covered bulbs have a significant market presence, are available in models that have light output or energy use ratings similar to general service bulbs, and often come in different technologies (with their different energy costs).26 By tailoring the new coverage to bulbs that have light output and energy use similar to general service lamps, the balance of consumer benefits and industry burdens created by the new labels should be the same or similar to that provided by existing labels. Though some commenters suggested a much broader coverage, it does not appear that there would be a significant benefit to consumers from labeling these products given their limited availability for typical consumers, their specialized applications, or their relatively low light output and energy use.

    26 As discussed in the SNPRM (79 FR at 34645, n. 31), the principal bulb types newly covered by these amendments have the following attributes:

    A-shape:—Often available in medium bases; used in residential applications, including ceiling fans; used for incandescent rough service and shatter proof bulbs at high wattages;

    B-shape:—Decorative “torpedo” shaped bulbs used in residential applications; available in CFL and LED versions; previous NEMA comments suggest that 40-watt or fewer B-shape lamps account for about 7% of the incandescent market;

    BA and CA shape:—Bent tip decorative lamps used in residential settings; available with medium and candelabra bases; wattages as a high as 60; available in incandescent and LED versions; represents between 6-7% of the incandescent market according to NEMA comments;

    F-Shape:—Decorative flame-shaped bulb; use as much as 40 watts; available in CFL and LED versions;

    G-Shape:—Often used in residential bathrooms; available in CFL and LED versions; according to comments, G16 1/2 lamps represent 2.5% of the incandescent market, G25 lamps represent 5%, and G30 lamps represent about 0.5%; and

    Spiral shape:—Commonly used for CFLs with intermediate screw bases and GU-24 pin-based bulbs; increasingly used in new construction.

    Exclusions: The final rule excludes bulbs for which labeling is not likely to provide substantial consumer benefit. These final exclusions include: Intermediate screw-based lamps, plant light lamps, black light lamps, bug lamps, colored lamps, infrared lamps, left-hand thread lamps, marine lamps, marine signal service lamps, mine service lamps, sign service lamps, silver bowl lamps, showcase lamps, traffic signal lamps, G-shape lamps with diameter of 5 inches or more, and C7, M-14, P, RP, S, and T-shape lamps.27 These bulbs do not share the basic attributes of general service lamps currently covered by the label (i.e., they generally use fewer than 30 watts, produce low light output, have little market presence, or mostly appear in commercial applications). The final rule also excludes intermediate screw base bulbs and plant light bulbs because they have little market presence according to the comments. Thus, labeling is unlikely to assist consumers in purchasing decisions. Should new information in the future suggest that these exclusions are no longer appropriate, the Commission may reconsider the coverage.

    27See section 305.3(z)(3) (final amendments).

    Package Size: Consistent with the proposal, the new requirements allow manufacturers to use a smaller, single label option on the front of small packages for certain specialty bulbs.28 Because packaging for some specialty bulbs consists of a blister pack on a small, single-sided card, the double-panel labeling under the current rules may not be feasible. The smaller label discloses lumens, energy cost, and bulb life, but not watts and light appearance.29 In addition, this smaller label does not apply to certain large bulbs in the specialty category, such as vibration-service lamps, that resemble traditional general service lamps in size and function and thus are likely to have packaging similar to general service bulbs.

    28 This option does not apply to vibration-service lamps, rough service lamps, appliance lamps, and shatter resistant lamps. 305.15(c)(2) (final amendments).

    29 Consistent with the proposal, the new, smaller labels do not require wattage and light appearance because specialty bulbs are less likely to have high wattage ratings and because color appearance is not essential to understanding the bulbs' energy efficiency. Nothing in the amendments, however, prohibits manufacturers from using the full Lighting Facts label or from otherwise providing such information elsewhere on the package.

    In response to comments about small specialty bulb packages, the final rule also contains a special provision for very small blister packs that cannot accommodate the required label on the front. The final rule states that, if the required disclosures (i.e., either the abbreviated specialty bulb disclosure or the standard general service lamp label) would not be legible on the front of a single-card blister package due to its size, the manufacturer may use a smaller label that says “See Back for Lighting Facts” and include the full Lighting Facts label on the package rear. This exception should accommodate manufacturers' practical needs, while still providing information important information to consumers.

    ER02NO15.001

    Product Marking: In addition to the labeling requirements, the amendments require marking on certain bulb shapes (i.e., the lumen and mercury marking currently required for general service lamps).30 For vibration-service, rough service, and shatter resistant lamps, the final rule requires the same markings (i.e., lumens and mercury) that currently apply to general service lamps because the size and shape of these bulbs is similar. Consistent with this proposal, the amendments do not require lumen markings on the lamps themselves for decorative size bulbs, such as B, BA, F, and G-shapes, to avoid detracting from those products' appearance. However, the Rule does require mercury disclosures on the lamps to ensure consumers have access to such information for cleanup and disposal.31

    30 16 CFR 305.15(c)(2)(iii) (final amendments).

    31 Because mercury disclosures generally apply only to compact fluorescent bulbs, which include a ballast, manufacturers should be able to place such information on the ballast in most cases, where other information is commonly printed. Industry comments raised concerns about fitting the mercury disclosure on some specialty lamps. Manufacturers that cannot physically fit the required mercury disclosure on their bulbs can petition the Commission for an alternative approach.

    Testing and Reporting: The final rule does not alter the Rule's existing test procedure and reporting requirements. Under the current requirements, manufacturers (or private labelers) must use applicable DOE test procedures.32 If there is no such procedure for a particular lamp, the Rule requires manufacturers to possess and rely upon a reasonable basis consisting of competent and reliable scientific tests and procedures substantiating the representation.33 As indicated in the comments, manufacturers already use industry-developed standards published by the Illuminating Engineering Society (IES) as part of their Lighting Measurement (LM) series for testing these products. In the past, the Commission has identified IES procedures as competent and reliable tests for covered light bulbs.34 The Commission expects that manufacturers will continue to use the IES tests for bulbs covered in these new labeling amendments. Accordingly, the Commission sees no need to require the IES tests in the Rule, particularly if DOE expands its test procedures to cover more of these products.35 Manufacturers that fail to use competent and reliable tests generally accepted by experts in this field may be subject to enforcement action for deceptive claims.36

    32See 16 CFR 305.5.

    33 16 CFR 305.5(b). FTC case law generally defines “competent and reliable scientific” evidence to include “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.” See, e.g., In the Matter of Schering Corp., 118 F.T.C. 1030, 1127 (1994).

    34See 59 FR 25176, 25208 (May 13, 1994).

    35See, e.g., “Preliminary Technical Support Document: Energy Efficiency Program for Consumer Products and Commercial and Industrial Equipment: General Service Lamps” (Chapter 3), DOE, Dec. 1, 2014 at http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-STD-0051-0022 (discussing DOE plans for lighting program).

    36 Because DOE has no comprehensive testing requirements at this time for “specialty” bulbs covered by the new labeling proposal, the amendments, consistent with EPCA, contain no new reporting. 42 U.S.C. 6296(b)(4). If DOE develops and requires new test procedures for these newly-labeled products, EPCA requires manufacturers to begin using such tests for labeling and any other energy representations 180 days after DOE issuance. 42 U.S.C. 6293(c). In a separate Notice, the Commission will consider whether to require manufacturers to submit links to their online labels as part of the Rule's reporting requirements.

    Voluntary Labeling For Non-Covered Products: For bulbs not covered by the proposal (e.g., consumer bulbs rated below 30 watts and below 310 lumens), the amendments allow, but do not require, manufacturers to use the Lighting Facts label.37 However, all voluntary Lighting Facts labels must follow the Rule's content and formatting requirements to ensure the label's consistency across products.38 Whether manufacturers use the Lighting Facts label or not, the FTC Act's general prohibition against deceptive claims requires manufacturers to substantiate any light bulb claims they make with competent and reliable scientific evidence.39

    37See 16 CFR 305.15(d). The catalog disclosure requirements in section 305.20 apply only to products required to bear a Lighting Facts label (or other required disclosure).

    38 The FTC staff has observed that the Lighting Facts label already appears widely on products that fall beyond the Rule's current coverage for general service lamps.

    39 15 U.S.C. 45(a). The amendments do not require online retailers to post the label for such voluntarily-labeled products due to the burdens associated with determining, on a model-by-model basis, whether manufacturers have chosen to use the Lighting Facts format.

    Watt-Equivalency Claims: The Commission addressed the issue of equivalency claims in an earlier Notice (75 FR 41696, 41701 (July 19, 2010)) and has not altered that guidance. In essence, to avoid deception, manufacturers must ensure they can substantiate their watt-equivalence claims. Such substantiation must take into account brightness, as well as other material factors, such as color. In doing so, the ENERGY STAR watt-equivalence standards provide an important benchmark. Indeed, manufacturers making watt-equivalence claims that stray from the ENERGY STAR standard must possess another competent and reliable basis to substantiate their claims. Moreover, manufacturers that make watt-equivalence claims for bulbs with lower lumen ratings than those prescribed in the ENERGY STAR standards should consider whether they need to qualify their claims to avoid deception.40

    40See Federal Trade Commission v. Lights of America, Inc., et al., SACV10-1333 JVS (MLGx) (C.D. Cal. 2014).

    Color Appearance Disclosure: The Commission does not propose to change the color appearance disclosure from its current monochromatic scale. As suggested in the comments, there may be some benefit to a color version of the scale, and many manufacturers use color packaging. However, it is not clear that all manufacturers use full color printing for all packages, nor is it certain that a color scale would provide significant benefit compared to the existing scale. Accordingly, the Commission is reluctant to impose this additional burden for what may be a marginal benefit. However, nothing prohibits manufacturers from providing a color scale on their packages off the label, as long as such information is truthful and substantiated.

    Compliance Period: The final rule provides manufacturers with two years to implement changes for the newly-covered bulbs. Though the Commission earlier sought comments on a two-and-a-half year compliance period (76 FR at 45721), manufacturers now have had notice of these impending changes for more than a year and the two year period should provide ample time to make these changes. A two year compliance period is appropriate because package changes are generally more complicated and burdensome than simple label changes and there is no impending market or regulatory change (e.g., new DOE standards) to warrant an earlier date. However, manufacturers may begin using the new labeling requirements prior to the deadline. As with other labeling requirements, online retailers must post the new Lighting Facts labels. To provide online retailers with time to comply with the requirements, the final rule requires compliance six months after the packaging deadline (i.e., a total of two and half years).41

    41 The Rule does not require catalog sellers (e.g., online retailers) to post the labels for products not covered by these new amendments but labeled voluntarily by manufacturers.

    B. More Durable Labels for Clothes Washers, Dishwashers, and Refrigerators

    Background: In its March 15, 2012 NPRM, the Commission discussed the need to improve the availability of EnergyGuide labels in retailer showrooms. Information gathered by the FTC and the Government Accountability Office (GAO) demonstrates that many covered products displayed in retailer showrooms were missing the required EnergyGuide labels.42

    42 For example, in 2008, the FTC found labels either detached or missing on approximately 38% of the 8,500 appliances it examined across 89 retail locations in nine metropolitan areas. 77 FR at 15300.

    The Rule currently permits manufacturers of refrigerators, dishwashers, and clothes washers to post the required EnergyGuide labels either using adhesive labels or hang tags.43 In examining floor models, FTC staff found that products labeled with hang tags appear more likely to have detached or missing labels than those labeled with adhesives.44 Additionally, comments received during the television label rulemaking indicated that hang tags often become twisted or dislodged in stores, supporting the FTC staff's past findings.45

    43 16 CFR 305.11(d)-(e). Because the Rule does not allow hang tags on the exterior of appliances, manufacturers must use adhesive labels for products with no accessible interior (e.g. water heaters).

    44See 77 FR at 15300 & n. 24.

    45See 76 FR 1038, 1042 (Jan. 6, 2011).

    Concerned that hang tags may be less secure and more prone to detachment than adhesive labels, the Commission, in its March 15, 2012 NPRM, proposed prohibiting hang tags for clothes washers, dishwashers, and refrigerators.46 In response, comments argued that adhesive labels applied directly to products might leave marks, especially on stainless steel finishes which appear on nearly a third of major home appliances. They also noted that affixing an adhesive to the protective film that covers products would be counterproductive because retailers likely would remove the film from display models, and may not reattach the label before displaying the product. They further explained that temperature and humidity might cause adhesive labels on products in storage or transit to become too sticky or lose their adhesive qualities. The commenters, therefore, recommended that the Commission consider other options.47

    46 77 FR at 15299-15300. EPCA permits the Commission to prescribe the manner in which EnergyGuide labels are displayed 42 U.S.C. 6294(c)(3), (c)(9).

    47 79 FR at 34648.

    In the 2014 SNPRM, the Commission, recognizing the legitimate concerns raised in the comments, did not propose eliminating hang tags altogether. Instead, it proposed requiring that hang tags be affixed to products using cable ties (i.e., “zip ties”), double strings connected through reinforced punch holes, or material with equivalent or greater strength. The Commission reasoned that these methods should improve label resilience, which in turn should reduce the incidence of missing labels, without posing undue burden for manufacturers. The Commission invited comments on this proposal.

    Comments: The comments were split. The Joint Commenters and the California Utilities supported the proposal but provided some additional suggestions detailed below. Conversely, several industry comments opposed the change arguing it would do little to address the problem of missing labels.

    The Joint Commenters agreed that hang tags should be more durable but recommended the Rule require reinforced punch holes on all hang tag labels, independent of the attachment method. They also argued that this would improve the uniformity of labels' appearance. Though the California Utilities supported the proposal, they noted that adhesive labels on the inside panels of products would address manufacturer concerns about damage to stainless steel products.48

    48 Goodman, a heating and cooling equipment manufacturer, recommended that the Commission extend the hang tag option to the products they sell. However, as discussed in the SNPRM, the Rule does not allow hang tags for products that have no interior given the likelihood that hang tags will not remain in place if affixed on product exteriors. 79 FR at 34648, n. 53.

    In contrast, appliance industry members opposed the proposal because, in their view, it would increase manufacturers' costs without accomplishing the goal of decreasing the incidence of missing labels. The Association of Home Appliance Manufacturers (AHAM) asserted that the SNPRM did not provide adequate evidence that the proposal will increase label durability or, more importantly, that increased label durability will reduce the incidence of missing labels. It stated that, because the attaching material (cable tie, double string, etc.) is stronger than the reinforced paper used for the label, a determined consumer (or retailer) can easily remove the tag. In addition, some refrigerators, particularly those lacking a wire shelf or door handle, have no location to affix a cable or string hang tag without taping the string or cable tie to the shelf. Instead of new labeling requirements, AHAM urged the Commission to find ways for retailers to display labels in such a way that consumers do not try to detach them (or that retailers themselves do not feel compelled to remove them to effectively display the product). According to AHAM, retailers are in the best position to display labels in a way that prevents removal.

    Both Alliance Laundry Systems and AHAM also repeated earlier requests to limit the Rule's label requirements to display models. They explained that most labels never appear on the showroom floor because retailers only use a handful of units as display models. For most units, consumers view the labels only upon delivery in their home. At that point, consumers generally want to remove the label from the products. Alliance therefore recommended that the Commission consider options that remove the burden associated with affixing physical labels on every unit.

    Similarly, AHAM urged the Commission to consider eliminating physical labels on every unit sold and, instead, rely on electronic labels on Web sites. The Joint Commenters disagreed, arguing that, even though consumers may conduct online research prior to purchase, labels in showrooms are still necessary to allow consumers to examine multiple competing products.

    Discussion: The final rule contains provisions to improve the durability of labels for refrigerators, clothes washers, and dishwashers, while providing manufacturers flexibility in doing so. Under the final rule, manufacturers have the option of using traditional adhesive labels and flap tags, labels affixed with strips of tape along the label's entire top and bottom, and hang tags using cable ties (i.e., “zip ties”) or double strings connected through reinforced punch holes, or with attachment and label material of equivalent or greater strength and durability. Manufacturers will have one year to come into compliance.

    As discussed in earlier notices, more durable hang tag labels should increase the likelihood that labels remain affixed to products in showrooms. The Commission understands that determined consumers can remove labels from showroom products. However, the new requirements are not intended to prevent such deliberate actions. Rather, by their nature, the stronger labels should increase the likelihood that labels will remain on products during shipping and handling through the retail chain and during normal examination and inspection by consumers.

    While the final rule increases the durability of labels, it provides manufacturers flexibility to use label methods most suited to their products. In recent informal visits to retail stores, the FTC staff has observed that manufacturers currently use a variety of means to attach labels on refrigerators, dishwashers, and clothes washers including conventional adhesive labels affixed to an interior or exterior surface, labels attached with wide pieces of reinforced tape on the top and bottom, hang tags attached with cable ties, hang tags attached with string, and hang tags made of laminated paper or plastic. Labels taped onto models across the entire top and bottom edge of the label appear to provide durability similar to a traditional adhesive label. Likewise, hang tags made of laminated paper or plastic provide durability similar to a paper hang tag with a reinforced punch hole. Accordingly, the final rule, in addition to specifying acceptable means of affixing hang tags through the use of zip ties and reinforced punch holes, also provides manufacturers the flexibility to use any method that provides the same or greater durability as those methods specified in the Rule.

    Finally, as explained above, the Commission does not propose abandoning physical labels. Notwithstanding the growing availability of Internet access, physical labels, especially those displayed at the point-of-sale, likely help a substantial number of consumers. Not all consumers have convenient online access, and not all of those who do conduct online research before making purchase decisions in stores. Moreover, even consumers who research products online are likely to benefit from viewing the physical labels in the store as they make final decisions and compare products at the point-of-purchase.49 Nevertheless, the Commission will continue to consider evolving buying patterns and potential changes to the Rule. The Commission will consider any research that provides information on these issues or any specific proposals parties may have to change the Rule to decrease the burden on industry, while ensuring consumers have access to EnergyGuide information.50

    49 42 U.S.C. 6294(c)(3) (the Commission may require the label to be displayed in a manner that the Commission determines is likely to assist consumers in purchasing decisions). As the Commission explained in the 2014 SNPRM (79 FR at 34649), it does not propose to limit labels to display models because retailers may not receive specific products designated for display and the appearance of labels on non-display models provides consumers useful energy consumption information after the purchase to help them understand the estimated energy use of their product.

    50 The amendments also eliminate obsolete sample labels (1 and 2) for refrigerators and clothes washers in Appendix L.

    C. Labels on Room Air Conditioner Boxes

    Background: In the SNPRM, the Commission proposed to require labels on room air conditioner boxes. The Commission based its proposal, in part, on staff observations during visits to major retail chains across the country, that room air conditioner models are usually displayed in boxes.51 Under the proposal, the labels would appear on the package's primary display panel. The Commission invited comments.

    51See 79 FR at 34649. The visit results showed that room air conditioners were either in the box only (50% of models observed) or in the box with a few display units located on or near the boxes (29% of models observed). Only 21% were displayed solely out of boxes. These results are based on FTC staff's review of more than 160 models (not individual units) offered for sale at a variety of stores in eight different metropolitan areas. The results are not necessarily nationally representative.

    The Commission also proposed two changes related to recent DOE regulatory actions. First, it proposed to amend the room air conditioner label to replace Energy Efficiency Ratio (EER) ratings with Combined Energy Efficiency Ratio (CEER) ratings consistent with recent DOE changes for these products. The Commission indicated that the differences between EER and CEER should be minor. The Commission also proposed conforming changes to the label's capacity description for room air conditioners in section 305.7 and ratings on Sample Label 4. Second, the Commission proposed requiring EnergyGuide labels for portable air conditioners, in light of a recent DOE proposal to designate portable air conditioners as covered products under EPCA.52 The Commission is addressing the portable air conditioner issue in more detail in a separate notice.

    52 78 FR 40403 (July 5, 2013). Portable air conditioners are movable units, unlike room air conditioners, which are permanently installed on the wall or in a window.

    Comments: The comments generally supported the proposal to place labels on room air conditioner boxes. Specifically, the comments identified the benefits of having labels on the box, recommended the Commission consider alternative disclosures for retailers who do not display boxes, urged coordination with Canadian labeling requirements, and supported the replacement of EER disclosures with CEER.

    The Joint Commenters repeated their earlier recommendation to require labels on both room air conditioner boxes and on the units themselves because a substantial portion (21%) of the models observed by FTC staff were displayed only outside of their boxes. The commenters explained that their own observations indicate the practice is even more common, though they did not provide specifics. They also argued the operating cost information on the room air conditioner label is particularly important because most households that rely on one or more room air conditioners have an annual household income below $40,000. Additionally, they noted that room air conditioner labels can provide important information to renters who pay for equipment operation but do not purchase the units themselves.53

    53 The Joint Commenters noted that approximately 32 percent of households in rental housing rely on one or more room air conditioners for space cooling; for owner‐occupied housing, the figure is less than 19 percent. In their view, if the air conditioner itself is labeled, even if the label is removed from the unit upon installation, that label is less likely to be thrown away (and more likely to be provided to the tenant) than a label found only on the unit's packaging.

    Finally, the Joint Commenters urged the Commission to consider creating an affirmative labeling requirement for retailers who chose to display their room air conditioner without boxes. The commenters explained that, even if FTC does not require manufacturers to label both the room air conditioner and its packaging, EPCA grants the Commission authority to “require disclosure, in any printed matter displayed or distributed at the point-of-sale of such product.” 42 U.S.C. 6294(c)(4).

    AHAM indicated it did not object to requiring EnergyGuide labels on room air conditioner boxes as long as Natural Resources Canada (NRCAN) harmonizes its EnerGuide requirements with the Commission's. Absent such harmonization, AHAM strongly opposes the proposal because it would impose substantial burdens by forcing manufacturers to create labels for both the product (to meet Canadian requirements) and the box (to meet U.S. requirements). Accordingly, AHAM recommended that FTC work on such harmonization, consistent with the President's directive regarding international regulatory cooperation. AHAM also recommended a two year period to implement the changes.

    The comments also supported the proposal to replace the EER reference on the room air conditioner label with CEER. AHAM, which proposed this change in earlier comments, explained that the switch would make the label consistent with the efficiency metric manufacturers currently report to DOE. The California Utilities also supported the proposal but further recommended disclosures for all efficiency metrics specified in the DOE energy conservation standards. Specifically, they reiterated their recommendation to require reporting of energy factor for water heaters, in addition to the cost and energy use. They stressed the importance of efficiency performance information to consumers and other market actors, particularly in the implementation of various national, regional, state, and utility programs. The commenters further recommended that the labels disclose any performance metric required for compliance with energy efficiency standards, including regulated performance metrics for room ACs, central ACs, and water heaters.

    Discussion: The Commission plans to issue final amendments to require labels on room air conditioner boxes and replace the EER disclosure with CEER. The Commission will publish the final amendments and announce a compliance date in the future to provide ample time to comply with both FTC and possible NRCAN requirements. Finally, the Commission does not plan to include additional efficiency rating information on various labels.

    The final rule provides manufacturers with flexibility. Specifically, manufacturers have the flexibility to choose a background color for the label, thus avoiding full redesign of some boxes. In addition, manufacturers may use stickers on the box itself, allowing easy label updates in response to test procedure or range changes. With the notice provided by this proceeding, manufacturers should be able to incorporate the label on packaging without additional burden. The labels must appear on the package's principal display panel, that part of a label most likely to be displayed, presented, shown, or examined under normal and customary conditions of display for retail sale.54

    54See, e.g., 15 U.S.C. 1459(f) (definition of “principal display panel” under the Fair Packaging & Labeling Act).

    In the SNPRM, the Commission explained that it is not proposing to require labels on both the product and the box. Over the years, retailers have shifted away from displaying most room air conditioner models outside of packaging. Given this trend, the Commission expects that retailers will continue to display the vast majority of these products in boxes. While some retailers may display some models outside the packaging, the label's absence is mitigated in those limited situations by recent provisions increasing the labels' availability to consumers online.55 Accordingly, the benefits of requiring the label on both the package and the product are likely to be small, while the burden of such a requirement would be substantial. However, the Commission may consider further requirements in the future if retail practices change.

    55 Such measures include new requirements to ensure the label's presence on retailer and manufacturer Web sites (78 FR 2200 (Jan. 10, 2013)) and, as proposed in a separate Notice, the inclusion of EnergyGuide labels on DOE's Web site.

    Finally, given concerns raised by commenters about coordinating with Canadian labeling, the Commission will not announce a final compliance date for these new requirements until NRCAN implements conforming regulatory changes. Such coordination will prevent the burden of labeling units in two places (i.e., box and unit). After NRCAN has addressed the issue, the Commission will issue a separate notice containing the final amendments and set an effective date and a compliance date of one year.

    In addition, the California Utilities recommended that the Commission require disclosures such as water heater energy factor (EF) information to help consumers and aid in compliance with state building code standards. The Commission declines to change the Rule at this time. The labels for heating and cooling equipment already display metrics applicable to federal standards, including SEER, EER, and AFUE where appropriate. For central air conditioners, the Commission recently required EnergyGuide labels on product packaging for many models and these labels include SEER information as the primary disclosure. 78 FR 8362 (Feb. 6, 2013). For water heaters, the current label includes yearly energy cost as the primary disclosure. It is unclear whether the inclusion of EF information would be helpful because we have no evidence that most consumers are familiar with the term. In addition, state code enforcers can obtain such EF information from DOE's Compliance Certification Management System (CCMS) database.56 Therefore, the Commission is not proposing to include EF information on the labels at this time.

    56See https://www.regulations.doe.gov/ccms. As proposed in the SNPRM (79 FR at 34663), the final rule amends section 305.7 to clarify that the capacity for instantaneous water heaters should be expressed in gallons-per-minute.

    D. Additional Information on EnergyGuide Labels

    Background: In the 2012 NPRM, the FTC sought comment on whether to require Quick Response (QR) codes on EnergyGuide labels. 77 FR at 15302. QR codes are black and white matrix barcodes that provide access to a Web site through a mobile phone equipped with scanning software. A QR code could connect consumers to energy use information, including the broad energy impacts and greenhouse gas emissions associated with a product's use, through government Web sites or other source information. In the 2014 SNPRM (79 FR at 34654), the Commission did not propose requiring QR codes on labels. Until the development of Web site content to supplement information already on the EnergyGuide label, the Commission explained that it was premature to propose any specific vehicle for linking consumers to that content.

    The Notice also indicated that the FTC staff would continue to consider providing full-fuel cycle and greenhouse gas information to consumers, on labels or elsewhere, and keep track of DOE's efforts to incorporate full-fuel-cycle analysis into their decision-making.57 To aid that process, the Commission invited comments on these issues, including the overall usefulness of such information in consumer purchasing decisions.

    57See, e.g., 77 FR 49701 (Aug. 17, 2012).

    Comments: In response to the SNPRM, the Commission received several comments from members of the natural gas industry—American Gas Association (AGA), American Public Gas Association (APGA), and Laclede Gas—urging the FTC and DOE to move forward with the development of consumer disclosures related to the full-fuel-cycle impacts of energy use.58 Specifically, two of these commenters argued that the current EnergyGuide label should provide more than the current “site-based” energy information, which does not disclose production costs associated with the energy consumers ultimately use. Laclede also asserted that the labels lack useful information for comparing gas to electric operating costs and questioned the utility of existing information, such as information at productinfo.energy.gov, because it only allows for comparisons between the same fuel sources using site-based performance indicators.

    58 The comments did not revisit the specific issue of QR codes on labels.

    The comments explained that “site” energy disclosures only provide information about the energy an appliance consumes in the home. According to AGA, such “site” energy information is not only inadequate, but can be misleading to consumers who may assume that a higher “site” efficiency rating means that an appliance uses less energy and emits fewer greenhouse gases overall. “Full‐fuel‐cycle” energy information addresses this shortfall by including not only energy consumption in the consumer's home, but also the losses that occur in the transportation and distribution of the fuel or its generation, as well as the energy consumed in its production or extraction. In AGA's view, full‐fuel‐cycle disclosures enable a more accurate analysis of the total energy usage and environmental impacts.59

    59 For appliances that use natural gas, nearly all of the energy losses and emissions occur at the point-of-use according to these comments. In addition, the comments indicated the overall natural gas delivery system on a full‐fuel‐cycle basis is highly efficient because approximately 92 percent of the energy produced reaches the consumer as usable energy.

    These commenters also argued that source-based energy information would allow utilities, state regulators, and consumers to understand the environmental benefits or costs, including the greenhouse gas emissions associated with appliance use.

    APGA also noted that DOE, the National Academy of Sciences, and the ENERGY STAR program have recognized the shortcomings of site-based analysis. It explained that labels derived using a source based approach will fully identify the emissions reduction through the entire energy cycle. AGA agreed, arguing that the label or other required disclosures should include information reflecting the energy use, life‐cycle cost, and associated emissions on a full‐fuel‐cycle basis. AGA recommended consideration of full‐fuel‐cycle energy use and emissions information on a regional basis.

    The commenters urged the Commission to expedite interaction with DOE on this issue. According to AGA, DOE already has all the information available through the existing residential furnace efficiency test procedure on full-fuel-cycle and emissions data. DOE agreed to work with the Commission to improve existing online databases, to increase consumer access to energy use and emissions data through web‐based information tools, and to collaboratively determine if changes to the Energy Guide labeling requirements would be beneficial to consumers. 76 FR 51281 (Aug. 18, 2011).

    Discussion: The FTC staff is discussing options with DOE staff for providing consumers with information related to full-fuel-cycle impacts and greenhouse gases. The staff will focus on considering possible changes to existing online resources, either at DOE or FTC, to provide consumers with relevant information as it relates to certain products. The Commission does not plan to consider content changes to the Energy Guide label itself until such online content is fully developed.

    The comments raise concerns about the failure of “site” efficiency rating disclosures (e.g., energy factor for water heaters or annual fuel utilization efficiency for furnaces) to reveal relevant differences in energy costs and other environmental aspects of product operation. Although the FTC will continue to consider ways to communicate full-fuel-cycle impacts as discussed above, the Commission notes that the primary disclosures on EnergyGuide labels for water heaters, clothes washers, and dishwashers are the estimated annual energy costs the consumer will pay, not the product's efficiency rating. In the past, the Commission has identified estimated operating cost as the best comparative descriptor for consumers on energy labels.60 Such cost information is featured prominently on most EnergyGuide labels. Although the label cost disclosures do not provide details about the full-fuel-cycle impacts or associated greenhouse gas emissions, they do demonstrate significant differences among the energy costs associated with different fuels used to operate these products that may not be provided by efficiency ratings. In addition, for furnaces and central air conditioners, FTC and DOE have developed an online cost calculator to provide similar onsite cost estimates for those products through DOE's Web site.

    60See, e.g., 72 FR 49948, 49953 (Aug. 29, 2007).

    E. Schedule for Range Revisions

    Background: In the 2012 NPRM, the Commission sought comment on whether to update range and cost information more frequently than the five years required by 16 CFR 305.10(a). In earlier comments, several energy efficiency organizations suggested that the FTC adopt a three-year schedule for most products.61 In the 2014 SNPRM (79 FR at 34657), the Commission did not propose to change the five-year schedule, explaining that it strikes a reasonable balance by providing appropriate updates without imposing unnecessary costs or creating inconsistencies between showroom labels.

    61 Joint Comments from Energy-Efficiency and Consumer Organizations (May 16, 2012) (#560957-00015).

    Comments: The Joint Commenters argued that a comprehensive label database on the existing DOE Web site, https://www.regulations.doe.gov/ccms, would make more frequent updates easier to implement because retailers could print new labels and replace older ones or simply provide links to this information.62 They also urged the Commission to avoid delays in updating range information by considering DOE's rulemaking schedule and coordinating updates to the EnergyGuide labels so that information does not become stale. Finally, the Joint Commenters recommended that the Commission update the label ranges for heat pump electric storage water heaters because a new model has appeared on the market that has an estimated annual energy cost nearly $60 less than the lowest cost displayed on the current label.

    62 79 FR at 34656-57.

    In contrast, several comments supported the five-year update schedule. Alliance Laundry Systems argued the current approach maintains certainty, allowing manufacturers to plan for label changes, lowers scrap costs of the printed labels, and reduces disruption to the manufacturing process. It also reduces consumer confusion in the marketplace because more frequent fuel energy rate and range changes would yield energy labels with differing descriptors on the same model manufactured on different dates. AHAM argued that frequent updates could also impact label information during the transition periods and make it difficult for consumers to compare old and new labels. AHAM, therefore, argued that the existing five-year schedule strikes the proper balance between maintaining consistent labels and providing updates to the cost and range information.63

    63 NEMA also agreed with the Commission's approach.

    Discussion: The Commission does not plan to change the five-year schedule for updating ranges. However, as suggested by the Joint Commenters, the Commission, in a separate notice, will seek comment on updating water heater range information given recent changes to the DOE test procedure. 79 FR 40541 (July 11, 2014).

    In establishing the current five-year schedule, the Commission sought to strike a balance between maintaining consistent labels and providing updates to cost and range information.64 Though there are benefits to more frequent updates, the transition periods between such updates create inconsistent labels in the market, which can cause confusion, hamper comparison shopping, and reduce confidence in the label.65 Moreover, the current five-year interval range is consistent with past trends in market data.66 For example, before 2007, the Commission reviewed model data every year and revised the ranges if they deviated 15% or more from the previous year. Using this approach, the Commission generally updated product ranges at about five-year intervals.67 If parties identify ranges or fuel rate information that should be updated before the five-year period ends, they should alert the Commission. Finally, the FTC staff will continue to work with DOE staff to coordinate range updates with ongoing DOE changes to test procedures and standards.

    64See also 78 FR 1779, 1781 (Jan. 9, 2013).

    65See 72 FR 49948, 49959 (Aug. 29, 2007) (discussing potential problems associated with frequent updates).

    66See 79 FR at 34657 (further discussion of such trends).

    67 72 FR at 49952.

    F. Retailer Responsibility

    Background: Currently, the Rule prohibits retailers from removing labels or rendering them illegible,68 but does not otherwise require retailers to display labels at the points-of-sale. In 2011, when the Commission issued additional label requirements for televisions, it declined to impose new retailer obligations, noting that the amendments for labels (both in stores and online) contain measures calculated to keep labels attached and visible on display models.69

    68 16 CFR 305.4(a)(2).

    69 76 FR 1038, 1047 (Jan. 6, 2011).

    In the 2014 SNPRM, the Commission explained its plans to pursue improvements in label design to increase label presence on display models before imposing new responsibilities for retail stores. The Commission reasoned that it was premature to impose costs on retailers when better label requirements and greater availability of online labels may alleviate the problem.

    Comments: The comments provided different views on the retailer liability issue. The Joint Commenters urged the Commission to reconsider its position, arguing that the SNPRM overstated the burdens imposed by expanded retailer liability. According to these comments, retailers already monitor product displays on a near‐constant basis when they clean display models and ensure pricing and other product information is present. In addition, some retailers appear to replace missing or damaged EnergyGuide labels. Given the Commission's plans to require the submission of labels to DOE's Web site, https://www.regulations.doe.gov/ccms, retailers are less likely to become confused when replacing missing labels. In addition, AHAM expressed a general concern “that retailer responsibility needs to be addressed.” However, it did not recommend changes to the current requirements, which already prohibit retailers from removing labels or rendering them illegible. AHAM did request a clarification stating that manufacturers have no responsibility for labels once a unit leaves the manufacturer's control.

    In contrast, the Direct Marketing Association (DMA), which represents retailers, encouraged the Commission to refrain from imposing affirmative duties on retailers. In DMA's view, the Commission can best ensure increased information to consumers by pursuing label attachment improvements without imposing new burdens at the point-of-sale. DMA also argued that an affirmative retailer requirement, in its opinion, could increase mislabeling inadvertently because retailers are not well-positioned to identify the correct labels and do not have readily available access to a library of substitute or replacement labels. A new retailer requirement would force sales personnel to halt customer service and verify correct product labels, attempt to locate proper labels, and attach a substitute label whenever a missing label was noticed. DMA also argued that a new requirement would penalize retailers for situations beyond their control (e.g., when labels become damaged while the product is in transit, or when consumers damage the labels on display products).

    Discussion: Consistent with the discussion in the SNPRM, the Commission does not plan to expand the general retailer requirements at this time.70 It is premature to impose these costs when better labeling, required by the amendments, and greater availability of online labels may solve the problem. If these new solutions fail, the Commission can reconsider whether additional requirements are necessary.71

    70 79 FR at 34658.

    71 In response to AHAM's concerns about manufacturer responsibility for showroom products, the Commission notes that the current Rule does not direct manufacturers to replace missing labels in a retailer showroom. However, the Rule prohibits manufacturers, in addition to retailers, distributors, and private labelers, from removing or rendering illegible any label required by the Rule. 16 CFR 305.4(a)(2).

    G. Marketplace Web Sites

    Background: In January 2013, the Commission published final amendments to the Rule's catalog provision, requiring Internet sellers to display the label—either in full or as a logo icon with a hyperlink—for most covered products.72 This requirement applies to “[a]ny manufacturer, distributor, retailer, or private labeler who advertises a covered product on an Internet Web site in a manner that qualifies its site as a catalog under this Part.” 73 The Rule defines “catalog” as “printed material, including material disseminated over the Internet, which contains the terms of sale, retail price, and instructions for ordering, from which a retail consumer can order a covered product.”74

    72See 78 FR at 2209 (amending 16 CFR 305.20; effective January 15, 2014). For a limited set of covered products—showerheads, faucets, water closes, urinals, general service fluorescent lamps, fluorescent lamp ballasts, and metal halide lamp fixtures—the Rule requires the disclosure of specific information instead of displaying the EnergyGuide or Lighting Facts label. See id. (amending 16 CFR 305.20(a)(ii)).

    73 16 CFR 305.20(a).

    74 16 CFR 305.2(h).

    Those amendments do not cover Web sites that serve solely as platforms for sellers by performing functions such as hosting sellers' advertising, matching buyers' searches to sellers' products, and processing payment and shipment directions.75 The Rule does not require such entities to either display, or ensure the display of, labels for covered products sold by third parties. However, the Rule continues to apply to those third parties (retailers, manufacturers, distributors, and private labelers) that sell their products on such Web sites. The Rule also applies to these marketplace Web sites if they act as retailers on their own Web sites.76

    75 EPCA states that if a “manufacturer or any distributor, retailer, or private labeler of such product advertises such product in a catalog from which it may be purchased, such catalog shall contain all information required to be displayed on the label, except as otherwise provided by rule of the Commission.” 42 U.S.C. 6296(a). EPCA defines a “retailer” as “a person to whom a consumer product is delivered or sold, if such delivery or sale is for purposes of sale or distribution in commerce to purchasers who buy such product for purposes other than resale,” and a “distributor” as “a person (other than a manufacturer or retailer) to whom a consumer product is delivered or sold for purposes of distribution in commerce.” It defines “manufacturer” as “any person who manufactures a consumer product,” and “private labeler” as “an owner of a brand or trademark on the label of a consumer product, which bears a private label.” 42 U.S.C. 6291(12)-(15). The Rule's definitions of “manufacturer,” “distributor,” “retailer,” and “private labeler” are consistent with EPCA's definitions. See 16 CFR 305.2.

    76 Taking physical possession of the product would likely render the marketplace Web site a “retailer” or “distributor” under EPCA and the Rule. See fn. 74, supra. Therefore, a product's delivery to a marketplace Web site's warehouse for temporary storage before proceeding in shipment to the consumer may trigger the marketplace Web site's responsibility for displaying the product's label online under the current Rule.

    Comments: In response to the SNPRM, the Joint Commenters continued to urge the Commission to create a specific requirement for marketplace Web sites. The commenters argued that marketplace Web site liability is the only practicable way to police the thousands of listings from diverse sellers who often have little control over the final content that appears online. The Joint Commenters also provided more information regarding non-compliance of retailers participating on marketplace Web sites.

    The Direct Marketing Association disagreed and supported the Commission's proposal. DMA argued that the Rule's current requirements appropriately place responsibility for labeling on the parties with the greatest ability to verify the accuracy of the information. According to DMA, imposing these requirements on marketplace Web sites would be costly and unintentionally increase the risk of inadvertent mislabeling.

    DMA argued that additional requirements on marketplace Web sites would create “secondary” or duplicate coverage, as this information is already provided to consumers elsewhere. At present, in its view, the burdens of imposing the requirement far outweigh any benefit to consumers from providing information that would be, at best, redundant.

    Discussion: The Commission is not proposing additional requirements. As explained in the 2012 SNPRM (79 FR at 34658), the Rule requires retailers participating on marketplace sites to display labels for the products they are offering for sale pursuant to section 305.20 of the Rule. The Rule already requires retailers, manufacturers, distributors, and private labelers selling covered products on marketplace Web sites to display labels for those products. Therefore, an additional requirement aimed at marketplace Web sites would create a secondary layer of coverage. Although added coverage may improve the availability of information to consumers, it is not clear whether that potential benefit outweighs the added burdens on such Web sites. However, the FTC staff will continue to monitor this issue as online retail practices evolve.

    H. Clothes Dryer Labels

    Background: When the Commission initially issued the energy labeling requirements in 1979, it declined to label dryers, citing their limited annual energy cost range.77 At that time, the maximum annual energy cost difference between dryers was only five dollars and the Commission concluded the costs of testing and labeling would “far outweigh the potential benefits” of labeling.78 In the SNPRM, the Commission explained that recent DOE dryer information suggests that dryer efficiency continues to vary little across available models.79 Although electric dryers using heat-pump technology are more efficient than current models, few such models are currently available in the U.S. Absent meaningful variation in energy usage, the Commission doubted that labeling would significantly aid consumer choices. However, the Commission explained that changes to the DOE test procedure may reveal greater differences among models.

    77 Under EPCA, the Commission must prescribe labels for dryers unless it finds labeling would not be technologically or economically feasible. 42 U.S.C. 6294(a)(1).

    78 44 FR 66466, 66469 (Nov. 19, 1979).

    79See U.S. DOE, Technical Support Document (TSD) for Energy Conservation Program: Energy Conservation Standards for Residential Clothes Dryers and Room Air Conditioners; Direct Final Rule TSD, Table 8.2.26, available at http://www.regulations.gov/#!documentDetail;D=EERE-2007-BT-STD-0010-0053. The table indicates that the difference in annual energy use between the baseline model and the most efficient non-heat-pump dryer is 89 kWh. At energy prices of $0.12 per kWh, this is approximately $11 per year. Considering inflation, this spread is even smaller than the cost range identified by the Commission in 1979. In addition, DOE's data suggests that annual operating costs for these dryers is generally lower than $80.

    Comments: In response to the SNPRM, commenters offered different views on the Commission's decision to forego proposing clothes dryer labels. For example, Alliance Laundry Systems supported the position because DOE testing indicates only small differences between the operating costs of the most efficient and least efficient electric models currently available.

    However, the Joint Commenters urged the Commission to revisit the issue. They asserted that the SNPRM did not provide adequate evidence to demonstrate that the benefits of clothes dryer labels would be minimal. First, they argued that high-efficiency dryers are likely to populate the market soon. According to the comments, one manufacturer has unveiled plans to introduce a heat pump dryer and another has introduced new efficient models. In addition, according to the Joint Commenters, dryers already exist that meet the new ENERGY STAR specifications, which require, on average, approximately 20% less energy use than allowed under DOE's 2015 minimum efficiency standards. This is a larger energy use spread than the new ENERGY STAR specifications for refrigerators. The Joint Commenters also stated that, according to DOE energy data, dryer labels may help some consumers choose between gas and electric dryers because a substantial number of consumers currently use gas for cooking but electricity for clothes drying.

    The Joint Commenters also took issue with the Commission's interpretation of EPCA's test for requiring clothes dryer labels. They explained that EPCA requires clothes dryer labels as long as labeling is “technologically and economically feasible.” In their view, EPCA does not allow the Commission to consider whether the costs of labeling outweigh the benefit.80 Instead, the Commission can forego labeling only if it determines that manufacturers are not “economically capable” of labeling these products. In the Joint Commenters' view, the FTC has not made such a finding.

    80Citing Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 508-09 (1981) (interpretation of the term “feasible” in the context of the Occupational Safety and Health Act of 1970).

    Finally, the Joint Commenters noted that DOE currently allows manufacturers to use two alternative test procedures.81 They recommended that the Commission require manufacturers to use the procedure codified at Appendix D2 to 10 CFR part 430 Subpart B. The Commenters reasoned that this version of the test will better assist consumers in making purchasing decisions because ENERGY STAR already requires it, and the procedure is more accurate.

    81See 78 FR 49608, 49641 (Aug. 14, 2013).

    Discussion: The Commission will continue to follow developments with clothes dryers. The commenters make several compelling arguments for label requirements. As more models appear, the Commission will consider establishing a labeling requirement for these products.

    However, in the meantime, the existence of two separate DOE test procedures raises serious complications for creating labeling requirements. Given the existence of two DOE tests, the Commission does not plan to require one DOE version over another because, by doing so, the Commission would, in essence, circumvent DOE's efforts to resolve the conflicts in its own testing requirements. The resolution of this technical issue is best left to DOE. The Commission will consider revisiting this after DOE resolves the testing issue.82

    82 The Commission disagrees with the commenters' interpretation of EPCA's requirement that labeling be technologically and economically feasible. In initially promulgating the Rule in 1979, the Commission, after examining the statute and statutory history, concluded “the Commission believes that Congress['s] intent was to permit the exclusion of any product category, if the Commission found that the costs of the labeling program would substantially outweigh any potential benefits to consumers.” 44 FR at 66467-68. In the Commission's view, labeling in such circumstances would not be “economically feasible.” 42 U.S.C. 6294(a)(1).

    I. Plumbing Products

    Consistent with the proposal in the SNPRM, the final amendments include two minor changes related to plumbing products.83 First, the amendments clarify that retail Web sites may use a hyperlink (labeled, “water usage”) to guide consumers to flow rate information for the covered plumbing products they sell. Recent amendments to section 305.20 allow online retailers to use a hyperlink to connect consumers to EnergyGuide and Lighting Facts labels for specific products, but do not specifically allow online sellers to link to required plumbing disclosures.84 The Plumbing Manufacturers Institute supported this change, but suggested the Commission allow other descriptors in the hyperlink such as “flow rate” and “water consumption” to provide flexibility to sellers. The Commission agrees. Unlike EnergyGuide and Lighting Facts labels, the Rule requires no uniform format for plumbing disclosures. Accordingly, a uniform hyperlink to connect consumers to such information is not necessary. Second, the amendments effect a conforming change to the definition of “showerhead” in Part 305 to the reflect recent DOE amendments.85

    83 In a separate notice, the Commission plans to propose an update to the reference to American Society of Mechanical Engineers (ASME) standards in section 305.16 of the Rule.

    84 78 FR 2200 (Jan. 10, 2013).

    85 78 FR 62970 (Oct. 23, 2013).

    IV. Paperwork Reduction Act

    The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act (PRA). OMB has approved the Rule's existing information collection requirements through May 31, 2017 (OMB Control No. 3084 0069). The amendments make changes in the Rule's labeling requirements that will increase the PRA burden as detailed below.86 Accordingly, the Commission is seeking OMB clearance specific to the Rule amendments.

    86 As indicated in the SNPRM, 79 FR at 34660, n. 139, several labeling changes, including changes to label attachment methods and refrigerator ranges, should impose no or de minimis additional burden beyond existing estimates, or manufacturers should be able to incorporate the proposed changes into their normally scheduled package or label revisions. The PRA analysis for this rulemaking focuses strictly on the information collection requirements created by and/or otherwise affected by the amendments. Unaffected information collection provisions have previously been accounted for in past FTC analyses under the Rule and are covered by the current PRA clearance from OMB.

    Package and Product Labeling (expanded lamp coverage): The final amendments require manufacturers to label several new bulb types. Accordingly, manufacturers will have to amend their package and product labeling to include new disclosures. The new requirements impose a one-time adjustment for manufacturers. Commission staff estimates that there are 50 manufacturers making approximately 3,000 of these newly covered products. This adjustment will require an estimated 600 hours per manufacturer on average. Annualized for a single year reflective of a prospective 3-year PRA clearance, this averages to 200 hours per year. Thus, the label design change will result in cumulative annualized burden of 10,000 hours (50 manufacturers × 200 hours). In estimating the associated labor cost, FTC staff assumes that the label design change will be implemented by graphic designers at an hourly wage rate of $24.36 per hour based on Bureau of Labor Statistics information.87 Thus, staff estimates annual labor cost for this adjustment will total $243,600 (10,000 hours × $24.36 per hour).

    87 The mean hourly wage cited above and those that follow are drawn from Bureau of Labor Statistics, U.S. Department of Labor, Occupational Employment and Wages—May 2014, Table 1 (National employment and wage data from the Occupational Employment Statistics survey by occupation, May 2014), available at: http://www.bls.gov/news.release/ocwage.t01.htm.

    Testing (expanded lamp coverage): Commission staff assumes that manufacturers will have to test 3,000 basic light bulb models out of an estimated 6,000 covered products. The Commission also assumes that testing will require 14 hours for each model for a total of 42,000 hours. In calculating the associated labor cost estimate, staff assumes that this work will be implemented by electrical engineers at an hourly wage rate of $46.05 per hour. Thus, Commission staff estimates that the label design change will result in associated labor costs of approximately $1,934,100 (42,000 hours × $46.05 per hour).

    Recordkeeping (expanded lamp coverage): Pursuant to section 305.21 of the amended Rule, manufacturers of the newly covered specialty bulbs must keep test data on file for a period of two years after the production of a covered product model has been terminated. Assuming one minute per model and 3,000 basic models, the recordkeeping burden would total 50 hours. Assuming further that these filing requirements will be implemented by data entry workers at an hourly wage rate of $15.48 per hour, the associated labor cost for recordkeeping would be approximately $774 per year.

    Catalog Disclosures (expanded lamp coverage): The amendments would require sellers offering covered products through catalogs (both online and print) to disclose energy use for each light bulb for sale. Because this information is supplied by the product manufacturers, the burden on the retailer consists of incorporating the information into the catalog presentation. FTC staff estimates that there are 200 online and paper catalogs for these products that would be subject to the Rule's catalog disclosure requirements. Staff additionally estimates that the average catalog contains approximately 250 such products and that entry of the required information takes one minute per covered product.88 The cumulative disclosure burden for catalog sellers is thus 833 hours (200 retailer catalogs × 250 products per catalog × 1 minute each per product shown). Assuming that the additional disclosure requirement will be implemented by data entry workers at an hourly wage rate of $15.48, associated labor cost would be approximately $12,894 per year.

    88 This estimate has been increased from the 2014 SNPRM to reflect the likelihood that retail Web sites offer a larger number of specialty consumer lamp models than first estimated.

    Estimated annual non-labor cost burden (expanded lamp coverage): Commission staff estimates that the annualized capital cost of expanding the light bulb label coverage is $1,535,000. This estimate is based on the assumptions that manufacturers will have to change 3,000 model packages over an approximate three-year period to meet the new requirements 89 and that package label changes for each product will cost $1,335.90 Manufacturers place information on products in the normal course of business. Annualized in the context of a 3-year PRA clearance, these non-labor costs would average $1,335,000 (3,000 model packages × $1,335 each over 3 years). As for product labeling, the Commission assumes that the one-time labeling change will cost $200 per model for an annualized estimated total of $200,000 (3,000 models × $200 over 3 years). Annualized in the context of a 3-year PRA clearance, the total non-labor costs would thus average $1,535,000.

    89 This assumes that manufacturers will change packages for one-third of their products in the normal course of business each year. The multi-year compliance period (two and a half years) and the notice provided by this proceeding should minimize the likelihood that manufacturers will have to discard package inventory. In addition, manufacturers may use stickers in lieu of discarding inventory.

    90See 75 FR at 41712 n. 149 and accompanying text.

    Total Estimate: Accordingly, the revised estimated total hour burden of the amendments is 52,883 with associated labor costs of $2,191,368 and annualized capital or other non-labor costs totaling $1,535,000.

    V. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires that the Commission provide an Initial Regulatory Flexibility Analysis (IRFA) with a Proposed Rule, and a Final Regulatory Flexibility Analysis (FRFA) with the final Rule, unless the Commission certifies that the Rule will not have a significant economic impact on a substantial number of small entities.91

    91 5 U.S.C. 603-605.

    The Commission does not anticipate that the final amendments will have a significant economic impact on a substantial number of small entities. The Commission recognizes that many affected entities may qualify as small businesses under the relevant thresholds. The Commission does not expect, however, that the economic impact of implementing the amendments will be significant because the Commission plans to provide businesses with ample time to implement the requirements, and the amendments involve simple information disclosures that do not impose substantial burdens.

    The Commission estimates that the amendments will apply to about 75 light bulb manufacturers and an additional 150 online and paper catalog sellers of covered products. The Commission expects that approximately 150 of these entities qualify as small businesses.

    Although the Commission certified under the RFA that the amendments would not, if promulgated, have a significant impact on a substantial number of small entities, the Commission has determined, nonetheless, that it is appropriate to publish an FRFA in order to explain the impact of the amendments on small entities as follows:

    A. Description of the Reasons That Action by the Agency Is Being Taken

    The Commission initiated this rulemaking to increase the availability of energy labels to consumers while minimizing burdens on industry, and generally improve existing requirements.

    B. Issues Raised by Comments in Response to the IRFA

    The Commission did not receive any comments specifically related to the impact of the final amendments on small businesses. No comments were filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule amendments. Comments that involve impacts on all entities are discussed above.

    C. Estimate of Number of Small Entities to Which the Amendments Will Apply

    Under the Small Business Size Standards issued by the Small Business Administration, appliance manufacturers qualify as small businesses if they have fewer than 1,000 employees (for other household appliances the figure is 500 employees). Catalog sellers qualify as small businesses if their sales are less than $8.0 million annually. The Commission estimates that there are approximately 150 entities subject to the proposed rule's requirements that qualify as small businesses.92

    92See 75 FR at 41712.

    D. Projected Reporting, Recordkeeping, and Other Compliance Requirements

    As discussed above, the changes would slightly increase reporting or recordkeeping requirements associated with the Commission's labeling rules. The amendments likely will increase compliance burdens by extending the labeling requirements to new types of light bulbs. The Commission assumes that the label design change will be implemented by graphic designers.

    E. Duplicative, Overlapping, or Conflicting Federal Rules

    The Commission has not identified any other federal statutes, rules, or policies that would duplicate, overlap, or conflict with the proposed Rule.

    F. Description of Steps Taken To Minimize Significant Economic Impact, If Any, on Small Entities, Including Alternatives

    The Commission sought comment and information on the need, if any, for alternative compliance methods that would reduce the economic impact of the Rule on such small entities. In particular, the Commission sought comments on whether it should time the Rule's effective date to provide additional time for small business compliance and whether to reduce the amount of information catalog sellers must provide. As discussed in this Notice, the Commission received no comments suggesting shorter compliance periods for requirements. However, to minimize the impacts on manufacturers and retailers in posting the required labels, the Commission has set effective dates for the new requirements to minimize burden on manufacturers as they implement them.

    Final Rule List of Subjects in 16 CFR Part 305

    Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.

    For the reasons discussed above, the Commission amends part 305 of title 16, Code of Federal Regulations, as follows:

    PART 305—ENERGY AND WATER USE LABELING FOR CONSUMER PRODUCTS UNDER THE ENERGY POLICY AND CONSERVATION ACT (“ENERGY LABELING RULE”) 1. The authority citation for part 305 continues to read as follows: Authority:

    42 U.S.C. 6294.

    2. In § 305.3, revise paragraphs (j) and (r) and add paragraph (z) to read as follows:
    § 305.3 Description of covered products.

    (j) Fluorescent lamp ballast means a device which is used to start and operate fluorescent lamps by providing a starting voltage and current and limiting the current during normal operation.

    (r) Showerhead means a component or set of components distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, excluding safety shower showerheads.

    (z) Specialty consumer lamp means

    (1) Any lamp that:

    (i) Is not included under the definition of general service lamp in this part;

    (ii) Has a lumen range between 310 lumens and no more than 2,600 lumens or a rated wattage between 30 and 199;

    (iii) Has one of the following bases:

    (A) A medium screw base;

    (B) A candelabra screw base;

    (C) A GU-10 base; or

    (D) A GU-24 base; and

    (iv) Is capable of being operated at a voltage range at least partially within 110 and 130 volts.

    (2) Inclusions. The term specialty consumer lamp includes, but is not limited to, the following lamps if such lamps meet the conditions listed in paragraph (1):

    (i) vibration-service lamps as defined at 42 U.S.C. 6291(30)(AA);

    (ii) rough service lamps as defined at 42 U.S.C. 6291(30)(X);

    (iii) appliance lamps as defined at 42 U.S.C. 6291(30)(T); and

    (iv) shatter resistant lamps (including a shatter proof lamp and a shatter protected lamp) as defined in 42 U.S.C. 6291(30)(Z).

    (3) Exclusions. The term specialty consumer lamp does not include:

    (i) A black light lamp;

    (ii) A bug lamp;

    (iii) A colored lamp;

    (iv) An infrared lamp;

    (v) A left-hand thread lamp;

    (vi) A marine lamp;

    (vii) A marine signal service lamp;

    (viii) A mine service lamp;

    (ix) A sign service lamp;

    (x) A silver bowl lamp;

    (xi) A showcase lamp;

    (xii) A traffic signal lamp;

    (xiii) A G-shape lamp with diameter of 5 inches or more;

    (xiv) A C7, M-14, P, RP, S, or T shape lamp;

    (xv) A intermediate screw-base lamp; and

    (xvi) A plant light lamp.

    3. In § 305.7, revise paragraph (d) to read as follows:
    § 305.7 Determinations of capacity.

    (d) Water heaters. The capacity shall be the first hour rating (for storage-type models) and gallons per minute (for instantaneous-type models), as determined according to appendix E to 10 CFR part 430, subpart B.

    4. In § 305.8, paragraph (a)(4) is revised to read as follows:
    § 305.8 Submission of data.

    (a) * * *

    (4) This section does not require reports for general service light-emitting diode (LED or OLED) lamps or specialty consumer lamps.

    5. In § 305.11, paragraph (d) is revised to read as follows:
    § 305.11 Labeling for refrigerators, refrigerator-freezers, freezers, dishwashers, clothes washers, water heaters, room air conditioners, and pool heaters.

    (d) Label types. The labels must be affixed to the product in the form of an adhesive label or a hang tag as follows:

    (1) Adhesive labels. All adhesive labels should be applied so they can be easily removed without the use of tools or liquids, other than water, but should be applied with an adhesive with an adhesion capacity sufficient to prevent their dislodgment during normal handling throughout the chain of distribution to the retailer or consumer. The paper stock for pressure-sensitive or other adhesive labels shall have a basic weight of not less than 58 pounds per 500 sheets (25″ x 38″) or equivalent, exclusive of the release liner and adhesive. A minimum peel adhesion capacity for the adhesive of 12 ounces per square inch is suggested, but not required if the adhesive can otherwise meet the above standard. In lieu of a label with adhesive backing, manufacturers may adhere the label with adhesive tape, provided the tape is affixed along the entire top and bottom of the label.

    (2) Hang tags. Labels may be affixed to the product in the form of a hang tag using cable ties or double strings connected through reinforced punch holes, or with attachment and label material of equivalent or greater strength and durability. If paper stock is used for hang tags, it shall have a basic weight of not less than 110 pounds per 500 sheets (251/2″ x 301/2″ index). When materials are used to attach the hang tags to appliance products, the materials shall be of sufficient strength to insure that if gradual pressure is applied to the hang tag by pulling it away from where it is affixed to the product, the hang tag will tear before the material used to affix the hang tag to the product breaks.

    6. In § 305.15, revise paragraph (b); redesignate paragraphs (c), (d), (e), and (f) as paragraphs (e), (f), (g), and (h); add new paragraphs (c) and (d); and revise newly redesignated paragraphs (f)(1) and (f)(4) through (6) to read as follows:
    § 305.15 Labeling for lighting products.

    (b) General service lamps. Except as provided in paragraph (f) of this section, any covered product that is a general service lamp shall be labeled as follows:

    (c) Specialty consumer lamps. (1) Any specialty consumer lamp that is a vibration-service lamp as defined at 42 U.S.C. 6291, rough service lamp as defined at 42 U.S.C. 6291(30), appliance lamp as defined at 42 U.S.C. 6291(30); or shatter resistant lamp (including a shatter proof lamp and a shatter protected lamp) must be labeled pursuant to the requirements in paragraphs (b)(1) through (7) of this section.

    (2) Specialty consumer lamp Lighting Facts label content. All specialty consumer lamps not covered by paragraph (c)(1) of this section shall be labeled pursuant to the requirements of paragraphs (b)(1) through (7) of this section or as follows:

    (i) The principal display panel of the product package shall be labeled clearly and conspicuously with the following information consistent with the Prototype Labels in Appendix L:

    (A) The light output of each lamp included in the package, expressed as “Brightness” in average initial lumens rounded to the nearest five;

    (B) The estimated annual energy cost of each lamp included in the package, expressed as “Estimated Energy Cost” in dollars and based on usage of 3 hours per day and 11 cents ($0.11) per kWh; and

    (C) The life, as defined in § 305.2(w), of each lamp included in the package, expressed in years rounded to the nearest tenth (based on 3 hours operation per day).

    (ii)(A) If the lamp contains mercury, the principal display panel shall contain the following statement in minimum 10 point font:

    “Contains Mercury For more on clean up and safe disposal, visit epa.gov/cfl.”

    (B) The manufacturer may also print an “Hg[Encircled]” symbol on package after the term “Contains Mercury.”

    (iii) If the lamp contains mercury, the lamp shall be labeled legibly on the product with the following statement: “Mercury disposal: epa.gov/cfl” in minimum 8 point font.

    (iv) If the required disclosures for a lamp covered by paragraph (c)(2) of this section will not be legible on the front panel of a single-card, blister package due to the small size of the panel, the manufacturer or private labeler may print the statement “Lighting Facts see back” on the principal display panel consistent with the sample label in Appendix L as long as the Lighting Facts label required by paragraph (b)(3) of this section appears on the rear panel.

    (v) No marks or information other than that specified in this part shall appear on the Lighting Facts label.

    (3) Specialty Lighting Facts label format. Information specified in paragraph (c)(2) of this section shall be presented on covered lamp packages in the format, terms, explanatory text, specifications, and minimum sizes as shown in the Prototype Labels of appendix L and consistent in format and orientation with Sample Labels in Appendix L of this part. The text and lines shall be all black or one color type, printed on a white or other neutral contrasting background whenever practical.

    (i) The Lighting Facts information shall be set off in a box by use of hairlines and shall be all black or one color type, printed on a white or other neutral contrasting background whenever practical.

    (ii) All information within the Lighting Facts label shall utilize:

    (A) Arial or an equivalent type style;

    (B) Upper and lower case letters;

    (C) Leading as indicated in the Prototype Labels in Appendix L of this part;

    (D) Letters that never touch;

    (E) The box and hairlines separating information as illustrated in the Prototype Labels in appendix L of this part; and

    (F) The minimum font sizes and line thicknesses as illustrated in Prototype Labels in Appendix L of this part.

    (iii) For small package labels covered by (c)(2)(iv) of this section, the words “Lighting Facts see back” shall appear on the primary display panel in a size and format specified in appendix L of this part.

    (4) Bilingual labels. The information required by paragraph (c) of this section may be presented in a second language either by using separate labels for each language or in a bilingual label with the English text in the format required by this section immediately followed by the text in the second language. All required information must be included in both languages. Numeric characters that are identical in both languages need not be repeated.

    (d) For lamps that do not meet the definition of general service lamp or specialty consumer lamp, manufacturers and private labelers have the discretion to label with the Lighting Facts label as long as they comply with all requirements applicable to specialty consumer lamps in this part.

    (f) * * *

    (1) The required disclosures of any covered product that is a general service lamp or specialty consumer lamp shall be measured at 120 volts, regardless of the lamp's design voltage. If a lamp's design voltage is 125 volts or 130 volts, the disclosures of the wattage, light output, energy cost, and life ratings shall in each instance be:

    (4) For any covered product that is a general service lamp or specialty consumer lamp and operates at discrete, multiple light levels (e.g., 800, 1600, and 2500 lumens), the light output, energy cost, and wattage disclosures required by this section must be provided at each of the lamp's levels of light output and the lamp's life provided on the basis of the shortest lived operating mode. The multiple numbers shall be separated by a “/” (e.g., 800/1600/2500 lumens) if they appear on the same line on the label.

    (5) A manufacturer or private labeler who distributes general service fluorescent lamps, general service lamps, or specialty consumer lamp without labels attached to the lamps or without labels on individual retail-sale packaging for one or more lamps may meet the package disclosure requirements of this section by making the required disclosures, in the manner and form required by those paragraphs, on the bulk shipping cartons that are to be used to display the lamps for retail sale.

    (6) Any manufacturer or private labeler who makes any representation, other than those required by this section, on a package of any covered product that is a general service fluorescent lamp, general service lamp, or specialty consumer lamp regarding the cost of operation or life of such lamp shall clearly and conspicuously disclose in close proximity to such representation the assumptions upon which it is based, including, e.g., purchase price, unit cost of electricity, hours of use, patterns of use. If those assumptions differ from those required for the cost and life information on the Lighting Facts label (11 cents per kWh and 3 hours per day), the manufacturer or private labeler must also disclose, with equal clarity and conspicuousness and in close proximity to, the same representation based on the assumptions for cost and life required on the Lighting Facts label.

    7. In § 305.20, revise paragraphs (a)(1)(i) and (a)(1)(ii) introductory text to read as follows:
    § 305.20 Paper catalogs and Web sites.

    (a) * * *

    (1) Content—(i) Products required to bear EnergyGuide or Lighting Facts labels. All Web sites advertising covered refrigerators, refrigerator-freezers, freezers, room air conditioners, clothes washers, dishwashers, ceiling fans, pool heaters, central air conditioners, heat pumps, furnaces, general service lamps, specialty consumer lamps (for products offered for sale after May 2, 2018), and televisions must display, for each model, a recognizable and legible image of the label required for that product by this part. The Web site may hyperlink to the image of the label using the sample EnergyGuide and Lighting Facts icons depicted in appendix L of this part. The Web site must hyperlink the image in a way that does not require consumers to save the hyperlinked image in order to view it.

    (ii) Products not required to bear EnergyGuide or Lighting Facts labels. All Web sites advertising covered showerheads, faucets, water closets, urinals, general service fluorescent lamps, fluorescent lamp ballasts, and metal halide lamp fixtures must include the following disclosures for each covered product. For plumbing products, the Web site may hyperlink to the disclosures using a prominent link labeled “Water Usage” or a similar description which facilitates the disclosure of the covered product's rated water usage.

    8. In Appendix L, remove Sample Labels 1 and 2, redesignate Sample Labels 1A and 2A as Sample Labels 1 and 2, respectively, and add Prototype Label 7A and Sample Labels 13C and 13D.

    The additions read as follows:

    Appendix L to Part 305—Sample Labels BILLING CODE 6750-01-P ER02NO15.002 ER02NO15.003

    By direction of the Commission.

    Donald S. Clark, Secretary.
    [FR Doc. 2015-27772 Filed 10-30-15; 8:45 am] BILLING CODE 6750-01-C
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 157, 260, and 284 [Docket Nos. RM96-1-038 and RM14-2-003; Order No. 587-W] Standards for Business Practices of Interstate Natural Gas Pipelines; Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public Utilities AGENCY:

    Federal Energy Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is amending its regulations to incorporate by reference the latest version (Version 3.0) of seven business practice standards adopted by the Wholesale Gas Quadrant of the North American Energy Standards Board (NAESB) applicable to interstate natural gas pipelines. These updated business practice standards contain and supplement the revisions to the NAESB scheduling standards accepted by the Commission in Order No. 809 as part of the Commission's efforts to harmonize gas-electric scheduling coordination, and are required to be implemented on April 1, 2016, the same date as the regulations adopted in Order No. 809. In addition, the updated standards revise the codes used to identify receipt and delivery locations in the Index of Customers. Further, for consistency with the revisions to the Index of Customers, the Commission is also amending its regulations to make conforming changes to the Commission's regulations on interstate natural gas pipeline filings and postings.

    DATES:

    This rule will become effective December 2, 2015. Implementation of these standards is required on April 1, 2016. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of December 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Stanley Wolf (technical issues), Office of Energy Policy and Innovation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6841, Email: [email protected].

    Oscar F. Santillana (technical issues), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6392,Email: [email protected].

    Gary D. Cohen (legal issues), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-8321,Email: [email protected].

    SUPPLEMENTARY INFORMATION: Order No. 587-W Final Rule Table of Contents Paragraph Numbers I. Background 4 II. Discussion 12 A. Incorporation by Reference of the NAESB Standards 12 1. The NAESB WGQ Version 3.0 Business Practice Standards 12 2. NAESB's Process 14 3. NOPR Proposal 15 4. Comments 16 5. Commission Determination 17 6. Required Compliance Filings 18 B. Use of Proprietary Codes To Replace Common Codes 19 1. NOPR Proposal 19 2. Comments 21 3. Commission Determination 22 C. Index of Customers 24 1. Filing Format 24 a. NOPR Proposal 24 b. Comment 25 c. Commission Determination 26 2. Index of Customers Instruction Manual 27 a. NOPR Proposal 27 b. Comments 28 c. Commission Determination 31 D. Cross-References/Conforming Changes 36 1. NOPR Proposal 36 2. Comments 37 3. Commission Determination 38 III. Implementation Schedule 40 IV. Notice of Use of Voluntary Consensus Standards 43 V. Incorporation By Reference 45 VI. Information Collection Statement 47 VII. Environmental Analysis 53 VIII. Regulatory Flexibility Act 54 IX. Document Availability 56 X. Effective Date and Congressional Notification 59 Order No. 587-W Final Rule (Issued October 16, 2015)

    1. In this final rule, the Federal Energy Regulatory Commission (Commission) amends its regulations at 18 CFR 284.12 to incorporate by reference the latest version (Version 3.0) of seven business practice standards applicable to interstate natural gas pipelines adopted by the Wholesale Gas Quadrant (WGQ) of the North American Energy Standards Board (NAESB). Interstate natural gas pipelines are required to implement these standards April 1, 2016.

    2. The NAESB WGQ Version 3.0 package of standards includes standards governing coordination of the scheduling processes of interstate natural gas pipelines and public utilities that the Commission incorporated by reference in Docket No. RM14-2-000.1 These updated business practice standards will replace the earlier version of these business practice standards that previously were incorporated by reference. The standards also revise the codes used to identify receipt and delivery locations in the Index of Customers. In addition, for consistency with the revisions to the Index of Customers, the Commission is also amending its regulations at 18 CFR 157.14, 157.18, 260.8, and 284.13 to have receipt and delivery point information in various interstate natural gas pipeline filings and postings use the same location point names as provided for in the NAESB WGQ Version 3.0 Standards. Finally, we also are making conforming changes to 18 CFR 284.126.

    1Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public Utilities, Order No. 809, Final Rule, 80 FR 23197 (Apr. 24, 2015), FERC Stats. & Regs. ¶ 31,368 (Order No. 809).

    3. In addition, the Commission terminates, as moot, the proceeding in Docket No. RM14-2-003, as the standard corrections NAESB filed in Docket No. RM14-2-003 are included as part of the Version 3.0 standards that the Commission is incorporating by reference here, with the same implementation date of April 1, 2016.

    I. Background

    4. Since 1996, the Commission has adopted regulations to standardize the business practices and communication methodologies of interstate natural gas pipelines to create a more integrated and efficient pipeline grid. These regulations have been promulgated in the Order No. 587 series of orders,2 wherein the Commission has incorporated by reference standards for interstate natural gas pipeline business practices and electronic communications that were developed and adopted by NAESB's WGQ. Upon incorporation by reference, this version of these standards will become part of the Commission's regulations and compliance by interstate natural gas pipelines will become mandatory and will replace the earlier version of these standards that the Commission previously incorporated by reference in 2012.3

    2 This series of orders began with the Commission's issuance of Standards for Business Practices of Interstate Natural Gas Pipelines, Order No. 587, FERC Stats. & Regs. ¶ 31,038 (1996).

    3Standards for Business Practices of Interstate Natural Gas Pipelines, Final Rule, Order No. 587-V, FERC Stats. & Regs. ¶ 31,332 (2012) (Order No. 587-V).

    5. On July 23, 2013, as corrected on July 25, 2013, NAESB filed a report informing the Commission that it had adopted and ratified Version 2.1 of its business practice standards applicable to natural gas pipelines. NAESB reported that the WGQ reviewed, at the request of the industry, the necessity of maintaining the current location common codes system to determine if the system provides a significant benefit to the industry and should be continued.4 NAESB (in its previous corporate incarnation as the Gas Industry Standards Board) adopted a system of registering common codes to identify interconnection points between pipelines using a single code for the shared point. The industry chose an independent third party to assign and maintain the common code database.

    4 NAESB Version 2.1 Report dated July 23, 2013 (NAESB Version 2.1 Report). As explained in the NAESB Version 2.1 Report, this request was received by NAESB in November 2010 and was included by the NAESB Board of Directors in the 2011 WGQ Annual Plan as part of Item No. 7 and as part of the 2012 WGQ Annual Plan Item No. 8. See NAESB Version 2.1 Report at 3. The proposed modifications made in response to this request were developed by the WGQ's Business Practices Subcommittee and jointly by the Information Requirements/Technical Subcommittees.

    6. NAESB reported that, after extensive discussions, the WGQ reached the conclusion that the NAESB WGQ Standards should no longer support the location common codes system, as the NAESB membership concluded that the system provided little commercial benefit to the industry at large. Consistent with this determination, the Version 2.1 Standards added seven new standards, modified six standards, and deleted three standards to match up with a transition from common codes to the proprietary codes used by interstate pipelines to identify points.5 These will be the codes assigned by the transportation service providers for the identification of locations.6 The standards require pipelines to post sufficient information on their Web sites to permit shippers and the Commission to identify the interconnection points between pipelines that were previously identified through the common codes.

    5 NAESB Version 2.1 Report at 2.

    6Id. at 4.

    7. Additionally, as requested by the Commission in Order No. 587-V,7 NAESB modified the standards to include reporting requirements for “Design Capacity” for each location by transportation service providers.8 Other changes to the existing standards were made at the request of industry. These include changes to the NAESB WGQ Additional Standards, Nominations Related Standards, Flowing Gas Related Standards, Invoicing Related Standards, Quadrant Electronic Delivery Mechanism Standards, Capacity Release Related Standards, and Data Set Standards.9 NAESB further reported on the changes it made to the NAESB WGQ Interpretations and Contracts and Manuals that the Commission has declined to incorporate by reference in past Final Rules.10 NAESB also reported on all the minor corrections it made to the standards since Version 2.0 of the Standards.11 Finally, NAESB reported on items that it considered changing but on which it took no action.12

    7See supra n.3.

    8 NAESB Version 2.1 Report at 2-3.

    9Id. at 3.

    10See, e.g., Order No. 587-V, FERC Stats. & Regs. ¶ 31,332 at n.11.

    11 NAESB Version 2.1 Report at 18.

    12Id. at 17-18.

    8. On November 14, 2014, NAESB filed a report informing the Commission that it had adopted and ratified Version 3.0 of its business practice standards applicable to natural gas pipelines. NAESB reported that all of the modifications made in the Version 2.1 Standards are included in the Version 3.0 Standards and thus no action is needed on the Version 2.1 Standards.13 The Version 3.0 Standards introduced modifications to the standards to support efforts to harmonize gas-electric scheduling coordination that NAESB had separately filed and that the Commission incorporated by reference in Order No. 809.14 In addition, the Version 3.0 Standards contain revisions to the capacity release standards regarding posting requirements for offers to purchase released capacity that were the subject of the Commission's order to show cause in Docket No. RP14-442-000.15 Other revisions in the Version 3.0 Standards are: (1) Revisions to the standards to define “Operating Capacity” and “Design Capacity” in response to the Commission request in Order No. 587-V; 16 (2) elimination of the WGQ Interpretations, which the Commission has long declined to incorporate by reference; (3) modifications to standards to reflect the elimination of the WGQ's interpretations of the standards; (4) modifications for maintenance purposes, which includes changes to eliminate the appearance of the electronic data interchange in the imbalance trading process; (5) modifications to reflect new data elements; and (6) edits for clarity and to increase user-friendliness. The Version 3.0 standards have also been revised to include 29 minor corrections.17

    13 NAESB Version 3.0 Report dated November 14, 2014 (NAESB Version 3.0 Report) at 2.

    14See supra n.1.

    15Posting of Offers to Purchase Capacity, 146 FERC ¶ 61,203, at P 6 (2014) (Show Cause Order); B-R Pipeline Co., 149 FERC ¶ 61,031 (2014) (order accepting compliance filings).

    16 Order No. 587-V, FERC Stats. & Regs. ¶ 31,332 at P 8.

    17 The NAESB Version 3.0 Report also provides information on other NAESB activities and tools unrelated to standards development. A complete listing of all the revisions made in NAESB's WGQ Version 3.0 Business Practice Standards to NAESB's prior business practice standards can be found in the Appendix to the Version 3.0 NOPR, 80 FR 43987, FERC Stats. & Regs. ¶ 32,708 at 34,767.

    9. On July 7, 2015, NAESB filed a report informing the Commission that it made errata corrections to the WGQ Version 3.0 Business Practice Standards.18 These corrections incorporated a 9:00 a.m. Central Clock Time (CCT) start to the gas operating day, consistent with the Commission's findings in Order No. 809 19 and also corrected other minor errors.

    18 NAESB adopted two minor corrections, MC15009 and MC15012, approved on April 30, 2015 and May 29, 2015, respectively.

    19 Order No. 809, FERC Stats. & Regs. ¶ 31,368 at P 171.

    10. On July 16, 2015, the Commission issued a Notice of Proposed Rulemaking (Version 3.0 NOPR) proposing to amend its regulations to incorporate by reference, with certain enumerated exceptions, the NAESB Version 3.0 business practice standards (referenced above) applicable to natural gas pipelines.20 In addition, the Version 3.0 NOPR proposed certain conforming changes to the Commission's regulations at 18 CFR 157.14 and 157.18 (dealing with exhibits) and 260.8 (dealing with system flow diagrams).

    20Standards for Business Practices of Interstate Natural Gas Pipelines, Notice of Proposed Rulemaking, 80 FR 43979 (July 24, 2015), FERC Stats. & Regs. ¶ 32,708 (July 16, 2015) (Version 3.0 NOPR).

    11. In response to the Version 3.0 NOPR, comments were filed by three commenters. All three commenters express support for the Commission's proposal to incorporate by reference NAESB's Version 3.0 business practice standards. Tennessee Valley Authority (TVA) comments that it fully supports the full package of revisions reflected in the NAESB Version 3.0 Standards that are subject to the NOPR. Interstate Natural Gas Association of America (INGAA) comments that it “supports the Commission's proposal to amend its regulations to incorporate by reference Version 3.0 of the business practice standards adopted by [NAESB's WGQ] applicable to natural gas pipelines,” subject to a few suggested modifications.21 It supports the Version 3.0 NOPR's proposal to introduce the use of proprietary location codes and to discontinue the use of industry common codes, but it offers suggested minor modifications to the regulatory text accomplishing this transition. Southern Star Central Gas Pipeline (Southern Star), likewise, comments that it “supports the incorporation by reference of the NAESB WGQ Version 3.0 business practice standards in 18 CFR § 284.12 as proposed.” 22 “[H]owever, Southern Star asks the Commission to clarify its proposed corresponding changes to 18 CFR 157.14, 157.18, 260.8, and 284.13 to avoid confusion and ensure consistent compliance with the regulations.” 23 In the discussion below, we will address the comments in greater detail. In addition, on September 25, 2015, NAESB filed a report with the Commission in Docket No. RM96-1-038 announcing that it had made additional minor corrections.24 In this Final Rule, the version of the NAESB WGQ business practice standards that we are incorporating by reference into our regulations will include these additional minor corrections.

    21 INGAA at 1.

    22 Southern Star at 2.

    23Id.

    24 MC15003, MC15004, and MC15005, which were adopted by the WGQ Executive Committee on April 9, 2015.

    II. Discussion A. Incorporation by Reference of the NAESB Standards 1. The NAESB WGQ Version 3.0 Business Practice Standards

    12. The NAESB WGQ Version 3.0 Business Practice Standards made a number of changes to the earlier version of those standards that the Commission previously incorporated by reference in 2012 in Order No. 587-V.25 Notable among these changes was a change, made at the request of the industry, to introduce the use of proprietary codes to identify the location of points of receipt and delivery. Consistent with this determination, the Version 2.1 Standards added seven new standards, modified six standards, and deleted three standards to match up with a transition from common codes to proprietary codes. Under the new standards, each transportation service provider assigns the proprietary codes it will use to identify the locations of its points of receipt and delivery. The standards require pipelines to post sufficient information on their Web sites to permit shippers and the Commission to identify the interconnection points between pipelines that were previously identified through the common codes.

    25Standards for Business Practices of Interstate Natural Gas Pipelines, Order No. 587-V, FERC Stats. & Regs. ¶ 31,332 (2012).

    13. Additionally, as requested by the Commission in Order No. 587-V,26 NAESB modified the standards to include reporting requirements for “Design Capacity” for each location by transportation service providers. Other changes to the existing standards were made at the request of industry. These include changes to the NAESB WGQ Additional Standards, Nominations Related Standards, Flowing Gas Related Standards, Invoicing Related Standards, Quadrant Electronic Delivery Mechanism Standards, Capacity Release Related Standards, and Data Set Standards. NAESB further reports on the changes it made to the NAESB WGQ Interpretations and Contracts and Manuals that the Commission has declined to incorporate by reference in past final rules.27 NAESB's Version 3.0 report also identified the minor corrections it made to the standards since Version 2.0 of the Standards.

    26Id. P 30.

    27See, e.g., id. n.11.

    2. NAESB's Process

    14. NAESB used its consensus procedures to develop and approve the Version 3.0 Standards. As the Commission found in Order No. 587, the adoption of consensus standards is appropriate because the consensus process helps ensure the reasonableness of the standards by requiring that the standards draw support from a broad spectrum of industry participants representing all segments of the industry. Moreover, since the industry itself has to conduct business under these standards, the Commission's regulations should reflect those standards that have the widest possible support. In section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTT&AA), Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations, like NAESB, as means to carry out policy objectives or activities determined by the agencies unless an agency determines that the use of such standards would be inconsistent with applicable law or otherwise impractical.

    3. NOPR Proposal

    15. In the Version 3.0 NOPR, the Commission proposed to incorporate by reference, in its regulations, Version 3.0 of the NAESB WGQ's consensus business practice standards, with the exception of NAESB's standards specifying the terms of optional model contracts and its eTariff-related standards.28

    28 Version 3.0 NOPR, 80 FR 43982, FERC Stats. & Regs. ¶ 32,708 at P 20.

    4. Comments

    16. As explained above, all of the commenters supported the Commission's proposal to incorporate by reference the NAESB WGQ Version 3.0 business practice standards as proposed in the Version 3.0 NOPR.29

    29See discussion at P 11, supra.

    5. Commission Determination

    17. After a review of the comments filed in response to the Version 3.0 NOPR, the Commission is amending Part 284 of its regulations to incorporate by reference seven of the NAESB WGQ's Version 3.0 business practice standards. Further, as explained in the Version 3.0 NOPR, we are not incorporating by reference the NAESB WGQ's optional model contracts and eTariff-related standards.30 In the discussion below, we also will discuss the various comments suggesting modifications to the regulatory text proposed in the Version 3.0 NOPR in the conforming changes we proposed to other provisions of our regulations.

    30 We are also, as discussed in Section II.D below, making a number of conforming changes in other provisions of our regulations, for consistency with our action here.

    6. Required Compliance Filings

    18. To implement the standards we are incorporating by reference in this Final Rule, we will require each interstate natural gas pipeline to file a separate tariff record reflecting the changed standards by February 1, 2016, to take effect on April 1, 2016, and the natural gas pipelines will be required to comply with these standards on and after April 1, 2016.31

    31 To aid in compliance, promptly after issuance of this Final Rule, the Commission will post a sample tariff record on the Commission's Web site that may be accessed at http://www.ferc.gov/docs-filing/elibrary.asp. All pipelines are to file their tariff records in conformance with this sample tariff record.

    B. Use of Proprietary Codes To Replace Common Codes 1. NOPR Proposal

    19. As explained in the Version 3.0 NOPR, at industry's request, NAESB reviewed the location common codes system and concluded that the NAESB WGQ Business Practice Standards should no longer support the location common codes system, as the NAESB membership concluded that the system provided little commercial benefit to the industry at large.32 The industry determined that having a third party maintain a common code database is not worth the expense and effort and revised the standards to introduce the use of proprietary codes to identify the location of points of receipt and delivery. The revised standards include requirements to replace much of the information previously contained in the third party database. These standards require interstate pipelines to post on their internet Web sites information on each of the proprietary points that can be used among other things to determine which points are interconnecting points, one of the primary reasons for adoption of the common code database.

    32 Version 3.0 NOPR, FERC Stats. & Regs. ¶ 32,708 at P 4.

    20. In the Version 3.0 NOPR, the Commission proposed to incorporate by reference the standards that revised the prior standards to introduce the use of proprietary codes to identify the location of points of receipt and delivery and that included requirements for the pipelines to post on their Web sites information on each of the proprietary points that can be used to determine which points are interconnecting points between pipelines.33 We also proposed that these same codes be used by the Commission in its Index of Customers to identify the points on shippers' contracts and we proposed to revise § 284.13(c) of the regulations to assure that these provisions operate in harmony.34 In the NOPR, we proposed to revise the Commission's regulations at § 284.13(c)(2)(vi) to reflect the use of the term “location code” rather than “industry common code” to identify the location of receipt and delivery points, and we also proposed to require pipelines to post information on their internet Web site regarding such location points, including the coordinates of each point, and an identification of the upstream or downstream entity, if any, at that point, and date the point becomes active or inactive.35

    33Id. PP 15-16.

    34Id.

    35Id. at proposed regulatory text for § 284.13(c)(2)(vi). (80 FR 43987).

    2. Comments

    21. Southern Star & INGAA both support the Commission's proposal to use the term “location code,” rather than “industry common code” to identify the location of receipt and delivery points.36 Southern Star and INGAA, however, point out that the term “common code” recurs in a number of places in the Commission's regulations other than in the Index of Customers, and contend that, as a result, the Commission should establish a separate regulation at 18 CFR 284.13(f) for the posting requirement to eliminate the need for repetition.37

    36 INGAA at 2. Southern Star at 3.

    37 Southern Star at 2-3.

    3. Commission Determination

    22. We will incorporate by reference NAESB's standards requiring interstate pipelines to refer to location points using their own proprietary code, together with a posting of information regarding these codes on the pipelines' Web site, rather than requiring the pipelines to maintain a common code database implemented by a third party. Given the ability of the Commission and customers to continue to identify interconnection points referenced in the Index of Customers through the Web site postings, the Commission also will revise its regulations governing the filing of the Index of Customers and other regulations requiring the specification of location point codes to align with the NAESB standards.

    23. We also will adopt Southern Star and INGAA's recommendations to modify the regulations to create a separate requirement at 18 CFR 284.13(f) for the posting of information regarding the location points to make cross-reference easier. Consistent with the proposal in the Version 3.0 NOPR, we are requiring interstate pipelines to file their Index of Customers using the new location names and codes for all active points. In addition, as proposed in the Version 3.0 NOPR, we are requiring pipelines to maintain and post on their Web sites a complete listing of all inactive points. Finally, for the convenience of those reviewing past Index of Customers filings, or those wishing to compare past Index of Customers filings to newer Index of Customers filings, we will post the old common code file for past indices on the Commission's Web site prior to April 1, 2016.

    C. Index of Customers 1. Filing Format a. NOPR Proposal

    24. In the Version 3.0 NOPR, we explained that pipelines currently file the Index of Customers using a tab-delimited file format consistent with Form No. 549B—Index of Customers Instruction Manual.38 While we did not propose any changes to that formatting in the Version 3.0 NOPR, we further explained that,

    38 Version 3.0 NOPR, FERC Stats. & Regs. ¶ 32,708 at P 17.

    [b]ecause tab-delimited file formats can be difficult and can result in errors that impose burdens both on Commission and pipeline staff to correct, we also are adding the Index of Customers form to the list of forms that are being updated as part of the Commission's forms refresh project in Docket No. AD15-11-000 (Forms Project). Adding the Index of Customers to the Forms Project will move the Commission towards the use of a standard approach for all Commission forms that will result in more efficient filing and processing of forms.[ 39 ]

    39Id.

    b. Comment

    25. TVA comments that, while it was neutral in the past, it has come to appreciate that a user-friendly format for the Index of Customers is extremely beneficial to TVA in long-range planning. TVA asserts that, with growing staff to support the growth of gas-fired generation at TVA and counterparties, a user-friendly format for locations codes is a beneficial tool to avoid potential miscommunication of receipt and delivery points from occurring.40

    40 TVA at 3.

    c. Commission Determination

    26. The transition from the current tab delimited file format for the Index of Customers information reported on Form No. 549B to a more up-to-date format will improve the efficient filing and processing of this information. As we explained in the Version 3.0 NOPR, the Commission issued an order (Forms Project Order) initiating a proceeding in Docket No. AD15-11-000 to consider the transition to a new filing format for a number of other Commission forms and has enlisted the assistance of NAESB in this endeavor.41 As we explained in Forms Project Order, the current software which the Commission requires industry to use for the electronic filing of many of the forms (Visual Fox Pro) is no longer supported by its developer.42 The Commission enlisted NAESB in an effort to transition to an electronic filing format based on the use of Extensible Mark-Up Language (XML), which NAESB helped to develop for electronic tariff filing.43 We recognize that NAESB's highest priority is to develop the XML standards for the forms to replace the unsupported and outdated Visual Fox Pro software. While the Index of Customers can still be filed in the current tab delimited format, we agree with TVA that continued use of this format is inefficient for both the industry and the Commission. Accordingly, we request that NAESB consider revisions to the Index of Customers as part of their ongoing deliberations.

    41Electronic Filing Protocols for Commission Forms, 151 FERC ¶ 61,025 (2015).

    42Id. P 1.

    43Electronic Tariff Filings, Order No. 714, FERC Stats. & Regs. ¶ 31,276 (2008).

    2. Index of Customers Instruction Manual a. NOPR Proposal

    27. In the Version 3.0 NOPR, the Commission proposed to post on the Commission's Web site a revised instruction manual for the filing of Form No. 549B—Index of Customers.44 As promised, after issuance of the Version 3.0 NOPR, the Commission posted the proposed revised instruction manual on its Web site. The only proposed changes to the instruction manual were to Item ID yj (Point identification Code Qualifier) and Item ID yk (Point identification Code) to specify that the new proprietary location names and codes were to be used in identifying points of receipt and delivery in the Index of Customers.

    44 Version 3.0 NOPR, FERC Stats. & Regs.¶ 32,708 at P 17 & n.26.

    b. Comments

    28. Southern Star and INGAA both suggest that three changes are needed to the proposed instruction manual for the Index of Customers: 45 First, in the instructions for Item yh (the Point Identifier Code), the commenters suggest that the references to G1-Gas Transaction Point 1 and G2-Gas Transaction Point 2 should be deleted as these are antiquated codes that are no longer used in the referenced NAESB business standard.

    45 Southern Star at 5-6 and INGAA at 7-9.

    29. Second, for Item yj (the Point identification Code Qualifier), the commenters suggest that the instructions should simply read “Enter 95” as all location codes will now be assigned by the pipeline (the Transportation Service Provider).

    30. Third, for Item yk (the Point Identification Code), the commenters suggest that the instructions should simply read “Enter the Transportation Service Provider's Location (LOC)” as there is no longer an industry common code to enter. INGAA asserts that this item should read “Enter the pipeline's location code.” It makes this suggestion because “Pipeline” is the term utilized throughout the Instruction Manual.

    c. Commission Determination

    31. As to the suggestion to revise the instruction manual to delete references to references to G1 and G2 in the instructions for Item yh (the Point Identifier Code), we find this suggestion reasonable and will make this change.

    32. As to the suggestion to revise the instruction manual to revise the instructions for Item yj, we see merit in this suggestion, but believe the suggested language would be clearer if it read “Enter 95 whenever item yk is the Transmission Service Provider's Location (LOC)” and will revise the instruction manual accordingly.

    33. As to the suggestion to revise the instruction manual to revise the instructions for Item yk to read “Enter the Transmission Service Provider's Location (LOC),” we find this suggestion reasonable and will make this change.

    34. As to the suggestion to revise the instruction manual to revise the instructions for Item yj to substitute the term “Pipeline” in lieu of the term “Transmission Service Provider,” we are not persuaded to make this revision, as the term “Transmission Service Provider” matches the terminology in the standards we are incorporating. As we did after we issued the Version 3.0 NOPR, we will post a link to the revised instruction manual on our Web site after issuance of this Final Rule.46

    46 To aid in compliance, promptly after issuance of this Final Rule, a Revised Instruction Manual for filing Form No. 549B, Index of Customers, will be posted on the Commission's Web site and may be accessed at http://www.ferc.gov/industries/gas/indus-act/pipelines/standards.asp. All pipelines are to file their Index of Customers in accordance with the instructions provided in this manual.

    35. Finally, our review of the comments also brought to our attention that Item yi (Point Name) also needs revision to reflect the transition to the use of proprietary location codes in the Version 3.0 standards. Thus, the Instructions for Item ID yi will now read as follows: “Enter the Location Name (LOC Name) of the point or facility.”

    D. Cross-References/Conforming Changes 1. NOPR Proposal

    36. In the Version 3.0 NOPR, the Commission proposed conforming changes to reference the new location names and codes at 18 CFR 157.14 and 18 CFR 157.18 (dealing with exhibits), in 18 CFR 260.8 (dealing with system flow diagrams), and in 18 CFR 284.13 (dealing with reporting requirements for interstate pipelines).

    2. Comments

    37. Along with their comments suggesting that the Commission move its proposed regulation at § 284.13(c)(2)(6) into a new subsection § 284.13(f), the commenters point out the Commission missed two references to common codes in § 284.13(b) and suggest revisions to the accompanying cross references proposed in the Version 3.0 NOPR.47 INGAA further requests two minor additional modifications.48 In § 157.14(a), INGAA argues that the Commission should remove the reference to Exhibit H(iv) that appears in the proposed regulatory text because Exhibit H(iv) no longer exists. In addition, INGAA requests the Commission to clarify that it did not intend to delete certain language after the asterisks in both §§ 157.14(a) and 157.18(c). Specifically, INGAA states that the Commission should revise the language at the beginning of item 2 of its proposed amendment to § 157.14(a) to state that “Section 157.14 is amended by revising the introductory language of paragraph (a) to read as follows:” (emphasis added), and insert “(1)” before the asterisks. In INGAA's view, this would remove any doubt about how much of the existing section is being replaced with the new proposed language.

    47 INGAA at 2-4, Southern Star at 3-4.

    48 INGAA at 7.

    3. Commission Determination

    38. Given the Commission's determination that, as proposed by the commenters, the proper provision in which to place the requirement for pipelines to use “location code” rather than “industry common code” to identify the location of receipt and delivery points is at 18 CFR 284.13(f), we will make appropriate cross-references. We agree with INGAA that the inclusion of Exhibit H(iv) in the regulatory text of proposed § 157.14(a) is in error. Reference to this exhibit was deleted in Order No. 699 as an erroneous or outdated reference.49 Thus, we will delete any reference to Exhibit H(iv) in the regulatory text we are promulgating in this Final Rule. In addition, as requested, we will clarify that our revisions to § 157.14(a) and § 157.18(c) are not intended to delete language that follows later in these provisions.

    49Conforming Changes, Order No. 699, FERC Stats. & Regs. ¶ 31,254 at P 10 (cross-referenced at 120 FERC ¶ 61,134 (2007)).

    39. Finally, as a result of the INGAA comment that we needed to make additional conforming changes that were overlooked, we also will make a conforming change to 18 CFR 284.126 to remove the reference to common codes. Intrastate pipelines filing Form No. 549D should identify their location codes and names in their list of jurisdictional points of receipt and delivery.

    III. Implementation Schedule

    40. In the Version 3.0 NOPR, the Commission stated that we anticipated acting on the proposed rule in order to permit these standards to become effective April 1, 2016 at the same time as the Gas-Electric Harmonization standards, with compliance filings due February 1, 2016.50 We explained that requiring implementation of the updated business practice standards and the Gas-Electric Harmonization standards on the same date should reduce the compliance burden on the pipelines and avoid confusion.51 We also explained our policies on tariff filings and on waiver requests.52

    50 Version 3.0 NOPR, FERC Stats. & Regs. ¶ 32,708 at P 23.

    51Id.

    52Id. PP 23-27.

    41. None of the comments took issue with the Commission's proposed implementation schedule. Nor did the comments take issue or seek clarification with regard to the Commission's explanation of its policies on tariff filings and on waiver requests. We are not modifying these policies in this Final Rule and stand by the explanation of those policies we made in the Version 3.0 NOPR. The Commission will require interstate natural gas pipelines to comply with the revised NAESB standards that we are incorporating by reference in this Final Rule beginning on April 1, 2016. Thus, among other requirements, when pipelines make their Index of Customers filing for the second quarter of 2016 and thereafter they should do so using the new location names and codes for all active points. We are requiring this implementation schedule to give the interstate natural gas pipelines subject to these standards adequate time to implement these changes. In addition, the interstate natural gas pipelines must file tariff records to reflect the changed standards by February 1, 2016.

    42. In addition, consistent with the requirements in Order Nos. 587-V and 809,53 the Commission is including the following compliance filing requirements to increase the transparency of the pipelines' incorporation by reference of the NAESB WGQ Standards so that shippers and the Commission will know which tariff provision(s) implements each standard as well as the status of each standard.

    53 Order No. 587-V, FERC Stats. & Regs. ¶ 31,332 at PP 36-37; Order No. 809, FERC Stats. & Regs. ¶ 31,368 at P 169.

    (1) The pipelines must designate a single tariff record under which every NAESB standard currently incorporated by reference by the Commission is listed.54 This section should be a separate tariff record under the Commission's electronic tariff filing requirement and should be filed electronically using the eTariff portal using the Type of Filing Code 580. The Commission will post on its eLibrary Web site (under Docket No. RM96-1-038) a sample tariff record, to provide filers an illustrative example to aid them in preparing their compliance filings; 55

    54See supra n.31.

    55Id.

    (2) For each standard, each pipeline must specify in the tariff record a list of all the NAESB standards currently incorporated by reference by the Commission:

    (a) whether the standard is incorporated by reference;

    (b) for those standards not incorporated by reference, the tariff provision that complies with the standard; 56 and

    56 For example, pipelines are required to include the full text of the NAESB nomination and capacity release timeline standards (WGQ Standards 1.3.2(i-vi) and 5.3.2) in their tariffs. See, e.g., Standards for Business Practices of Interstate Natural Gas Pipelines, Order No. 587-U, FERC Stats. & Regs. ¶ 31,307, at P 39 & n.42 (2010). The pipeline would indicate which tariff provision complies with each of these standards.

    (c) a statement identifying any standards for which the pipeline has been granted a waiver, extension of time, or other variance with respect to compliance with the standard.57

    57 Shippers can use the Commission's electronic tariff system to locate the tariff record containing the NAESB standards, which will indicate the docket in which any waiver or extension of time was granted.

    (3) If the pipeline is requesting a continuation of an existing waiver or extension of time, it must include a table in its transmittal letter that states the standard for which a waiver or extension of time was granted, and the docket number or order citation to the proceeding in which the waiver or extension was granted.

    IV. Notice of Use of Voluntary Consensus Standards

    43. Office of Management and Budget Circular A-119 (section 11) (February 10, 1998) provides that federal agencies should publish a request for comment in a NOPR when the agency is seeking to issue or revise a regulation proposing to adopt a voluntary consensus standard or a government-unique standard. In this Final Rule, the Commission is amending its regulations to incorporate by reference voluntary consensus standards developed by NAESB's WGQ. In section 12(d) of NTT&AA, Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations to carry out policy objectives or activities determined by the agencies unless use of such standards would be inconsistent with applicable law or otherwise impractical.58

    58 Pub L. No. 104-113, 12(d), 110 Stat. 775 (1996), 15 U.S.C. 272 note (1997).

    44. In section 12(d) of NTT&AA, Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations to carry out policy objectives or activities determined by the agencies unless use of such standards would be inconsistent with applicable law or otherwise impractical.

    V. Incorporation by Reference

    45. The Office of the Federal Register requires agencies incorporating material by reference in final rules to discuss, in the preamble of the final rule, the ways that the materials it incorporates by reference are reasonably available to interested parties and how interested parties can obtain the materials.59 The regulations also require agencies to summarize, in the preamble of the final rule, the material it incorporates by reference. The seven NAESB standards being incorporated by reference in this Final Rule can be summarized as follows:

    59 1 CFR 51.5. See Incorporation by Reference, 79 FR 66267 (Nov. 7, 2014).

    • Additional Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015). These standards cover general areas or standards applicable to multiple business activities, such as creditworthiness and gas/electric operational communications.

    • Nominations Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015). These standards define the business processes used to schedule natural gas service on pipelines.

    • Flowing Gas Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015). These standards define the business processes related to the communication of entitlement rights to flowing gas at a location, the entitlement rights on a contractual basis, the management of imbalances, and the measurement and gas quality information of the actual flow of gas.

    • Invoicing Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015). These standards define the business process for the communication of charges for services rendered (Invoice), communication of details about funds rendered in payment for services rendered (Payment Remittance), and communication of the financial status of a customer's account (Statement of Account).

    • Quadrant Electronic Delivery Mechanism Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015). These standards establish the framework for the electronic dissemination and communication of information between parties in the North American wholesale gas marketplace for EDI/EDM transfers, batch flat file/EDM transfers, informational postings Web sites, EBB/EDM and interactive flat file/EDM.

    • Capacity Release Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015). These standards define the business processes for communication of information related to the release or transfer of any portion of a transmission service requester's contract rights for transportation on pipelines.

    • Internet Electronic Transport Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015). These standards define the implementation of various technologies necessary to communicate transactions and other electronic data using standard protocols for electronic commerce over the internet between NAESB trading partners.

    46. Our regulations provide that copies of the NAESB standards incorporated by reference may be obtained from the North American Energy Standards Board, 801 Travis Street, Suite 1675, Houston, TX 77002, Phone: (713) 356-0060. NAESB's Web site is at http://www.naesb.org/. Copies may be inspected at the Federal Energy Regulatory Commission, Public Reference and Files Maintenance Branch, 888 First Street NE., Washington, DC 20426, Phone: (202) 502-8371, http://www.ferc.gov.60 The procedures utilized by NAESB make its standards reasonably available to those affected by the Commission regulations.61 Participants can join NAESB, for an annual membership cost of $7,000, which entitles them to full participation in NAESB and enables them to obtain these standards at no cost.62 Non-members may obtain the Individual Standards Manual or Booklets for each standard by email for $250 per manual or booklet, which in the case of these standards would total $1,000.63 Nonmembers also may obtain the complete set of Standards Manuals, Booklets, and Contracts on CD for $2,000. NAESB also provides a free electronic read-only version of the standards for a three business day period or, in the case of a regulatory comment period, through the end of the comment period.64 In addition, NAESB considers requests for waivers of the charges on a case by case basis based on need.

    60 18 CFR 284.12.

    61 As a private, consensus standards developer, NAESB needs the funds obtained from its membership fees and sales of its standards to finance the organization. The parties affected by these Commission regulations generally are highly sophisticated and have the means to acquire the information they need to effectively participate in Commission proceedings.

    62 North American Energy Standards Board Membership Application, https://www.naesb.org/pdf4/naesbapp.pdf.

    63 NAESB Materials Order Form, https://www.naesb.org//pdf/ordrform.pdf.

    64 Procedures for non-members to evaluate work products before purchasing, https://www.naesb.org/misc/NAESB_Nonmember_Evaluation.pdf. See Incorporation by Reference, 79 FR at 66271, n. 51 & 53 (Nov. 7, 2014) (citing to NAESB's procedure of providing “no-cost, no-print electronic access,” NAESB Comment, at 1, available at http://www.regulations.gov/#!documentDetail;D=OFR-2013-0001-0023).

    VI. Information Collection Statement

    47. The collections of information for this Final Rule are being submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 65 and OMB's implementing regulations.66 OMB must approve information collection requirements imposed by agency rules. The burden estimates for this Final Rule are for one-time implementation of the information collection requirements of this Final Rule (including tariff filing, documentation of the process and procedures, and IT work), and ongoing burden.

    65 44 U.S.C. 3507(d).

    66 5 CFR 1320.

    48. The Commission solicits comments from the public on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, recommendations to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. The burden estimates are for implementing the information collection requirements of this Final Rule. The Commission asks that any revised burden estimates submitted by commenters include the details and assumptions used to generate the estimates.

    49. The collections of information related to this Final Rule fall under FERC-545 (Gas Pipeline Rates: Rate Change (Non-Formal)) 67 and FERC-549C (Standards for Business Practices of Interstate Natural Gas Pipelines).68 The following estimates of reporting burden are related only to this Final Rule and include the costs to pipelines to comply with the Commission's directives in this Final Rule. The burden estimates are primarily related to start-up to implement these standards and regulations and will not result in ongoing costs.

    67 FERC-545 covers rate change filings made by natural gas pipelines, including tariff changes.

    68 FERC-549C covers Standards for Business Practices of Interstate Natural Gas Pipelines.

    One-Time Effects of NOPR in Docket RM96-1-038 [Rounded] Number of
  • respondents 69
  • Annual
  • number of
  • responses per respondent
  • Total number
  • of responses
  • Average burden and
  • cost per response
  • Total annual burden hours and total
  • annual cost
  • Cost per
  • respondent 70
  • ($)
  • (1) (2) (1)*(2)=(3) (4) (3)*(4)=(5) (5)÷(1) FERC-545A 71 165 1 165 10 hrs.; $837 1,650 hrs.; $138,056 $837 FERC-549C 72 165 1 165 22 hrs.; $1,841 3,630 hrs.; $303,722 $1,841 Totals 5,280 hrs.; $441,778

    Information Collection Costs: The Commission estimates the average annualized cost for all respondents to be the following:

    69 The number of respondents is the number of entities in which a change in burden from the current standards to the proposed exists, not the total number of entities from the current or proposed standards that are applicable.

    70 Wage data is based on the Bureau of Labor Statistics data for 2012 (“May 2012 National Industry-Specific Occupational Employment and Wage Estimates, [for] Sector 22—Utilities” at http://bls.gov/oes/current/naics2_22.htm) and is compiled for the top 10 percent earned. For the estimate of the benefits component, see http://www.bls.gov/news.release/ecec.nr0.htm.

    71 The mean hourly cost of tariff filings and implementation for interstate natural gas pipelines is $83.67. This represents the average wage (salary and benefits for 2,080 annual work-hours) of the following occupational categories: “Legal” ($128.02 per hour), “Computer Analyst” ($83.50 per hour), and “Office and Administrative” ($39.49 per hour). Wage data is available from the Bureau of Labor Statistics at http://bls.gov/oes/current/naics2_22.htm and is compiled for the top 10 percent earned. For the estimate of the benefits component, see http://www.bls.gov/news.release/ecec.nr0.htm.

    72 The mean hourly cost of tariff filings and implementation for interstate natural gas pipelines is $83.67. It is composed of the skill sets and related hourly costs described above.

    FERC-545 FERC-549C Annualized Capital/Startup Costs $138,056 $303,722 Annualized Costs (Operations & Maintenance) N/A N/A Total Annualized Costs $138,056 $303,722 Total Cost for all Respondents = $441,778.

    OMB regulations require OMB to approve certain information collection requirements imposed by agency rule. The Commission is submitting notification of this Final Rule to OMB. These information collections are mandatory requirements.

    Title: FERC-545,73 Gas Pipeline Rates: Rates Change (Non-Formal); FERC-549C, Standards for Business Practices of Interstate Natural Gas Pipelines

    73 In the supporting statement for the NOPR, we submitted Gas and Pipeline Rates: Rate Changes (non-formal) under the temporary collection no. FERC-545A to ensure timely submission to OMB as another unrelated item was pending OMB review under FERC-545 (and only one item per collection can be pending at OMB).

    Action: Information collections.

    OMB Control Nos.: 1902-0154, 1902-0174

    Respondents: Business or other for profit (i.e., Natural Gas Pipelines, applicable to only a few small businesses). Although the intraday reporting requirements will affect electric plant operators, the Commission is not imposing the reporting burden of adopting these standards on those entities.

    Frequency of Responses: One-time implementation (business procedures, capital/start-up).

    50. Internal Review: The Commission has reviewed the proposed business practice standards of natural gas pipelines and has determined that the revisions the Commission makes in this Final Rule to its regulations are necessary to establish more efficient coordination between the natural gas and electric industries. Requiring such information ensures both a common means of communication and common business practices to eliminate miscommunication for participants engaged in the sale of electric energy at wholesale and the transportation of natural gas. These requirements conform to the Commission's plan for efficient information collection, communication, and management within the natural gas pipeline industry. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the information requirements.

    51. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    52. Comments concerning the collections of information and the associated burden estimates should be sent to the Commission and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, telephone: (202) 395-0710, fax: (202) 395-4718]. For security reasons, comments to OMB should be submitted by email to: [email protected] Comments submitted to OMB should include OMB Control Numbers 1902-0154 and 1902-0174.

    VII. Environmental Analysis

    53. The Commission concludes that neither an Environmental Assessment nor an Environmental Impact Statement is required for this Final Rule under section 380.4(a) of the Commission's regulations, which provides a categorical exemption for actions that are clarifying, corrective, or procedural, or that do not substantively change the effect of legislation or regulations being amended, for information gathering, analysis, and dissemination, or for the sale, exchange, or transportation of natural gas under sections 4, 5, and 7 of the Natural Gas Act that require no construction of facilities.74

    74See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).

    VIII. Regulatory Flexibility Act

    54. The Regulatory Flexibility Act of 1980 (RFA) 75 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) revised its size standard (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees including affiliates.76

    75 5 U.S.C. 601-612.

    76 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77343 (Dec. 23, 2013).

    55. This Final Rule applies only to interstate natural gas pipelines, most of which are not small businesses. The Commission estimates that approximately 165 interstate pipeline entities are potential respondents subject to the data reporting requirements of FERC-545 and also are subject to data collection FERC 549-C reporting requirements. For the year 2012 (the most recent year for which information is available), only eleven companies not affiliated with larger companies had annual revenues of less than $25.5 million and are defined by the SBA as “small entities.” These companies constitute about seven percent of the total universe of potential respondents. The Commission estimates that the one-time implementation cost of the proposals in this Final Rule is $441,778 (or $2,677 per entity, regardless of entity size).77 The Commission does not consider the estimated $2,677 impact per entity to be significant. Moreover, these requirements are designed to benefit all customers, including small businesses that must comply with them. Further, as noted above, adoption of consensus standards helps ensure the reasonableness of the standards by requiring that the standards draw support from a broad spectrum of industry participants representing all segments of the industry. Because of that representation and the fact that industry conducts business under these standards, the Commission's regulations should reflect those standards that have the widest possible support. Accordingly, pursuant to § 605(b) of the RFA,78 the Commission certifies that this Final Rule will not have a significant economic impact on a substantial number of small entities.

    77 This number is derived by dividing the total cost figure by the number of respondents. $441,778/165 = $2,677.

    78 5 U.S.C. 605(b).

    IX. Document Availability

    56. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    57. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    58. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    X. Effective Date and Congressional Notification

    59. These regulations are effective December 2, 2015. The Commission has determined (with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB) that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Final Rule is being submitted to the Senate, House, and Government Accountability Office.

    List of Subjects 18 CFR Parts 157 and 260

    Natural gas, Reporting and recordkeeping requirements.

    18 CFR Part 284

    Incorporation by reference, Natural gas, Reporting and recordkeeping requirements.

    By the Commission.

    Issued: October 16, 2015. Kimberly D. Bose, Secretary.

    In consideration of the foregoing, the Commission amends parts 157, 260, and 284, chapter I, title 18, Code of Federal Regulations, as follows.

    PART 157—APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER SECTION 7 OF THE NATURAL GAS ACT 1. The authority citation for part 157 continues to read as follows: Authority:

    15 U.S.C. 717-717z.

    2. Section 157.14 is amended by revising paragraph (a) to read as follows:
    § 157.14 Exhibits.

    (a) To be attached to each application. All exhibits specified must accompany each application when tendered for filing. Together with each exhibit applicant must provide a full and complete explanation of the data submitted, the manner in which it was obtained, and the reasons for the conclusions derived from the exhibits. If the Commission determines that a formal hearing upon the application is required or that testimony and hearing exhibits should be filed, the Secretary will promptly notify the applicant that submittal of all exhibits and testimony of all witnesses to be sponsored by the applicant in support of his case-in-chief is required. Submittal of these exhibits and testimony must be within 20 days from the date of the Secretary's notice, or any other time as the Secretary will specify. Exhibits, except exhibits F, F- 1, G, G-I, and G-II, must be submitted to the Commission on electronic media as prescribed in § 385.2011 of this chapter. Receipt and delivery point information required in various exhibits must be labeled with a location point name and code in conformity with the location name and code the pipeline has adopted in conformance with § 284.13(f) of this chapter. Intervenors and persons becoming intervenors after the date of the Secretary's notice must be advised by the applicant of the afore-specified exhibits and testimony, and must be furnished with copies upon request. If this section requires an applicant to reveal Critical Energy Infrastructure Information (CEII), as defined by § 388.113(c) of this chapter, to any person, the applicant shall follow the procedures set out in § 157.10(d).

    3. Section 157.18 is amended by revising paragraph (c) introductory text to read as follows:
    § 157.18 Applications to abandon facilities or service; exhibits.

    (c) Exhibit V—Flow diagram showing daily design capacity and reflecting operation of applicant's system after abandonment. Receipt and delivery point information required in various exhibits must be labeled with a location point name and code in accordance with the location name and code the pipeline has adopted in conformance with § 284.13(f) of this chapter. A flow diagram showing daily design capacity and reflecting operating conditions of applicant's system after abandonment of facilities on that segment of the system affected by the abandonment, including the following:

    PART 260—STATEMENTS AND REPORTS (SCHEDULES) 4. The authority citation for part 260 continues to read as follows: Authority:

    15 U.S.C. 717-717z, 3301-3432; 42 U.S.C. 7101-7352.

    5. Section 260.8 is amended by revising paragraph (a) to read as follows:
    § 260.8 System flow diagrams: Format No. FERC 567.

    (a) Each Major natural gas pipeline company, having a system delivery capacity in excess of 100,000 Mcf per day (measured at 14.73 p.s.i.a. and 60° F), shall file with the Commission by June 1 of each year five (5) copies of a diagram or diagrams reflecting operating conditions on its main transmission system during the previous twelve months ended December 31. For purposes of system peak deliveries, the heating season overlapping the year's end shall be used. Facilities shall be those installed and in operation on December 31 of the reporting year. All volumes shall be reported on a uniform stated pressure and temperature base. Receipt and delivery point information required in various exhibits must be labeled with a location point name and code in accordance with the location name and code adopted by the pipeline in accordance with § 284.13(f) of this chapter.

    PART 284—CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES 6. The authority citation for part 284 continues to read as follows: Authority:

    15 U.S.C. 717-717z, 3301-3432; 42 U.S.C. 7101-7352; 43 U.S.C. 1331-1356.

    7. Section 284.12 is amended by revising paragraph (a)(1) to read as follows:
    § 284.12 Standards for pipeline business operations and communications.

    (a) * * *

    (1) An interstate pipeline that transports gas under subparts B or G of this part must comply with the business practices and electronic communications standards as promulgated by the North American Energy Standards Board, as incorporated herein by reference in paragraphs (a)(1)(i) thru (vii) of this section.

    (i) Additional Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015);

    (ii) Nominations Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015);

    (iii) Flowing Gas Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015);

    (iv) Invoicing Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015);

    (v) Quadrant Electronic Delivery Mechanism Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015);

    (vi) Capacity Release Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015); and

    (vii) Internet Electronic Transport Related Standards (Version 3.0, November 14, 2014, with minor corrections applied through June 29, 2015).

    8. Section 284.13 is amended by revising paragraphs (b)(1)(vi), (b)(2)(iv) and (c)(2)(vi), and adding paragraph (f) to read as follows:
    § 284.13 Reporting requirements for interstate pipelines.

    (b) * * *

    (1) * * *

    (vi) The receipt and delivery points and the zones or segments covered by the contract, including the location name and code adopted by the pipeline in conformance with paragraph (f) of this section for each point, zone or segment;

    (2) * * *

    (iv) The receipt and delivery points and the zones or segments covered by the contract, including the location name and code adopted by the pipeline in conformance with paragraph (f) of this section for each point, zone or segment;

    (c) * * *

    (2) * * *

    (vi) The receipt and delivery points and the zones or segments covered by the contract, including the location name and code adopted by the pipeline in conformance with paragraph (f) of this section for each point, zone or segment;

    (f) Location codes. An interstate pipeline must maintain a posting on its publicly available Internet Web site of the pipeline's location names and codes for all current and inactive receipt and delivery points on its system, including, for each point: Direction of flow, the location of the point, the location zone if such exists, the Commission company identification code (CID), if any, of the upstream and/or downstream entity, the location type, the current status as active and inactive, and the date(s) the point becomes active or inactive. The pipeline must provide the information in downloadable file formats, in conformity with the requirements of 18 CFR 284.12 of this chapter.

    9. Section 284.126 is amended by revising paragraph (b)(1)(iv) to read as follows:
    § 284.126 Reporting requirements.

    (b) * * *

    (1) * * *

    (iv) The primary receipt and delivery points covered by the contract, identified by the list of points that the pipeline has published with the Commission;

    [FR Doc. 2015-27806 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 866 [Docket No. FDA-2015-N-3392] Medical Devices; Immunology and Microbiology Devices; Classification of Gastrointestinal Microorganism Multiplex Nucleic Acid-Based Assay AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA) is classifying a gastrointestinal microorganism multiplex nucleic acid-based assay into class II (special controls). The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

    DATES:

    This order is effective November 2, 2015. The classification was applicable January 14, 2013.

    FOR FURTHER INFORMATION CONTACT:

    Andrew Grove, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5515, Silver Spring, MD 20993-0002, 301-796-6198.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.

    Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1). Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.

    In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA will classify the device by written order within 120 days. This classification will be the initial classification of the device.

    In accordance with section 513(f)(1) of the FD&C Act, FDA issued an order on January 03, 2013 automatically classifying the xTAG® Gastrointestinal Pathogen Panel (GPP) in class III, because it was not substantially equivalent to a device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, nor to a device that was subsequently reclassified into class I or class II. On January 10, 2013, Luminex Molecular Diagnostics, submitted a request for de novo classification of the xTAG® GPP under section 513(f)(2) of the FD&C Act.

    In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request for de novo classification in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act. FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on January 14, 2013, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 866.3990 (§ 866.3990).

    Following the effective date of this final classification administrative order, any firm submitting a premarket notification (510(k)) for a gastrointestinal microorganism multiplex nucleic acid-based assay will need to comply with the special controls named in this final administrative order.

    The device is assigned the generic name gastrointestinal microorganism multiplex nucleic acid-based assay, and it is identified as a qualitative in vitro diagnostic device intended to simultaneously detect and identify multiple gastrointestinal microbial nucleic acids extracted from human stool specimens. The device detects specific nucleic acid sequences for organism identification as well as for determining the presence of toxin genes. The detection and identification of a specific gastrointestinal microbial nucleic acid from individuals exhibiting signs and symptoms of gastrointestinal infection aids in the diagnosis of gastrointestinal infection when used in conjunction with clinical evaluation and other laboratory findings. A gastrointestinal microorganism multiplex nucleic acid-based assay also aids in the detection and identification of acute gastroenteritis in the context of outbreaks.

    FDA has identified the following risks to health associated with this type of device and the measures required to mitigate these risks in table 1:

    Table 1—Identified Risks and Required Mitigations Identified risks Mitigation measures Failure of the device to detect and identify a targeted organism when such organism is present in the specimen (i.e., false negative result for presence of organism) The FDA document entitled “Class II Special Controls Guideline: Gastrointestinal Microorganism Multiplex Nucleic Acid-Based Assays for Detection and Identification of Microorganisms and Toxin Genes from Human Stool Specimens,” which addresses this risk through: Specific device description requirements, performance studies, and labeling. Detection of the targeted microorganism when such organism is not present in the specimen (i.e., false positive result for presence of organism) The FDA document entitled “Class II Special Controls Guideline: Gastrointestinal Microorganism Multiplex Nucleic Acid-Based Assays for Detection and Identification of Microorganisms and Toxin Genes from Human Stool Specimens,” which addresses this risk through: Specific device description requirements, performance studies, and labeling. Failure to correctly interpret test results The FDA document entitled “Class II Special Controls Guideline: Gastrointestinal Microorganism Multiplex Nucleic Acid-Based Assays for Detection and Identification of Microorganisms and Toxin Genes from Human Stool Specimens,” which addresses this risk through: Specific device description requirements and labeling.

    FDA believes that the measures set forth in the special controls guideline entitled “Class II Special Controls Guideline: Gastrointestinal Microorganism Multiplex Nucleic Acid-Based Assays for Detection and Identification of Microorganisms and Toxin Genes from Human Stool Specimens” are necessary, in addition to general controls, to mitigate the risks to health described in table 1.

    II. Premarket Notification

    A gastrointestinal microorganism multiplex nucleic acid-based assay is a prescription device. Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this type of device is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the gastrointestinal microorganism multiplex nucleic acid-based assay they intend to market.

    III. Environmental Impact

    We have determined under 21 CFR 25.34(b) that this action is of type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    IV. Paperwork Reduction Act of 1995

    This final administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820 regarding quality systems have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801 and 809 regarding labeling have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 866

    Biologics, Laboratories, Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 866 is amended as follows:

    PART 866—IMMUNOLOGY AND MICROBIOLOGY DEVICES 1. The authority citation for part 866 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 371.

    2. Add § 866.3990 to subpart D to read as follows:
    § 866.3990 Gastrointestinal microorganism multiplex nucleic acid-based assay.

    (a) Identification. A gastrointestinal microorganism multiplex nucleic acid-based assay is a qualitative in vitro diagnostic device intended to simultaneously detect and identify multiple gastrointestinal microbial nucleic acids extracted from human stool specimens. The device detects specific nucleic acid sequences for organism identification as well as for determining the presence of toxin genes. The detection and identification of a specific gastrointestinal microbial nucleic acid from individuals exhibiting signs and symptoms of gastrointestinal infection aids in the diagnosis of gastrointestinal infection when used in conjunction with clinical evaluation and other laboratory findings. A gastrointestinal microorganism multiplex nucleic acid-based assay also aids in the detection and identification of acute gastroenteritis in the context of outbreaks.

    (b) Classification. Class II (special controls). The special controls are set forth in FDA's guideline document entitled: “Class II Special Controls Guideline: Gastrointestinal Microorganism Multiplex Nucleic Acid-Based Assays for Detection and Identification of Microorganisms and Toxin Genes from Human Stool Specimens.” For availability of the guideline document, see § 866.1(e).

    Dated: October 27, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-27817 Filed 10-30-15; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF STATE 22 CFR Part 41 [Public Notice: 9336] RIN 1400-AD84 Visas: Procedures for Issuing Visas AGENCY:

    Department of State.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of State is updating its regulations regarding nonimmigrant visa format, and records retention procedures. These updates reflect changes in technology, including the current practice of issuing machine-readable visas and the planned future practice of issuing visas electronically. The Department is also removing an obsolete records retention provision and a visa review provision, both of which are now addressed in the Foreign Affairs Manual.

    DATES:

    This rule is effective November 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Lauren A. Boquin, Legislation and Regulations Division, Visa Services, Department of State, 600 19th St NW., Washington, DC 20006, (202) 485-7638.

    SUPPLEMENTARY INFORMATION:

    Why is the Department promulgating this rule?

    Currently, 22 CFR 41.113 provides for the placement of a stamp in a visa holder's passport. The Department is amending paragraphs (a) and (c) to reflect the current practice of issuing machine-readable visas on adhesive foils that are affixed to passports, and the planned future practice of issuing such visas as electronic visas. An electronic visas is a machine readable tamper-resistant visa format, as required by 8 U.S.C. 1732, in that the U.S. Customs and Border Protection officers at the port of entry are expected to scan the machine readable zone of the visa holder's passport to verify the biometrics and identity of the individual and to authenticate the visa's validity by accessing information stored in the Department's electronic records database.

    Conforming changes and minor nonsubstative edits were made to paragraphs (b) and (d) through (h). Paragraph (i) was revised to remove visa review and file retention instructions that are internal Department procedures addressed in Volume 9 of the Foreign Affairs Manual. See http://www.state.gov/m/a/dir/regs/fam/.

    Regulatory Findings Administrative Procedure Act

    This regulation amends certain “rules of agency organization, procedure, or practice”, which are not subject to the notice-and-comment rulemaking procedures set forth in 5 U.S.C. 553. See 5 U.S.C. 553(b). Therefore, the Department is issuing this amendment as a final rule.

    Regulatory Flexibility Act/Executive Order 13272: Small Business

    Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulates individual aliens who seek consideration for nonimmigrant visas and does not affect any small entities, as defined in 5 U.S.C. 601(6).

    Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

    Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804. The Department is aware of no monetary effect on the economy that would result from this rulemaking, nor will there be any increase in costs or prices; or any effect on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

    Executive Orders 12866 and 13563

    The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Orders 12866 and 13563, and has determined that the benefits of this regulation, i.e., ensuring compliance with a Congressional mandate, outweigh any cost. The Department does not consider this rule to be a economically significant rulemaking action.

    Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. The rule will not have federalism implications warranting the application of Executive Orders 12372 and 13132.

    Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

    Executive Order 13175

    The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

    Paperwork Reduction Act

    This rule does not impose or revise information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

    List of Subjects in 22 CFR Part 41

    Aliens, Foreign Officials, Immigration, Documentation of Nonimmigrants, Passports and Visas.

    For the reasons stated in the preamble, the Department of State amends 22 CFR Part 41 as follows:

    PART 41—[AMENDED] 1. The authority citation for part 41 continues to read as follows: Authority:

    22 U.S.C. 2651a; 8 U.S.C. 1104; 8 U.S.C. 1182(d) ; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295); 112 Stat. 2681-795.

    2. Section 41.113 is revised to read as follows:
    § 41.113 Procedures in issuing visas.

    (a) Evidence of visa. Except as provided in paragraph (b) of this section, a nonimmigrant visa shall be evidenced by a physical visa placed in the alien's passport or by an electronic visa located in the Department's records. The appropriate symbol as prescribed in § 41.12, showing the classification of the alien, shall be entered on the visa.

    (b) Cases in which a physical visa is not placed in passport. In the following cases a physical visa shall be placed on the prescribed Form DS-232. In issuing such a visa, a notation shall be made on the Form DS-232 on which the visa is placed, specifying the pertinent subparagraph of this paragraph under which the action is taken.

    (1) The alien's passport was issued by a government with which the United States does not have formal diplomatic relations, unless the Department has specifically authorized the placing of the visa in such passport;

    (2) The passport requirement has been waived; or

    (3) In other cases as authorized by the Department.

    (c) Visa format. A machine-readable visa shall be in the format designated by the Department, and contain, at a minimum, the following data:

    (1) Full name of the applicant;

    (2) Visa type/class;

    (3) Location of the visa issuing office;

    (4) Passport number;

    (5) Sex;

    (6) Date of birth;

    (7) Nationality;

    (8) Number of applications for admission authorized, or the letter “M” for multiple applications for admission authorized;

    (9) Date of issuance;

    (10) Date of expiration;

    (11) Visa control number.

    (d) Insertion of name, petition, and derivative status notation. (1) The surname and given name of the visa recipient shall be shown on the visa in the space provided.

    (2) If the visa is being issued upon the basis of a petition approved by the Secretary of Homeland Security, the number of the petition, if any, the period for which the 'alien's admission has been authorized, and the name of the petitioner shall be reflected in the annotation field on the visa.

    (3) In the case of an alien who derives status from a principal alien, the name of the principal alien and of the petitioner shall be reflected in the annotation field of the visa.

    (e) Period of validity. If a nonimmigrant visa is issued for an unlimited number of applications for admission within the period of validity, the letter “M” shall be shown under the word “entries”. Otherwise the number of permitted applications for admission shall be identified numerically. The date of issuance and the date of expiration of the visa shall be shown at the appropriate places in the visa by day, month, and year in that order. The standard three letter abbreviation for the month shall be used in all cases.

    (f) Restriction to specified port(s) of entry. If a nonimmigrant visa is valid for admission only at one or more specified ports of entry, the names of those ports shall be entered in the annotation field. In cases where there is insufficient room to list the port(s) of entry, they shall be listed by hand on a clean passport page. Reference shall be made in the visa's annotation field citing the passport page upon which the port(s) of entry are listed.

    (g) Delivery of visa. In issuing a nonimmigrant visa, the consular officer should deliver the passport containing the visa, or the prescribed Form DS-232 which bears the visa, to the alien or to the alien's authorized representative. Any relevant evidence furnished by the alien in accordance with § 41.103(b) should be retained, as required or necessary.

    (h) Disposition of supporting documents. Original supporting documents furnished by the alien should be returned for presentation, if necessary, to the immigration authorities at the port of entry. Duplicate copies may be retained in the consular system, as required or necessary.

    (i) Review of nonimmigrant visa issuances. Nonimmigrant visa issuances must be reviewed, in accordance with guidance by the Secretary of State, by consular supervisors, or a designated alternate, to ensure compliance with applicable laws and procedures.

    Dated: September 9, 2015. Michele T. Bond, Acting Assistant Secretary for Consular Affairs, Department of State.
    [FR Doc. 2015-27862 Filed 10-30-15; 8:45 am] BILLING CODE 4710-06-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0980] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, South Branch of the Elizabeth River, Portsmouth and Chesapeake, VA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulations.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Belt Line Railroad Bridge across the South Branch of the Elizabeth River, mile 2.6, between Portsmouth and Chesapeake, VA. This deviation allows the bridge to remain in the closed-to-navigation position to facilitate a tie replacement project.

    DATES:

    This deviation is effective without actual notice from November 2, 2015 until 7 p.m. on November 5, 2015. For the purposes of enforcement, actual notice will be used from 11 a.m. on October 29, 2015, until November 2, 2015.

    ADDRESSES:

    The docket for this deviation, [USCG-2015-0980], is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Hal R. Pitts, Bridge Administration Branch Fifth District, Coast Guard; telephone (757) 398-6222, email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Norfolk and Portsmouth Belt Line Railroad Company, who owns and operates the Belt Line Railroad Bridge, has requested a temporary deviation from the current operating regulations to facilitate a tie replacement project on the bridge. The bridge is a vertical lift draw bridge and has a vertical clearance in the closed position of 6 feet above mean high water.

    The current operating schedule is set out in 33 CFR 117.997(a). Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 11 a.m. to 7 p.m., except for scheduled daily openings at 2 p.m. and 5 p.m., from October 29, 2015 through November 5, 2015. During this temporary deviation, the bridge will operate per 33 CFR 117.997(a) from 7 p.m. to 11 a.m. The South Branch of the Elizabeth River is used by a variety of vessels including deep draft ocean-going vessels, U.S. government vessels, small commercial vessels, recreational vessels and tug and barge traffic. The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users.

    Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impacts caused by this temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: October 27, 2015. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2015-27774 Filed 10-30-15; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2015-0992] RIN 1625-AA00 Safety Zone; Grounded Vessel, Atlantic Ocean, Port St. Lucie, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone in the waters of the Atlantic Ocean, east of the Port St. Lucie Inlet. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by a grounded vessel outside the Port St. Lucie Inlet. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Miami.

    DATES:

    This rule is effective without actual notice from November 2, 2015] until November 15, 2015. For purposes of enforcement, actual notice will be used from October 27, 2015 through November 2, 2015.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2015-0992 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Benjamin R. Colbert, Sector Miami Waterways Management Division, U.S. Coast Guard; telephone 305-535-4317, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive order FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code II. Background Information and Regulatory History

    In the evening of October 26, 2015, the Coast Guard was notified that a 60 foot motorized vessel was taking on water in the vicinity of the Port St. Lucie Inlet. Over the next several hours attempts to refloat the vessel were unsuccessful and the grounded vessel settled on the bottom. Local, state, and federal agencies are now engaged in emergency salvage operations.

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because this rule is being established in response to an ongoing emergency situation. Delay in publishing this rule would be impracticable because the grounded vessel poses an immediate risk public safety. In addition, any delay in the publishing of this rule would be contrary to public interest. This rule is needed immediately in order to ensure safety of life on the navigable waters surrounding this ongoing emergency situation.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. For the same reasons discussed above, delay in issuing this rule would be both impracticable and contrary to public interest. The rule is in response to an emergent safety issue and is needed in order to ensure safety of life in the area around this emergency situation.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Miami (COTP) has determined that potential hazards associated with the grounded vessel will be a safety concern for anyone within a 100-yard radius of the vessel and equipment engaged in salvage operations. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while emergency salvage operations take place.

    IV. Discussion of the Rule

    This rule establishes a safety zone from October 27, 2015 through November 15, 2015. COTP may cease enforcement of the zone if emergency salvage operations end before November 15, 2015. The safety zone will cover all navigable waters within 100 yards of vessels and machinery being used by personnel to conduct emergency salvage operations. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while emergency salvage operations are conducted. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

    This regulatory action determination is based on the size, location, and duration. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Atlantic Ocean for a limited duration during emergency salvage operations. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

    Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves an emergency safety zone implemented to protect persons and vessels in the vicinity of a grounded vessel. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add temporary § 165.T07-0992 to read as follows:
    § 165.T07-0992 Safety Zone; Grounded Vessel, Atlantic Ocean; Port St. Lucie, FL.

    (a) Regulated area. The following regulated area is a safety zone. All waters of the Atlantic Ocean located east of the Port St. Lucie Inlet within 100 yards of the grounded vessel located at 27°9′55″ N., 080°10′36″ W. and all vessels and machinery assisting in emergency salvage operations. All coordinates are North American Datum 1983.

    (b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Miami in the enforcement of the regulated area.

    (c) Regulations. (1) Participants and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by Captain of the Port Miami or a designated representative.

    (2) Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative.

    (d) Effective date. This rule will be effective from October 27, 2015 to November 15, 2015 and will be enforced with actual notice while emergency salvage operations are ongoing.

    Dated: October 27, 2015. M. C. Long, Captain, U.S. Coast Guard, Acting Captain of the Port Miami.
    [FR Doc. 2015-27751 Filed 10-30-15; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0187; FRL-9930-43-Region 9] Revisions to Air Plan; Arizona; Stationary Sources; New Source Review AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing a limited approval and limited disapproval of, and other actions on, revisions to the Arizona Department of Environmental Quality (ADEQ) portion of the applicable state implementation plan (SIP) for the State of Arizona (State or Arizona) under the Clean Air Act (CAA or Act). These revisions submitted by Arizona are primarily intended to serve as a replacement of ADEQ's existing SIP-approved rules for the issuance of New Source Review (NSR) permits for stationary sources, including review and permitting of major and minor sources under the Act. After a lengthy stakeholder process, the State submitted a NSR program for SIP approval that satisfies most of the applicable CAA and NSR regulatory requirements, and which will significantly update ADEQ's existing SIP-approved NSR program. It also represents an overall strengthening of ADEQ's SIP-approved NSR program by clarifying and enhancing the NSR requirements for major and minor stationary sources. This final action updates the applicable plan while allowing ADEQ to remedy certain deficiencies in ADEQ's rules.

    DATES:

    This rule is effective December 2, 2015.

    ADDRESSES:

    EPA has established docket number EPA-R09-OAR-2015-0187 for this action. Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. Some docket materials, however, may be publicly available only at the hard copy location (e.g., voluminous records, maps, copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Lisa Beckham, EPA Region 9, (415) 972-3811, [email protected].

    Table of Contents I. Background II. The EPA's Evaluation of the SIP Revision A. What action is the EPA finalizing? B. What changes is the EPA making from its proposed action? C. Public Comments and Responses III. Final Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews

    For the purpose of this document, we are giving meaning to certain words or initials as follows:

    (i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

    (ii) The initials ADEQ mean or refer to the Arizona Department of Environmental Quality.

    (iii) The initials A.R.S. mean or refer to the Arizona Revised Statutes.

    (iv) The initials AQIA mean or refer to air quality impact analysis.

    (v) The initials BACT mean or refer to Best Available Control Technology.

    (vi) The initials CFR mean or refer to Code of Federal Regulations.

    (vii) The initials CO mean or refer to carbon monoxide.

    (viii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

    (ix) The initials FIP mean or refer to Federal Implementation Plan.

    (x) The initials GHG mean or refer to greenhouse gas.

    (xi) The initials IBR mean or refer to incorporation by reference.

    (xii) The initials LAER mean or refer to Lowest Achievable Emissions Rate.

    (xiii) The initials NAAQS mean or refer to National Ambient Air Quality Standards.

    (xiv) The initials NA-NSR mean or refer to Nonattainment New Source Review.

    (xv) The initials NO X mean or refer to nitrogen oxides.

    (xvi) The initials NSR mean or refer to New Source Review.

    (xvii) The initials PAL mean or refer to Plantwide Applicability Limits

    (xviii) The initials PM 10 mean or refer to particulate matter with an aerodynamic diameter of less than or equal to 10 micrometers.

    (xix) The initials PM 2.5 mean or refer to particulate matter with an aerodynamic diameter of less than or equal to 2.5 micrometers (fine particulate matter).

    (xx) The initials PSD mean or refer to Prevention of Significant Deterioration.

    (xxi) The initials PTE mean or refer to potential to emit.

    (xxii) The initials RACT mean or refer to reasonably available control technology.

    (xxiii) The initials SER mean or refer to significant emission rate.

    (xxiv) The initials SIP mean or refer to State Implementation Plan.

    (xxv) The initials SMC mean or refer to significant monitoring concentration.

    (xxvi) The initials SO 2 mean or refer to sulfur dioxide.

    (xxvii) The initials SRP mean or refer to the Salt River Project Agricultural Improvement and Power District.

    (xxviii) The words State or Arizona mean the State of Arizona, unless the context indicates otherwise.

    (xxix) The initials TSD mean or refer to the technical support document for this action.

    (xxx) The initials VOC mean or refer to volatile organic compound.

    I. Background

    On March 18, 2015, the EPA provided notice of, and requested public comment on, our proposed CAA rulemaking to revise certain portions of the Arizona SIP for ADEQ. See 80 FR 14044 (Mar. 18, 2015). We proposed action on SIP submittals that comprise ADEQ's updated program for preconstruction review and permitting of new or modified stationary sources under ADEQ's jurisdiction in Arizona.1 The SIP submittals that are the subject of this action, referred to herein as the “NSR SIP submittal,” provide a comprehensive revision to ADEQ's preconstruction review and permitting program for stationary sources and are intended to satisfy requirements under both part C (prevention of significant deterioration) (PSD) and part D (nonattainment new source review) of title I of the Act as well as the general preconstruction review requirements under section 110(a)(2)(C) of the Act.

    1 These submittals and our current action also address two rules and one statutory provision that are not directly related to NSR.

    As a component of its NSR SIP submittal, ADEQ also requested the removal from the Arizona SIP of numerous older rules, as well as one Arizona statutory provision, which are mostly superseded by the newer provisions that are the subject of this action or by newer provisions that have already been approved into the Arizona SIP. Accordingly, our action also will remove certain provisions from the Arizona SIP.

    The EPA's rulemaking action on the ADEQ NSR SIP submittal is intended to update the applicable SIP consistent with ADEQ's requests, while allowing ADEQ to remedy certain deficiencies in the submittal where ADEQ's rules do not fully meet CAA requirements. In our proposed rulemaking action, we primarily proposed a limited approval and limited disapproval, with certain exceptions and additions with respect to specific statutory and rule provisions, as follows. We proposed partial disapproval of two specific components of ADEQ's NSR submittal that we believed were analogous to provisions in the federal NSR regulations that had been vacated by federal Courts and that we determined were separable from the remainder of the NSR SIP submittal. In addition, we proposed a limited approval for a portion of ADEQ's nonattainment NSR (NA-NSR) program based on requirements of section 189(e) of the Act related to the permitting of major sources of PM10 and PM2.5 precursors, but did not propose a limited disapproval on this basis. For two non-NSR rules for which ADEQ requested SIP approval, we also proposed a limited approval and limited disapproval. For a non-NSR statutory provision for which ADEQ requested SIP approval, A.R.S. § 49-107, we proposed full approval into the SIP. Last, we proposed to remove numerous NSR and non-NSR rules from the SIP as requested by ADEQ.2

    2 See Table 2, which identifies those rules and statutory provisions that are being removed from the Arizona SIP. This updated table corrects certain typographical errors in the preamble of our proposed action. See our discussion of those errors in our responses to comments 14-15 in our Response to Comments document.

    The ADEQ NSR SIP submittal was extensive in scope. We prepared a comprehensive Evaluation of the submittal in light of the requirements of the CAA and its implementing regulations, and provided a detailed discussion of our findings in the Technical Support Document (TSD) for our proposed action. Both the Evaluation and the TSD were available in the docket for our rulemaking during the public comment period. Our proposed rule discussed our analysis and findings, but focused primarily on the issues that formed the basis for our limited approval/limited disapproval of the ADEQ NSR SIP submittal, and referenced the TSD for additional information concerning our analysis. The Evaluation was an attachment to the TSD.

    II. The EPA's Evaluation of the SIP Revision A. What action is the EPA finalizing?

    The EPA is finalizing a SIP revision for the ADEQ portion of the Arizona SIP for the rules and statutory provision listed in Table 1. The SIP revision will be codified in 40 CFR 52.120 by incorporating by reference the rules and statutory provision in ADEQ's NSR SIP submittal as listed in Table 1.3 Certain non-regulatory submittals and clarifications provided by ADEQ will also be included as part of the Arizona SIP in 40 CFR 52.120. In this final action, the EPA is relying, in part, on the clarifications and interpretations provided by ADEQ, as described in the discussion of our responses to comments in Section II.C below.

    3 We listed an incorrect submittal date for certain rules in the ADEQ NSR SIP submittal in Table 1 of our proposed action; this date is corrected in Table 1 here. See response to comment 13 in our Response to Comments document.

    Table 1—Submitted Statutes and Rules Approved in This Action Rule or statute Title State
  • effective
  • date
  • Submitted
    A.R.S. § 49-107 Local delegation of state authority 8/18/1987 07/2/2014 R18-2-101 [only definitions (2), (32), (87), (109), and (122)] Definitions 08/07/2012 10/29/2012 R18-2-217 Designation and Classification of Attainment Areas 11/15/1993 10/29/2012 R18-2-218 Limitation of Pollutants in Classified Attainment Areas 08/07/2012 10/29/2012 R18-2-301 Definitions 08/07/2012 10/29/2012 R18-2-302 Applicability; Registration; Classes of Permits 08/07/2012 10/29/2012 R18-2-302.01 Source Registration Requirements 08/07/2012 10/29/2012 R18-2-303 Transition from Installation and Operating Permit Program to Unitary Permit Program; Registration transition; Minor NSR Transition 08/07/2012 10/29/2012 R18-2-304 Permit Application Processing Procedures 08/07/2012 10/29/2012 R18-2-306 Permit Contents 12/20/1999 10/29/2012 R18-2-306.01 Permits Containing Voluntarily Accepted Emission Limitations and Standards 1/1/2007 10/29/2012 R18-2-306.02 Establishment of an Emissions Cap 09/22/1999 10/29/2012 R18-2-311 Test Methods and Procedures 11/15/1993 07/28/2011 R18-2-312 Performance Tests 11/15/1993 07/28/2011 R18-2-315 Posting of Permit 11/15/1993 10/29/2012 R18-2-316 Notice by Building Permit Agencies 05/14/1979 10/29/2012 R18-2-319 Minor Permit Revisions 08/07/2012 10/29/2012 R18-2-320 Significant Permit Revisions 08/07/2012 10/29/2012 R18-2-321 Permit Reopenings; Revocation and Reissuance 08/07/2012 10/29/2012 R18-2-323 Permit Transfers 02/03/2007 10/29/2012 R18-2-330 Public Participation 08/07/2012 10/29/2012 R18-2-332 Stack Height Limitation 11/15/1993 10/29/2012 R18-2-334 Minor New Source Review 08/07/2012 10/29/2012 R18-2-401 Definitions 08/07/2012 10/29/2012 R18-2-402 General 08/07/2012 10/29/2012 R18-2-403 Permits for Sources Located in Nonattainment Areas 08/07/2012 10/29/2012 R18-2-404 Offset Standards 08/07/2012 10/29/2012 R18-2-405 Special Rule for Major Sources of VOC or Nitrogen Oxides in Ozone Nonattainment Areas Classified as Serious or Severe 08/07/2012 10/29/2012 R18-2-406 Permit Requirements for Sources Located in Attainment and Unclassifiable Areas 08/07/2012 10/29/2012 R18-2-407 [excluding subsection (H)(1)(c)] Air Quality Impact Analysis and Monitoring Requirements 08/07/2012 10/29/2012 R18-2-409 Air Quality Models 11/15/1993 10/29/2012 R18-2-412 PALs 08/07/2012 10/29/2012

    In addition, this final action removes the rules and appendices listed in Table 2 from the ADEQ portion of the Arizona SIP.

    Table 2—SIP Rules and Appendices Removed From Arizona SIP in This Action Rule or appendix Title EPA
  • approval
  • date
  • Federal
  • Register
  • citation
  • R9-3-101 [excluding subsection (20)] Definitions Various Various R9-3-217(B) Attainment Areas: Classification and Standards 04/23/1982 47 FR 17483 R9-3-301, [excluding subsections (I), (K)] Installation Permits: General 05/03/1983 48 FR 19878 R9-3-302 Installation Permits in Nonattainment Areas 08/10/1988 53 FR 30220 R9-3-303 Offset Standards 08/10/1988 53 FR 30220 R9-3-304, [excluding subsection (H)] Installation Permits in Attainment Areas 05/03/1983 48 FR 19878 R9-3-305 Air Quality Analysis and Monitoring Requirements 05/03/1983 48 FR 19878 R9-3-306 Source Registration Requirements 05/03/1983 48 FR 19878 R9-3-307 Replacement 05/05/1982 47 FR 19326 R9-3-308 Permit Conditions 04/23/1982 47 FR 17483 R9-3-310 Test Methods and Procedures 10/19/1984 49 FR 41026 R9-3-311 Air Quality Models 04/23/1982 47 FR 17483 R9-3-312 Performance Tests 04/23/1982 47 FR 17483 R9-3-314 Excess Emissions Reporting 04/23/1982 47 FR 17483 R9-3-315 Posting of Permits 04/23/1982 47 FR 17483 R9-3-316 Notice by Building Permit Agencies 04/23/1982 47 FR 17483 R9-3-317 Permit Non-transferrable; Exception 04/23/1982 47 FR 17483 R9-3-318 Denial or Revocation of Installation or Operating Permit 04/23/1982 47 FR 17483 R8-3-319 Permit Fees 04/23/1982 47 FR 17483 R9-3-322 Temporary Conditional Permits 10/19/1984 49 FR 41026 R9-3-1101 Jurisdiction 05/03/1983 48 FR 19878 Appendix 4 Fee Schedule for Installation and Operating Permits 09/19/1977 42 FR 46926 Appendix 5 Fee Schedule for Conditional Permits 09/19/1977 42 FR 44926

    In summary, this action is primarily a limited approval and limited disapproval of a SIP submittal from Arizona for the ADEQ portion of the Arizona SIP that governs preconstruction review and the issuance of preconstruction permits for stationary sources, including the review and permitting of new major sources and major modifications under parts C and D of title I of the CAA as well as review of new and modified minor sources. The intended effect of our final limited approval and limited disapproval action is to update the applicable SIP with current ADEQ regulations, while allowing ADEQ to remedy the identified deficiencies in these regulations. We are also removing at ADEQ's request certain rules and appendices from the Arizona SIP, which are outdated and which are mostly being superseded by this action. In addition, we are finalizing a partial disapproval of one provision in ADEQ's NSR program that has been vacated by the courts. We are finalizing a limited approval of ADEQ's NA-NSR program for certain nonattainment areas based on requirements under section 189 of the Act related to PM10 and PM2.5 precursors (without a limited disapproval on this basis). Last, we are finalizing a limited approval and limited disapproval of two ADEQ non-NSR rules relating to test methods and procedures and performance tests, and finalizing the approval of an Arizona statutory provision relating to local delegation of state authority.

    We are finalizing the above-described action because, although we find that the new and amended rules submitted by ADEQ meet most of the applicable CAA requirements for preconstruction review programs and other CAA requirements, and that overall the SIP revisions improve and strengthen the existing SIP, we have found certain deficiencies that prevent full approval, as explained in our proposed action and in the TSD for this rulemaking, and in this final action and our Response to Comments document.

    We reviewed the ADEQ NSR SIP submittal in accordance with applicable CAA requirements, primarily including those that apply to: (1) General preconstruction review programs, including for minor sources, under section 110(a)(2)(C) of the Act; (2) PSD permit programs under part C of title I of the Act; and (3) NA-NSR permit programs under part D of title I of the Act. For the most part, ADEQ's submittal satisfies the applicable CAA requirements, including those for these preconstruction review programs, and our approval will strengthen the applicable SIP by updating the regulations and adding provisions to address new or revised federal NSR permitting and other requirements. However, the submitted rules also contain specific deficiencies and inconsistencies with CAA requirements that prevent us from granting full SIP approval. These deficiencies form the basis for our limited approval and limited disapproval action, and for our partial disapproval of one rule provision.

    B. What changes is the EPA making from its proposed action?

    We are largely finalizing our action as proposed. However, in response to public comments we received, our final action differs in some respects from our proposed action. For certain deficiencies identified in our proposal as bases for limited disapproval, we have changed our determination and no longer find that these are bases for our limited disapproval. In addition, we have changed our determination concerning one of the ADEQ rule provisions for which we had proposed partial disapproval; we are not finalizing our partial disapproval of this provision.

    Specifically, the following issues that had been identified in our proposed action as bases for limited disapproval are not a basis for our final limited disapproval: (1) ADEQ's use of the term “proposed final permit” in its rules for the minor NSR, PSD and NA-NSR programs; (2) a question concerning whether ADEQ rule R18-2-334(E) requires ADEQ to review potential impacts on the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) for all minor sources subject to new source review under ADEQ rule R18-2-334;4 (3) the lack of a definition in ADEQ's PSD regulations for the term “subject to regulation;” (4) the lack of a reference in ADEQ's PSD rules to pollutants subject to regulation in the definition of “regulated NSR pollutant,” per 40 CFR 51.166(b)(49)(iv); (5) the lack of certain language in ADEQ's PSD rules concerning condensable particulate matter, per 40 CFR 51.166(b)(49)(i); (6) potential ambiguity as to whether references to the undefined term “Arizona Ambient Air Quality Standards” in ADEQ's NSR regulations refer to ADEQ's Article 2 air quality standards; (7) language concerning the calculation of baseline actual emissions under ADEQ's plantwide applicability limits (PALs) provisions for the PSD and NA-NSR programs; and (8) public notice requirements for alternative or modified air modeling under ADEQ's rules for the PSD program. In addition, we are not finalizing a partial disapproval of ADEQ's definition for “basic design parameter.” We now find the ADEQ NSR SIP submittal approvable with respect to these particular issues. Our rationale for changing our determination on these issues is included in our Response to Comments document for this action, and some of these issues are also discussed in the Public Comments and Responses section below.

    4 Due to a typographical error, in discussing this issue, the notice for our proposed action inadvertently referenced subsection (G) of R18-2-334 instead of subsection (E).

    In addition, we are making three technical corrections to address typographical errors, as noted by commenters: (1) Correction of SIP submittal dates listed in Table 1 (listing the rules and statutory provisions that we are approving into the SIP) so that “10/29/2012” is listed instead of “10/29/2014,” (2) correction of Table 2 (the list of rules and appendices that we are removing from the SIP) to exclude subsection (20) from the provisions of ADEQ rule R9-3-101 that we are removing from the SIP, and (3) the addition of ADEQ rules R9-3-310 and R9-3-312 to the list of rules in Table 2. Additional detail regarding these technical corrections is provided in response to comments 13 through 15 in our Response to Comments document.

    C. Public Comments and Responses

    Our March 18, 2015 proposed rule included a 30-day public comment period that ended on April 17, 2015. We received 3 written comments, one each from the Office of Robert Ukeiley, the Salt River Project Agricultural Improvement and Power District (SRP), and ADEQ. Copies of each comment have been added to the docket for this action and are accessible at www.regulations.gov. Our Response to Comments document in the docket for this action contains a summary of all comments received and the EPA's responses to the comments. Below we provide the major issues raised by commenters and our responses to those comments.

    Comment 1:

    The Federal Register notice does not make it clear if the Arizona rules proposed to be approved into the SIP include the PM2.5 increments. The EPA must disapprove this rule if it does not include the PM2.5 increments.

    Response 1:

    In the EPA's March 18, 2015 Federal Register notice, we proposed to approve ADEQ rule R18-2-218 into the Arizona SIP, and stated “ADEQ adopted the increments, or maximum allowable increases, in R18-2-218—Limitation of Pollutants in Classified Attainment Areas.” 80 FR 14044, 14045, 14051. The PM2.5 increments are included in Section A of ADEQ rule R18-2-218. As such, ADEQ submitted, and we are approving into the Arizona SIP, ADEQ rule R18-2-218 containing the PM2.5 increments.5

    5 Our proposed action also points out that certain terminology used in ADEQ's PSD rules with respect to the increments is not clear, and that ADEQ's rules contain provisions that allow for exclusions from increment consumption for certain temporary emissions that do not conform to the analogous federal regulatory requirements. These issues provided a basis for our proposed limited disapproval of ADEQ's PSD program. See Section II.C.1 of the preamble at 80 FR 14051. Neither this commenter nor any other commenter addressed these specific issues, thus we continue to believe that these issues are deficiencies that ADEQ must correct for full approval of the PSD portion of the ADEQ NSR SIP submittal, and these issues provide a basis for our final limited disapproval.

    Comment 2:

    ADEQ states that its methodology for establishing minor NSR thresholds was valid for all areas under ADEQ's jurisdiction. The CAA does not impose strict, specific requirements on NSR programs for minor sources, as it does for major NSR. Rather, section 110(a)(2)(C) generally requires that each state include a program regulating the modification and construction of any stationary source as necessary to assure achievement of the NAAQS. The sizes of minor source facilities, buildings, structures, or installations are assessed and compared to threshold levels to determine whether their potential to emit is so high as to affect the NAAQS. Each state establishes its own threshold levels to define the limits of its minor NSR regulations to create an effective pollution control strategy without also creating unnecessary regulatory burden.

    Citing the EPA's proposed Tribal NSR Rule, ADEQ states that in the past, the EPA has asserted that threshold levels are appropriate where “sources and modifications with emissions below the thresholds are inconsequential to attainment and maintenance of the NAAQS.” 6 In creating a federal minor NSR program for Indian Country, the EPA emphasized the importance of a cost-effective plan, as well as one that reduces the burden on sources and reviewing authorities.

    6 71 FR 48696, 48701 (Aug. 21, 2006).

    ADEQ set an adequate, yet cost-effective threshold level of one half the significant emission rate (SER) for nonattainment areas. Just as the EPA did in the Tribal Minor NSR Rule, ADEQ identified the level at which a lower threshold merely creates a larger pool of regulated minor sources without substantially reducing emissions. Research data provided by a consultant was used to make an informed determination which threshold levels would in fact be most cost-effective, while still achieving the goals of the minor source program. ADEQ included a table of the results provided by its contractor for two potential NSR threshold scenarios.7 Scenario 1 illustrates the impact of a minor threshold of one half the SER and Scenario 2 illustrates the impact of a threshold set at one quarter the SER. Lowering the threshold beyond one half the SER essentially doubles the percentage of sources regulated, which certainly increases the state's ability to reach more minor sources. However, regulating more sources does not necessarily translate to effective emissions reductions. Rather there is a diminishing return on emission reductions as the threshold level is pushed further down to include sources with fewer emissions.

    7 The EPA provided the same table in its TSD for this action. See Table 5 of the TSD—Results of ADEQ's Stationary Source Distribution Analysis.

    ADEQ illustrated this statement through a figure provided in its comments showing a comparison of potential threshold levels and relative impact, by pollutant.8 The figure compares the percent of emissions regulated with the percent of sources regulated at the two NSR exemption scenarios considered by ADEQ. ADEQ states that the slopes between the significance level points in the graph for each pollutant illustrate the incremental percentage of emissions that would be covered when the threshold level is moved from one half to one quarter. Both possible threshold options would result in a relatively large percentage of emissions from minor sources becoming subject to regulation. However, the average emissions covered per source decreases significantly for all additional sources that fall below one half of the significant level. The disproportionate effect between the changes in the amount of sources relative to the change in the amount of emissions covered provides a firm basis for ADEQ's decision. The thresholds in ADEQ's minor NSR program meet federal requirements without creating a system in which the burdens of regulation would outweigh the benefits to air quality.

    8 See ADEQ's April 17, 2015 comment letter at 14.

    Response 2:

    As noted by ADEQ, CAA section 110(a)(2) generally requires that each state include a program regulating the modification and construction of any stationary source as necessary to assure achievement of the NAAQS. While we appreciate ADEQ's comments on this issue, to date, ADEQ has not provided sufficient information about the nature, scope and emissions that are contributing to nonattainment in the areas subject to ADEQ's jurisdiction to change our proposed determination that ADEQ has not provided an adequate basis for its NSR exemption thresholds as applied in such nonattainment areas.

    The implementing regulations for the minor NSR program make clear that SIPs must include legally enforceable procedures that enable the decisionmaking authority to determine whether the construction or modification of stationary sources will result in a violation of applicable portions of the control strategy or interfere with attainment or maintenance of the NAAQS, and that such procedures include means by which the decisionmaking authority can prevent such construction or modification if it will result in such violation or interference. 40 CFR 51.160(a) and (b). Further, 40 CFR 51.160(e) provides:

    The procedures must identify types and sizes of facilities, buildings, structures or installations which will be subject to review under this section. The plan must discuss the basis for determining which facilities will be subject to review.

    Under CAA section 110(a)(2) and 40 CFR 51.160(e), we agree with ADEQ that States are not necessarily required to regulate all stationary sources under the minor NSR program. States can exempt from review those stationary sources with emissions that they can demonstrate would not pose a threat to the attainment or maintenance of the NAAQS, thereby satisfying the requirement in CAA section 110(a)(2)(C) that their minor NSR program regulate the modification and construction of any stationary source within the areas covered by the plan as necessary to ensure that the NAAQS are achieved. The EPA's interpretation was discussed in the proposal for our Tribal Minor NSR Rule:

    A review of several State minor NSR programs indicated that a number of State programs have established cutoff levels or minor NSR thresholds, below which sources are exempt from their minor NSR rules. We believe that such an approach is also appropriate in Indian country. Section 110(a)(2)(C) of the Act requires minor NSR programs to assure that the NAAQS are attained and maintained. Applicability thresholds are proper in this context provided that the sources and modifications with emissions below the thresholds are inconsequential to attainment and maintenance of the NAAQS. For each pollutant, only around 1 percent (or less) of total emissions would be exempt under the minor NSR program.

    Review of New Sources and Modifications in Indian Country, Proposed Rule, 71 FR 48696, 48703 (Aug. 21, 2006); see also Review of New Sources and Modifications in Indian Country, Final Rule, 76 FR 38758 (finding that sources with emissions below the NSR exemption thresholds selected by the EPA in the Tribal Minor NSR Rule would be inconsequential to attainment or maintenance of the NAAQS). We note that in our Tribal NSR Rule, “the selected minor source thresholds distinguish between minor stationary sources of regulated NSR pollutants located in nonattainment areas and attainment areas,” with lower thresholds in nonattainment areas. 71 FR at 48702; see 76 FR at 38758 (finalizing thresholds as proposed).

    In our proposed action on ADEQ's NSR SIP submittal, we found deficiencies in the basis ADEQ provided for determining which sources would be subject to review under its minor NSR program under 40 CFR 51.160(e), applying the statutory and regulatory standard discussed above. 80 FR at 14049. These deficiencies provided a basis (among other bases) for our proposed limited disapproval of ADEQ's minor NSR program. As stated in our proposal, we found ADEQ's general approach to meeting 40 CFR 51.160(e) acceptable. However, we proposed a limited disapproval for three aspects of ADEQ's minor NSR program under 40 CFR 51.160(e): The adequacy of ADEQ's NSR exemption thresholds for nonattainment areas; certain exemptions for agricultural and fuel burning equipment; and the lack of any basis for the PM2.5 NSR exemption threshold in any areas under ADEQ's jurisdiction. None of the comments on our proposal addressed our proposed limited disapprovals related to agricultural and fuel burning equipment exemptions or the missing explanation in the submittal for the PM2.5 NSR exemption threshold. As such, we continue to determine that these two issues warrant a limited disapproval, and further consider ADEQ's comments as they apply to the basis provided for ADEQ's NSR exemption thresholds for pollutants in nonattainment areas.9

    9 We note that the reasoning the EPA provides in these responses to comments concerning NSR exemption thresholds in nonattainment areas would apply equally to our review of the basis for NSR exemption thresholds for PM2.5 in nonattainment areas.

    ADEQ's comments focus largely on the argument that expanding its minor NSR program to cover even smaller sources (i.e., sources with emissions of approximately 1/4 of the PSD significant emission rates) would result in diminishing returns on emission reductions. ADEQ argues that while more emissions would be regulated under such an approach, in some instances, this would result in significantly more stationary sources becoming subject to the program. In the case of VOC, for example, the percentage of all stationary sources regulated would approximately double from 8% to 16%. ADEQ appears to reason that while ADEQ would be able to regulate more emissions with such a lower threshold, the types of projects brought into the program would be smaller and less likely to be regulated in a way to achieve useful emission reductions. However, as discussed above, our determination of whether a minor NSR program is sufficient to meet CAA SIP requirements is based on whether the State has provided an adequate basis that the exempt emissions do not need to be reviewed to ensure attainment and maintenance of the NAAQS in the particular geographic areas covered by the program because they are inconsequential to attainment or maintenance, considering the particular air quality concerns in such areas. The information provided by ADEQ to date, including the amount of sources regulated as compared with the volume of emissions per such source, does not demonstrate that the adopted thresholds are those necessary to assure attainment and maintenance of the NAAQS. For example, if an area happens to have a large volume of sources in a particular source category that are typically minor sources but emit the pollutants that contribute to nonattainment, then regulation of those sources may be necessary to assure attainment and maintenance of the NAAQS in that area. The thresholds established in the Tribal NSR Rule exempted around 1 percent of total emissions, while exempting from 42 percent to 76 percent of sources, depending on the pollutant. 76 FR at 68758.

    We recognize that the reference that the EPA made in its proposed action to ADEQ's submittal not providing a clear basis for concluding that its NSR exemption thresholds would ensure that a “sufficient percentage of minor sources” would be subject to review in nonattainment areas, rather than referring to a “sufficient percentage of minor source emissions,” was imprecise and may have led to confusion about the nature of the EPA's concern. As such, we are clarifying that our disapproval is related to ensuring that ADEQ's NSR program exempts from review only those sources with emissions that do not pose a threat to attainment and maintenance of the NAAQS because they are inconsequential to attainment or maintenance. The particular percentage of stationary sources that are being regulated would generally not be an adequate basis under 40 CFR 51.160(e) for determining the sizes and types of stationary sources that will be subject to NSR review as necessary to ensure compliance with CAA section 110(a)(2) and 40 CFR 51.160(a) and (b). As noted, the Tribal NSR Rule exempted as many as 76 percent of the sources of a pollutant, but required review of about 99% of total emissions. 76 FR at 38758. In this case, ADEQ has not shown that the emissions exempt from its NSR program will not threaten attainment and maintenance of the NAAQS in its nonattainment areas. Accordingly, after consideration of ADEQ's comments, we continue to find that a limited disapproval of ADEQ's program under 40 CFR 51.160(e), as it pertains to the NSR exemption threshold for nonattainment areas, is necessary.

    As stated in our proposal, in addressing this deficiency, ADEQ does not necessarily have to consider overall lower NSR exemption thresholds in nonattainment areas, see 80 FR 14049 n. 13, although, as noted, the Tribal NSR Rule established lower thresholds for nonattainment areas. 76 FR at 38758. For example, ADEQ could provide further analysis to demonstrate that the adopted thresholds are protective of the NAAQS in nonattainment areas, or ADEQ could consider a different approach, such as requiring minor sources in nonattainment areas subject to a pre-existing SIP requirement for the nonattainment pollutant, or its precursors, to be subject to review under ADEQ's registration program. In addressing this limited disapproval issue, we recommend that ADEQ focus its consideration on the contribution that emissions from minor stationary sources with emissions below its currently adopted NSR exemption thresholds are expected to make with respect to attainment and maintenance of the NAAQS in nonattainment areas.

    In addition, we wish to clarify that while the EPA's proposed rulemaking for the Tribal NSR program discussed cost-effectiveness and attempted to strike a “balance between environmental protection and economic growth,” it also recognized the need for exemption thresholds to ensure “that sources with emissions below the proposed minor NSR thresholds will be inconsequential to attainment and maintenance of the NAAQS.” 71 FR at 48703. See also 76 FR at 38758. The EPA recognized the overarching need for standards stringent enough to ensure NAAQS protection, and agreed to “consider changing the minor NSR thresholds as appropriate” to ensure that they are sufficiently protective. 76 FR at 38759. Thus, cost-effectiveness is not a relevant criterion for determining whether a minor NSR program's exemption thresholds will assure attainment and maintenance of the NAAQS, and the test is not whether the benefits of the program outweigh the burdens of regulation, but whether the state's program meets the requirement in CAA section 110(a)(2)(C) to “assure that national ambient air quality standards are achieved.”

    Comment 3:

    SRP and ADEQ state that the EPA may not substitute its policy preferences for ADEQ's in proposing to disapprove ADEQ's minor NSR program with respect to nonattainment areas. There are no regulatory provisions or CAA statutory provisions that specify that a State must regulate a “sufficient percentage” of minor sources in nonattainment areas. The EPA's objection appears to be based on its own policy preferences, and the EPA simply lacks authority to substitute its preferences for those of the State. The EPA points to no flaws in the reasoning behind the analysis, nor does the EPA provide an alternative analysis demonstrating that modifications or construction of minor sources of a certain size or type have caused air quality concerns within ADEQ's jurisdiction.

    Further, each state, region, and control area encounters unique circumstances that contribute to air quality issues, as well as the strategies necessary to comply with the requirements of the CAA. At page 14049 n. 12 of the proposal, which accompanied a generalized comparison to other states, the EPA referenced threshold levels for Sacramento, California. It is erroneous for the EPA to compare Arizona's minor NSR program with that of California, due to the extraordinary severity of the nonattainment problems in California. The EPA's implication that ADEQ should create a minor source NSR program that looks and functions like other states, and particularly California, is an improper basis for disapproval.

    ADEQ also asserts that the EPA has advanced no reason for concluding that ADEQ's analysis is any less valid for nonattainment areas than it is for attainment areas.

    Response 3:

    Contrary to the commenters' assertions, our proposed limited disapproval of ADEQ's program concerning the NSR exemption threshold for nonattainment areas was not based on a policy preference by the EPA to regulate “more” sources in nonattainment areas. As explained in detail in our response to comment 2, the EPA's proposed disapproval based on 40 CFR 51.160(e) stemmed in part from the lack of sufficient justification in ADEQ's NSR submittal to support its chosen thresholds for coverage of the minor NSR program in nonattainment areas as required by 40 CFR 51.160(e) and CAA section 110(a)(2). It is the State's obligation to demonstrate that emissions from sources exempt under its chosen NSR exemption threshold will not pose a threat to attainment or maintenance of the NAAQS. We found at the time of our proposal that ADEQ had not done so with respect to the NSR exemption thresholds in nonattainment areas, and we continue to find that this is the case.10

    10 We addressed the comment concerning the reference in the EPA's proposal to regulation of a “sufficient percentage of minor sources” in our response to comment 2.

    Our March 18, 2015 proposed action made clear that ADEQ could consider various options for addressing this deficiency and we did not mandate that ADEQ adhere to a particular policy choice of the EPA in this regard. 80 FR at 14049 and n. 13. See also response to comment 2. The EPA agrees with the commenters that ADEQ has the discretion to determine the types and sizes of sources that need to be regulated under its NSR program to attain and maintain the NAAQS. But ADEQ, like other States, must provide a reasoned basis for the scope of emissions (and stationary sources of such emissions) regulated under its program that demonstrates that exemption of such emissions from NSR review will not threaten the attainment and maintenance of the NAAQS in nonattainment areas.

    Air quality concerns in nonattainment areas differ from those in attainment areas and thus the measures necessary to attain and maintain the NAAQS may be more stringent in nonattainment areas than in attainment areas. When an area is already in nonattainment with a NAAQS for a particular pollutant, it is logical to conclude that relatively low levels of emissions increases of that nonattainment pollutant may well contribute to nonattainment and interfere with achievement of the NAAQS, while a source with the same level of emissions in an attainment area may pose little threat to maintaining the NAAQS. Thus, SIPs may need to provide greater or more detailed justification for exempting smaller sources of emissions from NSR review in nonattainment areas, depending on the particular air quality concerns in the area at issue. Indeed, as noted, the EPA's Tribal NSR Rule established more stringent thresholds for minor NSR in nonattainment areas, in most cases at 50% of the thresholds for attainment areas. 76 FR 38758 (Table).

    ADEQ's jurisdiction covers both attainment and nonattainment areas, and ADEQ's analysis supporting its NSR exemption thresholds made no distinction between these types of areas nor did it provide additional information to support the thresholds in nonattainment areas under ADEQ's jurisdiction. For example, ADEQ's analysis indicated that it would exempt approximately 65% of CO emissions, 78% of SO2 emissions, and 40% of VOC emissions from review under its NSR program. By comparison, the EPA's analysis for the Tribal Minor NSR program, cited by ADEQ in its analysis, demonstrated that the EPA anticipated exempting around 1% of stationary source emissions from review under NSR, based on National Emissions Inventory data for all stationary point source emissions in both attainment and nonattainment areas. As such, ADEQ did not provide enough detail to demonstrate that NSR review of emissions from the exempted sources would not be necessary for attainment and maintenance of the NAAQS in nonattainment areas because sources below the thresholds would be “inconsequential to attainment or maintenance of the NAAQS.” 76 FR at 38758. Accordingly, we found that ADEQ had not provided an adequate basis under 40 CFR 51.160(e) for its NSR program exemption thresholds as they pertain to nonattainment areas.

    In the case of attainment areas, the EPA is approving the basis provided by ADEQ for its selected NSR exemption thresholds. We find it reasonable to conclude, based on the information and analysis provided by ADEQ, that expanding the NSR program to cover more emissions in areas that are already attaining the NAAQS will ensure that those areas will continue to attain and maintain the NAAQS. We cannot reach the same conclusion for nonattainment areas where the minor sources in a particular nonattainment area may, in fact, significantly contribute to nonattainment in that area.11

    11 We acknowledge that ADEQ's analysis explained that sources that contribute to noncompliance with the SO2 NAAQS are well-defined, large industrial sources already subject to the permitting program. However, ADEQ's analysis did not provide information or details to support these statements or otherwise provide information sufficient to allow the EPA to reach the conclusion that the NSR exemption thresholds selected by ADEQ exempt only those stationary sources with emissions that do not pose a threat to attainment and maintenance of the NAAQS in nonattainment areas.

    The reference in our proposal to the approaches taken by other permitting programs, including a California agency, with respect to NSR exemption thresholds in nonattainment areas is not an indication that the EPA believes that such approaches or thresholds are required for ADEQ, but simply information showing that it is common for agencies in nonattainment areas to find it necessary to regulate more emissions. In providing this information, the EPA was not suggesting that there was a particular percentage of emissions that should be regulated, but that other nonattainment areas have found it necessary to exempt fewer emissions from their programs (including Maricopa County, Arizona, Colorado, and the EPA's Tribal Minor NSR rule, which were also referenced in our proposed action).12 It was ADEQ's lack of demonstration that its selected thresholds are adequate to ensure attainment and maintenance of the NAAQS in light of the specific air quality issues in the nonattainment areas under its jurisdiction that led to our proposed disapproval.

    12 There was a typographical error in our FR notice that referenced a “Table 3,” when there was not a Table 3 in the Federal Register notice. The notice should have referenced Table 3 of our TSD.

    In sum, the EPA did not conclude that ADEQ's NSR exemption thresholds are necessarily deficient, or suggest that some other agency's threshold must be applied. The EPA's proposed limited disapproval for ADEQ's NSR exemption thresholds for nonattainment areas under 40 CFR 51.160(e) relates only to the fact that ADEQ had not provided an adequate basis for the thresholds that were set for these areas. As discussed in response to comment 2, our final limited disapproval is also based on this finding.

    Comment 4:

    ADEQ submitted comments related to the EPA's proposed limited disapproval of ADEQ's NSR SIP submittal for its use of the term “proposed final permit.” ADEQ explains that the purpose of allowing sources to construct after issuance of a proposed final permit—the version of the permit that ADEQ forwards to the EPA for review under the title V program for title V sources—is to ensure that Arizona's unitary permit program does not place restrictions on Arizona industries that they would not face in jurisdictions with binary permitting programs. Under a binary program, separate permits are issued to construct and operate, and only permits to operate are subject to the EPA's review under title V. Thus a source in a jurisdiction with a binary program ordinarily would have the authority to proceed with construction under a construction permit before the EPA's review of the title V permit or permit revision occurred.

    ADEQ specifically takes issue with the EPA's proposed determination that the program does not provide ADEQ with clear authority to prevent construction or modification before it issues a final decision on the request for authority to construct as is required per 40 CFR 51.160(a) and (b). 80 FR at 14048. ADEQ states that this objection is invalid for two reasons. First, 40 CFR 51.160(b) does not require a minor NSR program to include authority to prevent construction “before [an agency] issues a final decision.” It requires only that the program include procedures by which the agency “will prevent . . . construction or modification.” The Arizona program manifestly includes such procedures: ADEQ can prevent construction of a source that threatens the NAAQS or control strategy by denying the permit application before a proposed final permit is issued. No more is required. Second, by “final” the EPA appears to mean subject to administrative and judicial review. See 80 FR at 14053. The EPA maintains that although ADEQ has issued guidance stating that it “will treat [a] proposed final permit as a final, appealable agency action,” the rule itself is not sufficiently clear to be fully approved. 80 FR at 14048.

    The EPA, however, has mischaracterized ADEQ's guidance. ADEQ did not state that it “will treat” proposed final permits” as appealable agency actions. Rather, the Department stated that it “must” do so. Under Arizona administrative law, an “appealable agency action” is defined as “an action that determines the legal rights, duties or privileges of a party.” A.RS. § 41-1092(3). Because a proposed final permit or permit revision under the revised rules determines the applicant's right to construct, it must be treated as an appealable agency action separate from the issuance of the final permit or permit revision. ADEQ must therefore issue a notice of appealable agency action under A.R.S § 41-1092.03 for both the proposed final permit or permit revision, as well as the final permit or permit revision.

    ADEQ states that there is no ambiguity under Arizona law (which mirrors the administrative law of most states). Under the clear terms of ADEQ's regulations, a proposed final permit confers a right to construct and is therefore appealable.

    Response 4:

    The EPA appreciates ADEQ's comments concerning the question of whether ADEQ's NSR program provides for the issuance of a final NSR decision prior to sources being allowed to begin construction. Our proposed action on ADEQ's NSR SIP submittal stated that certain sources were allowed to begin construction upon issuance of a proposed final permit, and that we believed that ADEQ's regulations were ambiguous as to whether issuance of a “proposed final permit” was a final NSR decision. As a result, we proposed to find that ADEQ's NSR SIP submittal did not satisfy several related CAA requirements, and those deficiencies provided some of the bases for our proposed limited disapproval of ADEQ's PSD program, NA-NSR program, and minor NSR program.

    The EPA continues to believe that the CAA and its implementing regulations require that PSD and NA-NSR programs must provide for the issuance of final NSR permit decisions imposing permit conditions necessary to ensure compliance with the applicable NSR program requirements before sources subject to those programs may begin construction. We also interpret the CAA to require that PSD programs provide an opportunity for judicial review of PSD permit decisions. See generally CAA sections 110(a)(2)(C), 165, 172(c)(5), 173; 40 CFR 51.165(a)(2), 51.166(a)(7)(iii), 166(q)(2)(vii).13

    13 The notice for our proposed action noted discussed the fact that we interpret the CAA to require an opportunity for judicial review of a decision to grant or deny a PSD permit, whether issued by the EPA or by a State under a SIP-approved or delegated PSD program. See 80 FR 14053.

    The CAA and its implementing regulations also require that minor NSR programs provide for legally enforceable procedures including means by which the Agency responsible for final decisionmaking on an application for approval to construct or modify has authority to prevent such construction or modification if such construction or modification will result in a violation of applicable portions of the control strategy or will interfere with the attainment or maintenance of a NAAQS. CAA section 110(a)(2)(C), 40 CFR 51.160(a)-(b). We continue to believe that decisionmaking authorities must make final NSR decisions for minor sources, as well as major sources, subject to their NSR program prior to allowing sources to begin construction in order to satisfy this requirement that the plan provide for such “legally enforceable procedures.” 14

    14 We agree that ADEQ has authority to decline to issue a proposed final permit for a particular source if it finds that the emissions from such source would result in a violation of applicable portions of the control strategy or would interfere with the attainment or maintenance of the NAAQS. However, in cases where a permit requirement would be needed to ensure compliance with the NAAQS for a particular source, if such a permit decision were not final, binding and enforceable at the time construction of the source was authorized, there would not be a legally enforceable procedure in place to prevent construction of that source in a manner that could violate the NAAQS as required by 40 CFR 51.160.

    The EPA acknowledges the interpretation that ADEQ recently provided to clarify that ADEQ must treat “proposed final permits” as “appealable agency actions,” which are defined under Arizona law as actions that “determine[] the legal rights, duties or privileges of a party” pursuant to A.R.S. section 41-1092(3). ADEQ Memorandum—Proposed Final Permits to Be Treated as Appealable Agency Actions, dated February 10, 2015. ADEQ also provided additional clarifications after the end of the public comment period, specifically stating that “[p]roposed final permits are enforceable at the time that the permits are issued.” 15 After further review of this issue and consideration of ADEQ's comments and interpretation of its regulations, and in reliance on ADEQ's stated interpretation of its regulations, we have determined that “proposed final permits” constitute final, binding, and enforceable NSR decisions by ADEQ that are issued before sources may begin construction and which are immediately subject to review.

    15 See June 8, 2015 email “Clarification of ADEQ's Comments on the EPA's Proposed Action” from Eric C. Massey, Air Quality Division Director at ADEQ to Lisa Beckham, Air Permits Office, EPA Region 9.

    We therefore conclude that ADEQ's NSR program provides, in all instances, for the issuance of a final NSR decision prior to sources being allowed to begin construction, thus this issue no longer provides a basis for our limited disapproval of the ADEQ NSR SIP submittal. Specifically, we agree that: (1) ADEQ's NSR program provides ADEQ with clear authority to prevent construction or modification before it issues a final decision on the request for authority to construct as required by 40 CFR 51.160(a) and (b); (2) ADEQ's PSD and NA-NSR programs do not allow a source to begin construction prior to issuance of a final PSD or NA-NSR permit; and (3) ADEQ's PSD program satisfies the CAA requirement for an opportunity for judicial review of PSD permit decisions. We are also including the clarifying memorandum from ADEQ dated February 10, 2015 as additional material in our final rule.

    However, we continue to recommend that ADEQ revise its regulations to clarify that a proposed final permit is a final, enforceable, and appealable NSR permit decision in order to minimize confusion among the public and the regulated community. We reiterate that such a revision is not a requirement for approval of ADEQ's NSR program into the SIP.

    Comment 5:

    ADEQ disagrees with the EPA's proposed limited disapproval of ADEQ's program under 40 CFR 51.160(a)(2) and (b)(2) because rule R18-2-334 does not require ADEQ to evaluate whether the project under review will interfere with attainment or maintenance of the NAAQS in all cases, and instead allows sources to apply reasonably available control technology (RACT) in lieu of such an evaluation. ADEQ also takes issue with the EPA's determination that R18-2-334(E) allows for too great of Director's discretion when determining when to require a NAAQS analysis. ADEQ believes this objection is fundamentally at odds with the EPA's own approach to air quality impact analysis (AQIA) in the Tribal Minor NSR Rule. The tribal rule initially imposes a case-by-case control technology requirement, but gives the “reviewing authority” (which may be the EPA or a tribe with delegated authority) discretion to conduct an AQIA. 40 CFR 51.154(c) and (d). ADEQ also cites to the EPA's response to comments for the Tribal Minor NSR Rule where the EPA indicated that reviewing authorities implementing the Tribal Minor NSR Rule should be allowed the discretion to determine when an AQIA might be needed from the applicant. See 76 FR 38761. Further, ADEQ argues that ADEQ's rule is actually stricter and confers less discretion than the EPA's Tribal Minor NSR Rule. ADEQ must consider the source's emission rates, location of emission units within the facility and their proximity to ambient air, the terrain in which the source is or will be located, the source type, the location and emissions of nearby sources, and background concentration of regulated minor NSR pollutants. By comparison, the criteria in the EPA's Tribal Minor NSR Rule states that if the reviewing authority has reason to be concerned that the construction of your minor source or modification would cause or contribute to a NAAQS or PSD violation, it may require the source to conduct and submit an AQIA. (emphasis added). ADEQ believes that this comparison demonstrates that ADEQ's discretion is far from being “too great;” ADEQ's discretion under R18-2-334(E) is minimal.

    Finally, ADEQ disagrees with the EPA's determination that R18-2-334(C)(1)(a)-(b) “appears to allow sources with lower levels of emissions to avoid both substantive NAAQS review and RACT requirements” and that the state's minor NSR Program therefore fails to ensure “that all sources subject to review under its NSR program will not interfere with attainment or maintenance of the NAAQS.” This objection is incorrect for two reasons. First, R18-2-334(C)(1)(a)-(c) represents ADEQ's reasonable judgment that the imposition of RACT on units with low emissions (20 percent of the source threshold) within a source otherwise subject to RACT is not a cost-effective means of protecting the NAAQS. Second, this provision does not, as the EPA contends, allow sources to avoid substantive NAAQS review. This provision clearly applies solely to sources that elect to comply with minor NSR through installation of RACT. These sources remain subject to the obligation to conduct an AQIA on the Director's request under R18-2-334(E), and there is nothing in the rule to suggest that emissions from units below the R18-2-334(C)(1)(a)-(b) thresholds would be excluded from the AQIA.

    SRP also disagrees with the EPA's proposed disapproval based on the EPA's finding that the Director's discretion under R-18-2-334(E) was too great, and asserts that the EPA's proposed action conflicts with the EPA's policy on approving director discretion provisions. SRP argues that the Director's discretion in this regard is sufficiently specific in identifying when it applies and what criteria are to be applied and that therefore the relevant provisions are fully approvable into the Arizona SIP.

    Response 5:

    Upon review of ADEQ's comments, including clarifications regarding how the provisions of R18-2-334(E) apply, and in reliance on ADEQ's stated interpretation of its regulations, we no longer find that ADEQ's minor NSR program does not satisfy 40 CFR 51.160(a)(2) and (b)(2) based on the view that rule R18-2-334 does not require ADEQ to evaluate whether all sources subject to review under that rule may interfere with attainment or maintenance of the NAAQS.16 After the close of the public comment period, ADEQ provided additional clarifications, stating that it interprets R18-2-334 to “require[] ADEQ to consider the air quality impacts of a project, using the criteria established in R18-2-334(E)(1) through (6), in each instance where the applicant has not submitted an AQIA under R18-2-334(C)(2).” 17 ADEQ has explained that it interprets R18-2-334 to require ADEQ to consider, for all sources subject to R18-2-334, whether there is reason to believe that the source could interfere with attainment or maintenance of the NAAQS. Some sources will comply with this requirement by submitting an AQIA under R18-2-334(C)(2). All other sources will be reviewed by ADEQ using the criteria in R18-2-334(E), and those criteria will be used to determine whether a more formal AQIA is necessary. That is, ADEQ does not have discretion to determine in which instances it will or won't apply the criteria in R18-2-334(E)(1) through (6); instead, ADEQ interprets its regulations to require that ADEQ apply such criteria for all sources subject to R18-2-334 where the applicant has not submitted an AQIA. Accordingly, this issue does not provide a basis for our final limited disapproval.

    16 The EPA's proposal inadvertently referred to R18-2-334(G) instead of R18-2-334(E) when describing this issue.

    17 See June 8, 2015 email “Clarification of ADEQ's Comments on EPA's Proposed Action” from Eric C. Massey, Air Quality Division Director at ADEQ to Lisa Beckham, Air Permits Office, EPA Region 9.

    We would also like to clarify that our proposed limited disapproval was not specifically related to ADEQ's choice to apply RACT for some sources subject to R18-2-334 while allowing certain smaller sources subject to the rule to avoid RACT. Rather, our proposed disapproval action related only to what we understood to be the potential for sources subject to R18-2-334 to apply RACT (or to proceed without applying RACT for certain sources with lower emissions) in lieu of any review by ADEQ of the source's potential impacts on the NAAQS under the ADEQ NSR program. As discussed immediately above, this is no longer a concern as ADEQ has explained that it must review all sources subject to R18-2-334 to consider whether the source could interfere with attainment or maintenance of the NAAQS.

    Given our revised determination on this issue, it is not necessary to address all the arguments made by SRP concerning this issue, but we note that we agree with SRP (and ADEQ) that the criteria ADEQ will be applying when making its determination under R18-2-334(E) do not afford undue discretion to the Director.

    Comment 6:

    One commenter takes issue with the EPA's statements that finalizing its proposed limited disapproval would trigger an obligation for the EPA to promulgate a Federal Implementation Plan (FIP) and impose CAA sanctions if ADEQ does not correct the alleged deficiencies within 18 to 24 months. The commenter asserts that this contradicts the statutory limitations on the EPA's SIP-action authority under the CAA.

    Section 110(c)(1) provides the EPA the authority to promulgate a FIP in only two circumstances: (1) The State failed to make a required SIP submission, or (2) the Administrator disapproves a SIP submission in whole or part. Section 179(a) contains similar conditions for imposing sanctions in nonattainment areas. The commenter claims that the EPA interprets its authority to impose a FIP or sanctions only when the disapproval relates to a mandatory SIP submission. In support of this assertion, the commenter cites to one action from Region 6 of the EPA that disapproved elements of the Texas Commission of Environmental Quality's (TCEQ's) major NSR rule to address the 2002 NSR changes (“[t]he provisions in these submittals . . . were not submitted to meet a mandatory requirement of the Act. Therefore, this final action to disapprove . . . the State submittals does not trigger a sanction or Federal Implementation Plan clock.”). The commenter concludes that such an interpretations of Section 110(c)(1) and Section 179(a) are reasonable because the EPA would otherwise, for example, be required to promulgate a FIP for disapproving a State's request to include odor provisions in its SIP that are unrelated to NAAQS compliance.

    The commenter further states that ADEQ's current SIP contains fully-approved, minor NSR and major NSR permitting programs. As such, the State's requested SIP revisions addressed in the EPA's proposed action are not mandatory. The commenter further argues that the EPA referenced no information suggesting that it made a formal call for plan revision as required by Section 110(k)(5) of the CAA related to its proposed limited disapproval of ADEQ's NSR SIP submittal. As such, in general, Arizona is not under a mandatory duty to revise its existing SIP with regards to its NSR programs. The commenter argues that it is inappropriate for the EPA to replace a fully approved-SIP with a program that it alleges does not fully satisfy CAA requirements by using an approach that triggers the FIP clock and potentially imposes sanctions. ADEQ could withdraw the requested SIP submission and face no threat of a FIP or sanctions.

    Response 6:

    The EPA disagrees with the commenter's statement that the EPA's limited disapproval in this action does not trigger a FIP clock or potential sanctions, and disagrees that the EPA's action is inappropriate in light of this result.

    The EPA continues to believe that limited disapproval of ADEQ's NSR SIP submittal triggers an obligation to promulgate a FIP unless ADEQ corrects the identified deficiencies and the EPA approves the related SIP revisions within 2 years, and that sanctions would be triggered by the EPA's limited disapproval of ADEQ's NA-NSR program revisions based on deficiencies related to CAA title I, Part D requirements for nonattainment areas if ADEQ fails to remedy the identified deficiencies so that the EPA can approve the revisions into the SIP before the sanctions apply. As stated in the notice for our proposal, we intend to work with ADEQ to remedy these deficiencies in a timely manner. Importantly, we note that the EPA's other option would have been a full disapproval of ADEQ's NSR SIP submittal, which would have required ADEQ to continue to implement the outdated rules in its SIP while also implementing its newer rules under State law. This would require ADEQ and permit applicants to continue to implement and comply with two redundant and sometimes inconsistent sets of NSR rules, contrary to ADEQ's request to update its SIP to incorporate its newer rules and remove its older, outdated rules.

    Pursuant to section 110(c)(1) of the CAA, the EPA must promulgate a FIP within two years after our final limited disapproval of ADEQ's NSR SIP submittal, unless ADEQ adequately corrects the identified deficiencies and the EPA approves the corrected program into the Arizona SIP before that time. The commenter argues that the FIP clock applies only when a disapproval relates to a mandatory SIP submission, and asserts that the submitted revisions are not mandatory because ADEQ's existing SIP contains fully-approved minor and major NSR programs, and the revisions were not developed in response to a SIP call under CAA section 110(k)(5). The EPA disagrees with the commenter's argument.

    Even if the EPA has not issued a SIP call under CAA section 110(k)(5),18 a FIP is generally required under CAA section 110(c)(1) when the EPA disapproves a plan submission, unless the State adequately corrects the basis for the disapproval and the EPA approves a corrected SIP submittal in a timely manner, or the EPA determines that an existing plan is in place that meets the relevant CAA requirements. See AIR v. EPA, 686 F.3d 668, 675-76 (9th Cir. 2012). We note that NSR programs consistent with CAA requirements are required elements of a SIP. CAA §§ 110(a)(2)(C), 161, 165, 172(c)(5), 173; 40 CFR 51.160-51.166.

    18 There is no existing SIP call under CAA section 110(k)(5) that specifically pertains to the deficiencies with ADEQ's NSR program.

    In this case, the EPA cannot rely on provisions in the existing Arizona SIP to adequately address the deficiencies with the ADEQ NSR SIP submittal that we identified in our proposed rule and which form the basis for our final limited disapproval. ADEQ must address these deficiencies in a timely manner in order to avoid the requirement for the EPA to promulgate a FIP. As we made clear in the notice for our proposed action,19 ADEQ's NSR SIP submittal included the removal of most of ADEQ's existing NSR program elements from the Arizona SIP.20 Upon our final action,21 there will not be an “existing plan” that could potentially satisfy the specific CAA NSR requirements that the EPA has determined are not satisfied in ADEQ's NSR SIP submittal.22 In general, the EPA's role in reviewing SIP submittals, including the ADEQ NSR SIP submittal, is to defer to the State's choices as to how to implement CAA requirements provided those choices are consistent with the pertinent CAA requirements, whether or not a program submittal is considered “mandatory.” The EPA's limited approval/limited disapproval action on ADEQ's NSR SIP submittal, including ADEQ's request to remove old and largely outdated NSR provisions from the Arizona SIP, allows us to approve into the SIP the State's choice to adopt and implement its updated and strengthened NSR program while giving ADEQ time to remedy certain deficiencies that cause us not to grant full approval of the submittal. Furthermore, even if one assumed arguendo that these older Arizona NSR provisions were not being removed from the Arizona SIP, the commenter has not explained how the old NSR provisions would, in fact, meet the NSR requirements for which the EPA has found specific deficiencies in ADEQ's updated NSR program.23

    19 See 80 FR at 14046-14047.

    20 See October 29, 2012 ADEQ submittal at 4 and Table 2-1; see also ADEQ's February 23, 2015 supplemental submittal at 3-7.

    21 We note that the EPA's limited approval/limited disapproval of ADEQ's NSR SIP submission allows ADEQ to use its updated NSR rules, to the extent the EPA is granting limited approval in this action, to carry out the NSR program. Continuing to leave old and outdated Arizona NSR SIP elements in place would not be consistent with ADEQ's SIP submission and request to the EPA, and would require ADEQ and permit applicants to implement and comply with two redundant and sometimes inconsistent sets of NSR rules. Whether ADEQ could withdraw its ADEQ NSR SIP submittal and what consequences would ensue is not relevant; ADEQ has not done so.

    22 The commenter asserts that when the EPA disapproved elements of the Texas Commission of Environmental Quality's (TCEQ's) major NSR rule, the EPA found that the provisions in the submittals were not submitted to meet a mandatory requirement of the Act and thus noted that its final action to disapprove the State submittals did not trigger a sanction or FIP clock. The TCEQ example is inapposite, however, because our action on the ADEQ NSR SIP submittal approves rules with identified deficiencies into the SIP where the action in Region 6 did not. The EPA found the deficiencies in the TCEQ submission to be separable and issued partial disapprovals for them, resulting in a SIP that did not contain the deficiencies. In that situation, whether the deficiencies that were disapproved were contained in “mandatory” SIP submissions was relevant because if they were “mandatory” then disapproval likely would have resulted in TCEQ needing to submit another plan revision to replace the disapproved plan elements. But because the deficiencies were found to be separable and contained in plan elements that were not mandatory, the EPA issued a partial disapproval of those elements, keeping the deficiencies out of the approved SIP and with TCEQ under no obligation to submit another SIP revision because the disapproved plan elements were not “mandatory.” In contrast, the provisions including the identified deficiencies in the ADEQ NSR SIP submittal are integrated parts of the submittal and are being approved into the SIP as part of our limited approval/limited disapproval action, so whether the ADEQ plan revisions containing the deficiencies are “mandatory” is not relevant and is not a basis to avoid a FIP duty or sanctions.

    23 ADEQ noted in its submittal that its existing SIP-approved program did not include the PM10 increments, the NO2 increments, or updates related to the “WEPCO” rule for determining when a project is a modification at an electric generating unit. In addition, ADEQ stated that a basis for its revisions to its minor NSR program was to correct the deficiency that its program lacked explicit procedures designed “to assure that national ambient air quality standards are achieved,” as required by section 110(a)(2)(C) of the Act. See Appendix A of ADEQ's October 29, 2012 SIP submittal at 1546 and 1547.

    Similarly, for deficiencies related to CAA title I, Part D requirements for nonattainment areas, final limited disapproval of ADEQ's NSR SIP submission will result in the application of sanctions under CAA section 179 unless the deficiencies have been adequately corrected before the sanctions apply.

    As with its arguments concerning the FIP clock, the commenter argues that CAA sanctions apply only when a disapproval relates to a mandatory SIP submission, and asserts that the submitted revisions are not mandatory because ADEQ's existing SIP contains fully-approved NSR permitting programs, and the revisions were not developed in response to a SIP call under CAA section 110(k)(5). The EPA again disagrees with the commenter's argument.

    Even if the EPA has not issued a SIP call under CAA section 110(k)(5), sanctions generally will apply under CAA section 179 when the EPA disapproves a plan submission based on plan deficiencies that relate to title I, Part D requirements, unless ADEQ adequately corrects those deficiencies and the EPA takes action to approve a corrected plan submittal before the sanctions apply, or the EPA determines that the existing plan meets the applicable Part D requirements. See 40 CFR 52.31. A NA-NSR program that meets CAA requirements is a required element of a SIP. CAA §§ 110(a)(2)(C), 172(c)(5), 173; 40 CFR 51.165.

    As discussed above, ADEQ's NSR SIP submittal included the removal of most of ADEQ's existing NSR program elements from the Arizona SIP, so upon the EPA's final action there will not be older NA-NSR SIP provisions that could potentially meet the CAA NA-NSR requirements that the EPA has determined are not satisfied in the NA-NSR program in ADEQ's NSR SIP submittal. The EPA's limited approval/limited disapproval action on ADEQ's NSR SIP submittal, including ADEQ's request to remove old and largely outdated NSR provisions from the Arizona SIP, allows us to approve into the SIP the State's choice to adopt and implement its updated and strengthened NA-NSR program while giving ADEQ time to remedy certain deficiencies that cause us not to grant full approval of the submittal. Furthermore, even if one assumed arguendo that these older Arizona NA-NSR provisions were not being removed from the Arizona SIP per ADEQ's request, the commenter has not explained how the old NA-NSR provisions would, in fact, meet the specific NA-NSR requirements for which the EPA has found deficiencies with ADEQ's updated NA-NSR program. For example, ADEQ's old SIP-approved program did not include NOX as a precursor to ozone.

    We note that the EPA is also finalizing a partial disapproval—rather than limited approval/limited disapproval—for a separable ADEQ NSR program provision that is analogous to a previous federal NSR provision that a federal Court determined is not a permissible component of PSD programs—the PM2.5 significant monitoring concentration (SMC). As there is no deficiency related to this issue in the approved plan following our partial disapproval, neither a FIP requirement nor sanctions will result from this partial disapproval action.

    The EPA's limited disapproval action is based on program elements in ADEQ's NSR SIP submittal that do not meet CAA requirements and are not satisfied by the existing Arizona SIP provisions that remain in place following our final action.24 We wish to clarify that all of the bases for our final limited disapproval action on the ADEQ NSR SIP submittal must be adequately addressed in a timely manner in order to avoid a requirement for a FIP or, for Part D deficiencies, the application of sanctions.

    24 In addition, ADEQ's NSR SIP submittal did not address the regulation of greenhouse gases (GHGs) under the PSD program. As discussed in the notice for our proposed action on ADEQ's NSR SIP submittal, a FIP is currently in place in Arizona to address PSD requirements for GHGs. See 80 FR at 14054 n.17.

    Finally, our final limited disapproval also addresses some SIP elements or provisions that are not required (e.g., deficiencies concerning optional PAL provisions), but were not separable from ADEQ's NSR SIP submittal as they were an integrated part of that submittal. Because we are approving these provisions into the SIP, the EPA will be obligated to implement a FIP and/or sanctions will apply (as applicable) for such optional program elements that remain in the SIP if the deficiencies in those elements are not corrected to ensure consistency with CAA requirements.

    Comment 7:

    SRP states that to proceed using the limited approval, limited disapproval mechanism, The EPA must make an on-the-record determination that the disapproved elements are not severable from the approved elements. The EPA has not made this finding or provided this explanation in its proposed notice.

    Response 7:

    The EPA disagrees with this comment. The commenter cites no authority for this unsupported proposition. Under CAA sections 110(k)(3) and 301(a) and the EPA's long-standing guidance, limited approval and partial approval are alternatives to full approval or full disapproval of a complete plan submission. Limited approval may be appropriate where a plan submittal contains some provisions that meet applicable CAA requirements and other provisions that do not, and the provisions are not separable. Partial approval may be used where a separable portion of a plan submittal meets all applicable CAA requirements. The EPA has discretion under the CAA to choose an appropriate approval or disapproval mechanism for a plan submission, and there is no required “finding” that the provisions are not separable for a proposed or final limited approval or limited disapproval SIP action. See Processing of State Implementation Plan (SIP) Revisions, EPA Memorandum from John Calcagni, Director, Air Quality Management Division, OAQPS, to Air Division Directors, EPA Regional Offices I-X, September 7, 1992 (www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf).

    Nevertheless, in general, we believe that, with the exception of the partial disapproval of the PM2.5 SMC that we are finalizing, the components of ADEQ's NSR SIP submittal are interrelated and not separable from the submittal as a whole and therefore not appropriate for partial disapproval. ADEQ has not provided us with any basis to conclude that particular aspects of its NSR SIP submittal for which we proposed limited disapproval are not integral or interrelated parts of the submittal or are otherwise separable and appropriate for partial disapproval. Further, the commenter has not demonstrated that any portion of the ADEQ NSR SIP submittal for which we proposed limited disapproval is, in fact, separable and appropriate for partial disapproval rather than limited disapproval.

    Comment 8:

    One commenter states that the EPA's assertion that ADEQ may not exclude certain pollutant-emitting activities from PSD misinterprets the EPA's regulations. The commenter points to 40 CFR 51.160(e) and states that a State may exclude activities that it anticipates will have negligible or insignificant environmental impacts from either the major or minor NSR permit programs. This regulatory approach makes sense because it allows for a practical integration of the multiple preconstruction requirements. There is no basis for requiring a State to regulate activities with the more stringent requirements contained in the PSD or NA NSR program when those activities fall below the levels of concern established for the minor NSR program.

    Response 8:

    The regulations governing PSD and NA-NSR SIP programs contain the fundamental requirement that such programs adopt a specified definition for “stationary source.” 40 CFR 51.165(a)(1)(i), 51.166(b)(5). The regulations require the use of the prescribed definition, and state that deviations from the specified wording will be approved only if “the State specifically demonstrates that the submitted definition is “more stringent, or at least as stringent, in all respects” as the prescribed definition. 40 CFR 51.165(a)(1), 51.166(b). As explained in reference to the NA-NSR program in our March 18, 2015 proposal:

    ADEQ must demonstrate that its definition of stationary source is at least as stringent as the federal definition at 51.165(a)(1)(i) in all respects.

    See 80 FR at 14056; see also 80 FR at 14054 for the PSD program. The commenter has not addressed how ADEQ's definition would be at least as stringent as the definitions in 51.165(a)(1)(i) and 51.166(b)(5) in light of the exemption language referenced in our proposal, see 80 FR at 14054, nor has ADEQ provided the necessary demonstration that its definition of stationary source is at least as stringent as the definition of “stationary source” under the federal PSD and NA-NSR programs. Indeed, ADEQ's comments did not address this basis of our proposed limited disapproval. We continue to find that this issue provides a basis for limited disapproval of ADEQ's NSR SIP submittal.

    We do not interpret 40 CFR 51.160(e) as allowing states to develop less stringent definitions for these programs without the necessary demonstration that the submitted definition is “more stringent, or at least as stringent, in all respects” as the prescribed definition as required by 40 CFR 51.165(a)(1) and 51.166(b). Section 51.160(e) does not contain any language giving states the discretion to exclude any type of source from the more specific major source permitting requirements in section 51.165 and 51.166. Section 51.160(e) does not say anything about sources that have “negligible or insignificant environmental impacts.” This section simply requires that a state plan identify the types and sizes of stationary sources that are covered by the “legally enforceable procedures” required under section 51.160(a) to review construction or modification of stationary sources. Sections 51.165 and 51.166 provide more detailed procedures that must apply to major stationary sources. These more specific provisions in sections 51.165 and 51.166 make clear that those procedures must cover the type and size of source covered by the definitions at 40 CFR 51.165(a)(1)(i) and 51.166(b)(5).

    Comment 9:

    One commenter takes issue with our proposed limited disapproval of ADEQ's definition of projected actual emissions on the basis that it does not specifically require malfunction emissions to be included in the post-change projection. The EPA has not shown how ADEQ's exclusion of this term from ADEQ's definition makes the definition less stringent than the Federal rules. Malfunctions, by definition, are emissions associated with an unpredictable and not reasonably preventable event. In this respect, it is axiomatic that a source cannot reasonably project emissions that it cannot predict. By excluding malfunctions from its projected actual emissions procedure, ADEQ recognizes the EPA's own interpretation of “malfunctions” and is no less stringent than the federal definition. The EPA's proposed action also is inconsistent with other Regional Office SIP approvals that have approved definitions of “projected actual emissions” that do not require inclusion of malfunction emissions.25 Moreover, the comparable paragraph in the Federal definition of “projected actual emissions” merely clarifies that projected actual emissions includes all post-change emissions. The EPA could approve ADEQ's “projected actual emissions” definition by severing and not acting on paragraph R18-2-401(20)(b)(iii) and the definition would not lose its intended meaning.

    25 See, e.g., The EPA's approval of Georgia's PSD program, Georgia's PSD program at 391-3-1; and the EPA's approval of South Carolina's regulation at Chapter 7 Regulation 62.5.

    Response 9:

    The commenter asserts that the EPA has not shown that ADEQ's exclusion of malfunction emissions from the definition of “projected actual emissions” makes the definition less stringent. However, ADEQ has the burden of demonstrating that its alternative definitions are not less stringent than the ones in the EPA's regulation. See 40 CFR 51.165(a)(1), 51.166(b). ADEQ's definitions under the PSD and NA-NSR programs warrant a limited disapproval because the EPA cannot reasonably conclude that ADEQ's definition is at least as stringent as the definitions in 40 CFR 51.165(a)(1) and/or 51.166(b). We note that ADEQ's definition for “baseline actual emissions” specifically includes startup, shutdown, and malfunction emissions, while ADEQ's definition for “projected actual emissions” includes startup and shutdown emissions but does not include malfunction emissions. Further, ADEQ's definition of “projected actual emissions” specifically excludes malfunction emissions associated with a shutdown. Based on the exclusion of malfunction emissions from the definition of “projected actual emissions”, and in the absence of a response from ADEQ on this issue, we conclude that ADEQ has not shown that its definition is as stringent as the federal definition. In addition, without a clearer statement from ADEQ, we cannot determine that R18-2-401(20)(b)(iii) is separable from the rest of the ADEQ definition of projected actual emissions without losing the apparently intended meaning by ADEQ to specifically include startup and shutdown but exclude malfunction emissions. We note that ADEQ's comments did not address this basis for our proposed limited disapproval.

    With respect to the claim that the EPA has previously approved PSD or NA-NSR programs that do not include malfunctions emissions under the definition for projected actual emissions, we note that the examples provided by the commenter are not completely analogous. In those programs, the definition of baseline actual emissions also excluded malfunction emissions, whereas ADEQ has included those emissions in its definition of baseline actual emissions. Without further justification from ADEQ, this inconsistency across definitions makes it difficult for the EPA to determine the relative stringency of ADEQ's definitions as compared with those in 40 CFR 51.165 and 51.166. The commenter has not provided any information about the nature of the demonstrations that was supplied by the states that obtained the EPA approval for excluding malfunction emissions from both the definition of baseline actual emissions and projected actual emissions.

    Notwithstanding prior action by the EPA in the context of SIPs in the distinct circumstances noted above, the EPA believes the proper interpretation of these definitions is that they require that all emissions, pre- and post-change, including malfunctions, be included in the definitions included in SIPs, consistent with the regulatory text, absent a demonstration that the State's regulation is at least as stringent as the federal definition as required by 40 CFR 51.165(a)(1) and 51.166(b).

    We note that in reviewing this comment, we also reviewed our proposed limited disapproval related to the calculation of baseline actual emissions under ADEQ's PALs program at R18-2-412(B)(2). See 80 FR 14053. Upon review, we determined that our proposed limited disapproval related to the calculation of baseline actual emissions under ADEQ's PALs program at R18-2-412(B)(2) was in error because ADEQ's definition for baseline actual emissions at R18-2-401(2)(i) specifically includes startup, shutdown, and malfunction emissions. Therefore, this issue no longer provides a basis for our limited disapproval of ADEQ's NSR SIP submittal.

    Comment 10:

    One commenter asserts that ADEQ's definition of regulated NSR pollutant is not deficient for not including the final two sentences in 40 CFR 51.166(b)(49)(i)(a). This language addresses issuance of permits before January 1, 2011. Since this SIP revision applies to changes after this date, it is not necessary for the definition to address circumstances that existed before SIP approval. Moreover, absence of the language, in any case, does not affect the stringency of the definition.

    Response 10:

    We agree with the commenter that while ADEQ may want to add to its definition these two sentences that provide additional clarification, this clarifying language is not necessary for SIP approval. As such, we no longer find this difference to be a deficiency with ADEQ's NSR program, and this issue is not a basis for our final limited disapproval.

    Comment 11:

    The EPA proposes to disapprove ADEQ's major NSR programs because the SIP submittal does not include a definition for “subject to regulation.” Although the Federal regulations contain a definition for “subject to regulation,” the EPA made clear, at the time it adopted this definition, that states may adopt (or already have) alternative pathways for defining applicability of the major NSR program—the EPA did not intend for codification of “subject to regulation” to be a necessary element for SIP approval. See 75 FR 31514 at 31525. The EPA chose the “subject to regulation” pathway because it determined that this would allow other states to adopt the EPA's definition through interpretation without the need for a SIP revision.

    ADEQ's major source definition refers to NSR regulated pollutants. ADEQ's definition of NSR regulated pollutant covers all pollutants ADEQ is currently required to regulate under its major NSR programs. ADEQ's program is not currently deficient for failing to include some unknown air pollutant that the EPA may regulate in the future. Should the EPA regulate such an air pollutant in the future, the EPA may follow the pathway it used for GHGs and issue a SIP call at that time. Similarly, ADEQ's definition of regulated NSR pollutant is not currently deficient for failing to include some unidentified air pollutant that the EPA might name in the future.

    Response 11:

    After further review and consideration of the comment, we are not including the absence of a definition of the term “subject to regulation” as a basis for our limited disapproval of the ADEQ NSR SIP submittal. Similarly, we are also not including the omission in ADEQ's PSD rules of language analogous to that in 40 CFR 51.166(b)(49)(iv) as a basis for our final limited disapproval of the ADEQ NSR SIP submittal. We note, however, that contrary to commenters' assertion, the ADEQ SIP is deficient because ADEQ's definition of regulated NSR pollutant does not cover all pollutants ADEQ is currently required to regulate under its major NSR programs, in that ADEQ's program does not regulate GHGs. However, the EPA has separately taken action to address this deficiency. The EPA previously established a FIP for GHGs for Arizona because ADEQ could not apply its PSD program to GHGs due to a State law prohibition.

    Comment 12:

    One commenter states that we must approve ADEQ's definition of basic design parameter because the D.C. Circuit made no finding in State of New York v. EPA that the use of the “basic design parameter” definition was “impermissible.” This issue was not before the court in State of New York v. EPA. At the time the EPA codified the replacement unit provisions, the EPA relied on a previously codified definition of “basic design parameter” to explain how it will interpret the phrase “basic design parameters” in implementing the replacement unit provisions. The vacatur of the “basic design parameters” definition for purposes of a separate, unrelated rulemaking has no effect on the EPA's stated interpretation of that phrase for purposes of the replacement unit provisions. Accordingly, the EPA's statements in the preamble remain its interpretation for purposes of implementing those provisions. ADEQ's definition is fully consistent with the EPA's interpretation.

    Response 12:

    The EPA agrees with the commenter that our proposed partial disapproval of the definition for “basic design parameter” was erroneous. We note that ADEQ did not adopt any of the other provisions of the Equipment Replacement Provisions, which were the subject of the D.C. Circuit Court's decision in State of New York v. EPA. We agree with the commenter that ADEQ's adoption of a definition for basic design parameter is acceptable in this case, and consistent with the EPA's past statements related to this term. Therefore, we are not finalizing a partial disapproval of ADEQ's definition for basic design parameter. Our final action includes this definition as part of ADEQ's NSR SIP submittal for which the EPA is finalizing a limited approval/limited disapproval, but it is not a basis for our limited disapproval.

    III. Final Action

    Pursuant to section 110(k) of the CAA, the EPA is finalizing a limited approval and limited disapproval of the ADEQ rules listed in Table 1 above. We are also approving into the Arizona SIP the Arizona statutory provision relating to local delegation of state authority identified in Table 1 above. In addition, we are removing from the Arizona SIP certain rules and appendices, which are outdated and mostly being superseded by this action. See Table 2 above. We are also finalizing a partial disapproval of one provision of ADEQ's NSR SIP submittal concerning the PM2.5 SMC, as the analogous federal regulatory provision has been vacated by a federal Court.26 Last, we are finalizing a limited approval (but not a limited disapproval) based on requirements under section 189 of the Act related to PM10 and PM2.5 precursors for ADEQ's nonattainment NSR program for the Nogales and West Central Pinal PM2.5 nonattainment areas and the West Pinal PM10 nonattainment area.

    26 The EPA's partial disapproval concerning the PM2.5 SMC does not require follow-up action by ADEQ. However, for clarity, ADEQ may wish to remove this disapproved provision from its regulations.

    Our limited approval and limited disapproval action will approve the updated rules included in the ADEQ NSR SIP submittal into the ADEQ portion of the Arizona SIP.27 However, ADEQ must correct certain deficiencies in the approved rules in order to obtain full approval for its NSR SIP submittal. Our TSD and proposal for this action described in detail the deficiencies we identified with ADEQ's NSR SIP submittal which we determined were bases for limited approval and limited disapproval. With the exception of the changes we are making from our proposal as described in section II.B of this preamble, we are finalizing our action as proposed. For some of these disapproval issues, no adverse comment was received during the public comment period on our proposed action; where comments were received on these issues, we addressed the comments in our Response to Comments document. See section C of this preamble. A list summarizing the bases for our limited disapproval is included in a memorandum to the file for this action.28

    27 This excludes the PM2.5 SMC provision for which we issuing a partial disapproval, as discussed elsewhere in this action.

    28 “List of Bases for Final Limited Disapproval of ADEQ NSR SIP Submittal,” Lisa Beckham, Air Permits Office, EPA Region 9, June 22, 2015.

    Our limited disapproval action will trigger an obligation on the EPA to promulgate a FIP unless Arizona corrects the deficiencies that are the bases for the limited disapproval, and the EPA approves the related plan revisions, within two years of the final action. Additionally, for those deficiencies that are bases for our limited disapproval that relate to NA-NSR requirements under part D of title I of the Act, the offset sanction in CAA section 179(b)(2) would apply in the nonattainment areas under ADEQ's jurisdiction 18 months after the effective date of a final limited disapproval, and the highway funding sanctions in CAA section 179(b)(1) would apply in these areas six months after the offset sanction is imposed. Neither sanction will be imposed under the CAA if Arizona submits, and we approve, prior to the implementation of the sanctions, SIP revisions that correct the deficiencies that we identify in our final action.29 We intend to work with ADEQ to correct the deficiencies identified in this action in a timely manner.

    29 In addition, ADEQ must also address our limited approval under section 189 of the Act related to PM10 and PM2.5 precursors for the Nogales and West Central Pinal PM2.5 nonattainment areas and the West Pinal PM10 nonattainment area. However, because this issue is not a basis for our limited disapproval action, it does not trigger a FIP clock or the potential for sanctions.

    IV. Incorporation by Reference

    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 of the ADEQ rules and the statutory provision described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    V. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improving Regulation and Regulatory Review

    This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

    B. Paperwork Reduction Act

    This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

    This rule will not have a significant impact on a substantial number of small entities because SIP approvals or disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is imposing. Therefore, because this action does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

    Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids the EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

    D. Unfunded Mandates Reform Act

    The EPA has determined that this action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves or disapproves pre-existing requirements under State or local law, and imposes no new requirements.

    E. Executive Order 13132, Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or in the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

    F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, 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. Thus, Executive Order 13175 does not apply to this rule.

    G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves or disapproves State rules intended to implement a Federal standard.

    H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, the EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

    The EPA believes application of VCS to this action would be inconsistent with the Clean Air Act.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

    The EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not change the level of environmental protection for any affected populations.

    K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this 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).

    L. Petitions for Judicial Review

    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 January 4, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Air pollution control, Carbon monoxide, Environmental protection, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 29, 2015. Jared Blumenfeld, Regional Administrator, Region IX.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. Section 52.120 is amended: a. By revising paragraphs (c)(27)(i)(C), (c)(43)(i)(C), (c)(45)(i)(D). b. By adding paragraph (c)(47)(i)(A)(1). c. By revising paragraph (c)(50)(i)(C). d. By revising paragraph (c)(54)(i)(E). e. By adding paragraph (c)(54)(i)(H). f. By revising paragraph (c)(56)(i)(C). g. By adding paragraphs (c)(59)(i)(A)(2) and (c)(161)(i)(A)(6). h. By revising the introductory text of paragraph (c)(162) i. By adding paragraphs (c)(162)(i)(A)(3) and (4), and (c)(162)(ii).

    The revisions and additions read as follows:

    § 52.120 Identification of plan.

    (c) * * *

    (27) * * *

    (i) * * *

    (C) Previously approved in paragraphs (c)(27)(i)(A) and (B) of this section and now deleted without replacement: R9-3-101 (all paragraphs and nos. listed), paragraph B of R9-3-217, R9-3-301 (all paragraphs listed), R9-3-306 (all paragraphs listed), R9-3-307 (all paragraphs listed), R9-3-308, R9-3-310 (Paragraph C), R9-3-311 (Paragraph A), R9-3-312, R9-3-314, R9-3-315, R9-3-316, R9-3-317, R9-3-318, R9-3-518 (Paragraphs B and C), R9-3-319, R9-3-1101, and Appendix 10 (Sections A10.1.3.3, A10.1.4 and A10.2.2 to A10.3.4).

    (43) * * *

    (i) * * *

    (C) Previously approved in paragraphs (c)(43)(i)(A) and (B) of this section and now deleted without replacement: R9-3-101 (all paragraphs and nos. listed), R9-3-301 (all paragraphs listed), R9-3-302 (all paragraphs listed), R9-3-303, R9-3-306 (all paragraphs listed), R9-3-307 (all paragraphs listed), and R9-3-518 (Paragraph A.1 to A.5).

    (45) * * *

    (i) * * *

    (D) Previously approved in paragraphs (c)(45)(i)(A) and (B) of this section and now deleted without replacement: R9-3-101 (all paragraphs and nos. listed), R9-3-301 (all paragraphs listed), R9-3-306 (all paragraphs listed), R9-3-311 (all paragraphs listed), R9-3-509, and Appendix 10 (Sections A10.2 and A10.2.1).

    (47) * * *

    (i) * * *

    (A) * * *

    (1) Previously approved in this paragraph (c)(47)(i)(A) and now deleted without replacement: R9-3-101 (all paragraphs and nos. listed).

    (50) * * *

    (i) * * *

    (C) Previously approved in paragraph (c)(50)(i)(A) of this section and now deleted without replacement: R9-3-310 (Paragraphs A and B) and Appendix 10 (Sections A10.1-A10.1.3.2).

    (54) * * *

    (i) * * *

    (E) Previously approved in paragraphs (c)(54)(i)(B) and (c)(54)(i)(C) of this section and now deleted without replacement: R9-3-101 (all nos. listed except no. 20).

    (H) Previously approved in paragraphs (c)(54)(i)(B), (C), and (D) of this section and now deleted without replacement: R9-3-301 (all paragraphs except paragraphs I and K), R9-3-302 (all paragraphs listed), R9-3-303 (all paragraphs listed), R9-3-304 (all paragraphs except paragraph H), R9-3-305, R9-3-306 (paragraph A only), and R9-3-1101 (all paragraphs listed).

    (56) * * *

    (i) * * *

    (C) Previously approved in paragraphs (c)(56)(i)(A) and (B) of this section and now deleted without replacement: R9-3-101 (Nos. 135 and 157), R9-3-218, R9-3-310, R9-3-322, R9-3-1101 and Appendix 11.

    (59) * * *

    (i) * * *

    (A) * * *

    (2) Previously approved in paragraph (c)(59)(i)(A)(1) of this section and now deleted without replacement: R9-3-303.

    (161) * * *

    (i) * * *

    (A) * * *

    (6) Arizona Administrative Code, Title 18, “Environmental Quality”, chapter 2,”Department of Environmental Quality—Air Pollution Control”, R18-2-311, “Test Methods and Procedures,” and R18-2-312, “Performance Tests,” effective November 15, 1993.

    (162) The following plan revision was submitted on October 29, 2012, and supplemented on September 6, 2013 and July 2, 2014, by the Governor's designee.

    (i) * * *

    (A) * * *

    (3) Arizona Administrative Code, Title 18, “Environmental Quality,” chapter 2 “Department of Environmental Quality—Air Pollution Control,” R18-2-101, “Definitions,” only definition nos. (2), (32), (87), (109), and (122), effective August 7, 2012; R18-2-217, “Designation and Classification of Attainment Areas,” effective November 15, 1993; R18-2-218, “Limitation of Pollutants in Classified Attainment Areas,” effective August 7, 2012; R18-2-301, “Definitions,” effective August 7, 2012; R18-2-302, “Applicability; Registration; Classes of Permits,” effective August 7, 2012; R18-2-302.01, “Source Registration Requirements,” effective August 7, 2012; R18-2-303, “Transition from Installation and Operating Permit Program to Unitary Permit Program; Registration Transition; Minor NSR Transition,” effective August 7, 2012; R18-2-304, “Permit Application Processing Procedures,” effective August 7, 2012; R18-2-306, “Permit Contents,” effective December 20, 1999; R18-2-306.01, “Permits Containing Voluntarily Accepted Emission Limitations and Standards,” effective January 1, 2007; R18-2-306.02, “Establishment of an Emissions Cap,” effective September 22, 1999; R18-2-315, “Posting of Permit,” effective November 15,1993; R18-2-316, “Notice by Building Permit Agencies,” effective May 14, 1979; R18-2-319, “Minor Permit Revisions,” August 7, 2012; R18-2-320, “Significant Permit Revisions,” effective August 7, 2012; R18-2-321, “Permit Reopenings; Revocation and Reissuance; Termination,” effective August 7, 2012; R18-2-323, “Permit Transfers,” effective February 3, 2007; R18-2-330, “Public Participation,” effective August 7, 2012; R18-2-332, “Stack Height Limitation,” effective November 15, 1993; R18-2-334, “Minor New Source Review” effective August 7, 2012; R18-2-401 “Definitions,” effective August 7, 2012; R18-2-402 “General,” effective August 7, 2012; R18-2-403 “Permits for Sources Located in Nonattainment Areas,” effective August 7, 2012; R18-2-404, “Offset Standards,” effective August 7, 2012; R18-2-405, “Special Rule for Major Sources of VOC or Nitrogen Oxides in Ozone Nonattainment Areas Classified as Serious or Severe,” effective August 7, 2012; R18-2-406, “Permit Requirements for Sources Located in Attainment and Unclassifiable Areas,” effective August 7, 2012; R18-2-407, “Air Quality Impact Analysis and Monitoring Requirements,” excluding subsection (H)(1)(c), effective August 7, 2012; R18-2-409, “Air Quality Models,” effective November 15, 1993; and R18-2-412, “PALs” effective August 7, 2012.

    (4) Arizona Revised Statutes, title 49, “Environment,” chapter 1 “General Provisions”, section 49-107, “Local delegation of state authority,” effective July 1, 1987.

    (ii) Additional materials.

    (A) Arizona Department of Environmental Quality.

    (1) Setting Applicability Thresholds, pages 1547-1549 in Appendix A to “State Implementation Plan Revision: New Source Review” adopted on October 29, 2012.

    (2) Memorandum, “Proposed Final Permits to be Treated as Appealable Agency Actions,” dated February 10, 2015, from Eric Massey, Air Quality Division Director to Balaji Vaidyanathan, Permit Section Manager, submitted on February 23, 2015.

    (3) “State Implementation Plan Revision: New Source Review—Supplement,” relating to the division of jurisdiction for New Source Review in Arizona, adopted on July 2, 2014.

    [FR Doc. 2015-27785 Filed 10-30-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0394; FRL-9936-33-Region 7] Approval of Air Quality State Implementation Plans (SIP); State of Iowa; Infrastructure SIP Requirements for the 2008 Lead National Ambient Air Quality Standard (NAAQS) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a State Implementation Plan (SIP) submission from the State of Iowa addressing the applicable requirements of Clean Air Act (CAA) section 110 for the 2008 National Ambient Air Quality Standards (NAAQS) for Lead (Pb), which requires that each state adopt and submit a SIP to support implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by EPA. These SIPs are commonly referred to as “infrastructure” SIPs. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    EPA is also taking final action to approve a supplemental revision for the SIP to include article 1, section 2 of the Iowa Constitution, and portions of the Iowa Code and the Iowa Administrative Code to codify the relevant state laws as applied to conflict of interest requirements of section 128 of the CAA.

    DATES:

    This final rule is effective December 2, 2015.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2015-0394. All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at http://www.regulations.gov or at U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219 from 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. Interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Heather Hamilton, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-7039; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document, the terms “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

    I. Background II. Summary of SIP Revision III. Final Action IV. Statutory and Executive Order Review I. Background

    On August 14, 2015, (80 FR 48791), EPA published a notice of proposed rulemaking (NPR) for the State of Iowa. The NPR proposed approval of Iowa's submission that provides the basic elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2008 Pb NAAQS. The NPR also proposed approval of a supplemental revision to include article 1, section 2 of the Iowa Constitution, and portions of the Iowa Code and the Iowa Administrative Code to codify the relevant state laws as applied to conflict of interest requirements of Sections 110(a)(2)(E) and 128 of the CAA.

    II. Summary of SIP Revision

    On November 4, 2011, EPA received a SIP submission from the state of Iowa that addressed the infrastructure elements specified in section 110(a)(2) for the 2008 Pb NAAQS. The submission addressed the following infrastructure elements of section 110(a)(2): (A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). On May 11, 2015, EPA received a supplemental SIP submission from the state of Iowa to include article 1, section 2 of the Iowa Constitution, and portions of the Iowa code and the Iowa Administrative Code to codify the relevant state laws as applied to conflict of interest requirements of Section 128 of the CAA. The rationale for EPA's proposed action to approve the SIP submissions for specific requirements of section 110(a)(2) of the CAA, and the submission for conflict of interest provisions are explained in the NPR and will not be restated here.

    During the public comment period for the NPR one comment was received. The commenter stated that EPA cannot approve the Prevention of Significant Deterioration provisions unless the Particulate Matter (PM2.5) increments have been approved in the SIP. The PM2.5 increments, found at 567 Iowa Administrative Code, Chapter 33.3(3), were approved by EPA into the Iowa SIP on March 14, 2014. 79 FR 14402.

    III. Final Action

    EPA is approving Iowa's November 4, 2011, submission addressing the requirements of the CAA sections 110(a)(1) and (2) as applicable to the 2008 Pb NAAQS. Specifically, EPA approves the following infrastructure elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M) which are necessary to implement, maintain, and enforce the 2008 Pb NAAQS, as a revision to the Iowa SIP. EPA is also approving Iowa's May 11, 2015, submission to include article 1, section 2 of the Iowa Constitution, and portions of the Iowa code and the Iowa Administrative Code to codify the relevant state laws as applied to conflict of interest requirements of Sections 110(a)(2)(E) and 128 of the CAA.

    IV. Statutory and Executive Order Review

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Iowa nonregulatory SIP provision described in the amendments to 40 CFR part 52 set forth below. 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 CAA the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

    • 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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 4, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements.

    Dated: September 29, 2015. Mark Hague, Acting Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

    Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart Q—Iowa 2. Amend § 52.820 by adding entries (e)(41) and (42) to read as follows:
    § 52.820 Identification of plan.

    (e) * * *

    EPA-Approved Iowa Nonregulatory Provisions Name of nonregulatory SIP provision Applicable geographic area or nonattainment area State submittal date EPA Approval date Explanation *         *         *         *         *         *         * (40) Sections 110(a)(1) and (2) Infrastructure Requirements 2008 Lead NAAQS Statewide 11/4/11 11/2/15 [Insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). 110(a)(2)(I) is not applicable. (41) Section 128 Declaration: Conflicts of Interest Provisions;
  • Constitution of the State of Iowa, Article 1, Section 2
  • Iowa Code: 4.4.(5) 7E.4 Chapter 68B
  • Iowa Administrative Code: 351 IAC 6.11 351 IAC 6.14(2) 351 IAC 6.19 351 IAC 7.1-7.2 567 IAC 1.11(1-9)
  • Statewide 5/11/15 11/2/15 [Insert Federal Register citation] This action addresses the following sections of the Constitution of the State of Iowa, Article 1, section 2; Iowa Code: 4.4.(5), 7E.4, Chapter 68B;
  • Iowa Administrative Code: 351 IAC 6.11 351 IAC 6.14(2) 351 IAC 6.19 351 IAC 7.1-7.2 567 IAC 1.11(1-9).
  • [FR Doc. 2015-27783 Filed 10-30-15; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 73 [GN Docket No. 12-268; MB Docket No. 15-137; FCC 15-67] Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions; Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Commission refines the rules it adopted in the Incentive Auction Report and Order and the preceding Channel Sharing Report and Order to provide greater flexibility and certainty regarding channel sharing agreements (“CSAs”). Among other things, we modify our rules to allow broadcasters that relinquish rights in the incentive auction in order to channel share to enter into CSAs after the auction and, whether they enter into CSAs before or after the auction, to determine the length of their agreements.

    DATES:

    Effective December 2, 2015, except for §§ 1.2204(c)(4) and 73.3700(b)(1), which contain new or modified information collection requirements that require approval by OMB under the PRA and will become effective after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date.

    FOR FURTHER INFORMATION CONTACT:

    Kim Matthews, Media Bureau, Policy Division, 202-418-2154, or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's First Order on Reconsideration, FCC 15-67, adopted on June 11, 2015 and released on June 12, 2015. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW., Room CY-B402, Washington, DC 20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Paperwork Reduction Act of 1995 Analysis

    The First Order on Reconsideration contains new or modified 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. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained in this First Order on Reconsideration as required by the PRA in a separate published Federal Register notice.

    In addition, the Commission notes 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. We have assessed the effects of the policies adopted in this First Order on Reconsideration with regard to information collection burdens on small business concerns, and find that these policies will benefit many companies with fewer than 25 employees by providing them with options for voluntarily relinquishing broadcast spectrum usage rights and by streamlining the pre-auction application process. In addition, we have described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the Supplemental FRFA.

    Synopsis of the First Order on Reconsideration I. Introduction

    1. Broadcasters will have the unique financial opportunity in the broadcast television spectrum incentive auction to voluntarily return some or all of their licensed spectrum usage rights in exchange for incentive payments. One of broadcasters' bid options will be to relinquish rights in order to share a channel with another licensee. The Commission established rules governing channel sharing agreements (“CSAs”) in the Incentive Auction Report & Order, 79 FR 48442 (August 15, 2014) (“IA R&O”) and the preceding Channel Sharing Report & Order, 77 FR 30423 (May 23, 2012) (“Channel Sharing R&O”). In this First Order on Reconsideration, we refine those rules to provide greater flexibility and certainty regarding CSAs. Among other things, we modify our rules to allow broadcasters that relinquish rights in the incentive auction in order to channel share to enter into CSAs after the auction and, whether they enter into CSAs before or after the auction, to determine the length of their agreements. In the companion Notice of Proposed Rulemaking (“NPRM”), 80 FR 40957, July 14, 2015, we tentatively conclude that we should authorize channel sharing by full power and Class A stations outside the incentive auction context, including “second generation” agreements in which one or both entities were parties to an auction-related CSA whose term has expired or that has otherwise been terminated. By providing greater flexibility and certainty regarding CSAs, our objective is to encourage voluntary participation by broadcasters in the incentive auction.

    II. Background

    2. Congress authorized the Commission to conduct the incentive auction to help meet the Nation's growing spectrum needs. Section 1452(a)(2) of the Spectrum Act provides for three bid options that will be available to eligible full power and Class A broadcast television licensees in the auction, including relinquishment of “usage rights in order to share a television channel with another licensee” (“channel sharing bid”). Section 1452(a)(4) provides that a licensee that voluntarily relinquishes usage rights in order to channel share and that possessed carriage rights on November 30, 2010 “shall have, at its shared location, the carriage rights . . . that would apply to such station at such location if it were not sharing a channel.” In the Channel Sharing R&O, the Commission established rules authorizing channel sharing in connection with the incentive auction.

    3. The Commission addressed a variety of further issues related to channel sharing in the IA R&O. The Commission concluded that applicants that participate in the auction in order to share a channel must provide information concerning their Channel Sharing Agreements (“CSAs”) prior to the auction, as part of their pre-auction applications, and must submit a copy of the executed CSA with their applications. With respect to licensing, the Commission determined that, following the auction, a licensee that enters into a CSA as the result of a winning reverse auction bid will be issued a new license indicating the station's “shared” status and specifying the station's designated shared operating frequency. The Commission also decided that shared channels will be designated permanently as shared in the Table of Allotments, absent a future rulemaking proceeding to redesignate the channel for non-shared use.

    4. The Expanding Opportunities for Broadcasters Coalition (“EOBC”) filed a Petition for Reconsideration of our channel sharing decisions in the IA R&O, urging the Commission to “(1) clarify that parties to broadcast CSAs are free to negotiate for common contractual rights; (2) permit broadcasters to enter into CSAs either before or after the incentive auction; (3) ensure that parties to CSAs have the flexibility to choose whether those agreements are permanent or for a fixed term; and (4) clarify that the Commission will never force a broadcaster to accept a channel sharing partner.”

    5. The National Cable & Telecommunications Association (“NCTA”) filed an opposition arguing that extending carriage rights to broadcasters that enter into post-auction CSAs would contravene the Spectrum Act. NCTA argues that this would cause uncertainty in the post-auction broadcaster transition process; confer greater cable carriage rights than Congress intended; lead to customer confusion; and might leave MVPDs unreimbursed. CTIA supports all of EOBC's requests, as do Fox, Ion Media, Tribune, and Univision.

    III. First Order on Reconsideration

    6. We grant the EOBC Petition, with the exceptions noted below. In addition to addressing each of EOBC's above-stated requests for reconsideration below, we modify and clarify the pre- and post-auction CSA filing requirements that apply before and after the auction and address the scope of CSA review by Commission staff.

    A. Negotiating for Common Contractual Rights

    7. In the IA R&O, we noted that channel sharing agreements for contingent rights must not violate the reversionary interest rule, which precludes a seller from retaining an interest in the license it sells, and prohibits a licensee from granting a third party an automatic reversionary interest, such as a security interest, in its license.

    8. EOBC asks the Commission to clarify that the act of entering into a CSA, in and of itself, does not trigger the reversionary interest rule and that parties to CSAs may bargain for common contractual rights consistent with existing Commission rules and policies. We received no opposition to EOBC's request. In its “Opposition and Reply,” CTIA joins and supports all of EOBC's reconsideration requests regarding channel sharing. Fox, Ion Media, Tribune, and Univision, who filed a reply comment in response to the Incentive Auction Comment PN, agree with this position.

    9. We grant EOBC's request. We clarify that parties to a CSA may grant each other options, puts, calls, rights of first refusal, and other common contingent interests, subject to all applicable Commission rules and policies, including the media ownership rules, without committing a per se violation of the reversionary interest rule. The reversionary interest rule does not necessarily apply to a CSA, because a CSA does not involve the transfer of a license from one sharing partner to another. In addition, CSA provisions for contingent interests in the licenses involved in a CSA would not violate the reversionary interest rule absent grant of a prohibited security interest. We recognize that contracting for these common contingent rights will enable sharing parties to eliminate some of the uncertainty regarding the identity of their sharing partners in the event that one sharing party decides to sell its license. Moreover, we share EOBC's concern that, without the ability to bargain for these rights, broadcasters may not avail themselves of this bid option in the auction.

    B. Flexibility To Enter Into CSAs After the Incentive Auction

    10. Under the rules adopted in the IA R&O, a reverse auction bidder interested in channel sharing must submit an executed copy of the CSA with its pre-auction application, as well as certifications under penalty of perjury that it can meet its community of license requirements from the proposed sharer's site (or that it has identified a new community of license that meets the same, or a higher, allotment priority as its current community; or the next highest priority if no community meets the same or higher priority); that the CSA is consistent with all relevant Commission rules and policies; and that the applicant accepts any risk that the implementation of the CSA may not be feasible for any reason.

    11. EOBC requests that the Commission modify its rules to allow a winning license relinquishment bidder to execute a CSA after bidding in the auction is complete. Fox, Ion Media, Tribune, and Univision, who filed a reply comment in response to the Incentive Auction Comment PN, agree with this position. EOBC argues that the carriage rights of parties to such post-auction CSAs would be protected under the Spectrum Act. CTIA agrees. NCTA, however, asserts that grant of EOBC's request would (1) introduce additional uncertainty into the post-auction transition process; (2) confer greater cable carriage rights than Congress intended; (3) lead to customer confusion; and (4) risk leaving cable operators unreimbursed for mandatory carriage of sharee stations.

    12. We grant EOBC's request, subject to the conditions set forth herein. Specifically, we modify our rules to allow winning bidders that relinquish their spectrum usage rights to enter into CSAs after the completion of the incentive auction, provided that they (1) indicate in their pre-auction applications that they have a present intent to find a channel sharing partner after the auction, and (2) execute and implement their CSAs by the date on which they would otherwise be required to relinquish their licenses. Parties to post-auction CSAs will be entitled to the same carriage rights as parties to pre-auction CSAs. We emphasize, however, that the exception to the rule prohibiting certain communications before and during the incentive auction will apply only to parties to pre-auction CSAs.

    13. Subject to these conditions, we agree with EOBC that pre- and post-auction CSAs are the same for purposes of the Spectrum Act. We also agree with EOBC that providing this flexibility will encourage broadcasters to consider the channel sharing bid option by enabling them to participate in the auction even if they do not find a channel sharing partner before the auction begins. Indeed, as EOBC notes, parties may be able to negotiate CSAs more readily after the auction is complete, when fewer variables remain unknown. This action also may help to preserve independent voices by enabling licensees to continue broadcasting after they voluntarily relinquish rights in the incentive auction. As stated above, broadcasters that do not submit executed CSAs with their pre-auction applications will be ineligible for the exception to the prohibited communications rule. Accordingly, there will be no need for the staff to review a CSA prior to the auction to verify that the applicant qualifies for the exception.

    14. In order to enter into a post-auction CSA, we will require that a license relinquishment bidder indicate in its pre-auction application its present intent to find a channel sharing partner after the auction. As we noted in the Channel Sharing R&O, “the Spectrum Act does not set a date restriction on the execution of channel sharing arrangements.” It guarantees carriage rights, however, only for “a licensee that voluntarily relinquishes rights in order to channel share.” To fall within the scope of this guarantee, we conclude that a licensee availing itself of the flexibility we provide here must express a present intent to channel share in its pre-auction application. We recognize that a successful bidder's interest in a post-auction CSA may depend on the outcome of the auction, and that its ability to execute a CSA with a sharing partner will not be entirely within its control. A successful bidder's expression of present intent, therefore, will not bind it to seek out a channel sharing partner or enter into a post-auction CSA.

    15. In addition, post-auction CSAs must be executed and implemented (i.e., operations commenced on the shared channel) by the date on which the channel sharee otherwise would be required to relinquish its license. Pursuant to the IA R&O, a winning license relinquishment bidder must cease operations within three months after receiving its share of auction proceeds. We conclude that a post-auction CSA must be executed and implemented by the license relinquishment deadline. In this regard, we disagree with EOBC that licensees should have up to twelve months after that relinquishment deadline to enter into a CSA. EOBC's reliance on section 312(g) of the Communications Act, which provides that a broadcast license automatically expires if the station fails to broadcast for a consecutive 12-month period, is misplaced: A broadcaster holds a license during the statutory 12-month period, whereas a winning license relinquishment bidder will no longer hold a license after the license relinquishment deadline.

    16. This requirement addresses NCTA's concern that allowing auction participants to enter into post-auction CSAs would introduce additional uncertainty into the post-auction transition process. As NCTA notes, “[u]nder the current rules, sharing stations must notify the Commission of their intent to share prior to the auction and must file their application for license for the shared channel within three months after receiving auction proceeds.” Under our ruling here, sharee stations likewise will have to execute and implement their post-auction CSAs by the time they have to relinquish their licenses, and thus they will be on the same notification timeline as those stations that entered into pre-auction CSAs. We believe that this timeframe also will provide adequate time for parties to post-auction CSAs to comply with the consumer and MVPD notice requirements laid out in the IA R&O.

    17. Finally, we find that the reimbursement process set out in the IA R&O, coupled with the requirements we adopt herein, will enable MVPDs to obtain reimbursement for their reasonable costs associated with mandatory carriage of stations that enter into post-auction CSAs. NCTA argues that, if CSAs are not “in sync” with the deadline for submitting reimbursement estimates, MVPDs might not have notice of a carriage obligation by the deadline, impacting their ability to recover reasonable expenses related to carrying the sharee stations from their new locations. We direct the Media Bureau, in the Channel Reassignment PN to be released following the completion of the incentive auction, to identify those winning bidders that are eligible to channel share, either because they submitted an executed pre-auction CSA or expressed a present intent to enter into a post-auction CSA. Accordingly, the Channel Reassignment PN will provide MVPDs with notice of the identity of successful bidders who have executed pre-auction CSAs, as well as those who may enter post-auction CSAs, prior to the deadline for submitting estimated reimbursement costs, enabling MVPDs to account for these potential costs in their initial cost estimates. In addition, if necessary, MVPDs may update their estimates after the initial three-month deadline if necessary in order to account for post-auction CSAs.

    C. Term-Limited Channel Sharing Agreements

    18. Under the rules adopted in the IA R&O, CSAs are permanent in nature: CSAs may be amended, and rights under a CSA may be assigned or transferred subject to Commission approval, but “shared channels permanently will be designated as shared in the Table of Allotments, absent a future rulemaking proceeding to redesignate the channel for non-shared use,” and “CSAs may not contain any provision that would seek to dissolve or modify the shared nature of the channel[.]” EOBC argues that we should “permit broadcasters to choose the length of their agreements.” “Once an agreement is terminated,” suggests EOBC, “the host or sharer station could either find another channel sharing partner or notify the agency that it is no longer a shared station and that its license should be modified accordingly. The host station would then have the right to utilize the full capacity of its 6 MHz channel. The sharee station(s), meanwhile, could either relinquish their licenses or find a new partner, subject to the one-year time limit to resume transmissions under section 312(g) of the Communications Act.” CTIA supports this approach, as do Fox, Ion Media, Tribune, and Univision. EOBC further argues that we should authorize “second generation” CSAs subject to the same rights and restrictions as CSAs entered into in connection with the incentive auction.

    19. We modify our rules to provide flexibility for broadcasters to determine the length of their CSAs. Specifically, we will permit broadcasters to choose the length of their channel sharing agreements. We agree that allowing term-limited CSAs will encourage channel sharing bids in the incentive auction by allowing parties to end the channel sharing relationship if they choose while still having the opportunity to continue operating. We also agree with EOBC that providing such flexibility is appropriate to meet broadcasters' individualized programming and economic needs. Consistent with our decision, as discussed below, we will not permanently designate channels as “shared” in the Table of Allotments. Instead, a channel's shared status will be indicated on a sharing station's license.

    20. However, our decision to allow term-limited CSAs raises the question of whether to authorize CSAs by full power and Class A stations outside the incentive auction context. In the companion Notice of Proposed Rulemaking, we tentatively conclude that we should allow future CSAs outside the incentive auction context, and we invite comment on issues attendant to that proposal.

    D. Termination of a Sharing Station's Spectrum Usage Rights

    21. Under the rules adopted in the IA R&O, if a channel sharing station's license is terminated due to voluntary relinquishment, revocation, failure to renew, or any other circumstance, the remaining channel sharing station or stations will continue to have rights to their portion(s) of the shared channel, and the rights to the terminated portion of the shared channel will revert to the Commission for reassignment. The Commission further stated that shared channels “permanently will be designated as shared in the Table of Allotments, absent a future rulemaking proceeding to redesignate the channel for non-shared use.”

    22. EOBC argues that “[e]ven the possibility that the FCC could appoint a successor sharing partner will be troublesome to most broadcasters considering the channel sharing option.” Instead, EOBC argues that channel sharing parties should have “the option to reclaim the spectrum rights (but not the licenses) previously held by the departing party . . . Thus, if a sharee station relinquishes its spectrum, the host station could either find a new channel sharing partner . . . or resume use of the full six megahertz channel. If the host station relinquishes its spectrum, meanwhile, the sharee station(s) would have the option to assume the previously shared channel, subject to the technical parameters of the existing allotment.” CTIA agrees that, if a sharing station relinquishes its license, then the right to use the relinquished portion of the shared spectrum should return to the remaining sharing partner(s). Similarly, Fox, Ion Media, Tribute, and Univision agree that “upon expiration or termination of a CSA sharing stations should have the flexibility either to utilize the full capacity of their shared channel or to enter into a channel sharing arrangement with a new partner (or partners).” No parties opposed this request.

    23. We grant EOBC's request, and modify our rules to allow parties to develop CSA terms that address what happens in the event that a sharing party's license is terminated for any reason, rather than providing that the terminated spectrum usage rights revert to the Commission for reassignment. Our decisions here do not affect the right of a channel sharing party to assign or transfer its license consistent with the IA R&O.

    24. We agree with EOBC that, as business partners, channel sharers should “have the ability to choose partners that satisfy their own criteria.” The Commission will not select a sharing partner. To accommodate this flexibility, we will not permanently designate channels as “shared” in the Table of Allotments, and a channel's shared status will be indicated on the station license. In the event that a sharing partner relinquishes its license, its spectrum usage rights (but not its license) may revert to the remaining sharing partners if the partners so agree. Where only one sharing partner remains, it may apply to change its license to non-shared status using FCC Form 2100 Schedule B (formerly FCC Form 302) or F (formerly FCC Form 302-CA). If a full power station that is sharing with a Class A station relinquishes its license, then the Class A station would continue to operate under the rules governing Class A stations.

    E. Commission Review of CSAs and Licensing of Channel Sharees

    25. In order to provide additional certainty to broadcasters interested in the channel sharing bid option, and in light of our decision to allow post-auction CSAs, we modify and clarify our procedures for submission and review of both pre-auction and post-auction CSAs. At the outset, we emphasize that we will not question parties' business judgment in drafting CSAs.

    26. If a licensee submits an executed CSA before the auction along with its auction application, we will accept for purposes of determining eligibility to participate the applicant's certification that the CSA complies with our channel sharing operating rules. We will not review the CSA itself at the pre-auction stage for compliance with our operating rules. We will review the CSA at the pre-auction stage solely to confirm that the parties qualify for the channel sharing exception to the rule prohibiting certain communication adopted in the IA R&O.

    27. Post-auction, we will review CSAs submitted before or after the auction by successful bidders to determine whether the CSAs meet the requirements the Commission has adopted to ensure compliance with our CSA operating rules and policies. Although in the IA R&O we reserved the right to review the CSA and require modification of any CSAs that do not comply with our CSA operating rules and policies, we clarify that such review will occur after the auction. To allow time for such review, we modify our rules to require that, at least 60 days prior to the date by which it must implement the CSA, the channel sharee file a minor change application for a construction permit specifying the same technical facilities as the sharer station, and include a copy of the CSA with its application. This requirement will be the same regardless of whether the parties execute their CSA before or after the auction. Following grant of the construction permit and initiation of shared operations, both the sharee and sharer must file a license application. We emphasize again that the Commission does not involve itself in private contractual agreements, and we do not intend during our review of the CSA to substitute our judgment for that of the parties with respect to the terms of the agreement. Thus, we will limit our post-auction review to confirming that the CSA contains the required provisions and that any terms beyond those related to sharing of bitstream and related technical facilities comport with our general rules and policies regarding licensee agreements. We also reiterate that any application for a construction permit or modified license filed in accordance with the requirements established here or in the IA R&O will not trigger the filing of competing applications.

    F. Exception to Prohibited Communications for Parties to CSAs

    28. Under the rules adopted in the IA R&O, all parties to a CSA submitted with a reverse auction application may communicate with each other about their bids and bidding strategies. The Commission adopted this exception to the rule generally prohibiting such communications in order to encourage channel sharing relationships, allowing potential channel sharers to fully engage as various options are presented during the auction process. In light of the risk of agreements to reduce competition in response to auction conditions, however, the exception is limited to CSAs executed prior to the reverse auction application filing deadline and submitted with the reverse auction application. We note that a CSA may have more than two parties (if, for instance, three stations propose to share the same channel), and all parties to a pre-auction CSA may communicate during the auction. Commenters have proposed that we also allow stations to enter into multiple contingent CSAs. We will address this issue in a forthcoming decision.

    IV. Procedural Matters A. Supplemental Final Regulatory Flexibility Act Analysis

    29. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rule Making (“Notice”). The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. The Commission subsequently incorporated a Final Regulatory Flexibility Analysis (“FRFA”) in the Report and Order. This Supplemental FRFA conforms to the RFA and incorporates by reference the FRFA in the IA R&O. It reflects changes to the Commission's rules arising from the First Order on Reconsideration prepared in response to the Petition for Reconsideration filed by the Expanding Opportunities for Broadcasters Coalition (“EOBC”).

    30. This First Order on Reconsideration affirms the Commission's commitment to making the channel sharing reverse auction bid option attractive to television broadcasters. In the Channel Sharing R&O, the Commission established rules authorizing channel sharing in connection with the incentive auction. The Commission addressed a variety of further issues related to channel sharing in the IA R&O in order to complete the framework for incentive auction-related channel sharing. In this First Order on Reconsideration, the Commission generally grants the EOBC Petition, finding that modifying its original determination will increase broadcasters' flexibility to use the channel sharing bid option, will make the option more attractive and will provide an improved ability of the Commission to monitor compliance of CSAs with our rules.

    31. Specifically, in the First Order on Reconsideration, the Commission grants in part the EOBC petition for reconsideration by: Clarifying that the reversionary interest rule does not apply to CSAs; allowing parties the flexibility to enter into term-limited CSAs and to execute a CSAs post-auction; and modifying the rules to allow the spectrum usage rights of a sharing party whose license is terminated to revert to the remaining sharing parties rather than having the rights revert to the Commission for reassignment. The Order also clarifies that at the pre- auction stage Commission staff will only review CSAs to determine whether the bidder qualifies for the anti-collusion rule exception. To allow review for compliance with Commission rules, the Order requires that a channel sharee file a construction permit application, including a copy of the CSA, after the auction. Most notably, the flexibility granted herein will make it easier for entities such as small businesses and non-commercial education stations to avail themselves of the opportunity to channel share as part of the incentive auction.

    32. No commenters directly responded to the IRFA in the Notice. Because a number of commenters raised concerns about the impact on small businesses of various auction design issues, the FRFA in the IA R&O addressed those concerns. The EOBC Petition addressed herein, and associated pleadings, did not raise any concerns with the FRFA.

    33. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the rules adopted in this proceeding.

    34. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the adopted rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” small organization,” and “small government jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    35. As noted, we incorporated a FRFA into the IA R&O. In that analysis, the Commission described in detail the various small business entities that may be affected by the final rules, including television broadcast entities. This First Order on Reconsideration amends the final rules adopted in the IA R&O affecting television broadcasting. This Supplemental FRFA incorporates by reference the description and estimate of the number of television broadcasting small entities from the IRFA in the Notice of Proposed Rulemaking accompanying this First Order on Reconsideration.

    36. In section D of the FRFA incorporated into the IA R&O, the Commission described in detail the projected recording, recordkeeping, reporting and other compliance requirements for small entities arising from the rules adopted in the IA R&O. This Supplemental FRFA incorporates by reference the requirements described in section D of the FRFA. In this First Order on Reconsideration, however, the Commission adds and modifies rules adopted in the IA R&O. It adds the requirement that in order to take advantage of the flexibility adopted in this First Order on Reconsideration to enter into a channel sharing agreement post-auction, a license relinquishment bidder must indicate its intent to enter a post auction channel sharing agreement on its pre-auction application. The First Order on Reconsideration also requires channel sharee stations to file an application for construction permit, including a copy of the executed channel sharing agreement. Commercial stations must pay the fee associated with this filing. (Non-commercial entities are fee exempt.) In addition, it require CSAs to include a provision regarding the reversion of spectrum usage rights to remaining channel sharing partners in the event that one party has its license terminated. Finally, to take advantage of the new rule allowing the last remaining licensee to a channel sharing agreement to have its license revert to non-shared status, that last remaining licensee must file a license application requesting this reversion.

    37. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

    38. The reporting, recordkeeping, and other compliance requirements resulting from the First Order on Reconsideration will apply to all entities in the same manner. The Commission believes that applying the same rules equally to all entities in this context promotes fairness. The Commission does not believe that the costs and/or administrative burdens associated with the rules, including the payment of a construction permit filing fee by commercial broadcasters who are reverse auction winners and who will channel share, will unduly burden small entities. (Non-commercial broadcasters are exempt from such filing fees.) The construction permit itself will contain the same information included in the construction permit and license information of the channel sharer station and therefore can be copied without additional engineering work. The submission of the executed channel sharing agreement does not add cost as the rules already require execution of a channel sharing agreement between sharing parties.

    39. While these new rules require additional filings for those reverse auction winning bidders that channel share, they give bidders, including broadcast television entities meeting the definition of small businesses, the increased flexibility to enter into post auction CSAs, to limit the term of their CSAs rather than make them permanent, and to request reversion of spectrum usage rights in the event of the termination of the license of a broadcaster with whom they share spectrum. Lastly, the requirement that a channel sharee file a construction permit including a copy of the channel sharing agreement will streamline the pre-auction application process.

    Federal Rules That Might Duplicate, Overlap, or Conflict With the Rules

    40. None.

    Report to Congress

    41. The Commission will send a copy of this First Order on Reconsideration in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    Report to Small Business Administration

    42. The Commission will send a copy of this First Order on Reconsideration, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

    B. Final Paperwork Reduction Act Analysis

    43. This document contains new or modified 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 will be invited to comment on the new or modified information collection requirements contained in this proceeding in a separate published Federal Register notice. In addition, 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.

    44. We have assessed the effects of the policies adopted in this First Order on Reconsideration with regard to information collection burdens on small business concerns, and find that these policies will benefit many companies with fewer than 25 employees by providing them with options for voluntarily relinquishing broadcast spectrum usage rights and by streamlining the pre-auction application process. In addition, we have described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the Supplemental FRFA in Appendix B.

    V. Ordering Clauses

    45. Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 1, 4, 301, 303, 307, 308, 309, 310, 316, 319, and 405 of the Communications Act of 1934, as amended, and sections 6402 and 6403 of Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156, 47 U.S.C. 151, 154, 301, 303, 307, 308, 309, 310, 316, 319, 405, 1404, and 1452, this FIRST ORDER ON RECONSIDERATION is ADOPTED and parts 1 and 73 of Commission's rules are AMENDED as set forth in the Appendix A of the First Order on Reconsideration.

    46. IT IS FURTHER ORDERED that the rules adopted herein will become effective December 2, 2015, except for sections 1.2204(c)(4) and 73.3700(b)(1), which contain new or modified information collection requirements that require approval by the OMB under the PRA and WILL BECOME EFFECTIVE after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date.

    47. IT IS FURTHER ORDERED that, that pursuant to sections 4(i), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by the Expanding Opportunities for Broadcasters Coalition IS HEREBY GRANTED IN PART AND IS OTHERWISE DISMISSED AS MOOT.

    48. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this First Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    49. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this First Order on Reconsideration in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    List of Subjects 47 CFR Part 1

    Administrative practice and procedure, Television.

    47 CFR Part 73

    Television, Reporting and recordkeeping requirements.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends Parts 1 and 73 of Title 47 of the Code of Federal Regulations as follows:

    PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 continues to read as follows: Authority:

    15 U.S.C. 79, et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455.

    2. Section 1.2200 is amended by revising paragraph (d) to read as follows:
    § 1.2200 Definitions.

    (d) Channel sharing bid. The term channel sharing bid means a bid to relinquish all spectrum usage rights with respect to a particular television channel in order to share a television channel with another broadcast television licensee by an applicant that submits an executed channel sharing agreement with its application.

    3. Section 1.2204 is amended by redesignating paragraphs (c)(4)(i) through (iii) as (c)(4)(ii) through (iv), and adding new paragraph (c)(4)(i) to read as follows:
    § 1.2204 Applications to participate in competitive bidding.

    (c) * * *

    (4) * * *

    (i) Whether it intends to enter into a channel sharing agreement if it becomes a winning bidder;

    PART 73—RADIO BROADCAST SERVICES 4. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 334, 336, and 339.

    5. Section 73.3700 is amended by revising paragraph (a)(3); revising paragraph (b)(1)(i); adding paragraph (b)(1)(vii); revising paragraphs (b)(2)(i) introductory text, (b)(2)(ii), and (b)(3); and revising paragraphs (h)(2) through (5) to read as follows:
    § 73.3700 Post-incentive auction licensing and operation.

    (a) * * *

    (3) Channel sharee station. For purposes of this section, channel sharee station means a broadcast television station for which a winning channel sharing bid, as defined in § 1.2200(d) of this chapter, was submitted, or a broadcast television station for which a winning license relinquishment bid, as defined in § 1.2200(g) of this chapter, was submitted where the station licensee executes and implements a post-auction channel sharing agreement.

    (b) * * *

    (1) * * *

    (i) Licensees of reassigned stations, UHF-to-VHF stations, and High-VHF-to-Low-VHF stations must file a minor change application for a construction permit for the channel specified in the Channel Reassignment Public Notice using FCC Form 2100 Schedule A (for a full power station) or E (for a Class A station) within three months of the release date of the Channel Reassignment Public Notice. Licensees that are unable to meet this filing deadline may request a waiver of the deadline no later than 30 days prior to the deadline.

    (vii) Channel sharee stations must file a minor change application for a construction permit for the channel on which the channel sharer operates at least sixty (60) days prior to the date by which it must terminate operations on its pre-auction channel pursuant to paragraphs (b)(4)(i) and (ii) of this section. The application must include a copy of the executed channel sharing agreement.

    (2) * * *

    (i) Alternate channels. The licensee of a reassigned station, a UHF-to-VHF station, or a High-VHF-to-Low-VHF station, or a broadcast television station described in paragraph (b)(1)(iv)(B) of this section will be permitted to file a major change application for a construction permit for an alternate channel on FCC Form 2100 Schedules A (for a full power station) and E (for a Class A station) during a filing window to be announced by the Media Bureau by public notice, provided that:

    (ii) Expanded facilities. The licensee of a reassigned station, a UHF-to-VHF station, or a High-VHF-to-Low-VHF station, or a broadcast television station described in paragraph (b)(1)(iv)(B) of this section will be permitted to file a minor change application for a construction permit on FCC Form 2100 Schedules A (for a full power station) and E (for a Class A station) during a filing window to be announced by the Media Bureau by public notice, in order to request a change in the technical parameters specified in the Channel Reassignment Public Notice (or, in the case of a broadcast television station described in paragraph (b)(1)(iv)(B) of this section that is not reassigned to a new channel, a change in its authorized technical parameters) with respect to height above average terrain (HAAT), effective radiated power (ERP), or transmitter location that would be considered a minor change under § 73.3572(a)(1) and (2) or § 74.787(b) of this chapter.

    (3) License applications for channel sharing stations. The licensee of each channel sharee station and channel sharer station must file an application for a license for the shared channel using FCC Form 2100 Schedule B (for a full power station) or F (for a Class A station) within three months of the date that the channel sharee station licensee receives its incentive payment pursuant to section 6403(a)(1) of the Spectrum Act.

    (h) * * *

    (2) Upon termination of the license of a party to a CSA, the spectrum usage rights covered by that license may revert to the remaining parties to the CSA. Such reversion shall be governed by the terms of the CSA in accordance with paragraph (h)(5)(i)(E) of this section. If upon termination of the license of a party to a CSA only one party to the CSA remains, the remaining licensee may file an application to change its license to non-shared status using FCC Form 2100, Schedule B (for a full power licensee) or F (for a Class A licensee).

    (3) Channel sharing between full power television and Class A television stations. (i) A CSA may be executed between licensees of full power television stations, between licensees of Class A television stations, and between licensees of full power and Class A television stations.

    (ii) A Class A channel sharee station licensee that is a party to a CSA with a full power channel sharer station licensee must comply with the rules of part 73 governing power levels and interference, and must comply in all other respects with the rules and policies applicable to Class A television stations, as set forth in §§ 73.6000 et seq.

    (iii) A full power channel sharee station licensee that is a party to a CSA with a Class A channel sharer station licensee must comply with the rules of part 74 of this chapter governing power levels and interference.

    (iv) A Class A channel sharee station may qualify only for the cable carriage rights afforded to “qualified low power television stations” in § 76.56(b)(3) of this chapter.

    (4) Channel sharing between commercial and noncommercial educational television stations. (i) A CSA may be executed between commercial and NCE broadcast television station licensees.

    (ii) The licensee of an NCE station operating on a reserved channel under § 73.621 that becomes a party to a CSA, either as a channel sharee station or as a channel sharer station, will retain its NCE status and must continue to comply with § 73.621.

    (iii) If the licensee of an NCE station operating on a reserved channel under § 73.621 becomes a party to a CSA, either as a channel sharee station or as a channel sharer station, the portion of the shared television channel on which the NCE station operates shall be reserved for NCE-only use.

    (iv) The licensee of an NCE station operating on a reserved channel under § 73.621 that becomes a party to a CSA may assign or transfer its shared license only to an entity qualified under § 73.621 as an NCE television licensee.

    (5) Required CSA provisions. (i) CSAs must contain provisions outlining each licensee's rights and responsibilities regarding:

    (A) Access to facilities, including whether each licensee will have unrestrained access to the shared transmission facilities;

    (B) Allocation of bandwidth within the shared channel;

    (C) Operation, maintenance, repair, and modification of facilities, including a list of all relevant equipment, a description of each party's financial obligations, and any relevant notice provisions;

    (D) Transfer/assignment of a shared license, including the ability of a new licensee to assume the existing CSA; and

    (E) Termination of the license of a party to the CSA, including reversion of spectrum usage rights to the remaining parties to the CSA.

    (ii) CSAs must include provisions:

    (A) Affirming compliance with the requirements in paragraph (h)(5) of this section and all relevant Commission rules and policies; and

    (B) Requiring that each channel sharing licensee shall retain spectrum usage rights adequate to ensure a sufficient amount of the shared channel capacity to allow it to provide at least one Standard Definition (SD) program stream at all times.

    [FR Doc. 2015-27738 Filed 10-30-15; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [GN Docket No. 12-268 and MB Docket No. 15-137; FCC 15-139] Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this Second Order on Reconsideration, the Federal Communications Commission (Commission) provides more flexibility to broadcasters interested in the channel sharing option in the broadcast incentive auction by clarifying that back-up channel sharing agreements (“CSAs”) are permitted under its rules and providing more time for successful bidders to transition to shared facilities after the auction. The Commission also provides guidance regarding how the CSA exception to the prohibited communications rule applies with respect to back-up CSAs.

    DATES:

    Effective December 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Shaun Maher, [email protected] of the Media Bureau, Video Division, (202) 418-2324.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Second Order on Reconsideration, FCC 15-139, adopted October 21, 2015, in MB Docket No. 15-137. The full text of the Second Order on Reconsideration is available for inspection and copying during regular business hours in the FCC Reference Center, 445 12th Street SW., Room CY-A257, Portals II, Washington, DC 20554. This document is available in alternative formats (computer diskette, large print, audio record, and Braille). Persons with disabilities who need documents in these formats may contact the FCC by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    Paperwork Reduction Act of 1995 Analysis: This Second Order on Reconsideration does not contain any additional new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13, beyond those that were already in the Commission's Incentive Auction Report and Order, 79 FR 48442-01 (Aug. 15, 2014) (“Incentive Auction R&O”). In addition, therefore, it does not contain any additional new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, beyond those that were already in the Incentive Auction R&O.

    The Commission is seeking separate OMB approval for FCC Form 2100, Schedule B (for a full power station) and F (for a Class A station) and FCC Form 177.

    Synopsis

    1. The Commission adopted rules for the broadcast incentive auction in the Incentive Auction R&O including rules for parties interested in entering into CSAs. The Commission recently modified those channel sharing rules to provide greater flexibility to stations considering that option. In this Second Order on Reconsideration, the Commission announces that the availability of back-up channel sharing arrangements would provide additional flexibility for stations considering channel sharing. In particular, it would enable both parties to a CSA to participate in the auction while mitigating the risk that the auction system could freeze both stations in the same round and thus deprive both stations of a post-auction host or “sharer” station. For some, the risk of being left without any spectrum on which to share may be too great and foreclose that kind of participation. The Commission concludes that a back-up CSA could mitigate that risk and encourage greater participation.

    2. The Commission clarifies that, if both parties to a CSA participate in the auction, the rules allow either or both parties to also enter into a back-up CSA with one other station in the same DMA to act as the back-up host or sharer station. By allowing the parties to secure a fallback arrangement in the event that both parties relinquish their spectrum usage rights in the auction, this clarification will help promote wider participation in the auction by broadcasters that require assurance that they will remain on the air in the DMA. The Commission reminds parties that all of their auction-related activity and communications, including with respect to back-up CSAs, must adhere to the antitrust laws as well as the rules.

    3. In the Second Order on Reconsideration, the Commission rejects the Broadcaster Representatives' request to allow “contingent multi-party CSAs across multiple markets.” The Commission concludes that multi-market back-up CSAs are not necessary to address the uncertainty created if multiple parties to a particular CSA participate in the auction. Such a result would undermine the general goal of the rules prohibiting certain communications, which are intended to reinforce existing antitrust laws, facilitate the detection of collusive conduct, and assure incentive auction participants that the auction process will be fair and objective. The Commission restated that it crafted the CSA exception to apply on an agreement-by-agreement basis in order to encourage channel sharing relationships without undermining these objectives.

    4. The Commission also clarifies that, consistent with the foregoing, the CSA exception to the reverse auction rule prohibiting certain communications applies only to communications between parties to a single CSA at any given time. Further, the CSA exception only applies to a CSA, including back-up CSAs, if the CSA was entered into and filed with the Commission by the application deadline. If both stations pursuant to the primary CSA have a bidding status of “frozen—provisional winner,” i.e., the auction system determines that the station can never be assigned a feasible channel in its pre-auction band in the current stage, then parties to a back-up CSA may communicate regarding bids and bidding strategy and must cease communication of this type with the party to the original CSA. Prior to that point, the rationale for the CSA exception—that parties to a CSA should be able to “fully engage as various options are presented during the auction process”—is inapplicable with respect to the back-up CSA. Once the relinquishment bid of the prospective host of the CSA is provisionally accepted by the auction system in a given stage of the auction, the CSA exception may be utilized for otherwise prohibited communications involving the parties to the back-up agreement, and can no longer be utilized for parties to the primary agreement in that stage.

    5. The Commission notes that under the reverse auction bidding procedures, the bidding status of a “frozen—provisional winner” may change to “bidding in the current round” if the auction enters a subsequent stage. Accordingly, if the host in the primary CSA, which was no longer operative because its bidding status became “frozen—provisional winner” in the previous stage, is designated as “bidding in the current round” in a subsequent stage of the auction, and that CSA expressly provides that it becomes the operative sharing agreement under such circumstances, the host may notify the sharee in the primary CSA of that change in status and the CSA exception will again apply to communications between the parties to the primary agreement rather than with the back-up host.

    6. The Commission also finds that the attractiveness of the channel sharing option would be enhanced if sharees were given additional time to plan and execute their transition to the host's facilities. Currently, the rules require that all winning go off-air bidders in the reverse auction, including winning channel sharees, must terminate operations on their pre-auction channels within three months of when they receive auction proceeds. While three months for termination of operations is sufficient for go off-air winners who intend to relinquish their licenses and cease broadcasting altogether, the Commission recognizes that winning bidders that plan to share a channel will remain in operation and may therefore need more time to implement the move to the sharer's facility. For instance, a channel sharee may need time to deal with technical issues associated with transitioning to its shared location. If it is changing its community of license, it may also need to negotiate modifications to carriage agreements or finalize new must-carry arrangements with multichannel video programming distributors.

    7. For these reasons, the Commission modifies section 73.3700(b)(4)(ii) of the rules to extend the amount of time a sharee in a pre- or post-auction CSA will have to relinquish its pre-auction channel to six months after receipt of its reverse auction proceeds. As the Commission decided in the Incentive Auction R&O, winning channel sharing bidders may request a waiver of up to an additional three months to cease operations on their pre-auction channel, pursuant to section 1.3 of the rules, and the Commission will view these requests most favorably. Further, winning channel sharing bidders may request an additional three-months, and the Commission will view the additional requests favorably as well so long as it determines that grant of the extension will not delay the post-auction transition. The Commission finds that this extension of the transition period to six months, and the availability of waivers of up to an additional six months, is unlikely to adversely affect the Commission's post-auction transition timeline.

    Initial Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the U.S. Small Business Administration (SBA).

    In 2012, Congress mandated that the Commission conduct an incentive auction of broadcast television spectrum as set forth in the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”). The incentive auction will have three major pieces: (1) A “reverse auction” in which full power and Class A broadcast television licensees submit bids to voluntarily relinquish certain broadcast rights in exchange for payments; (2) a reorganization or “repacking” of the broadcast television bands in order to free up a portion of the ultra-high frequency (“UHF”) band for other uses; and (3) a “forward auction” of licenses for flexible use of the newly available spectrum. In the Incentive Auction R&O, the Commission adopted rules to implement the broadcast television spectrum incentive auction. Among other things, the Commission adopted rules for broadcast stations that choose to channel share. Pursuant to the RFA, a Final Regulatory Flexibility Analysis (“FRFA”) was incorporated into the Incentive Auction R&O.

    This Second Order on Reconsideration reflects clarifications and modifications to the Commission's rules arising in response to comments filed by Fox, ION, Tribune, and Univision (the “Broadcaster Representatives”). The Commission generally responds favorably to the Broadcaster Representatives' requests, finding that providing these clarifications will increase broadcasters' flexibility to use the channel sharing bid option and will make the option more attractive. Specifically, this Second Order on Reconsideration clarifies the Commission's rules to permit broadcasters to enter into back-up channel sharing agreements (“CSAs”) with an additional partner to mitigate the risk that stations that intend to channel share could be left without spectrum after the auction, if both partners receive a status of “frozen-provisionally winning” in the same round of the reverse auction. The Commission also clarified that the CSA exception to the general prohibition on communications regarding bids and bidding strategy will apply to that back-up CSA, so long as the back-up CSA was filed before the application deadline, is the requirement for all CSAs. This Second Order on Reconsideration also permits back-up agreements based on price or other contingencies, but declines to extend the CSA exception to them as introducing unacceptable risk of becoming a vehicle for collusion. Finally, this Second Order on Reconsideration extends the transition period for channel sharing winning bidders from three months to six months, and extends the possibility for additional waivers from three months to six months, barring any delay this would cause other transitioning broadcasters.

    Neither of these changes adopted in this Second Order on Reconsideration will impose additional costs. The changes provide greater flexibility for both stations that wish to pursue channel sharing agreements pre-auction and those that become channel sharing stations post-auction. Therefore, the Commission certifies that the changes adopted in this Second Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.

    The Commission will send a copy of the Second Order on Reconsideration, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Second Order on Reconsideration and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register.

    Federal Rules Which Duplicate, Overlap, or Conflict With the Commission's Proposals

    None.

    List of Subjects in 47 CFR Part 73

    Television and reporting and recordkeeping requirements.

    Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

    PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 334, 336 and 339.

    2. Section 73.3700 is amended by revising paragraphs (b)(3) and (b)(4)(ii) to read as follows:
    § 73.3700 Post-incentive auction licensing and operation.

    (b) * * *

    (3) License applications for channel sharing stations. The licensee of each channel sharee station and channel sharer station must file an application for a license for the shared channel using FCC Form 2100 Schedule B (for a full power station) or F (for a Class A station) within six months of the date that the channel sharee station licensee receives its incentive payment pursuant to section 6403(a)(1) of the Spectrum Act.

    (4) * * *

    (ii) The licensee of a channel sharee station and a licensee of a license relinquishment station that has indicated in its Form 177 an intent to enter into a post-auction channel sharing agreement must comply with the notification and cancellation procedures in § 73.1750 and terminate operations on its pre-auction channel within six months of the date that the licensee receives its incentive payment pursuant to section 6403(a)(1) of the Spectrum Act.

    [FR Doc. 2015-27632 Filed 10-30-15; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 140918791-4999-02] RIN 0648-XE293 Fisheries of the Exclusive Economic Zone Off Alaska; Inseason Adjustment to the 2015 Gulf of Alaska Pollock Seasonal Apportionments AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; inseason adjustment

    SUMMARY:

    NMFS is adjusting the 2015 seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. This action is necessary to provide opportunity for harvest of the 2015 pollock TAC, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), October 28, 2015, until 2400 hours A.l.t., December 31, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The annual pollock TACs in Statistical Areas 610, 620, and 630 of the GOA are apportioned among four seasons, in accordance with § 679.23(d)(2). Regulations at § 679.20(a)(5)(iv)(B) allow the underharvest of a seasonal apportionment to be added to subsequent seasonal apportionments, provided that any revised seasonal apportionment does not exceed 20 percent of the seasonal apportionment for a given statistical area. Therefore, NMFS is increasing the D season apportionment of pollock in Statistical Areas 610, 620, and 630 of the GOA to reflect the underharvest of pollock in those areas during the C season. In addition, any underharvest remaining beyond 20 percent of the originally specified seasonal apportionment in a particular area may be further apportioned to other statistical areas. Therefore, NMFS also is increasing the D season apportionment of pollock to Statistical Areas 610 and 630 based on the underharvest of pollock in Statistical Areas 620 of the GOA. These adjustments are described below.

    The D seasonal apportionment of the 2015 pollock TAC in Statistical Area 610 of the GOA is 12,185 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby increases the D season apportionment for Statistical Area 610 by 2,437 mt to account for the underharvest of the TAC in Statistical Areas 610 and 620 in the C season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 610. Therefore, the revised D seasonal apportionment of the pollock TAC in Statistical Area 610 is 14,622 mt (12,185 mt plus 2,437 mt).

    The D seasonal apportionment of the pollock TAC in Statistical Area 620 of the GOA is 14,628 mt as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the D seasonal apportionment for Statistical Area 620 by 2,926 mt to account for the underharvest of the TAC in Statistical Areas 620 in the C season. This increase is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 620. Therefore, the revised D seasonal apportionment of the pollock TAC in Statistical Area 620 is 17,554 mt (14,628 mt plus 2,926 mt).

    The D seasonal apportionment of pollock TAC in Statistical Area 630 of the GOA is 18,639 mt as established by the final 2015 and 2016 harvest specifications for groundfish of the GOA (80 FR 10250, February 25, 2015). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the D seasonal apportionment for Statistical Area 630 by 3,728 mt to account for the underharvest of the TAC in Statistical Areas 620 and 630 in the C season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the D seasonal apportionment of the TAC in Statistical Area 630. Therefore, the revised D seasonal apportionment of pollock TAC in Statistical Area 630 is 22,367 mt (18,639 mt plus 3,728mt).

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would provide opportunity to harvest increased pollock seasonal apportionments. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 27, 2015.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 28, 2015 Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27864 Filed 10-28-15; 4:15 pm] BILLING CODE 3510-22-P
    80 211 Monday, November 2, 2015 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-4808; Directorate Identifier 2014-NM-134-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. This proposed AD was prompted by reports that cracks were found on an adjacent hole of certain frames of the center wing box (CWB). This proposed AD would require removing fasteners, a rototest inspection of fastener holes, installing new fasteners; and if necessary, oversizing the holes and doing rototest inspections for cracks, and repairing any cracking that is found. We are proposing this AD to detect and correct cracking on certain holes of certain frames of the CWB, which could affect the structural integrity of the airplane.

    DATES:

    We must receive comments on this proposed AD by December 17, 2015.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4808; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-4808; Directorate Identifier 2014-NM-134-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed 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 proposed AD.

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0149, dated June 13, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. The MCAI states:

    During accomplishment of A330 Airworthiness Limitation Item (ALI) task 57-11-04 on the rear fitting of the Frame (FR) 40 between stringers 38 and 39 on both [left-hand] LH/[right-hand] RH sides, cracks were found on an adjacent hole. After reaming at second oversize of the subject hole, the crack was still present.

    Other crack findings on this adjacent hole have been reported on A330 and A340-200/-300 aeroplanes as a result of sampling inspections.

    This condition, if not detected and corrected, could affect the structural integrity of the aeroplane.

    For the reasons described above, this [EASA] AD requires removal of the fasteners and repetitive rototest inspections of fastener holes at FR40 vertical web located above Center Wing Box (CWB) lower panel reference and/or below CWB lower panel reference on both sides and, depending on findings, accomplishment of the applicable corrective actions.

    Note: These holes affected by this [EASA] AD are different from the ones affected by EASA AD 2009-0001 [http://ad.easa.europa.eu/blob/easa_ad_2009_0001.pdf/AD_2009-0001_1].

    Required actions also include oversizing certain holes, installing new fasteners, and repairing any cracking that is found. The initial compliance times range from 13,500 to 30,900 flight cycles, or 57,000 to 162,000 flight hours, depending on operation and utilization. The repetitive compliance times are 7,400 flight cycles/24,300 flight hours or 5,950 flight cycles/40,400 flight hours from ALI embodiment. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4808.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information. The service information describes procedures for removing the fasteners and doing a repetitive rototest inspection of fastener holes at frame (FR) 40 vertical web on both sides, installing new fasteners in transition fit, and oversizing the holes.

    • Airbus Service Bulletin A330-57-3114, dated March 12, 2013.

    • Airbus Service Bulletin A330-57-3115, dated April 4, 2013.

    • Airbus Service Bulletin A330-57-3116, dated March 12, 2013.

    • Airbus Service Bulletin A340-57-4123, dated March 12, 2013.

    • Airbus Service Bulletin A340-57-4124, Revision 01, dated August 22, 2013.

    • Airbus Service Bulletin A340-57-4125, dated March 12, 2013.

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

    FAA's Determination and Requirements of This Proposed AD

    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 proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

    Costs of Compliance

    We estimate that this proposed AD affects 35 airplanes of U.S. registry.

    We also estimate that it would take about 78 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $232,050, or $6,630 per product, per inspection cycle.

    In addition, we estimate that any necessary follow-on actions would take up to 98 work-hours and require parts costing $136,400, for a cost of up to $144,730 per product. We have no way of determining the number of aircraft that might need this action.

    Authority for This Rulemaking

    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.

    Regulatory Findings

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

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

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

    2. 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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus: Docket No. FAA-2015-4808; Directorate Identifier 2014-NM-134-AD. (a) Comments Due Date

    We must receive comments by December 17, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category, all manufacturer serial numbers, except those on which Airbus Modification (Mod) 55792 or Mod 55306 has been embodied in production, and except those on which Airbus Repair Instruction R57115092 has been embodied in service on both right-hand (RH) and left-hand (LH) sides.

    (1) Airbus Model A330-201, -202, -203, -223, -223F, -243 -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.

    (2) Airbus Model A340-211, -212, -213, -311, -312, and -313 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by reports that cracks were found on an adjacent hole of certain frames of the center wing box (CWB). We are issuing this AD to detect and correct cracking on certain holes of the CWB, which could affect the structural integrity of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Inspection

    Do a rototest inspection of the fastener holes at the frame (FR) 40 vertical web, on both sides, as specified in table 1 to paragraph (g) of this AD, except as required by paragraph (k) of this AD.

    Table 1 to paragraph (g) of this AD—Compliance Location, Method, and Time For model In configuration Inspect In accordance with the accomplishment instructions of At the later of— The applicable time specified in paragraph 1.E., “Compliance,” of And the earlier of A330-300 series airplanes Pre-mod 44360 Below the CWB lower panel reference Airbus Service Bulletin A330-57-3114, dated March 12, 2013 Airbus Service Bulletin A330-57-3114, dated March 12, 2013 Within 2,400 flight cycles or 24 months after the effective date of this AD. A330-200 and -300 series airplanes Post-mod 44360 and pre-mod 49202 Below the CWB lower panel reference Airbus Service Bulletin A330-57-3116, dated March 12, 2013 Airbus Service Bulletin A330-57-3116, dated March 12, 2013 Within 2,400 flight cycles or 24 months after the effective date of this AD. A330-200 and -300 series airplanes Pre-mod 55306 and pre-mod 55792 Above the CWB lower panel reference Airbus Service Bulletin A330-57-3115, dated April 4, 2013 Airbus Service Bulletin A330-57-3115, dated April 4, 2013 Within 2,400 flight cycles or 24 months after the effective date of this AD. A340-200 and -300 series airplanes Pre-mod 44360 Below the CWB lower panel reference Airbus Service Bulletin A340-57-4123, dated March 12, 2013 Airbus Service Bulletin A340-57-4123, dated March 12, 2013 Within 1,300 flight cycles or 24 months after the effective date of this AD. A340-200 and -300 series airplanes Pre-mod 55306 and pre-mod 55792 Above the CWB lower panel reference Airbus Service Bulletin A340-57-4124, Revision 01, dated August 22, 2013 Airbus Service Bulletin A340-57-4124, Revision 01, dated August 22, 2013 Within 1,300 flight cycles or 24 months after the effective date of this AD. A340-200 and -300 series airplanes Post-mod 44360 and pre-mod 4902 Below the CWB lower panel reference Airbus Service Bulletin A340-57-4125, dated March 12, 2013 Airbus Service Bulletin A340-57-4125, dated March 12, 2013 Within 1,300 flight cycles or 24 months after the effective date of this AD. (h) Follow-On Actions: No Cracking

    If no crack is found during any inspection required by paragraph (g) of this AD, do the actions specified in paragraphs (h)(1) and (h)(2) of this AD.

    (1) Before further flight, install new fasteners in the transition fit, in accordance with the Accomplishment Instructions of the service information identified in table 1 to paragraph (g) of this AD; as applicable.

    (2) Repeat the inspection required by paragraph (g) of this AD thereafter at the applicable time identified in paragraph 1.E., “COMPLIANCE,” of the service information identified in table 1 to paragraph (g) of this AD; as applicable.

    (i) Follow-On Actions for Crack Findings

    If any crack is found during any inspection required by paragraph (g) of this AD: Before further flight, oversize the holes to the first oversize in comparison with the current hole diameter, and do a rototest inspection for cracks, in accordance with the Accomplishment Instructions of the service information identified in table 1 to paragraph (g) of this AD; as applicable.

    (1) If no cracking is found during the rototest inspection required by paragraph (i) of this AD, do the actions specified in paragraphs (i)(1)(i) and (i)(1)(ii) of this AD.

    (i) Before further flight: Install new fasteners in the transition fit, in accordance with the Accomplishment Instructions of the service information identified in table 1 to paragraph (g) of this AD; as applicable.

    (ii) Repeat the inspection required by paragraph (g) of this AD thereafter at the applicable time identified in paragraph 1.E., “COMPLIANCE,” of the service information identified in table 1 to paragraph (g) of this AD; as applicable.

    (2) If cracking is found during the rototest inspection required by paragraph (i) of this AD, before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (j) Terminating Action Specifications

    Accomplishment of the initial and repetitive inspections required by this AD terminates accomplishment of Airworthiness Limitation Items Tasks 57-11-04 and 57-11-02 of the Airworthiness Limitation Section (ALS) Part 2, Damage Tolerant Airworthiness Limitation Items (DT ALI).

    (1) Installation of new fasteners as specified in paragraph (h)(1) of this AD does not terminate the repetitive inspections required by paragraph (g) of this AD.

    (2) Accomplishment of the corrective actions specified in paragraphs (i) and (i)(1) of this AD does not terminate the repetitive inspections required by paragraph (g) of this AD.

    (3) Accomplishment of the repair specified in paragraph (i)(2) of this AD does not terminate repetitive inspections required by paragraph (g) of this AD, unless the approved repair method specified otherwise.

    (k) Exceptions to Service Information

    (1) If the service information identified in table 1 to paragraph (g) of this AD specifies contacting Airbus for appropriate action: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA.

    (2) Where paragraph 1.E., “Compliance,” of the service information specified in table 1 to paragraph (g) of this AD specifies a Compliance Time in terms of a “Threshold” and “Grace Period,” this AD requires compliance at the later of the applicable Threshold and Grace Period.

    (3) Where paragraph 1.E., “Compliance,” of the service information specified in table 1 to paragraph (g) of this AD specifies a Threshold as “before next flight,” this AD requires compliance before the next flight after the applicable finding.

    (l) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (i) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (l)(1), (l)(2), (l)(3), (l)(4), (l)(5), (l)(6), (l)(7), (l)(8), or (l)(9) of this AD. This service information is not incorporated by reference in this AD.

    (1) Airbus Technical Disposition Reference LR57D11023270, Issue B, dated July 12, 2011.

    (2) Airbus Technical Disposition Reference LR57D11029171, Issue B, dated September 6, 2011.

    (3) Airbus Technical Disposition Reference LR57D11029173, Issue B, dated September 6, 2011.

    (4) Airbus Technical Disposition Reference LR57D11030741, Issue B, dated September 22, 2011.

    (5) Airbus Technical Disposition Reference LR57D11029170, Issue C, dated September 6, 2011.

    (6) Airbus Technical Disposition Reference LR57D11023714, Issue B, dated July 12, 2011.

    (7) Airbus Technical Disposition Reference LR57D11029172, Issue B, dated September 6, 2011.

    (8) Airbus Technical Disposition Reference LR57D11030740, Issue C, dated September 22, 2011.

    (9) Airbus Service Bulletin A340-57-4124, dated April 4, 2013.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0149, dated June 13, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4808.

    (2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on October 21, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-27725 Filed 10-30-15; 8:45 am] BILLING CODE 4910-13-P
    FEDERAL TRADE COMMISSION 16 CFR Part 305 RIN 3084-AB15 Energy Labeling AGENCY:

    Federal Trade Commission (“FTC” or “Commission”).

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Commission proposes amendments to the Energy Labeling Rule to create requirements related to a new label database on the Department of Energy's (DOE's) Web site, redesign ceiling fan labels, improve and update the comparability ranges for refrigerator labels, revise central air conditioner labels in response to new DOE enforcement requirements, improve water heater labels, and update current plumbing disclosures.

    DATES:

    Written comments must be received on or before January 11, 2016.

    ADDRESSES:

    Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write “Energy Labeling Amendments (16 CFR part 305) (Project No. R611004)” on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/energylabeling, by following the instructions on the web-based form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex E), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex E), Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Hampton Newsome, Attorney, (202) 326-2889, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.

    SUPPLEMENTARY INFORMATION: I. Background

    The Commission issued the Energy Labeling Rule (“Rule”) in 1979,1 pursuant to the Energy Policy and Conservation Act of 1975 (EPCA).2 The Rule requires energy labeling for major home appliances and other consumer products to help consumers compare competing models. It also contains labeling requirement for refrigerators, refrigerator-freezers, freezers, dishwashers, water heaters, clothes washers, room air conditioners, furnaces, central air conditioners, heat pumps, plumbing products, lighting products, ceiling fans, and televisions.

    1 44 FR 66466 (Nov. 19, 1979) (Rule's initial promulgation).

    2 42 U.S.C. 6294. EPCA also requires DOE to develop test procedures that measure how much energy appliances use, and to determine the representative average cost a consumer pays for different types of energy.

    The Rule requires manufacturers to attach yellow EnergyGuide labels for many of the covered products and prohibits retailers from removing the labels or rendering them illegible. In addition, it directs sellers, including retailers, to post label information on Web sites and in paper catalogs from which consumers can order products. EnergyGuide labels for most covered products contain three key disclosures: estimated annual energy cost; a product's energy consumption or energy efficiency rating as determined from Department of Energy (DOE) test procedures; and a comparability range displaying the highest and lowest energy costs or efficiency ratings for all similar models. For energy cost calculations, the Rule specifies national average costs for applicable energy sources (e.g., electricity, natural gas, oil) as calculated by DOE. Under the Rule, the Commission periodically updates comparability range and annual energy cost information based on manufacturer data submitted pursuant to the Rule's reporting requirements.3

    3 16 CFR 305.10.

    II. Proposed Amendments to the Energy Labeling Rule

    This Notice seeks comment on several proposed changes to the Energy Labeling Rule, including requirements related to a new label database on DOE's Web site, revised ceiling fan labels, new refrigerator comparability range information, portable air conditioner labeling, labeling for dual-mode refrigerators, revised central air conditioner labels in response to proposed changes to DOE's enforcement rules, water heater labels, and plumbing disclosures. The Commission sought comment on a few of these issues during its regulatory review of the Energy Labeling Rule.4 Other issues discussed in this Notice reflect recent developments from DOE rulemakings and the consumer product marketplace.

    4See 77 FR 15298 (Mar. 15, 2012); and 79 FR 34642 (June 18, 2014).

    A. Online Label Database

    Background: In a June 18, 2014 Supplemental Notice of Proposed Rulemaking (SNPRM) (79 FR 34642), the Commission sought comments on the development of a centralized label database to provide retailers and consumers with convenient access to energy labels.5 To populate the database, the FTC proposed requiring manufacturers to submit URL links for labels to the DOE Compliance and Certification Management System (CCMS) database. The current rule already requires manufacturers to post product labels on their own sites.6 The Commission explained that a new label repository at the DOE site would benefit consumers and retailers. Consumers would have access to a single comprehensive database at the DOE Web site containing label images for covered products. Online retailers would have access to digital labels for advertising or label replacement, without having to obtain the labels from individual manufacturers.7

    5 The comments received in response to the 2014 SNPRM are here: https://www.ftc.gov/policy/public-comments/initiative-569. The comments included: Air-Conditioning, Heating, and Refrigeration Institute (#00016); Alliance Laundry Systems LLC (#00010); Amazon (#00005); American Lighting Association (#00009); American Gas Association (#00013); American Public Gas Association (#00012); Association of Home Appliance Manufacturers (#00014); Direct Marketing Association (#00007); Earthjustice (“Joint Commenters”) (#00017); Energy Solutions (#00018); Glickman (#00002); Goodman Global, Inc. (#00008); Laclede Gas (#00011); National Electrical Manufacturers Association (#00006); Nicholas (#00003); Plumbing Manufacturers International (#00004); Republic of Korea (#00019); and Whirlpool Corporation (#00015).

    6 As explained in an earlier Notice, this requirement would not apply to private labelers, but manufacturers would be allowed to arrange with third parties, including private labelers, to display the labels and to submit the required links to CCMS. See 78 FR 2200, 2205 (Jan. 10, 2013).

    7 In January 2013, the Commission amended the Rule to require manufacturers to make copies of their EnergyGuide and Lighting Facts labels available on a publicly accessible Web site. See 78 FR at 2205. In doing so, the Commission aimed to improve the availability of online labels for retailers that sell covered products online.

    The Commission predicted that the proposal would not create undue burdens because the DOE and FTC rules already require manufacturers of most covered products to submit annual reports through CCMS.8 Additionally, manufacturers must display their labels online under the FTC rules. Accordingly, a manufacturer could simply add a link on CCMS to its Web page displaying the label.9

    8 10 CFR 429.12.

    9 Because the proposed CCMS database would link to manufacturers' label Web pages, the Commission did not propose eliminating requirements related to such Web pages. Doing so would likely impose greater technical maintenance and coordination burdens on both DOE and manufacturers.

    Comments: The comments submitted in response to the SNPRM offered different views on the proposed database.10 Several, including the Joint Commenters, the California Utilities, online retailers, and heating and cooling manufacturers supported the concept but offered several implementation suggestions. Other industry members opposed the proposal.

    10 The comments are available at https://www.ftc.gov/policy/public-comments/initiative-569.

    In supporting the proposal, the Joint Commenters explained that a centralized database will likely reduce the time manufacturers spend fielding requests about label information and retailers spend complying with online label requirements. The California Utilities added that the central database will benefit many different market actors, including consumers, distributors, retailers, and organizations running energy efficiency incentive programs. According to the California Utilities, it would also help state agencies and efficiency organizations track compliance with various efficiency performance and labeling requirements. Amazon and the Direct Marketing Association (DMA) further explained that the proposal would increase overall industry efficiency by reducing the time retailers spend identifying and obtaining the correct EnergyGuide labels. This would allow retailers to make new products available to consumers and to complete internal compliance audits of their catalogues faster and at lower cost. Amazon and DMA also expect the database to encourage general compliance with the Rule, decrease instances of mislabeling, minimize retailer burdens, and increase label availability. DMA noted that manufacturers must already publish EnergyGuide labels on publicly accessible Web sites. Amazon agreed, explaining that the proposal would not place an undue burden on manufacturers who already publish EnergyGuide labels on publicly accessible Web sites and have open lines of electronic communication with CCMS.

    The Air-Conditioning, Heating, and Refrigeration Institute (AHRI) and Goodman, from the heating and cooling equipment industry, also supported an online database. AHRI already includes label images on its own online directory for the heating and cooling equipment of its members. However, because its database displays labels in PDF format, it recommended that DOE or the FTC allow PDF files, in addition to URL links. Goodman recommended that the FTC rely on the EnergyGuide labels already generated by the AHRI database rather than requiring manufacturers to submit this information.

    The Association of Home Appliance Manufacturers (AHAM) and the National Electrical Manufacturers Association (NEMA) opposed the proposal, identifying several concerns. First, according to AHAM, because manufacturers often certify new models to DOE before they design and post labels on their Web sites, a new submission requirement could complicate existing reporting. Specifically, AHAM suggested that posting labels to the DOE Web site prior to certification may run afoul of DOE and EPA restrictions on marketing prior to government certification. AHAM further argued that the proposal would yield little benefit because neither consumers nor retailers use CCMS to shop for products and existing FTC requirements already require the labels on manufacturer Web sites. According to AHAM, a URL link would also increase burdens by forcing some manufacturers to redesign their Web pages, which may not currently use separate links to display products. It may also require burdensome coordination with private labelers. Finally, AHAM argued that the frequent need to report information could lead to errors on the DOE Web site that could subject manufacturers to civil penalties. NEMA echoed AHAM's concerns, stating the database requirement would make it difficult for manufacturers to ensure they update the links over time. NEMA asserted that the average consumer will not view the CCMS database for label information but rather will look to a company Web site first. Likewise, manufacturers already maintain their own databases, so the CCMS database is not necessarily useful.

    Discussion: To create a comprehensive label database, the Commission proposes to require manufacturers and private labelers to submit links to their EnergyGuide and Lighting Facts labels through their routine report to the DOE's CCMS pursuant to § 305.8.11

    11 The proposed requirement stems from EPCA's mandate that manufacturers “provide” a label, the Commission's general authority to require manufacturers to submit information, and the Commission's authority to specify the manner in which labels are displayed. 42 U.S.C. 6296(a) and (b); 42 U.S.C. 6294(c)(3).

    As discussed in the 2014 SNPRM and indicated by commenters, such a repository should benefit consumers and retailers by providing access to a single comprehensive database that contains all the covered labels. Retailers can use the data for advertising and to replace missing labels for their display models. Consumers will be able to easily research comparative efficiency. Although consumers and retailers may not currently use CCMS extensively, the presence of label links should significantly increase consumer and retailer use of this resource.

    The proposal is unlikely to create undue burdens on manufacturers. The Rule already requires manufacturers of most covered products to submit annual reports. DOE likewise requires manufacturers to make detailed electronic submissions through CCMS.12 Additionally, manufacturers must display their labels online. The inclusion of URL links in those reports should not add significant burden to those existing requirements because a manufacturer could simply add a link on CCMS to its Web page displaying the label. In other words, the only additional burden upon manufacturers would be to add URL links to existing Web pages and to delete links when removing or replacing the corresponding Web pages. Finally, although AHRI requested that the Web site accommodate pdf file submissions, the Commission expects that AHRI, with adequate notice, can easily generate web links to those pdf files.

    12 10 CFR 429.12.

    In addition, manufacturers will be able to incorporate the link submissions into their current reporting. The proposed rule requires that manufacturers submit the label links prior to distributing the products in commerce, consistent with current labeling requirements. Thus, the proposal is unlikely to require manufacturers to submit such information earlier. Although AHAM and NEMA suggested such an approach may run afoul of DOE and EPA certification requirements, it is not clear how this would occur. Nevertheless, the Commission seeks further comment on this issue. In addition, though some manufacturers may have to make modest changes to their Web sites to create links for their labels, any final rule would give them ample time to do so and thus minimize any burden associated with the change. Finally, it is not clear how the proposal would create submission errors beyond those that already occur with current submission requirements. The possibility of submission errors should be low because manufacturers will include their label links as part of the model certification reports they already submit to CCMS.

    The Commission seeks comments on this proposal. Among other things, comments should address whether manufacturers should provide label links for specialty consumer lamps and LED (light-emitting diode) general service lamps, which are not currently subject to FTC or DOE reporting requirements.

    B. Improved Ceiling Fan Labels

    Background: In the 2014 SNPRM (79 FR 34642, June 18, 2014), the Commission proposed changing the ceiling fan label to include estimated annual energy cost information as the primary disclosure and to otherwise make the label consistent with other EnergyGuide labels. The current label, which appears on product boxes and bears the title “Energy Information,” discloses airflow (cubic feet per minute), energy use (watts), and energy efficiency (cubic feet per minute per watt) at high speed. However, as the Commission previously stated, consumer research suggests energy cost information best serves consumers because it “provides a clear, understandable tool to allow consumers to compare the energy performance of different models.” 13

    13 72 FR 49948, 49959 (Aug. 29, 2007) (appliance labels); see also 75 FR 41696 (July 19, 2010) (light bulb labels); 76 FR 1038 (Jan. 6, 2011) (television labels).

    The proposed label follows the EnergyGuide label format, consistent with other products displayed in showrooms, such as refrigerators and clothes washers. The proposed yellow label features the familiar “EnergyGuide” logo and includes a daily use assumption of six hours, an energy rate of 12 cents per kWh, and operation at high speed.14 As with existing EnergyGuide labels for appliances, the proposed label would also contain the statement “Your cost depends on rates and use.” The Commission sought further comment on the proposed label, including its content, and the necessary compliance time.

    14 78 FR 17648 (Mar. 22, 2013). In limiting the current label's disclosures to high speed operation, the Commission explained that “inclusion of information for other speed settings would clutter the label with few additional benefits” and noted comments indicating high-speed measurements reflect “the true unregulated performance of the fan.” 71 FR 78057, 78059 (Dec. 28, 2006).

    After the 2014 SNPRM, DOE proposed revisions to the ceiling fan test procedure (79 FR 62521 (Oct. 17, 2014)) and new efficiency standards (79 FR 58290 (Sept. 29, 2014)). As part of that proceeding, DOE is considering setting the hours of operation to be used on the label, a representative or average speed, and a revised scope of products covered by the test procedure. Such new DOE requirements would govern much of the label's content.15

    15 DOE issued a supplemental notice for the test procedure on June 3, 2015 (80 FR 31487).

    Comments: The comments generally supported the proposed changes. For example, the Joint Commenters explained that a new design will increase the label's effectiveness by aligning its appearance with the familiar EnergyGuide labels. However, many commenters also urged the Commission to coordinate the timing of any revised labels with ongoing DOE efforts to change the underlying test procedure.

    The American Lighting Association (ALA), an industry group representing many fan manufacturers, did not oppose label changes but offered several suggestions. First, it urged the FTC to coordinate labeling changes with DOE to avoid duplication of time, energy, and compliance costs. Second, to reduce the burden associated with relabeling thousands of models, ALA recommended a 12-month compliance period for new models and a five-year compliance period for current products, instead of the proposed blanket two-year period. ALA reasoned that, because the approximate life cycle of most models is five years or less, an extended compliance period will greatly reduce industry burden.

    Finally, the ALA comments urged the Commission to reconsider the usage assumptions behind the proposed label (i.e., hours per day, operating speed, and utility rates). According to ALA, recent consumer research sponsored by industry members indicates that consumers typically run fans at medium speed (50% of consumers run fans at medium; 20% at high; and 30% at low). Given these results, ALA argued that “high-speed” cost disclosures are “grossly misleading” to consumers and significantly exaggerate actual consumer energy costs, placing an unfair and damaging perception on ceiling fan industry members compared to other heating and cooling-related products. Accordingly, ALA recommended that the label disclose costs at three speeds: low, medium and high. ALA also raised concerns about the proposed yearly cost disclosure given the wide variability in typical daily usage among consumers. Instead, ALA recommended that the label disclose an hourly cost. Alternatively, ALA indicated that a yearly cost based on the proposed six hour per day use would be acceptable. Consistent with ALA's comment, the Joint Commenters pointed to a DOE study estimating a 6.3 hours per day national average daily ceiling fan use.16 Finally, ALA urged the Commission to maintain the current small label size.

    16 Joint Commenters (citing American Lighting Association, The Ceiling Fan Industry Response To The Department of Energy: Energy Conservation Standards Rulemaking Framework Document For Ceiling Fans and Ceiling Fan Light Kits (June 13, 2013) at 14 (Docket No. ERE-2012-BT-STD-0045-0039)).

    Discussion: The Commission plans to update the ceiling fan label as proposed. However, it will not issue final requirements until DOE completes its test procedures.17 To ensure consistency with the DOE testing requirements, the Commission proposes to adopt final DOE use and operating assumptions for the amended label, including representative hours of operation, a representative or average speed, and a revised scope of products covered by the test procedure. Once a final rule is issued, the Commission plans to allow a two-year compliance period. The five-year period suggested by commenters for some models is simply too long because it would create a prolonged period during which inconsistent labels would appear in the marketplace. The Commission seeks comment on these proposals.18

    17 Specifically, as indicated in its proposed notices last fall, DOE may establish the daily use hours for calculating label information, a representative (or average) speed for measuring energy use, and a revised scope of products covered by the test procedure. See, e.g., 79 FR 62521 (Oct 17, 2014).

    18 In its test procedure Notice (79 FR at 62524 (Oct. 17, 2014)), DOE proposed a special testing approach for “multi-mount” fan models under the Rule's coverage. Such models can be installed in two configurations: extended from the ceiling or flush with the ceiling (i.e., a “hugger” configuration). DOE proposed to require testing for these models at two separate configurations. Should DOE adopt such an approach, the Commission proposes that the EnergyGuide label for these models reflect the lowest efficiency (cubic feet per watt) configuration, with the option of providing a second label depicting the performance at the other configuration.

    C. Consolidated Refrigerator Ranges

    Background: The current Rule organizes refrigerator comparability ranges by configuration (e.g., models with top-mounted freezers), designating eight separate categories for refrigerators and three for freezers.19 Five of those categories (or styles) apply to automatic-defrost refrigerator-freezers, which populate the bulk of showroom floors: side-by-side door models with and without through-the-door ice service; top-mounted freezer models with and without through-the-door ice service; and bottom-mounted freezer models.20 The comparability ranges, which disclose the energy costs of the most and least efficient model in each category, allow consumers to easily compare the energy use of similarly configured units.

    19 The Rule further divides each model category into several size classes (e.g., 19.5 to 21.4 cubic feet), each with its own comparability range.

    20See 16 CFR part 305, appendices A and B. The Rule also has other range categories for less common models, including those with manual and partial defrost, and refrigerator-only models. In addition, the freezer categories include upright models with automatic defrost, upright models with manual defrost, and chest freezers.

    In the 2014 SNPRM (79 FR 34642, June 18, 2014), the Commission proposed consolidating the ranges for various refrigerator model types, based on comments suggesting that a substantial number of consumers consider several different configurations when shopping. The consolidation of ranges would facilitate such comparison shopping, simplify the range categories, and alert consumers to the relative energy efficiency of various refrigerator types. 79 FR at 34651, June 18, 2014. To effectuate this goal, the Commission proposed to consolidate ranges for automatic defrost models purchased by the vast majority of residential consumers, while maintaining separate categories for less common models.21 Specifically, the Commission proposed to consolidate refrigerator ranges into three categories: automatic defrost refrigerator-freezers (currently Appendices A4-A8), manual or partial manual refrigerators and refrigerator-freezers (currently Appendices A2-A3, which cover mostly small-sized models), and refrigerators with no freezer (currently Appendix A1). The proposal maintained separate size classifications within the three categories because shoppers are unlikely to compare models of widely different sizes. The proposal also maintained the three freezer categories: upright manual defrost models (Appendix B1), upright automatic defrost models (Appendix B2), and chest freezers (Appendix B3) because there is no evidence that consumers typically shop for models across these categories.

    21 Given the different characteristics of the less common models, the Commission reasoned that typical consumers are not likely to consider such models alongside automatic defrost refrigerator-freezers. For automatic defrost refrigerator freezers, the label would state, “Cost range based on all automatic-defrost refrigerator-freezers regardless of features or configuration.” 78 FR at 34651 (June 18, 2014).

    Comments: These comments fell into three groups. As discussed below, efficiency groups continued to recommend refrigerator range consolidation while industry representatives continued to oppose it. In addition, some commenters suggested a hybrid approach, one which provided range data both for all models as well as specific model categories.

    The Joint Commenters repeated their strong support for consolidating ranges. However, in contrast to the Commission's proposal, they recommended that the amendments consolidate all refrigerator-freezers into a single range, regardless of defrost features. They noted that some of the existing categories contain few, if any, models, and thus provide no meaningful comparison information at all.22 They also argued that consolidation will provide range information relevant to most U.S. consumers. According to these commenters, available data demonstrates that many consumers already consider refrigerators with different configurations (and likely different features) when shopping.23 In addition, new DOE standards have reduced the maximum allowable energy consumption by 20 to 25 percent and diminished differences between the high and low ends of the current ranges. Under these circumstances, the commenters argued that consolidated ranges would provide a more useful comparison.24

    22 They also mentioned new DOE categories and the need to avoid creating new ranges for such products. However, the Commission has no plans to expand the labeling categories to match those DOE changes. Indeed, in recent years, the Commission has not expanded existing labeling categories to match DOE changes.

    23 79 FR at 34651 (June 18, 2014).

    24 The Joint Commenters noted that the Energy Star program continues to use criteria that vary by feature and configuration. However, in their view, consolidated groupings on the FTC label are unlikely to create confusion as long as the range clearly states the model types being compared. In addition, the comments suggested the Commission consider special language to clarify that any Energy Star designation reflects a comparison with similarly-equipped and configured models.

    Alternatively, both the Joint Commenters and the California Utilities recommended a hybrid approach, which would display two ranges on the label—one with comparative information for a specific model configuration (e.g., side-by-side door with ice service) and another with information about all models, regardless of configuration or features. The California Utilities explained that such a dual range would provide more informed consumer decisions. The Joint Commenters recommended that the FTC consider this approach should it maintain separate range categories for various refrigerator types.

    AHAM opposed consolidation.25 It argued that the existing categories provide valuable comparison information and help streamline the information consumers see. In its view, the proposed range consolidation could obscure this information, complicate consumers' efforts to compare products within specific categories, and mislead consumers into buying products solely based on an annual energy cost rather than other important considerations, such as configuration. It also argued that the current approach allows consumers to use the label's primary cost disclosure to compare models across product categories, even in the absence of a consolidated range.

    25 AHAM also criticized the lack of regulatory text associated with the proposal, arguing it is impossible to fully evaluate or comment on the Commission's proposal.

    Additionally, AHAM took issue with the data presented by commenters to support range consolidation. First, AHAM discounted data from Consumer Reports demonstrating that 40 percent of visitors to Consumer Reports' online refrigerator/freezer ratings reviewed multiple configurations. AHAM argued that, because Consumer Reports focuses on informative editorial reviews, including features beyond energy, consumers likely visit their site to narrow their choices prior to shopping. Second, AHAM disagreed with the Joint Commenters' interpretation of AHAM data indicating that more than half of side-by-side refrigerator-freezer owners buy replacement units with a different configuration. AHAM argued that these results do not necessarily support the proposal to consolidate the ranges.26 In AHAM's view, the data simply demonstrate that consumers are about as likely to replace an existing model with one of the same type as they are to select a different configuration.27 Accordingly, it argued that the Commission should not base its decision on this information. Similarly, AHAM recommended that the Commission disregard a survey of Earthjustice members offered in previous comments, stating that it comes from a biased sample of respondents who may have a better understanding of energy consumption than the average consumer. AHAM noted plans to provide updated data on this point.

    26 Specifically, AHAM noted that the current label already allows consumers to compare the energy cost of different features. In its view, these results do not necessarily indicate that a consumer who replaces a unit with a different configuration necessarily considered more than one configuration. For instance, a consumer may have already chosen to pursue a different configuration before they started shopping.

    27 AHAM argued that data simply show that 46 percent of the time, consumers shop for one configuration (side-by-side) and the other 54 percent of the time they consider something else, which could be limited to one configuration or could be an array of configurations. AHAM had no information about whether consumers replacing side-by-side configuration models with other configurations shop with a particular configuration in mind.

    The comments also offered different views on whether the proposal meets the Congressional intent of EPCA. AHAM asserted that the proposal conflicts with DOE's designated specific refrigerator-freezer product categories, which represent significant specific consumer benefits, preferences, and utilities. In contrast, the Joint Commenters argued that nothing in EPCA suggests the Commission must adhere to DOE's feature‐protecting approach.28 According to the Joint Commenters, the proposed category consolidation reflects differing purposes behind the FTC labeling and DOE standards programs, as reflected in EPCA. The Joint Commenters argued that EPCA authorizes DOE to group covered products into different classes each with unique standards. In doing so, DOE can tailor its standards for different categories that provide special features to consumers, while the FTC carries out its role to provide consumers with information that will assist them in making purchasing decisions.

    28 The Joint Commenters noted that the FTC made similar changes when it consolidated categories for top‐loading and front‐loading clothes washers. The EnergyGuide label ranges group these machines together, offering separate ranges only for standard and compact models. 65 FR 16132, 16139 n. 91 (Mar. 27, 2000).

    Discussion: The Commission proposes to amend the refrigerator label to include two range groups: One grouped by applicable model subcategory (e.g., side-by-side door configuration) and the other covering all refrigerators. Consistent with the current Rule, both range groups would include separate ranges organized by capacity. As discussed above, and in the SNPRM, information submitted by commenters, including AHAM, strongly suggests that a substantial number of consumers consider models with different features when shopping. However, as AHAM explained in its comments, not all shoppers do so. The proposal addresses both contingencies by allowing consumers to compare the labeled product to similar models as well as to all other refrigerators.

    In addition to proposed Rule language to effect this change to the label, this Notice includes proposed updated ranges based on new model data from the DOE database, including a new range reflecting consolidated range data for all refrigerators. These consolidated ranges will appear on the labels along with those applicable to the particular product class. Before issuing final refrigerator ranges, the Commission will consider updating the numbers based on the most recent data.29

    29 As indicated in a previous Notice, the Commission will publish updated ranges for the clothes washer label based on new DOE data. See 79 FR 34642, 34657, n. 114 (June 18, 2014).

    The proposal also amends the range tables to cover bottom-mounted freezers with through-the-door ice, a popular product subcategory currently not covered by the various tables. To accomplish this, the proposed amendments redesignate Appendix A7, which currently covers an obsolete category (top-mounted freezer with through-the-door ice models). In addition, the proposal modifies the size categories in each table to ensure consistency in all the ranges across all sizes. Consistent with past range changes, the Commission plans to provide manufacturers with 90 days after final amendments to comply with the updated labels. The Commission seeks comment on the proposal.30 Finally, the Commission notes that nothing in EPCA requires the label ranges to match the categories set out by DOE in its standards regulations. EPCA's labeling section provides the Commission with flexibility to determine the content and format of the EnergyGuide labels, as long as the information provided reflects the results of the DOE test procedures.31 DOE's product categories allow that agency to tailor the efficiency standards to different model types, which may exhibit variations in energy consumption depending on features and configuration. However, the DOE categories do not necessarily reflect the best model groupings for consumers when they comparison shop. Accordingly, the FTC range categories for consumer labels do not necessarily correspond to the DOE categories established for the standards program.

    30 The Commission also proposes to eliminate an obsolete reference to adjusted volume for refrigerators and freezers in the Rule's capacity section (section 305.7(a)(b)).

    31See 42 U.S.C. 6294. See also 65 FR 16132, 16139 n. 91 (Mar. 27, 2000) (“The Commission is not constrained by any statutory provisions from establishing the product classes in the Appendices for purposes of the ranges of comparability in whatever form it believes to be most appropriate”).

    BILLING CODE 6750-01-P EP02NO15.004 BILLING CODE 6750-01-C D. Dual Mode Refrigerator-Freezers

    The Commission proposes to add a new Rule provision addressing covered refrigerator models that can operate as a refrigerator or a freezer under the DOE rules, depending on user settings. In 2014, DOE announced that such convertible refrigerator-freezers must be tested and certified to meet efficiency standards applicable to both refrigerators and freezers.32 AHAM then sought clarification on labeling these products. Specifically, it suggested that, consistent with manufacturers' labeling practices, convertible products be labeled with the most energy intensive configuration. The Commission agrees. AHAM's proposal would ensure that labels for these products do not underestimate the energy cost of the product. The proposed rule contains language in § 305.11(f)(5) and (8) addressing this issue. The Commission seeks comment on this proposal.

    32 79 FR 22320 (Apr. 21, 2014).

    E. Portable Air Conditioners

    Background: In the 2014 SNPRM, the Commission proposed requiring EnergyGuide labels for portable air conditioners because DOE had proposed designating portable air conditioners as covered products under EPCA.33 Given the similarity of portable air conditioners to room air conditioners, the Commission proposed to require the same or similar labeling for the two products. The proposal did not require labeling until DOE completes a test procedure.

    33 78 FR 40403 (July 5, 2013) and 42 U.S.C. 6292. Portable air conditioners are movable units, unlike room air conditioners, which are permanently installed on the wall or in a window. DOE has proposed to establish testing and standards for portable air conditioners pursuant to its authority in EPCA to add new product categories. If DOE decides to include portable air conditioners and if the Commission decides to require labels for these products, it will amend the Rule's coverage (and associated language) in a manner consistent with any final DOE determination.

    Comments: In response, the comments supported, or at least did not oppose, labels for portable air conditioners. However, as discussed below, various comments urged the Commission to wait until DOE completes its rulemaking, requested more information about the proposed labeling, recommended labeling consistent with room air conditioners, and suggested the Commission consider using existing industry test procedures until DOE completes its rulemaking.

    AHAM, which did not oppose the proposal, emphasized that the FTC should not require EnergyGuide labels for these products until DOE finalizes a regulation designating them as covered products and completes a test procedure. In addition, AHAM indicated that the FTC should provide more information about the label's benefits to consumers and a more detailed proposal. AHAM also noted that, as with room air conditioners, retail display practices for portable air conditioners are mixed (i.e., models displayed both in and out of the box). Thus, AHAM suggested requiring the labels in the same location as the room air conditioner label.

    The California Utilities supported labels on portable air conditioners and recommended that the Commission immediately require such labels based on an existing test procedure (ANSI/AHAM PAC-1-2009). It argued that doing so would provide consumer benefits while DOE finalizes its own test procedure.34 According to these comments, the benefits from labeling these products outweigh potential costs associated with switching tests in the future. Additionally, the DOE rulemaking process often takes several years to complete, and the compliance date for these rulemakings is often three to five years beyond publication of the final DOE test procedure. To avoid this long delay, the California Utilities recommended that the Commission require procedures in ANSI/AHAM PAC-1 and develop EnergyGuide labeling requirements as soon as feasible.

    34 According to the comment, the metrics incorporated in the ANSI/AHAM test procedure include: Single duct energy efficiency ratio (SD-EER); dual duct energy efficiency ratio (DD-EER); and spot cooling energy efficiency ratio (SC-EER).

    Discussion: The Commission plans to require portable air conditioner labels after DOE completes its test procedure rulemaking. As discussed below, the Commission finds that labeling this product category is appropriate under EPCA because it is likely to assist consumers in their purchasing decisions and to be economically and technologically feasible.35

    35See 42 U.S.C. 6294(a)(3).

    Portable air conditioners are common in the marketplace, use energy equivalent to already-covered room air conditioners, and vary in their energy use. Specifically, DOE has reported that the aggregate energy use of portable ACs has been increasing as these units have become popular in recent years.36 According to DOE, sellers shipped an estimated 0.76 million units in the United States, with a projected growth to 0.98 million units by 2019, when DOE standards are scheduled to take effect. DOE also estimated that these products have a large efficiency rating range (approximately 8.2-14.3 EER). In addition, DOE estimated average per-household annual electricity consumption for these products at approximately 650 kWh/yr (750 kWh/yr for EER 8.2, and 400 kWh/yr for EER 14.3). Thus, given this energy information, the Commission finds that energy labeling for these products is likely to assist consumers with their purchasing decisions by allowing them to compare the energy costs of competing models. In addition, because these portable air conditioner models closely resemble room air conditioners, which are currently labeled under the Rule, the burdens and benefits of labeling these products should not differ significantly from those already applicable to room air conditioners. Therefore, the Commission finds that labeling for these products is economically and technologically feasible.

    36See 78 FR 40403, 40404-05 (July 5, 2013); Technical Support Document: Energy Efficiency; Program for Consumer Products and Commercial and Industrial Equipment: Portable Air Conditioners. U.S. Department of Energy—Office of Energy Efficiency and Renewable Energy (Feb. 18, 2015), http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-STD-0033-0007.

    The Commission proposes to require labels for portable air conditioners identical to the current room air conditioner label in content and format. The proposed amendments include the DOE's proposed definition of “portable air conditioner” at section 305.3.37 The amendments would include separate ranges for portable air conditioners in the Rule's appendices, which the Commission would publish after data becomes available. The Commission does not propose to combine the ranges with room air conditioners because it is not clear whether consumers routinely compare portable air conditioners to room air conditioners when shopping. In addition, consistent with requirements applicable to room air conditioners, the Commission proposes to establish reporting requirements identical to those created by DOE for these products.

    37 To effect new labeling requirements, the proposed amendments insert the term “portable air conditioner” next to “room air conditioner” into appropriate paragraphs of §§ 305.2 (definitions), 305.3 (description of covered products), 305.7 (determinations of capacity), 305.8 (submission of data), 305.11 (labeling for appliances), and 305.20 (catalog requirements).

    At this time, DOE has not issued a final test procedure or language for the definition of “portable air conditioner.” 38 Once DOE issues a final test procedure, the Commission will make a final determination on labeling based on the comments received. If the Commission decides to require labels, the Commission will provide manufacturers adequate time to test their products and report energy data before they begin labeling their products. After such data is available, the Commission will publish ranges of comparability as well as a compliance date for the new labels. In the meantime, the Commission does not propose to require labeling based on existing industry test procedures in the short term. The Commission is concerned that, if the eventual DOE test results differ significantly from the existing industry tests, the EnergyGuide labels generated before and after the compliance date for the DOE test may not be comparable and thus could create potential confusion.39 The Commission invites further comments on labeling these products.

    38 DOE published a proposed test procedure on February 25, 2015 (80 FR 10212).

    39 Under EPCA, any energy representations on the label must reflect the DOE test results. 42 U.S.C. 6293(c).

    F. Heating and Cooling Equipment Requirements

    The Commission proposes several amendments to the heating and cooling equipment label requirements related to new issues not discussed in the 2014 SNPRM. As detailed below, these proposed changes involve revised central air conditioner labels to reflect upcoming changes to DOE rules, new labels for rooftop furnace-air conditioner systems, manufacturer name disclosures on the label, and a clarification for disclosures of multiple model numbers on the label.

    Revised Central Air Conditioner Labels—Regional Standards: On February 6, 2013, the Commission published new labeling requirements for heating and cooling equipment.40 The new labels, directed by Congress, provide industry members and consumers with information about regional efficiency standards recently issued by DOE.41 These DOE requirements impose regional efficiency standards for split-system air conditioners and single-package air conditioners. For all other covered heating and cooling equipment (e.g., furnaces and boilers), the updated standards remain nationally uniform. Since publication of the regional standards related labels in 2013, the Commission has issued several notices updating ranges and labels to reflect a court-approved settlement that vacated DOE's regional standards for furnaces.42

    40 78 FR 8362.

    41 16 CFR 305.12 & App. L, Prototype Label 3, Sample Labels 7A, 7B, 9.

    42See 79 FR 46985 (Aug. 12, 2014); 79 FR 52549 (Sept. 4, 2014); 79 FR 77868 (Dec. 29, 2014). On April 24, 2014, the Court of Appeals for the D.C. Circuit approved a settlement in the DOE litigation, which vacates and remands DOE's regional standards for non-weatherized natural gas and mobile home furnaces and sets a two-year time table for DOE to propose new standards. American Public Gas Ass'n v. DOE, No. 11-1485 (D.C. Cir. filed Dec. 23, 2011) (DE.#1433580, May 1, 2013).

    During the fall of 2014, DOE conducted a negotiated rulemaking to establish enforcement rules for current regional standards applicable to central air conditioners.43 The current standards set a minimum 14.0 Seasonal Energy Efficiency Ratio (SEER) for the southern and southwestern regions, a 13.0 SEER for all other areas, and separate Energy Efficiency Rating (EER) levels for the southwest region. For a particular condenser model, efficiency ratings vary (e.g., 13.0 to 14.2 SEER) depending on the system (i.e., the condenser-coil combination) installed in the consumer's home. Because such variability complicates efforts to enforce the regional standards, the consensus recommendation from the negotiated rulemaking advised DOE to determine regional compliance based on the condenser's lowest certified rating alone, not on the system rating as installed in the home.44 For instance, if a condenser's efficiency rating ranges from 13.0 to 14.2 SEER (depending on the coil ultimately matched with it), DOE will consider the rating to be 13.0 SEER for regional standards compliance, regardless of which coil it is ultimately installed with.

    43See, e.g., 79 FR 45731 (Aug. 6, 2014).

    44See “2014-10-24 Presentation Hand Out: Regional Standards Enforcement Working Group, Enforcement Plan,” Oct. 24, 2014, Energy Efficiency and Renewable Energy Office, Department of Energy, http://www.regulations.gov/#!documentDetail;D=EERE-2011-BT-CE-0077-0070.

    The recommended change, if implemented by DOE, will require revisions to the EnergyGuide label for central air conditioners because the current label advises installers to ensure the rating for the system (i.e., the specific condenser-coil combination) they install in a consumer's home meets the DOE regional standards. To conform the FTC label to these potential DOE requirements, the Commission, as detailed below, proposes new labels for central air conditioners that simply identify the states in which the labeled model may be installed.45

    45 Such an approach is consistent with the current regional standards labels for single package units. See, e.g., 78 FR at 8384 (sample label).

    Specifically, the FTC proposes three types of labels for split systems. First, labels for models that may be installed anywhere (i.e., those that meet all applicable SEER and EER thresholds) would contain the statement: “Notice: Federal law allows this unit to be installed in all U.S. states and territories.” Second, labels for models that do not meet the 14.0 SEER threshold for southern states and southwestern states would contain a map identifying the states in which the unit may be legally installed. For instance, a model with a minimum rated efficiency of 13.8 SEER would contain a map indicating that that model can be legally installed only in northern states along with a statement that “Federal law prohibits installation of this unit in other states.” Finally, labels for a model with a minimum 14.0 SEER rating that does not meet EER minimum ratings for the southwest region would contain a map indicating that it can be legally installed only in northern and southern states (excluding southwestern states) as well as a statement that installation elsewhere is prohibited. These new label disclosures will simplify compliance by eliminating the need for installers to compare specific system ratings against the DOE standards.

    In addition, consistent with the recommended approach, the proposed label would disclose only the efficiency rating for lowest rated coil-condenser combination (e.g., 14.4 SEER), eliminating the range of ratings currently on the label (e.g., 13.9-15.0 SEER). The range of ratings on the current label alerts installers and consumers that a model's compliance with regional standards could vary depending on the installed coil-condenser combination. Given the enforcement approach developed during DOE's negotiated rulemaking, such information is no longer necessary for the label. A single, minimum efficiency rating will provide a simpler, more direct way to communicate the model's performance to consumers. If a system, as actually installed, has a higher efficiency rating than the minimum rating displayed on the label, that installer may communicate that fact to consumers. The Commission seeks comment on this and all other aspects of the proposal.

    BILLING CODE 6750-01-P EP02NO15.005 BILLING CODE 6750-01-C

    Rooftop Systems: In its 2014 SNPRM comments, AHRI recommended that the Commission create new labels for packaged rooftop systems, a relatively new product consisting of a combination gas furnace and air conditioner (or heat pump). AHRI requested that the Commission amend the Rule to allow manufacturers to combine the gas furnace information and the air conditioner or heat pump information, as applicable, on a single EnergyGuide label. Such an approach would be consistent with residential heat pump labels, which already provide both cooling and heating efficiency information.

    In response, the Commission proposes amending section 305.12 to allow a single label for these products reflecting the ratings for furnace and air conditioner (or heat pump) combinations as long as the unit meets all applicable air conditioner regional standards. For models that do not meet the air conditioner standards, manufacturers would have to use two labels because a single label would not have space to accommodate all necessary disclosures (i.e., the annual fuel utilization efficiency AFUE, SEER, and regional standards map). The Commission seeks comment on this proposal.

    Manufacturer Name: The Commission also seeks comments on whether the Rule should continue to require the manufacturer or private labeler name on the label. In 2013, the FTC amended the heating and cooling equipment labels to require the manufacturer or private labeler's name on EnergyGuide labels for covered equipment. This change occurred as part of the larger effort to create new labels consistent with new DOE regional efficiency standards.46 However, the Rule's current requirements for labels on refrigerators, clothes washers, and other appliances (§ 305.11) continue to give manufacturers or private labelers the option to put their names on labels. To ensure the heating and cooling labels are consistent with other EnergyGuide labels, the Commission proposes to restore the option in § 305.12(f)(2) and (g)(2) of including the manufacturer or private labeler name on the label. The Commission does not expect this will have any significant negative impact on consumers. For instance, the manufacturer or private labeler name is not necessary to use the DOE database, including the cost calculator, because the model number is adequate for that purpose. In addition, because the labels are generally affixed to the products themselves or appear on Web sites describing the product, consumers are likely to know the identity of the equipment's manufacturer or private labeler. The Commission seeks comments on this proposal.

    46See 78 FR 8362 (Feb. 6, 2013). Though the proposed rule language contained this change (77 FR 33337 (June 6, 2012)), the proposed rule Notice did not discuss this issue. In issuing the original labeling rule in the 1970's, the Commission noted that the manufacturer and private labeler name was optional on EnergyGuide labels to “minimize the printing burden on manufacturers who produce covered products for private labelers . . . .” 44 FR 66466, 66470, 66479 (November 19, 1979).

    Model Numbers: The Commission also proposes to clarify in § 305.12(f)(3) and (g)(3) that manufacturers or private labelers may print multiple model numbers on a single label as long as the models share the same efficiency ratings and capacities. In the original 1979 rulemaking notice, the Commission explained that manufacturers and private labelers may include multiple model numbers for models sharing the same rating and capacity; however, associated language did not appear in the rule itself.47 By ensuring that all model numbers listed in a single label share the same capacity as well as efficiency rating, the proposed clarification would ensure all model numbers listed on a single label will generate the same cost calculations when entered into the DOE online database. The Commission seeks comment on this proposal.

    47See 44 FR at 66479 (Nov. 19, 1979) (“a manufacturer or private labeler may include multiple model numbers on the label if the models have the same capacity and consume the same amount of energy”).

    Updating Retailer Disclosure Requirements (§ 305.14): The Commission plans to revise the effective date for the disclosure requirements in § 305.14 related to efficiency information that furnace and air conditioner installers must provide to customers.48 In the Rule language (published in 2013), the Commission tied the effective date for the new provision to the compliance date for DOE regional furnace standards. However, because those DOE standards were subsequently vacated,49 the Commission must set a new effective date. Accordingly, the Commission proposes to update that provision to clarify that the amendment published in 2013 now applies.

    48 In 2013, as part of the regional standards label rulemaking (78 FR 8362 (Feb. 6, 2013)), the Commission updated disclosure requirements in § 305.14 for manufacturers and retailers, including installers. The 2013 changes required sellers to ensure that consumers have pre-purchase access to the EnergyGuide labels for heating and cooling equipment. Previously, the Rule required sellers to disclose a list of information contained on the labels. The updated Rule simplified the disclosure by requiring retailers to provide access to the labels themselves.

    49See 77 FR at 77868 (Dec. 29, 2014). American Public Gas Ass'n v. DOE, No. 11-1485 (D.C. Cir. filed Dec. 23, 2011) (DE.#1433580, May 1, 2013); (DE.# 1489805, Apr. 24, 2014).

    G. Water Heater Labels

    The Commission seeks comment on whether it should modify water heater labels in response to a new DOE test procedure (79 FR 40541 (July 11, 2014)).50 Among other things, the new test procedure creates four categories or “bins,” which group models by their “first hour rating,” DOE's standard measure of hot water output for these products. The first hour rating appears on current EnergyGuide labels and displays the number of gallons of hot water the heater can supply per hour. Currently, the Rule groups water heater ranges by the first hour rating in roughly five gallon increments (e.g., 25-29, 30-34, 35-39 gallons, etc.). The four new DOE first hour rating bins are: very small (first hour rating less than 18 gallons), low (first hour rating between 18 and 51 gallons), medium (first hour rating between 51 and 75 gallons), and high (first hour rating greater than 75 gallons).

    50 DOE also published a proposed rule in April 2015 related to a “conversion factor” for use under the new test procedure (77 FR 20116 (April 14, 2015)). In that Notice, DOE proposed to continue to allow manufacturers to determine costs under existing testing requirements and thus create “a transition period for FTC to pursue a rulemaking to determine whether changes are needed to the water heater EnergyGuide label due to changes in the water heater test procedure.” 77 FR at 20138 (April 14, 2015).

    In anticipation of these changes, the Commission seeks comment on amendments to the water heater label ranges to provide both: (1) Tank capacity information; and (2) first hour rating information consistent with the four new DOE categories. Because water heaters are commonly marketed by tank size (i.e., storage volume) and not first hour rating, comments should also discuss whether the Rule should group the ranges by tank size, and then further by first hour rating, placing the four DOE water usage bins within such tank size categories. Specifically, for storage water heaters, the proposed ranges contain three overall categories for tank capacity, which generally reflect the range of sizes in the market as well as size categories set by DOE in its standards: Fewer than 40 gallons, 40 to 55 gallons, and greater than 55 gallons. Within each of these three categories, the ranges group the models by DOE's four water usage categories (very small, small, medium, and large). For clarity, the proposed label would employ the term “hourly hot water output” instead of the more technical term “first hour rating.” The label would also contain text explaining the term “hourly hot water output.”

    Figure 3—Proposed Ranges for Storage Water Heater [Example—electric water heaters] Tank capacity (gallons) and first hour rating (FHR) (gallons) Range of estimated annual
  • energy costs
  • (dollars/year)
  • Low High
    Tank Capacity—Less than 40: FHR—“Very Small”—less than 18 $XX $XX FHR—“Low”—18 to 50.9 $XX $XX FHR—“Medium”—51 to 74.9 $XX $XX FHR—“High”—over 75 $XX $XX Tank Capacity—40 to 55: FHR—“Very Small”—less than 18 $XX $XX FHR—“Low”—18 to 50.9 $XX $XX FHR—“Medium”—51 to 74.9 $XX $XX FHR—“High”—over 75 $XX $XX Tank Capacity—Over 55 FHR—“Very Small”—less than 18 $XX $XX FHR—“Low”—18 to 50.9 $XX $XX FHR—“Medium”—51 to 74.9 $XX $XX FHR—“High”—over 75 $XX $XX
    Figure 4—Proposed Ranges for Instantaneous Gas Water Heater Gallons per minute (GPM) Range of estimated annual
  • energy costs
  • (dollars/year)
  • Low High
    GPM—“Very Small”—less than 1.6 $XX $XX GPM—“Low”—1.7 to 2.7 $XX $XX GPM—“Medium”—2.8 to 3.9 $XX $XX GPM—“High”—over 4.0 $XX $XX

    The Commission also plans to update the comparability range for water heaters to reflect the results of the new test procedure and significant efficiency increases driven by the new DOE standards (see Figures 3 and 4).51 Indeed, as a result of the new DOE standards, most if not all electric water heaters will include heat pump technology. The Commission, therefore, proposes revising the existing water heater categories to eliminate the separate category for heat pump water heaters, and combining such models into a general category for all electric water heaters. This change should simplify the tables and help consumers compare all electric water heaters.52 The Commission seeks comments on various aspects of these proposals, including whether the label should contain any other information for consumers related to the transition to the recent DOE changes and whether the new label ranges for storage models should be organized by tank size and first hour rating (as proposed), or by some other approach.

    BILLING CODE 6750-01-P

    51 Given the absence of model energy data from the new test procedure, the amendatory language in this Notice does not include proposed tables for revised cost ranges.

    52 The Commission also plans to update the definition of “water heater” so that it is consistent with clarifying changes to that term recently proposed by DOE. 79 FR 40541 (July 11, 2014).

    EP02NO15.006 BILLING CODE 6750-01-C H. Plumbing ASME Reference Update

    The Commission proposes to update the marking and labeling requirements in section 305.16 to reference the current ASME standards for showerheads and faucets (“A112.18.1”), as well as water closets and urinals (“A112.19.2”). The proposed change updates these references by removing the letter “M,” which appeared in obsolete versions of the standards' titles (e.g., “A112.18.1M”), so that they read “A112.18.1” and “A112.19.2” respectively, making them consistent with the current designations for these standards referenced in existing DOE water efficiency standards (10 CFR part 430). EPCA directs the Commission to amend the labeling requirements to be consistent with any revisions to these ASME standards, unless the Commission finds such amendments would be inconsistent with EPCA's purposes and labeling requirements. 42 U.S.C. 6294(a)(2)(E). The Commission finds no such inconsistency with the proposed change. Given the routine nature of this change, the minimal impact it will have on consumers, the Commission proposes to provide manufacturers with two years to change the marking on their affected plumbing products with the updated reference. The Commission seeks comment on this proposal.

    I. Miscellaneous Refrigerator Products

    The Commission recently sought comments on labeling for several refrigeration products not covered by existing labeling requirements (79 FR 78736 (Dec. 31, 2014)) in response to recent DOE efforts to set standards and establish test procedures for such products, which include cooled cabinets, non-compressor refrigerators, hybrid refrigerators, compact hybrid refrigerators, hybrid freezers, and residential ice makers.53 Until DOE completes these efforts, the FTC plans to refrain from proposing any specific labeling requirements.

    53See 78 FR 65223 (Oct. 31, 2013) (proposed coverage determination); 79 FR 74894 (Dec. 16, 2014) (proposed test procedures).

    III. Request for Comment

    You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before January 11, 2016. Write “Energy Labeling Amendments (16 CFR part 305) (Project No. R611004)” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

    Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, do not include any trade secret or any commercial or financial information which is privileged or confidential, as discussed in section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

    If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

    Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/energylabeling, by following the instruction on the web-based form. If this Notice appears at http://www.regulations.gov, you also may file a comment through that Web site.

    If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex E), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex E), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.

    Visit the Commission Web site at http://www.ftc.gov to read this NPRM and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding, as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before January 11, 2016. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

    Because written comments appear adequate to present the views of all interested parties, the Commission has not scheduled an oral hearing regarding these proposed amendments. Interested parties may request an opportunity to present views orally. If such a request is made, the Commission will publish a document in the Federal Register stating the time and place for such oral presentation(s) and describing the procedures that will be followed. Interested parties who wish to present oral views must submit a hearing request, on or before November 30, 2015, in the form of a written comment that describes the issues on which the party wishes to speak. If there is no oral hearing, the Commission will base its decision on the written rulemaking record.

    IV. Paperwork Reduction Act

    The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act (PRA). OMB has approved the Rule's existing information collection requirements through May 31, 2017 (OMB Control No. 3084-0069). The proposed amendments make changes in the Rule's labeling requirements that will increase the PRA burden as detailed below.54 Accordingly, the Commission will submit this notice of proposed rulemaking and associated Supporting Statement to OMB for review under the PRA.55

    54 Several proposed labeling changes, including changes to dual mode refrigerators, plumbing fixtures, heating and cooling equipment, consolidated comparability ranges for refrigerators, URL links for labels, ceiling fan labels, room air conditioners, and water heaters should impose no additional burden beyond existing estimates because such changes either impose no or de minimis additional burdens, or manufacturers should be able to incorporate the proposed changes into their normally scheduled package or label revisions without incurring additional burdens beyond those already accounted for.

    55 The PRA analysis for this rulemaking focuses strictly on the information collection requirements created by and/or otherwise affected by the amendments. Unaffected information collection provisions have previously been accounted for in past FTC analyses under the Rule and are covered by the current PRA clearance from OMB.

    Labeling (portable air conditioners): The proposed amendments require manufacturers to create and affix labels on these portable products. The amendments specify the content, format, and specifications of the required labels. Manufacturers would add only the energy consumption figures derived from testing and other product-specific information. Consistent with past assumptions regarding appliances, FTC staff estimates that it will take approximately six seconds per unit to affix labels. Staff also estimates that there are 1,000,000 portable air conditioner units distributed in the U.S. per year. Accordingly, the total disclosure burden per year for refrigeration products would be 1,667 hours (1,000,000 × 6 seconds). Assuming that product labels will be affixed by electronic equipment installers at an hourly wage of $23.81 56 per hour, cumulative associated labor costs would total $39,691 per year.

    56 The mean hourly wage cited above and those that follow are drawn from Bureau of Labor Statistics, U.S. Department of Labor, Occupational Employment and Wages—May 2014, Table 1 (National employment and wage data from the Occupational Employment Statistics survey by occupation, May 2014), available at: http://www.bls.gov/news.release/ocwage.t01.htm.

    Testing (portable air conditioners): Manufacturers need not test each basic model annually; they must retest only if the product design changes in such a way as to affect energy consumption. Staff believes that the frequency with which models will be tested every year ranges roughly between 10% and 50%. It is likely that only a small portion of the tests conducted will be attributable to the proposed Rule's requirements. Nonetheless, given the lack of specific data on this point, FTC staff conservatively assumes that all of the tests conducted would be attributable to the Rule's requirements and will apply to that assumption the high-end of the range noted above for frequency of testing. Based on an informal review of products offered on Web sites as well as consultation with DOE staff, staff estimates that there are approximately 150 basic models, that manufacturers will test two units per model, and that testing would require one hour per unit tested. Given these estimates and the above-noted assumption that 50% of these basic models would be tested annually, testing would require 150 hours per year. Assuming further that this testing will be implemented by electrical engineers, and applying an associated hourly wage rate of $46.05 per hour, labor costs for testing would total $6,908. The Commission does not expect that the proposed amendments for portable air conditioners will create any capital or other non-labor costs for such testing.

    Recordkeeping (portable air conditioners): Pursuant to Section 305.21 of the proposed amended Rule, manufacturers must keep test data on file for a period of two years after the production of a covered product model has been terminated. Assuming one minute per model and 150 basic models, the recordkeeping burden would total 3 hours, rounded upward. Assuming further that these filing requirements will be implemented by data entry workers at an hourly wage rate of $15.48 per hour, the associated labor cost for recordkeeping would be approximately $46 per year.

    Reporting Requirements (online database and portable air conditioners): The proposed amendments would require manufacturers to furnish links to images of their EnergyGuide and Lighting Facts labels. Given approximately 15,000 total models at an estimated 1 minute per model, this requirement will entail a burden of 250 hours. In addition, the proposed labeling for these products would increase the Rule's reporting requirements by adding portable air conditioners. Staff estimates that the average reporting burden for these manufacturers is approximately two minutes per basic model to enter information into DOE's online database. Based on this estimate, multiplied by an estimated total of 150 basic portable air conditioner models, the annual reporting burden for manufacturers is an estimated 5 hours (2 minutes × 150 models ÷ 60 minutes per hour). Assuming further that these filing requirements will be implemented by data entry workers at an hourly wage rate of $15.48 per hour, the associated labor cost for reporting would be approximately $3,947 per year. Any non-labor costs associated with the reporting amendments are likely to be minimal.

    Catalog Disclosures (portable air conditioners): The proposed amendments would require sellers offering covered products through catalogs (both online and print) to disclose energy use for each portable air conditioner model offered for sale. Because this information is supplied by the product manufacturers, the burden on the retailer consists of incorporating the information into the catalog presentation. FTC staff estimates that there are 200 online and paper catalogs for these products that would be subject to the Rule's catalog disclosure requirements. Staff additionally estimates that the average catalog contains approximately 50 such products and that entry of the required information takes one minute per covered product. The cumulative disclosure burden for catalog sellers is thus 167 hours (200 retailer catalogs × 50 products per catalog × 1 minute each per product shown). Assuming that the additional disclosure requirement will be implemented by data entry workers at an hourly wage rate of $15.48, associated labor costs would approximate $2,585 per year.

    Estimated annual non-labor cost burden (portable air conditioners): Manufacturers are not likely to require any significant capital costs to comply with the proposed portable air conditioner amendments. Industry members, however, will incur the cost of printing labels for each covered unit. The estimated label cost, based on estimates of 1,000,000 units and $.03 per label, is $30,000 (1,000,000 × $.03).

    Total Estimate: Accordingly, the estimated total hour burden of the proposed amendments is 2,242 with associated labor costs of $53,177 and annualized capital or other non-labor costs totaling $30,000.

    Pursuant to section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) Whether the proposed information collection is necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before January 11, 2016. Comments on the proposed recordkeeping, disclosure, and reporting requirements subject to review under the PRA should additionally be submitted to OMB. If sent by U.S. mail, they should be addressed to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395-5806.

    V. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 through 612, requires that the Commission provide an Initial Regulatory Flexibility Analysis (IRFA) with a proposed rule and a Final Regulatory Flexibility Analysis (FRFA), if any, with the final rule, unless the Commission certifies that the rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 603 through 605.

    The Commission does not anticipate that the proposed rule will have a significant economic impact on a substantial number of small entities. The Commission recognizes that some of the affected manufacturers may qualify as small businesses under the relevant thresholds. However, the Commission does not expect that the economic impact of the proposed amendments will be significant.

    The Commission estimates that the amendments will apply to 150 online and paper catalog sellers of covered products and about 50 portable air conditioner manufacturers. The Commission expects that approximately 150 qualify as small businesses.

    Accordingly, this document serves as notice to the Small Business Administration of the FTC's certification of no effect. To ensure the accuracy of this certification, however, the Commission requests comment on whether the proposed rule will have a significant impact on a substantial number of small entities, including specific information on the number of entities that would be covered by the proposed rule, the number of these companies that are small entities, and the average annual burden for each entity. Although the Commission certifies under the RFA that the rule proposed in this notice would not, if promulgated, have a significant impact on a substantial number of small entities, the Commission has determined, nonetheless, that it is appropriate to publish an IRFA in order to inquire into the impact of the proposed rule on small entities. Therefore, the Commission has prepared the following analysis:

    A. Description of the Reasons That Action by the Agency Is Being Taken

    The Commission is proposing expanded product coverage and additional improvements to the Rule to help consumers in their purchasing decisions for high efficiency products.

    B. Statement of the Objectives of, and Legal Basis for, the Proposed Rule

    The objective of the rule is to improve the effectiveness of the current labeling program. The legal basis for the Rule is the Energy Policy and Conservation Act (42 U.S.C. 6292 et seq.).

    C. Small Entities To Which the Proposed Rule Will Apply

    Under the Small Business Size Standards issued by the Small Business Administration, appliance manufacturers qualify as small businesses if they have fewer than 1,000 employees (for other household appliances the figure is 500 employees). Catalog sellers qualify as small businesses if their sales are less than $8.0 million annually. The Commission estimates that there are approximately 150 entities subject to the proposed rule's requirements that qualify as small businesses.57 The Commission seeks comment and information with regard to the estimated number or nature of small business entities for which the proposed rule would have a significant economic impact.

    57See 75 FR at 41712 (July 19, 2010).

    D. Projected Reporting, Recordkeeping and Other Compliance Requirements

    The changes under consideration would slightly increase reporting or recordkeeping requirements associated with the Commission's labeling rules as discussed above. The amendments likely will increase compliance burdens by extending the labeling requirements to portable air conditioners and creating an online database. The Commission assumes that the label design change will be implemented by graphic designers.

    E. Duplicative, Overlapping, or Conflicting Federal Rules

    The Commission has not identified any other federal statutes, rules, or policies that would duplicate, overlap, or conflict with the proposed rule. The Commission invites comment and information on this issue.

    F. Significant Alternatives to the Proposed Rule

    The Commission seeks comment and information on the need, if any, for alternative compliance methods that, consistent with the statutory requirements, would reduce the economic impact of the rule on small entities. For example, the Commission is currently unaware of the need to adopt any special provisions for small entities. In addition, the database requirement requires only electronic compliance methods, and does not impose any additional or more burdensome paper-based requirements. However, if such issues are identified, the Commission could consider alternative approaches such as extending the effective date of these amendments for catalog sellers to allow them additional time to comply beyond the labeling deadline set for manufacturers. Nonetheless, if the comments filed in response to this notice identify small entities that are affected by the proposed rule, as well as alternative methods of compliance that would reduce the economic impact of the rule on such entities, the Commission will consider the feasibility of such alternatives and determine whether they should be incorporated into the final rule.

    VI. Communications by Outside Parties to the Commissioners or Their Advisors

    Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding, from any outside party to any Commissioner or Commissioner's advisor, will be placed on the public record. See 16 CFR 1.26(b)(5).

    VII. Proposed Rule List of Subjects in 16 CFR Part 305

    Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.

    For the reasons discussed above, the Commission proposes to amend part 305 of title 16, Code of Federal Regulations, as follows:

    PART 305—ENERGY AND WATER USE LABELING FOR CONSUMER PRODUCTS UNDER THE ENERGY POLICY AND CONSERVATION ACT (“ENERGY LABELING RULE”) 1. The authority citation for part 305 continues to read as follows: Authority:

    42 U.S.C. 6294.

    2. In § 305.3, add paragraph (z) to read as follows:
    § 305.3 Description of covered products.

    (z) Portable air conditioner means an encased assembly, other than a “packaged terminal air conditioner,” “room air conditioner,” or “dehumidifier,” designed as a portable unit for delivering cooled, conditioned air to an enclosed space, that is powered by single-phase electric current, which may rest on the floor or other elevated surface. It includes a source of refrigeration and may include additional means for air circulation and heating.

    3. Revise § 305.6 to read as follows:
    § 305.6 Duty to provide labels.

    (a) For each covered product that a manufacturer distributes in commerce after July 15, 2013, which is required by this part to bear an EnergyGuide or Lighting Facts label, the manufacturer must make a copy of the label available on a publicly accessible Web site in a manner that allows catalog sellers to hyperlink to the label or download it for use in Web sites or paper catalogs. The label for each specific model must remain on the Web site for six months after production of that model ceases.

    (b) Manufacturers must submit the Web site address for the online labels covered by paragraph (c) In lieu of submitting the required information to the Commission, manufacturers may submit such information to the Department of Energy via the CCMS at https://regulations.doe.gov/ccms as provided by 10 CFR 429.12.

    4. Amend § 305.7 by revising paragraphs (a), (b), and (d) to read as follows:
    § 305.7 Determinations of capacity.

    (a) Refrigerators and refrigerator-freezers. The capacity shall be the total refrigerated volume (VT) in cubic feet, rounded to the nearest one-tenth of a cubic foot, as determined according to appendix A to 10 CFR part 430, subpart B.

    (b) Freezers. The capacity shall be the total refrigerated volume (VT) in cubic feet, rounded to the nearest one-tenth of a cubic foot, as determined according to appendix B to 10 CFR part 430, subpart B.

    (d) Water heaters. The capacity shall be the tank capacity and first hour rating, as determined according to appendix E to 10 CFR part 430, subpart B.

    5. Amend § 305.11 by revising the title and paragraph (f) to read as follows:
    § 305.11 Labeling for refrigerators, refrigerator-freezers, freezers, dishwashers, clothes washers, water heaters, room air conditioners, portable air conditioners, and pool heaters.

    (f) Label content. (1) Headlines and texts, as illustrated in the prototype and sample labels in appendix L to this part.

    (2) Name of manufacturer or private labeler shall, in the case of a corporation, be deemed to be satisfied only by the actual corporate name, which may be preceded or followed by the name of the particular division of the corporation. In the case of an individual, partnership, or association, the name under which the business is conducted shall be used. Inclusion of the name of the manufacturer or private labeler is optional at the discretion of the manufacturer or private labeler.

    (3) Model number(s) will be the designation given by the manufacturer or private labeler.

    (4) Capacity or size is that determined in accordance with § 305.7. For refrigerators, refrigerator-freezers, and freezers, the capacity provided on the label shall be the model's total refrigerated volume (VT) as determined in accordance with § 305.7.

    (5) Unless otherwise indicated in this paragraph, estimated annual operating costs for refrigerators, refrigerator-freezers, freezers, clothes washers, dishwashers, room air conditioners, portable air conditioners, and water heaters are as determined in accordance with §§ 305.5 and 305.10. Thermal efficiencies for pool heaters are as determined in accordance with § 305.5. Labels for clothes washers and dishwashers must disclose estimated annual operating cost for both electricity and natural gas as illustrated in the sample labels in appendix L to this part. Labels for dual-mode refrigerator-freezers that can operate as either a refrigerator or a freezer must reflect the estimated energy cost of the model's most energy intensive configuration.

    (6) Unless otherwise indicated in this paragraph, ranges of comparability for estimated annual operating costs or thermal efficiencies, as applicable, are found in the appropriate appendices accompanying this part.

    (7) Placement of the labeled product on the scale shall be proportionate to the lowest and highest estimated annual operating costs or thermal efficiencies, as applicable.

    (8) Labels for refrigerators, refrigerator-freezers, freezers, dishwashers, clothes washers, and water heaters must contain the model's estimated annual energy consumption as determined in accordance with § 305.5 and as indicated on the sample labels in appendix L to this part. Labels for room air conditioners, portable air conditioners, and pool heaters must contain the model's energy efficiency rating or thermal efficiency, as applicable, as determined in accordance with § 305.5 and as indicated on the sample labels in appendix L to this part. Labels for dual-mode refrigerator-freezers that can operate as either a refrigerator or a freezer must reflect the estimated energy cost of the model's most energy intensive configuration.

    (9) Labels must contain a statement as illustrated in the prototype labels in appendix L to this part and specified as follows by product type:

    (i) Labels for refrigerators and refrigerator-freezers must contain a statement as illustrated in the prototype labels in appendix L to this part and specified as follows (fill in the blanks with the appropriate year and energy cost figures):

    Your cost will depend on your utility rates and use.

    Both cost ranges based on models of similar size capacity.

    [Insert statement required by § 305.11(f)(9)(iii)].

    Estimated energy cost is based on a national average electricity cost of _cents per kWh. ftc.gov/energy.

    (ii) For refrigerators, refrigerator-freezers, and freezers manufactured on or after September 15, 2014 and clothes washers manufactured after March 7, 2015, the label shall contain the text and graphics illustrated in sample labels 1 and 2 of appendix L to this part, including the statement:

    Compare only to other labels with yellow numbers.

    Labels with yellow numbers are based on the same test procedures.

    (iii) For refrigerators and refrigerator-freezers, the following sentence shall be included as part of the statement required by § 305.11(f)(9)(i):

    (A) For models covered under appendix A1 to this part, the sentence shall read:

    Models with similar features have no freezer and automatic defrost.

    (B) For models covered under appendix A2 to this part, the sentence shall read:

    Models with similar features have manual defrost.

    (C) For models covered under appendix A3 to this part, the sentence shall read:

    Models with similar features have partial automatic defrost.

    (D) For models covered under appendix A4 to this part, the sentence shall read:

    Models with similar features have automatic defrost, top-mounted freezer, and no through-the-door ice.

    (E) For models covered under appendix A5 to this part, the sentence shall read:

    Models with similar features have automatic defrost, side-mounted freezer, and no through-the-door ice.

    (F) For models covered under appendix A6 to this part, the sentence shall read:

    Models with similar features have automatic defrost, bottom-mounted freezer, and no through-the-door ice.

    (G) For models covered under appendix A7 to this part, the sentence shall read:

    Models with similar features have automatic defrost, bottom-mounted freezer through-the-door ice.

    (H) For models covered under appendix A8 to this part, the sentence shall read:

    Models with similar features have automatic defrost, side-mounted freezer, and through-the-door ice.

    (iv) Labels for freezers must contain a statement as illustrated in the prototype labels in appendix L to this part and specified as follows (fill in the blanks with the appropriate year and energy cost figures):

    Your cost will depend on your utility rates and use.

    [Insert statement required by § 305.11(f)(10)(v).]

    Estimated energy cost is based on a national average electricity cost of _ cents per kWh.ftc.gov/energy.

    (v) For freezers, the following sentence shall be included as part of the statement required by § 305.11(f)(9)(iv):

    (A) For models covered under appendix B1 to this part, the sentence shall read:

    Cost range based only on upright freezer models of similar capacity with manual defrost.

    (B) For models covered under appendix B2 to this part, the sentence shall read:

    Cost range based only on upright freezer models of similar capacity with automatic defrost.

    (C) For models covered under appendix B3 to this part, the sentence shall read:

    Cost range based only on chest and other freezer models of similar capacity.

    (vi) For room air conditioners covered under appendix E to this part, the statement will read as follows (fill in the blanks with the appropriate model type, year, energy type, and energy cost figure):

    Your costs will depend on your utility rates and use.

    Cost range based only on models [of similar capacity without reverse cycle and with louvered sides; of similar capacity without reverse cycle and without louvered sides; with reverse cycle and with louvered sides; or with reverse cycle and without louvered sides]. Estimated annual energy cost is based on a national average electricity cost of _ cents per kWh and a seasonal use of 8 hours use per day over a 3 month period.

    For more information, visit www.ftc.gov/energy.

    (vii) For water heaters covered by appendices D1, D2, and D3 to this part, the statement will read as follows (fill in the blanks with the appropriate fuel type, year, and energy cost figures):

    Your costs will depend on your utility rates and use.

    Cost range based only on models of similar tank size ([40 gallons or less, between 40 and 55 gallons, or 55 gallons or more]), fueled by [natural gas, oil, propane, or electricity], and a [very small, low, medium, or large] hourly hot water output ([_-_] gallons).

    Estimated energy cost is based on a national average [electricity, natural gas, propane, or oil] cost of [_ cents per kWh or $_ per therm or gallon].

    Estimated yearly energy use: ___ [kWh or therms]

    * Also known as First Hour Rating.

    ftc.gov/energy.

    (viii) For instantaneous water heaters (appendix D4 to this part), the statement will read as follows (fill in the blanks with the appropriate model type, the operating cost, the year, and the energy cost figures):

    Your costs will depend on your utility rates and use.

    Cost range based only on instantaneous gas water heater models with a [very small, low, medium, or large] gallons per minute ([_-_] gallons).

    Estimated energy cost is based on a national average [electricity, natural gas, or propane] cost of [_ cents per kWh or $_ per therm or gallon].

    For more information, visit www.ftc.gov/energy.

    (ix) For dishwashers covered by appendices C1 and C2 to this part, the statement will read as follows (fill in the blanks with the appropriate appliance type, the energy cost, the number of loads per week, the year, and the energy cost figures):

    Your costs will depend on your utility rates and use.

    Cost range based only on [compact/standard] capacity models.

    Estimated energy cost is based on 4 washloads a week, and a national average electricity cost of _ cents per kWh and natural gas cost of $_ per therm.

    For more information, visit www.ftc.gov/energy.

    (x) For clothes washers covered by appendices F1 and F2 to this part, the statement will read as follows (fill in the blanks with the appropriate appliance type, the energy cost, the number of loads per week, the year, and the energy cost figures):

    Your costs will depend on your utility rates and use.

    Cost range based only on [compact/standard] capacity models.

    Estimated energy cost is based on 8 washloads a week and a national average electricity cost of _ cents per kWh and natural gas cost of $_ per therm.

    For more information, visit www.ftc.gov/energy.

    (xi) For pool heaters covered under appendices J1 and J2 to this part, the statement will read as follows:

    Efficiency range based only on models fueled by [natural gas or oil].

    For more information, visit www.ftc.gov/energy.

    6. Amend § 305.12 by revising paragraphs (f)(2), (f)(3), (f)(14), and (g) to read as follows:
    § 305.12 Labeling for central air conditioners, heat pumps, and furnaces.

    (f) * * *

    (2) Name of manufacturer or private labeler shall, in the case of a corporation, be deemed to be satisfied only by the actual corporate name, which may be preceded or followed by the name of the particular division of the corporation. In the case of an individual, partnership, or association, the name under which the business is conducted shall be used. Inclusion of the name of the manufacturer or private labeler is optional at the discretion of the manufacturer or private labeler.

    (3) The model's basic model number. The label may include multiple model numbers on a single label for models as long as the models share the same efficiency ratings and capacities.

    (14) Manufacturers of models that qualify as both furnaces and central air conditioners or heat pumps under DOE requirements may combine the disclosures required by this section on one label for models that meet all applicable DOE regional efficiency standards.

    (g) Content of central air conditioner labels: Content of labels for central air conditioners and heat pumps. (1) Headlines and texts, as illustrated in the prototype and sample labels in appendix L to this part.

    (2) Name of manufacturer or private labeler shall, in the case of a corporation, be deemed to be satisfied only by the actual corporate name, which may be preceded or followed by the name of the particular division of the corporation. In the case of an individual, partnership, or association, the name under which the business is conducted shall be used. Inclusion of the name of the manufacturer or private labeler is optional at the discretion of the manufacturer or private labeler.

    (3) The model's basic model number. The label may include multiple model numbers on a single label for models as long as the models share the same efficiency ratings and capacities.

    (4) The model's capacity. Inclusion of capacity is optional at the discretion of the manufacturer or private labeler for all models except split-system labels, which may not disclose capacity.

    (5) The seasonal energy efficiency ratio (SEER) for the cooling function of central air conditioners as determined in accordance with § 305.5. For the heating function, the heating seasonal performance factor (HSPF) shall be calculated for heating Region IV for the standardized design heating requirement nearest the capacity measured in the High Temperature Test in accordance with § 305.5. In addition, as illustrated in the sample labels 7 and 8 in appendix L to this part, the ratings for any split-system condenser evaporator coil combinations shall be the minimum rating of all condenser-evaporator coil combinations certified to the Department of Energy pursuant to 10 CFR part 430.

    (6)(i) Each cooling-only central air conditioner label shall contain a range of comparability consisting of the lowest and highest SEER for all cooling-only central air conditioners consistent with sample label 7A in appendix L to this part.

    (ii) Each heat pump label, except as noted in paragraph (g)(6)(iii) of this section, shall contain two ranges of comparability. The first range shall consist of the lowest and highest seasonal energy efficiency ratios for the cooling side of all heat pumps consistent with sample label 8 in appendix L to this part. The second range shall consist of the lowest and highest heating seasonal performance factors for the heating side of all heat pumps consistent with sample label 8 in appendix L to this part.

    (iii) Each heating-only heat pump label shall contain a range of comparability consisting of the lowest and highest heating seasonal performance factors for all heating-only heat pumps following the format of sample label 8 in appendix L to this part.

    (7) Placement of the labeled product on the scale shall be proportionate to the lowest and highest efficiency ratings forming the scale.

    (8) The following statement shall appear on the label in bold print as indicated in the sample labels in appendix L to this part.

    For energy cost info, visit productinfo.energy.gov.

    (9) All labels on split-system condenser units must contain one of the following three statements:

    (i) For labels disclosing only the seasonal energy efficiency ratio for cooling, the statement should read:

    This system's efficiency rating depends on the coil your contractor installs with this unit. Ask for details.

    (ii) For labels disclosing both the seasonal energy efficiency ratio for cooling and the heating seasonal performance factor for heating, the statement should read:

    This system's efficiency ratings depend on the coil your contractor installs with this unit. The heating efficiency rating will vary slightly in different geographic regions. Ask your contractor for details.

    (iii) For labels disclosing only the heating seasonal performance factor for heating, the statement should read:

    This system's efficiency rating depends on the coil your contractor installs with this unit. The efficiency rating will vary slightly in different geographic regions. Ask your contractor for details.

    (10) The following statement shall appear at the top of the label as illustrated in the sample labels in appendix L to this part:

    Federal law prohibits removal of this label before consumer purchase.

    (11) For any single-package air conditioner with a minimum Energy Efficiency Ratio (EER) of at least 11.0, any split system central air conditioner with a rated cooling capacity of at least 45,000 Btu/h and minimum efficiency ratings of at least 14 SEER and 11.7 EER, and any split-system central air conditioners with a rated cooling capacity less than 45,000 Btu/h and minimum efficiency ratings of at least 14 SEER and 12.2 EER, the label must contain the following regional standards information:

    (i) A statement that reads: Notice Federal law allows this unit to be installed in all U.S. states and territories.

    (ii) For split systems, a statement that reads:

    Energy Efficiency Ratio (EER): The installed system's minimum EER is _.

    (iii) For single-package air conditioners, a statement that reads:

    Energy Efficiency Ratio (EER): This model's EER is [_].

    (12) For any split system central air conditioner with a rated cooling capacity of at least 45,000 Btu/h and minimum efficiency ratings of at least 14 SEER but lower than 11.7 EER, and any split-system central air conditioners with a rated cooling capacity less than 45,000 Btu/h and minimum efficiency ratings of at least 14 SEER but lower than 12.2 EER.

    (i) A statement that reads:

    Notice Federal law allows this unit to be installed only in: AK, AL, AR, CO, CT, DC, DE, FL, GA, HI, ID, IL, IA, IN, KS, KY, LA, MA, ME, MD, MI, MN, MO, MS, MT, NC, ND, NE., NH, NJ, NY, OH, OK, OR, PA, RI, SC, SD, TN, TX, UT, VA, VT, WA, WV, WI, WY and U.S. territories. Federal law prohibits installation of this unit in other states.

    (ii) A map and accompanying text as illustrated in the sample label 7A in appendix L.

    (iii) For split-system air conditioner systems, a statement that reads Energy Efficiency Ratio (EER): The installed system's minimum EER is _.

    (13) For any split system central air conditioner with a minimum rated efficiency rating less than 14 SEER:

    (i) A statement that reads:

    Notice Federal law allows this unit to be installed only in: AK, CO, CT, ID, IL, IA, IN, KS, MA, ME, MI, MN, MO, MT, ND, NE., NH, NJ, NY, OH, OR, PA, RI, SD, UT, VT, WA, WV, WI, WY, and U.S. Territories. Federal law prohibits installation of this unit in other states.

    (ii) A map and accompanying text as illustrated in the sample label 8 in appendix L.

    (iii) For split-system air conditioner systems, a statement that reads:

    Energy Efficiency Ratio (EER): The installed system's minimum EER is _.

    (14) For any single-package air conditioner with a minimum EER below 11.0, the label must contain the following regional standards information consistent with sample label 7A in appendix L to this part:

    (i) A statement that reads:

    Notice Federal law allows this unit to be installed only in: AK, AL, AR, CO, CT, DC, DE, FL, GA, HI, ID, IL, IA, IN, KS, KY, LA, MA, ME, MD, MI, MN, MO, MS, MT, NC, ND, NE., NH, NJ, NY, OH, OK, OR, PA, RI, SC, SD, TN, TX, UT, VA, VT, WA, WV, WI, WY and U.S. territories. Federal law prohibits installation of this unit in other states.

    (ii) A map and accompanying text as illustrated in the sample label 7A in appendix L to this part.

    (15) No marks or information other than that specified in this part shall appear on or directly adjoining this label except that:

    (i) A part or publication number identification may be included on this label, as desired by the manufacturer. If a manufacturer elects to use a part or publication number, it must appear in the lower right-hand corner of the label and be set in 6-point type or smaller.

    (ii) The energy use disclosure labels required by the governments of Canada or Mexico may appear directly adjoining this label, as desired by the manufacturer.

    (iii) The manufacturer may include the ENERGY STAR logo on the label for certified products in a location consistent with the sample labels in appendix L to this part. The logo must be no larger than 1 inch by 3 inches in size. Only manufacturers that have signed a Memorandum of Understanding with the Department of Energy or the Environmental Protection Agency may add the ENERGY STAR logo to labels on qualifying covered products; such manufacturers may add the ENERGY STAR logo to labels only on those covered products that are contemplated by the Memorandum of Understanding.

    7. Revise § 305.13(a) to read as follows:
    § 305.13 Labeling for ceiling fans.

    (a) Ceiling fans—(1) Content. Any covered product that is a ceiling fan shall be labeled clearly and conspicuously on the package's principal display panel with the following information on the label consistent with the sample label in appendix L to this part:

    (i) Headlines, including the title “EnergyGuide,” and text as illustrated in the sample labels in appendix L to this part;

    (ii) The product's estimated yearly energy cost based on 6 hours use per day and 12 cents per kWh;

    (iii) The product's airflow at high speed expressed in cubic feet per minute and determined pursuant to § 305.5;

    (iv) The product's energy use at high speed expressed in watts and determined pursuant to § 305.5 of this part as indicated in the sample label in appendix L of this part;

    (v) The statement “Your cost depends on rates and use”;

    (vi) The statement “All estimates at high speed, excluding lights”;

    (vii) The statement “the higher the airflow, the more air the fan will move;”

    (viii) The statement “Airflow Efficiency: __ Cubic Feet Per Minute Per Watt”;

    (ix) The address ftc.gov/energy;

    (x) For fans fewer than 49 inches in diameter, the label shall display a cost range for 36” to 48” ceiling fans of $2 to $53;

    (xi) For fans 49 inches or more in diameter, the label shall display a cost range for 49” to 60” ceiling fans of $3 to $29; and

    (xii) The ENERGY STAR logo as illustrated on the ceiling fan label illustration in Appendix L for qualified products, if desired by the manufacturer. Only manufacturers that have signed a Memorandum of Understanding with the Department of Energy or the Environmental Protection Agency may add the ENERGY STAR logo to labels on qualifying covered products; such manufacturers may add the ENERGY STAR logo to labels only on those products that are covered by the Memorandum of Understanding;

    (2) Label size, color, and text font. The label shall be four inches wide and three inches high. The label colors shall be process black text on a process yellow background. The text font shall be Arial or another equivalent font. The label's text size, format, content, and the order of the required disclosures shall be consistent with the ceiling fan label illustration of appendix L to this part.

    (3) Placement. The ceiling fan label shall be printed on or affixed to the principal display panel of the product's packaging.

    (4) Additional information. No marks or information other than that specified in this part shall appear on this label, except a model name, number, or similar identifying information.

    8. Revise § 305.14 to read as follows:
    § 305.14 Energy information disclosures for heating and cooling equipment.

    (a) The following provisions apply to any covered central air conditioner, heat pump, or furnace.

    (1) Manufacturer duty to provide labels. For any covered central air conditioner, heat pump, or furnace model that a manufacturer distributes in commerce, the manufacturer must make a copy of the EnergyGuide label available on a publicly accessible Web site in a manner that allows catalog sellers and consumers to hyperlink to the label or download it for their use. The labels must remain on the Web site for six months after the manufacturer ceases the model's production.

    (2) Distribution. (i) Manufacturers and private labelers must provide to distributors and retailers, including assemblers, EnergyGuide labels for covered central air conditioners, heat pumps, and furnaces (including boilers) they sell to them. The label may be provided in paper or electronic form (including Internet-based access). Distributors must give this information to retailers, including assemblers, they supply.

    (ii) Retailers, including assemblers, who sell covered central air conditioners, heat pumps, and furnaces (including boilers) to consumers must show the labels for the products they offer to customers and let them read the labels before the customers agree to purchase the product. For example, the retailer may display labeled units in their store or direct consumers to the labels in a binder or computer at a counter or service desk.

    (iii) Retailers, including installers and assemblers, who negotiate or make sales at a place other than their regular places of business, including sales over the telephone or through electronic communications, must show the labels for the products they offer to customers and let them read the labels before the customers agree to purchase the product. If the labels are on a Web site, retailers, including assemblers, who negotiate or make sales at a place other than their regular places of business, may choose to provide customers with instructions to access such labels in lieu of showing them a paper version of the information. Retailers who choose to use the Internet for the required label disclosures must provide customers the opportunity to read such information prior to sale of the product.

    (3) Oil furnace labels. If an installer installs an oil furnace with an input capacity different from that set by the manufacturer and the manufacturer identifies alternative capacities on the label, the installer must permanently mark the appropriate box on the EnergyGuide label displaying the installed input capacity and the associated AFUE as illustrated in sample label 9B in appendix L to this part.

    § 305.16 [Amended]
    9. In § 305.16, revise all references to “A112.18.1M” and “A112.19.2M” to read “A112.18.1” and “A112.19.2” respectively wherever they appear. 10. Revise appendix A1 to part 305 to read as follows: Appendix A1 to Part 305—Refrigerators With Automatic Defrost Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $32 $35 10.5 to 12.4 35 35 12.5 to 14.4 33 33 14.5 to 16.4 46 46 16.5 to 18.4 34 40 18.5 to 20.4 39 40 20.5 to 22.4 37 44 22.5 to 24.4 45 50 24.5 to 26.4 (*) (*) 26.5 to 28.4 (*) (*) 28.5 and over (*) (*) * No data submitted.
    11. Revise appendix A2 to part 305 to read as follows: Appendix A2 to Part 305—Refrigerators and Refrigerator-Freezers With Manual Defrost Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $24 $32 10.5 to 12.4 38 38 12.5 to 14.4 (*) (*) 14.5 to 16.4 (*) (*) 16.5 to 18.4 (*) (*) 18.5 to 20.4 (*) (*) 20.5 to 22.4 (*) (*) 22.5 to 24.4 (*) (*) 24.5 to 26.4 (*) (*) 26.5 to 28.4 (*) (*) 28.5 and over (*) (*) * No data submitted.
    12. Revise appendix A3 to part 305 to read as follows: Appendix A3 to Part 305—Refrigerator-Freezers With Partial Automatic Defrost Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $26 10.5 to 12.4 (*) $44 12.5 to 14.4 (*) (*) 14.5 to 16.4 (*) (*) 16.5 to 18.4 (*) (*) 18.5 to 20.4 (*) (*) 20.5 to 22.4 (*) (*) 22.5 to 24.4 (*) (*) 24.5 to 26.4 (*) (*) 26.5 to 28.4 (*) (*) 28.5 and over (*) (*) * No data submitted.
    13. Revise appendix A4 to part 305 to read as follows: Appendix A4 to Part 305—Refrigerator-Freezers With Automatic Defrost With Top-Mounted Freezer Without Through-the-Door Ice Service Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $36 $43 10.5 to 12.4 30 51 12.5 to 14.4 40 55 14.5 to 16.4 40 57 16.5 to 18.4 43 59 18.5 to 20.4 40 62 20.5 to 22.4 46 63 22.5 to 24.4 56 66 24.5 to 26.4 (*) (*) 26.5 to 28.4 (*) (*) 28.5 and over (*) (*) * No data submitted.
    14. Revise appendix A5 to part 305 to read as follows: Appendix A5 to Part 305—Refrigerator-Freezers With Automatic Defrost With Side-Mounted Freezer Without Through-the-Door Ice Service Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $41 $69 10.5 to 12.4 (*) (*) 12.5 to 14.4 (*) (*) 14.5 to 16.4 (*) (*) 16.5 to 18.4 (*) (*) 18.5 to 20.4 63 86 20.5 to 22.4 82 90 22.5 to 24.4 69 93 24.5 to 26.4 96 96 26.5 to 28.4 71 71 28.5 and over 89 101 * No data submitted.
    15. Revise appendix A6 to part 305 to read as follows: Appendix A6 to Part 305—Refrigerator-Freezers With Automatic Defrost With Bottom-Mounted Freezer Without Through-the-Door Ice Service Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $41 $62 10.5 to 12.4 43 53 12.5 to 14.4 45 65 14.5 to 16.4 49 72 16.5 to 18.4 53 73 18.5 to 20.4 54 75 20.5 to 22.4 58 79 22.5 to 24.4 63 83 24.5 to 26.4 64 81 26.5 to 28.4 77 84 28.5 and over 65 81
    16. Revise appendix A7 to part 305 to read as follows: Appendix A7 to Part 305—Refrigerator-Freezers With Automatic Defrost With Bottom-Mounted Freezer With Through-the-Door Ice Service Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $27 $30 10.5 to 12.4 (*) (*) 12.5 to 14.4 (*) (*) 14.5 to 16.4 (*) (*) 16.5 to 18.4 (*) (*) 18.5 to 20.4 83 83 20.5 to 22.4 77 87 22.5 to 24.4 80 90 24.5 to 26.4 76 93 26.5 to 28.4 74 95 28.5 and over 78 95 (*) No data submitted.
    17. Revise appendix A8 to part 305 to read as follows: Appendix A8 to Part 305—Refrigerator-Freezers With Automatic Defrost With Side-Mounted Freezer With Through-the-Door Ice Service Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $65 $65 10.5 to 12.4 (*) (*) 12.5 to 14.4 65 65 14.5 to 16.4 (*) (*) 16.5 to 18.4 (*) (*) 18.5 to 20.4 78 94 20.5 to 22.4 72 93 22.5 to 24.4 81 98 24.5 to 26.4 76 99 26.5 to 28.4 85 104 28.5 and over 82 107 * No data submitted.
    18. Revise appendix A9 to part 305 to read as follows: Appendix A9 to Part 305—All Refrigerators And Refrigerator-Freezers Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 10.5 $24 69 10.5 to 12.4 30 53 12.5 to 14.4 33 65 14.5 to 16.4 40 72 16.5 to 18.4 34 73 18.5 to 20.4 39 94 20.5 to 22.4 37 93 22.5 to 24.4 45 98 24.5 to 26.4 71 99 26.5 to 28.4 71 104 28.5 and over 65 107
    19. Revise appendix B1 to part 305 to read as follows: Appendix B1 to Part 305—Upright Freezers With Manual Defrost Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 5.5 $26 $36 5.5 to 7.4 38 38 7.5 to 9.4 30 30 9.5 to 11.4 31 31 11.5 to 13.4 38 38 13.5 to 15.4 40 40 15.5 to 17.4 43 43 17.5 to 19.4 (*) (*) 19.5 to 21.4 48 48 21.5 to 23.4 (*) (*) 23.5 to 25.4 (*) (*) 25.5 to 27.4 (*) (*) 27.5 to 29.4 (*) (*) 29.5 and over (*) (*) * No data submitted.
    20. Revise appendix B2 to part 305 to read as follows: Appendix B2 to Part 305—Upright Freezers With Automatic Defrost Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 5.5 $36 $53 5.5 to 7.4 (*) (*) 7.5 to 9.4 53 56 9.5 to 11.4 (*) (*) 11.5 to 13.4 67 67 13.5 to 15.4 47 73 15.5 to 17.4 52 68 17.5 to 19.4 54 81 19.5 to 21.4 57 73 21.5 to 23.4 81 87 23.5 to 25.4 (*) (*) 25.5 to 27.4 (*) (*) 27.5 to 29.4 (*) (*) 29.5 and over (*) (*) * No data submitted.
    21. Revise appendix B3 to part 305 to read as follows: Appendix B3 to Part 305—Chest Freezers and All Other Freezers Range Information Manufacturer's rated total refrigerated volume in cubic feet Range of estimated annual
  • operating costs
  • (dollars/year)
  • Low High
    Less than 5.5 $20 $26 5.5 to 7.4 25 37 7.5 to 9.4 31 38 9.5 to 11.4 30 33 11.5 to 13.4 35 39 13.5 to 15.4 38 57 15.5 to 17.4 38 38 17.5 to 19.4 (*) (*) 19.5 to 21.4 46 51 21.5 to 23.4 49 55 23.5 to 25.4 55 61 25.5 to 27.4 (*) (*) 27.5 to 29.4 (*) (*) 29.5 and over (*) (*) (*) No data submitted.
    22. Amend appendix L by revising sample labels 1A, 5, and 17 to read as follows: Appendix L to Part 305—Sample Labels BILLING CODE 6750-01-P EP02NO15.007 EP02NO15.008 EP02NO15.009

    By direction of the Commission.

    Donald S. Clark, Secretary.
    [FR Doc. 2015-27773 Filed 10-30-15; 8:45 am] BILLING CODE 6750-01-C
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 447 [CMS-2328-NC] Medicaid Program; Request for Information (RFI)—Data Metrics and Alternative Processes for Access to Care in the Medicaid Program AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Request for information.

    SUMMARY:

    In this request for information (RFI), we seek public input to inform the potential development of standards with regard to Medicaid beneficiaries' access to covered services under the Medicaid program. Specifically, we are interested in obtaining information on core access to care measures and metrics that could be used to measure access to care for beneficiaries in the Medicaid program (including in fee-for-service and managed care delivery systems) and used to develop local, state and national thresholds and goals to inform and improve access in the program. We are also interested in feedback on approaches to using the metrics, which could include setting access goals and thresholds and formal processes for beneficiaries to raise access concerns.

    DATES:

    Comment Date: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 4, 2016.

    ADDRESSES:

    In commenting, refer to file code CMS-2328-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

    You may submit comments in one of four ways (please choose only one of the ways listed):

    1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.

    2. By regular mail. You may mail written comments to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2328-NC, P.O. Box 8016, Baltimore, MD 21244-8016.

    Please allow sufficient time for mailed comments to be received before the close of the comment period.

    3. By express or overnight mail. You may send written comments to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2328-NC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    4. By hand or courier. Alternatively, you may deliver (by hand or courier) your written comments ONLY to the following addresses:

    a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.

    (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)

    b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.

    Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

    For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

    FOR FURTHER INFORMATION CONTACT:

    Jeremy Silanskis, (410) 786-1592.

    SUPPLEMENTARY INFORMATION:

    Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to view public comments.

    Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

    I. Background

    CMS and states have the responsibility under section 1902(a)(30)(A) of the Social Security Act (the Act) to assure that Medicaid payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the state plan at least to the extent that such care and services are available to the general population in the geographic area. We interpret this provision to mean rates and payments for Medicaid services are set at levels that ensure value, quality and provider participation. In the past, our oversight of this provision has primarily focused on ensuring that payment methodologies are economic and efficient, as well as consistent with upper payment limits for certain services. During the recent economic downturn, and in light of state proposals to dramatically reduce provider payments, we began requesting that states provide information to document that services are available and access remains after payment reductions go into effect. We found that state processes for documenting access were generally inconsistent and in many cases did not adequately document access.

    To address this, on May 6, 2011, we published the proposed rule entitled “Medicaid Program; Methods for Assuring Access to Covered Medicaid Services” (hereafter referred to as the “Access to Care” proposed rule) (76 FR 26342). In that rule, we proposed a specific process through which states would document that their payment rates provide access to care. The proposed rule, which applies to services that states cover through the Medicaid state plan, is being finalized with comment period concurrent with the issuance of this request for information (RFI). Among other new processes, the rule requires states describe access monitoring review plans that address: The extent to which enrollee needs are fully met, the availability of care and qualified service providers, changes in service utilization and comparisons between Medicaid payments and payments made by other health payers for equivalent services. At a minimum, the access monitoring review plans apply to the following service categories: Primary care (including pediatric care), physician specialists, behavioral health (including substance use disorder services), pre- and post-natal obstetric services, and home health. If states reduce or restructure payments, or receive complaints about access to care for other services, they must add those services to the review plans and monitor access to those services over the ensuing 3 years. States, with public input from stakeholders, would determine measures and thresholds used to monitor access as the final rule does not require a core set of measures or describe national thresholds for Medicaid access to care.

    We also recently proposed changes that promote access to care for beneficiaries who receive services through Medicaid managed care. On June 1, 2015, we issued a proposed rule entitled “Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability (80 FR 31098), which proposed to modernize Medicaid and Children's Health Insurance Program (CHIP) managed care regulations to update the programs' rules and strengthen the delivery of quality care for beneficiaries. In that rule, we proposed: Minimum requirements for states when setting and monitoring network adequacy standards, certification of managed care plan networks at least on an annual basis, and annual reporting on the accessibility and availability of services. Similar to the “Access to Care” final rule with comment period that appears elsewhere in this issue of the Federal Register, the managed care proposed rule proposes to allow states the discretion to set the standards and measures for network adequacy and does not propose to require specific measures or thresholds for access to care. The access requirements for managed care plans are not directly governed by section 1902(a)(30)(A) of the Act, but instead are governed by access requirements under sections 1903(m) and 1932 of the Act. The proposed managed care rule, however, would apply the same principles in determining access in the managed care environment as are contained in the fee-for-service environment.

    We believe that, to the extent there are similarities in the methods and measures used to review and analyze network adequacy for managed care networks and access to care in fee-for-service, aligning such methods and measures would ease the administrative burden on states and ensure that all Medicaid beneficiaries receive the care that they need regardless of whether they are in fee-for-service, are enrolled with a managed care organization, or receive services through a Medicaid waiver program. We are undertaking this effort to review access to care across the entire program for all individuals enrolled in Medicaid regardless of the delivery system mechanism.

    Importantly, earlier this year, the Supreme Court decided in Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) that Medicaid providers and beneficiaries do not have a private right of action to challenge state-determined Medicaid payment rates in federal courts, placing greater importance on CMS review to ensure that such rates are “consistent with efficiency, economy and quality of care” and ensure sufficient beneficiary access to care under the program. The Court concluded that federal administrative agencies are better suited than federal courts to make these determinations. Options for Medicaid providers and beneficiaries to pursue Medicaid rate-related issues in federal courts are now limited. As we note in the final rule with comment period, we are therefore working to strengthen the framework for CMS review to ensure that rates meet the requirements of section 1902(a)(30)(A) of the Act, including requiring access improvement strategies to improve care delivery where there are shortcomings. In this request for information, we are asking for public input on what additional data sources and approaches could be used to determine whether access to care is sufficient.

    We recognize that many factors affect access to Medicaid services, including: Level of payment, geographic location, time and distance to the closest provider, workforce, numbers of specialists and other types of providers within the state, lack of knowledge of available resources by beneficiaries, insufficient provider outreach, scope of practice approaches, and other economic and policy factors. Within state Medicaid programs, there are also considerable diversities in delivery system designs, populations served, and provider networks. We seek public input on what additional approaches we and states can take to understand, measure and improve Medicaid access more uniformly and in ways that account for these unique program features. This RFI solicits input from states, providers, beneficiaries and other members of the public on the feasibility of and methodologies related to the following four specific approaches:

    • Developing a core set of measures of access that all states would monitor and publicly report on;

    • Measuring access to long term care and home and community based services;

    • Setting national access to care thresholds; and

    • Establishing a process for access to care that would allow beneficiaries experiencing access issues to raise and seek resolution of their concerns.

    We also invite input on additional actions that we or states may take to further measure and promote access to care in the Medicaid program.

    In seeking this input, we recognize that we have not yet identified a clear, defined set of access measures that demonstrates whether access to care is sufficient. We are seeking input to identify a feasible set of measures and metrics that meaningfully demonstrate whether access to care is sufficient. We requested comments on potential core metrics and thresholds through the “Access to Care” proposed rule and received many suggestions. Generally, the responses suggested set levels of payment or access to providers consistent with Medicare or private insurance, without corresponding metrics and data sources to conduct a comparative analysis. Other health payers, such as Medicare, may be further along in measuring access through data collection tools. As any new data collection requirements would impose administrative burden on states and providers, we are particularly interested in how existing efforts, like the Medicare Current Beneficiary Survey and the Consumer Assessment of Healthcare Providers and Systems (and approved supplemental data sets), may be modified to apply to the Medicaid program.

    We note that through this RFI, we are seeking comments on areas of measurement and metrics that may indicate sufficient access in Medicaid programs regardless of delivery system. We are not attempting to develop areas of measurement that indicate causes of access deficiency, such as information on social determinants of health. While we appreciate the importance of understanding the reasons behind access problems and identifying those issues through data, our initial goal is to develop indicators of sufficient access that can be affected by Medicaid policy levers.

    II. Provisions of the Request for Information

    We are inviting states, beneficiaries, advocacy organizations, providers, managed care organizations, research and measurement communities, professional associations and other members of the public to share analyses and opinions related to the following topics: (1) Access to care data collection and methodology; (2) access to care thresholds and goals; (3) alternative processes for access concerns; and (4) access to care measures.

    The terms: Measures, metrics, and thresholds, are used throughout this RFI. By measures, we mean concrete, quantifiable indicators that can be used to assess access to care in Medicaid. Measures have both a numerator and a denominator (for example, 500 Medicaid participating physicians in the state this year divided by the number of Medicaid enrollees this year, or the state received 50 beneficiary complaints this month divided by the number of beneficiaries enrolled). Metrics are used to examine measures relative to a baseline assessment (for example, there 10 percent more physicians participating in Medicaid this year than last year, or the state received 20 percent fewer complaints this month than last month). A threshold would be a minimum acceptable value for access to care that is based on the measures and metrics.

    A. Access to Care Data Collection and Methodology

    To better inform us on the nature and scope of access to care measures and metrics, we are requesting comments on how to focus our efforts to determine the best indicators of access in Medicaid across services and delivery systems. Consideration of the following questions may be helpful in providing us your ideas and suggestions.

    • What do you perceive to be the advantages and disadvantages to requiring a national core set of access to care measures and metrics? Who do you believe should collect and analyze the national core set data?

    • Do you believe there are specific access to care measures that could be universally applied across services? If so, please describe such measures.

    • What information and methods do you believe large health care programs use to measure access to care that could be used by the Medicaid program? What role can health information technology lay in measuring access to care?

    • What do you believe are the primary indicators of access to care in the Medicaid program? Is measured variance in these indicators based on differences in things such as: Provider participation and location, appointment times, waiting room times, call center times, prescription fill times, other?

    • Do you believe a national core set of access measures or metrics should apply across all services, or is it more appropriate to target a core set of access measures by service?

    • Do you believe questions in provider and beneficiary surveys should be consistent for Medicaid and Medicare beneficiaries? If not, what differences do you believe should be accommodated for the Medicaid program, including differences in covered services?

    • What do you believe we should consider in undertaking access to care data collection in areas related to: Differences between fee-for-service (FFS) and managed care delivery, variations in services such as acute and long-term care, community and institutional settings for long-term care delivery, behavioral health, variations in access for pediatric and adult populations and individuals with disabilities, and variations in access for rural and urban areas? Consider also individuals with chronic conditions who may have limited functional support needs related to activities of daily living but nonetheless require more intensive care than other Medicaid beneficiaries, such as persons living with HIV/AIDS.

    • Specific to long-term services and supports, including home and community based services, what factors do you believe we should consider in measuring access to care? Do you believe we should incorporate into reviews of access to care for these services economic factors and significant policy factors such as: Minimum wage and overtime requirements, direct service worker shortages, training and professional development costs, or other factors?

    • Do you believe measuring access to Home and Community Based Services (HCBS) differs from measuring access to acute medical care? Please describe.

    • Do you believe access to HCBS should be tracked in FFS and in managed care delivery systems? Do you perceive any differences between tracking HCBS in each system?

    • Do you believe there are additional metrics that need to be tracked related to HCBS?

    B. Access to Care Thresholds/Goals

    To better inform us on how to interpret and use access to care metrics, we are requesting comments on setting access thresholds and how we might use the thresholds to improve access in the Medicaid program. Consideration of the following questions may be helpful in providing us your ideas and suggestions.

    • Do you believe we should set thresholds for Medicaid access to care? If so, do you believe such thresholds should be set at the national, state or local levels? Why?

    • If we set Medicaid access thresholds, how do you believe they should be used? For instance: For issuing compliance actions to states that do not meet the thresholds, as benchmarks for state improvement, for use in appeals processes for beneficiaries that have trouble accessing services, or in other ways?

    C. Alternative Processes for Access Concerns

    We are considering requiring standard access to care complaint driven processes to better ensure access and are interested in how data gathered and analyzed through a core set of measures might aid in resolving complaints, please consider the following questions:

    • Do you believe there are existing and effective processes to resolve consumers' concerns regarding health care access issues that might be useful for all state Medicaid programs?

    • What do you believe are the advantages and disadvantages of either a complaint resolution process or a formal appeals hearing for access to care concerns?

    • Who do you believe should be the responsible party (for example, the state or federal government, an independent third party, a civil servant, an administrative law judge, etc.) to hear beneficiary access to care complaints and/or appeals?

    • For an access to care appeal, what criteria do you believe should be used to help determine:

    ++Whether an appeal should be heard?

    ++Whether an appeal merits recommendations to the state Medicaid agency?

    • Which access to care areas of measurement or specific metrics may be useful in setting thresholds that would help hearings officers assess appeals and determine access to care remedies?

    • Lack of timeliness of an appeal could undermine the time sensitive efforts associated with remediating an individual's access to medical services. You may want to consider providing information on the following:

    ++How could appeals be expedited?

    ++What outcomes could an appeals officer offer if services are unavailable to Medicaid beneficiaries?

    ++Are there other non-appeal based processes that could be used instead?

    D. Access to Care Measures

    In conjunction with this RFI, you may want to consider each of the topics listed below, and suggest what you believe we should prioritize. You are also welcome to provide additional metrics that are associated with measurement areas that are relevant indicators of access to care in the Medicaid program and feasible to collect and analyze.

    For each suggested metric, you may consider describing the following:

    • Suggested relevant data metrics,

    • whether the metric is currently reported for Medicaid services,

    • the feasibility of collecting the metric,

    • the associated data sources/set(s) where the metrics are available,

    • the financial cost (if any) of collecting the proposed metric,

    • should including the metric in a more robust (or updated) Medicaid access policy be given priority;

    • the party responsible/steward(s) of the metric data source,

    • the metric validation process,

    • whether the metric is relevant to all Medicaid populations or specific to particular groups, (for example, adults or pediatric populations, including children with special health care needs, or to people with disabilities or to dually eligible beneficiaries),

    • whether the metric is applicable to FFS, managed care or both delivery systems,

    • whether the metric is relevant for various subpopulations such as eligibility category, institutional status, or geographic region,

    • whether the metric should be measured at the local, state or national level,

    • as appropriate for Medicaid, thresholds associated with the metric,

    • the challenges and advantages of the proposed metric, and how the metric is indicative to Medicaid access to care.

    1. Measures for Availability of Care and Providers

    We are soliciting public comment on the following availability of care and providers measurement areas within geographic areas. In addition to feedback on the proposed metrics below, we are also interested in your thoughts on how “geographic areas” should be defined.

    • Primary care physicians (including pediatricians) and clinicians accepting any/new patients.

    • Physician specialists accepting any/new patients.

    • Specialty care (for example, addiction and psychiatric services,, home and community based services, specialty pharmacy) accepting any/new patients.

    • Availability of direct support workforce for home health and home and community-based services.

    • Dentists accepting any/new patients.

    • Psychiatric and substance abuse clinicians such as psychiatrists, child psychiatrists, psychologists, and psychiatric social workers and mental health counselors accepting any/new patients.

    • Physicians and clinicians experiencing difficulties referring patients to specialty care.

    • Psychiatrists experiencing difficulties referring patients with serious mental illness to primary care.

    • Available primary care clinics, federally qualified health centers or rural health clinics.

    • Available retail community pharmacies.

    • Available behavioral health clinics or community mental health centers.

    • Available inpatient care.

    • Other.

    2. Measures for Beneficiary Reported Access

    We are soliciting public comment on the following beneficiary reported access measurement areas:

    • Beneficiaries reporting a usual source of primary care.

    • Beneficiaries reporting difficulty finding a specialist/general clinician, not taking any new patients and/or the beneficiary's insurance.

    • Beneficiaries able to access specialists or behavioral health care if they have: Chronic conditions, heart disease, behavioral health issues, etc.

    • Beneficiaries able to access long-term services and supports in institutional settings.

    • Beneficiaries able to access home and community based services.

    • Women able to access: Pap smears, mammograms.

    • Children and adults able to access appropriate immunizations and/or seasonal vaccines.

    • Beneficiaries reporting delayed care and reason for delay.

    • Unmet need for specialty, primary, follow-up, dental, prescriptions, and mental health and substance abuse treatment due to cost concerns.

    • Beneficiaries getting needed care quickly.

    • Wait times for appointments (for example, to primary care, urgent care, physician specialists, pre-natal care, behavioral health providers, and long-term services and supports in community settings).

    • Length of delays in accessing long term services and supports in community setting due to direct service worker shortages and/or lack of adequate training.

    • Call-center capability standards to support providing beneficiaries with information that can improve their access, and produce useful metrics for monitoring.

    • Call-center metrics that reveal issues with beneficiary access and their resolution.

    • Other.

    3. Measures regarding Service Utilization—

    We are soliciting public comment on the following service utilization measurement areas:

    • Trends in service utilization by geographic regions within the state.

    • Trends in emergency room utilization relative to primary and mental health and substance abuse treatment care utilization.

    • Rates of utilization (for example, At least one of the following visits in the prior six months/year: Physician (including nurse practitioners and physician assistants), dental, specialty, behavioral health, and primary care/well-child.)

    • Other.

    4. Comparison of Payments

    We are soliciting public comment on the following comparison of payment measurement areas:

    • Payment rates for services set at a specific percentage of Medicare.

    • Medicaid payment rates compared to surrounding states, Medicare, commercial payers.

    • Acquisition costs compared to Medicaid payments for pharmaceuticals.

    • Comparisons or measures that would inform managed care rate adequacy (the payment managed care plans make to providers).

    • Other.

    We will evaluate the responses to this RFI, in addition to the findings from research that we are currently conducting, to inform whether it is advisable to collect and analyze core national measures at this time and the methods to conduct the collection. We may also use this information to help determine which measures could best inform understanding of access to care and to support the design of national or state and local thresholds.

    III. Response to Comments

    Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, if and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.

    Dated: October 20, 2015. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services.
    [FR Doc. 2015-27696 Filed 10-29-15; 11:15 am] BILLING CODE 4120-01-P
    80 211 Monday, November 2, 2015 Notices DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2015-0029] Export Verification Program: Microbiological Testing of Ready-To-Eat Products Destined for Canada AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    The Food Safety and Inspection Service (FSIS) is announcing the establishment of an FSIS and Agricultural Marketing Service (AMS) Export Verification (EV) Program. The program is designed to verify establishments' control of closed-faced sandwiches destined for Canada. Among other things, Canada is requiring that closed-faced sandwiches be produced under a Hazard Analysis and Critical Control Point (HACCP) plan. Under the program, the sandwiches will be produced in establishments that are under FSIS' voluntary reimbursable inspection service and that are operating under conditions that are as consistent as practical with those under which other post-lethality exposed meat and poultry products are produced under 9 CFR part 430. Closed-faced sandwiches are under jurisdiction of the Food and Drug Administration (FDA), but FDA does not require that the sandwiches be produced under a HACCP plan. It also does not verify that the requirements of 9 CFR part 430 are met. Consequently, FSIS and AMS are establishing this voluntary program. Once the program is implemented, only establishments participating in this program will be able to export closed-faced sandwiches to Canada.

    DATES:

    Submit comments on or before http://www.ams.usda.gov/services/imports-exports/rte-canada. The program will be implemented February 1, 2016.

    ADDRESSES:

    FSIS invites interested persons to submit comments on the issues described below. Comments may be submitted by one of the following methods:

    Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to http://www.regulations.gov/. Follow the on-line instructions at that site for submitting comments.

    Mail, CD-ROMs: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, Patriots Plaza 3, 355 E Street SW., Mailstop 3782, Room 8-163B, Washington, DC 20250-3700.

    Hand- or courier-delivered submittals: Deliver to Patriots Plaza 3, 355 E Street SW., Room 8-163A, Washington, DC 20250-3700.

    Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2015-0029. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

    Docket: For access to background documents or to comments received, go to the FSIS Docket Room at Patriots Plaza 3, 355 E Street SW., Room 164-A, Washington, DC 20250-3700 between 8:00 a.m. and 4:30 p.m., Monday through Friday.

    FOR FURTHER INFORMATION CONTACT:

    Daniel L. Engeljohn, Ph.D., Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, DC 20250; Telephone: (202) 205-0495, or by Fax: (202) 720-2025.

    Establishments seeking to participate in this program should contact FSIS by phone at (202) 720-0082, or by email at [email protected]

    Background

    In February 2013, the Canadian Food Inspection Agency (CFIA) audited the United States' food safety system for meat and poultry products intended for export to Canada.1 CFIA's final audit report found that HACCP plans and Listeria monocytogenes (Lm) controls for ready-to-eat (RTE) meat products were not required when establishments prepared the products under FSIS's voluntary reimbursable inspection service. CFIA notified FSIS that CFIA requires that these products be produced according to HACCP plans and Lm controls consistent with 9 CFR part 430.

    1Final Report Of An Audit Conducted In The United States February 5th, through February 22nd, 2013 Evaluating The Food Safety Systems Governing The Production Of Meat And Poultry Products Intended For Export To Canada, available at: http://www.inspection.gc.ca/food/meat-and-poultry-products/imports/audits-of-meat-inspection-programs/final-report-of-an-audit-us-/eng/1404919271012/1404921262798?chap=8#s5c8.

    Meat and poultry products prepared in official establishments are subject to mandatory inspection by FSIS under the Federal Meat Inspection Act (21 U.S.C. 601, et seq.) and the Poultry Products Inspection Act (21 U.S.C. 451, et seq.). FSIS considers RTE meat and poultry products to be adulterated if they test positive or come into direct contact with a food-contact surface that tests positive for Lm, Salmonella, or other pathogens. FSIS uses microbiological testing in its mandatory inspection programs to verify that establishments have adequate food safety systems, including measures to control Lm (9 CFR part 430).

    However, not all RTE products containing meat or poultry fall under FSIS's regulatory jurisdiction. Closed-faced sandwiches are not considered traditional products of the meat or poultry industries, and therefore they fall under the regulatory jurisdiction of FDA.

    Establishments producing these RTE products may receive FSIS reimbursable voluntary inspection, but this inspection does not include microbiological testing for pathogen control or verification of HACCP plans or sanitation standard operating procedures (Sanitation SOP). FSIS conducts this reimbursable voluntary inspection to certify products for export under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621, et seq.). The inspection is intended to meet the importing country's requirements for U.S.-produced meat and poultry products (9 CFR 350.3(b); 9 CFR 381.104-.107). Canada's requirements identified in the FSIS Export Library do not require Lm testing, HACCP, or Sanitation SOPs for RTE products. The FSIS Export Library is available at: http://www.fsis.usda.gov/wps/portal/fsis/topics/international-affairs/exporting-products/export-library-requirements-by-country.

    AMS Testing Program

    AMS and FSIS have developed a collaborative testing program to verify pathogen control for closed-face sandwiches produced under FSIS voluntary inspection and intended for export to Canada. This program, which AMS will administer, may eventually include other RTE products. The program will include two types of testing, routine and intensified, to ensure that participating establishments are controlling Lm and Salmonella.

    For routine testing, AMS will randomly select dates once per year when product samples will be collected. FSIS will collect the product samples and pack them for shipment to the USDA National Science Laboratories in Gastonia, North Carolina. FSIS will collect six samples regardless of plant size, production volume, or process design. If an establishment produces both post-lethality-exposed and non-post-lethality-exposed products, six product samples will be taken from the former and two from the latter. AMS will analyze the samples for Lm and Salmonella and will require that establishments hold or maintain control of the product until acceptable results become available. If the product is positive, the establishment will have to properly dispose of the affected product in accordance with FDA regulations.

    At least once per year, AMS also will select dates for intensified testing at a participating establishment. AMS will also conduct this testing if it finds a positive Lm or Salmonella result or in response to continuing sanitation non-compliances at the establishment. The samples will vary in number depending on whether product is being tested for Lm or Salmonella but will always include environmental, product, and food-contact-surface samples. AMS will collect the samples.

    For both types of testing, the establishment will pay all costs for sample collection, shipping, shipping materials, and analysis. See http://www.ams.usda.gov/services/import-exports/rte-canada for a full description of the program, including sample collection and laboratory testing methods.

    HACCP Verification

    In order for the establishments to meet Canada's requirements for import of closed-face sandwiches, FSIS will offer voluntary inspection services and will verify that the establishments are producing these products under HACCP and Sanitation SOPs. Therefore, to ship this product to Canada, establishments will need to comply with the requirements in 9 CFR part 417 and 9 CFR 416.11-.17.

    By participating in the EV program and receiving voluntary inspection from FSIS (including verification of HACCP plans and Sanitation SOPs), establishments that produce closed-face sandwiches and that meet all FSIS and AMS EV program requirements will be able to meet Canada's stated import requirements for closed-faced sandwiches. To receive these services, establishments should contact FSIS at (202) 720-0082, or by email at [email protected]

    Comments are invited on: (a) The timetable for implementation of this program, including readiness to participate in the program's pathogen testing and HACCP verification, and business and trade interests affected by compliance or non-compliance with the program; (b) how the proposed programs can be implemented operationally to avoid disruption of trade or business activities; and (c) any other operational issues that commenters need clarified. FSIS will clarify any issues or make adjustments to the implementation date of the program in a Constituent Update.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410.

    Fax: (202) 690-7442.

    Email: [email protected]

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Additional Public Notification

    Public awareness of all aspects of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a broad and diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Subscription options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    Done at Washington, DC, on October 28, 2015. Alfred V. Almanza, Acting Administrator.
    [FR Doc. 2015-27846 Filed 10-30-15; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE286 New England Fishery Management Council; Public Meetings AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public hearings.

    SUMMARY:

    The New England Fishery Management Council (Council) will hold one public hearing and one webinar to solicit Public comments on Draft Amendment 19 to the Scallop Fishery Management Plan (FMP).

    DATES:

    The webinar will be held on November 16, 2015 and the meeting will be held on November 18, 2015. For specific dates and times, see SUPPLEMENTARY INFORMATION. Written Public comments must be received on or before 5 p.m. EST, Friday, November 20, 2015.

    ADDRESSES:

    The Public document can be obtained by contacting the New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950 at (978) 465-0492 or on their Web site at http://www.nefmc.org/library/amendment-19-1.

    Meeting address: These meetings will be held in Warwick, RI, and via webinar. For specific locations, see SUPPLEMENTARY INFORMATION.

    Public comments: Mail to John K. Bullard, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on Scallop Amendment 19”. Comments may also be sent via fax to (978) 281-9135 or submitted via email to [email protected] noaa.gov with “Comments on Scallop Amendment 19” in the subject line.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    The agendas for the following hearings are as follows: New England Fishery Management Council staff will brief the public on the scallop amendment and the contents of the Draft Environmental Assessment prior to opening the hearing for public comments. The schedule is as follows:

    Public Hearings: Locations, Schedules, and Agendas

    1. Monday, November 16, 2015, from 10 a.m.-12 p.m.; Webinar hearing, register to participate https://global.gotomeeting.com/join/682428445 Call in info: Toll: +1 (872) 240-3412, Access code 682-428-445.

    2. Wednesday, November 18, 2015, from 6-8 p.m.; Radisson Airport Hotel, 2081 Post Road, Warwick, RI 02886; telephone: (401) 739-3000; fax: (401) 732-9300.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas Nies (see ADDRESSES), at least 5 working days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 28, 2015. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27835 Filed 10-30-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE279 New England Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Recreational Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Tuesday, November 17, 2015 at 9:30 a.m.

    ADDRESSES:

    The meeting will be held at the DoubleTree by Hilton, 50 Ferncroft Road, Danvers, MA 01923; phone: (978) 777-2500; fax: (978) 750-7959.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Advisory Panel will receive a presentation on the results of the Northeast Fisheries Science Center's (NEFSC) 2015 Groundfish Operational Assessments for Gulf of Maine cod, Gulf of Maine haddock, and other groundfish stocks of interest to the recreational fishery. The panel will also receive an overview of draft alternatives in Framework Adjustment 55 (FW 55) specifications and management measures of interest to the recreational fishery, and associated draft impact analysis. They will also review a presentation on the results from NEFSC's bioeconomic model for recreational fisheries for cod and haddock in the Gulf of Maine. Also on the agenda is to develop recommendations to the Groundfish Committee for FY 2016 Gulf of Maine cod and Gulf of Maine haddock recreational measures. The panel will also develop recommendations to the Groundfish Committee for 2016 Council priorities. Additionally, they will also discuss GARFO's Recreational Implementation Plan and develop recommendations to the Groundfish Committee. They will also discuss other business as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 28, 2015. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27827 Filed 10-30-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Caribbean Fishery Management Council; Public Hearings; Correction AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of a correction to a public hearing on Amendments to the U.S. Caribbean Reef Fish, Spiny Lobster, and Corals and Reef Associated Plants and Invertebrates Fishery Management Plans: Timing of Accountability Measure-Based Closures.

    SUMMARY:

    The Caribbean Fishery Management Council (CFMC) is considering modifying the timing for the implementation of accountability measure (AM)-based closures in the Caribbean Exclusive Economic Zone (EEZ) and specifying how often to revisit the modification. The Council is considering these management measures in order to ensure AM-based closures successfully achieve their conservation objective and, to the extent practicable, minimize adverse economic impacts to fishers and fishing communities, consistent with National Standard 8 of the Magnuson-Stevens Fishery Conservation and Management Act.

    Following are the actions and management alternatives:

    The Draft Amendment consists of two actions:

    Action 1: Modify the timing for the implementation of AM-based closures in the EEZ;

    Alternative 1: No action. Continue AM-based closures resulting from an annual catch limit (ACL) overage beginning on December 31st of the closure year and extending backward into the year for the number of days neccesary to achieve the required reduction in landings.

    Preferred Alternative 2: Accountability measure-based closures resulting from an ACL overage will begin on September 30th of the closure year and would extend backward into the year for the number of days necessary to achieve the required reduction in landings. This closure start date would apply to all fishery management units (FMUs) for each of Puerto Rico commercial and recreational sectors, St. Thomas/St. John, St. Croix, and Caribbean-wide. If for any FMU in any year, the number of available days running from September 30th backward to the beginning of the year is not enough to achieve the required reduction in landings, then the additional days needed would be captured by extending the closure forward, beginning on October 1st and continuing for however many days are needed to fulfill the required reduction.

    Alternative 3: Accountability measure-based closures resulting from an ACL overage will begin on January 1st of the closure year and extend forward into the year for the number of days necessary to achieve the required reduction in landing. This closure start date would apply to all FMUs for each of Puerto Rico commercial and recreational sectors, St. Thomas/St. John, St. Croix, and Caribbean-wide.

    Alternative 4: Establish a fixed fishing closure start date for the implementation of AMs for each FMU by island/island group (A. Puerto Rico, B. St. Thomas/St. John, C. St. Croix, and D. Caribbean-wide). A different start date may be chosen for each FMU on each island/island group. The start date will begin on the last day of the identified month and go backward towards the beginning of the year. If for any FMU in any year, the number of days left in the year is not enough to achieve the required reduction in landings, then those additional days would be captured by extending the closure forward toward the end of the year.

    A. Puerto Rico
    I. Commercial: Sub-Alternative 4a. Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data. (See Table 2.2.1 in the Draft Amendment for the specific date for each FMU [commercial]). Sub-Alternative 4b. Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data. (See Table 2.2.1 in the Draft Amendment for the specific date for each FMU [commercial]). II. Recreational: Sub-Alternative 4c. Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data. (See Table 2.2.2 in the Draft Amendment for the specific date for each FMU [recreational]). Sub-Alternative 4d. Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data. (See Table 2.2.2 in the Draft Amendment for the specific date for each FMU [recreational]). B. St. Thomas/St. John, U.S. Virgin Islands (USVI) (Commercial and Recreational combined) Sub-Alternative 4e. Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data. (See Table 2.2.3 in the Draft Amendment for the specific date for each FMU). Sub-Alternative 4f. Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data. (See Table 2.2.3 in the Draft Amendment for the specific date for each FMU). C. St. Croix, USVI (Commercial and Recreational combined) Sub-Alternative 4g. Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data. (See Table 2.2.4 in the Draft Amendment for the specific date for each FMU). Sub-Alternative 4h. Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data. (See Table 2.2.4 in the Draft Amendment for the specific date for each FMU). D. Caribbean-Wide (Commercial and Recreational combined) Sub-Alternative 4i. Closure to start the last day of the month that has the highest landings based on the most recent three years of available landings data. (See Table 2.2.5 in the Draft Amendment for the specific date for each FMU). Sub-Alternative 4j. Closure to start the last day of the month with lowest landings based on the most recent three years of available landings data. (See Table 2.2.5 in the Draft Amendment for the specific date for each FMU).

    Action 2: Specify a time period for revisiting the approach to establish AM-based closures selected in Action 1.

    Alternative 1: No action. Do not specify how often the approach chosen should be revisited.

    Preferred Alternative 2: Review the approach selected no longer than 2 years from implementation and every 2 years thereafter.

    Alternative 3: Review the approach selected no longer than 5 years from implementation and every 5 years thereafter.

    Dates and Addresses: The meetings will be held on the following dates and locations:

    In the U.S. Virgin Islands: November 16, 2015—7 p.m.-10 p.m.—The Buccaneer Hotel, Estate Shoys, Christiansted, St. Croix, USVI. November 17, 2015—7 p.m.-10 p.m.—Windward Passage Hotel, Charlotte Amalie, St. Thomas, USVI. In Puerto Rico: November 23, 2015—7 p.m.-10 p.m.—Doubletree Hotel, De Diego Avenue, Santurce, Puerto Rico. November 24, 2015—7 p.m.-10 p.m.—Mayaguez Holiday Inn, 2701 Hostos Avenue, Mayagüez, Puerto Rico. November 25, 2015—2 p.m.-5 p.m.—Holiday Inn Ponce & Tropical Casino, 3315 Ponce By Pass, Ponce, Puerto Rico. FOR FURTHER INFORMATION CONTACT:

    Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918-1903, telephone (787) 766-5926.

    SUPPLEMENTARY INFORMATION:

    This notice is a correction to a meeting notice that published in the Federal Register on October 26, 2015 (80 FR 65215). Due to additional agenda items, the notice is being re-published in its entirety.

    Copy of the draft document, “Amendments to the US Caribbean Reef Fish, Spiny Lobster, and Corals and Reef Associated Plants and Invertebrates Fishery Management Plans: Timing of Accountability Measure-Based Closures”, can be found at the CFMC Web page: www.caribbeanfmc.com.

    Written comments can be sent to the Council not later than December 10, 2015, by regular mail to the address below, or via email to [email protected]

    Special Accommodations

    These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918-1903, telephone (787) 766-5926, at least 5 days prior to the meeting date.

    Dated: October 28, 2015. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27838 Filed 10-30-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE289 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of SEDAR 41 Assessment Webinar 2 and 3.

    SUMMARY:

    The SEDAR 41 assessments of the South Atlantic stocks of red snapper and gray triggerfish will consist of a series of workshop and webinars: Data Workshops; an Assessment Workshop and webinars; and a Review Workshop. See SUPPLEMENTARY INFORMATION.

    DATES:

    SEDAR 41 Assessment Webinar 2 will be held on Tuesday, November 17, 2015, from 9 a.m. until 1 p.m. and Assessment Webinar 3 will be held on Tuesday, December 1, 2015, from 9 a.m. until 1 p.m.

    ADDRESSES:

    Meeting address: The meeting will be held via webinar. The webinar is open to members of the public. Those interested in participating should contact Julia Byrd at SEDAR (see FOR FURTHER INFORMATION CONTACT below) to request an invitation providing webinar access information. Please request webinar invitations at least 24 hours in advance of each webinar.

    SEDAR address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405; www.sedarweb.org.

    FOR FURTHER INFORMATION CONTACT:

    Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.

    The items of discussion in the Assessment webinar are as follows:

    Participants will discuss any remaining data issues and provide modeling advice to prepare for the Assessment Workshop.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Special Accommodations

    This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see ADDRESSES) at least 10 business days prior to the meeting.

    Note:

    The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 28, 2015. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27829 Filed 10-30-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE232 Endangered and Threatened Species; Recovery Plans AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.

    ACTION:

    Notice of availability; request for comments.

    SUMMARY:

    We, NMFS, announce that the Proposed Endangered Species Act (ESA) Recovery Plan for Snake River Fall Chinook Salmon (Proposed Plan) is available for public review and comment. The Proposed Plan addresses the Snake River Fall Chinook Salmon (Onchorhynchus tshawytscha) evolutionarily significant unit (ESU), which is listed as threatened under the ESA. The geographic area covered by the Proposed Plan is the lower and middle mainstem Snake River and tributaries as well as the mainstem Columbia River below its confluence with the Snake River. As required under the ESA, the Proposed Plan contains objective, measurable delisting criteria, site-specific management actions necessary to achieve the Proposed Plan's goals, and estimates of the time and cost required to implement recovery actions. We are soliciting review and comment from the public and all interested parties on the Proposed Plan.

    DATES:

    We will consider and address, as appropriate, all substantive comments received during the comment period. Comments on the Proposed Plan must be received no later than 5 p.m. Pacific daylight time on January 4, 2016.

    ADDRESSES:

    You may submit comments on the Public Draft Recovery Plan by the following methods:

    Electronic Submissions: Submit all electronic public comments via: [email protected] Please include “Comments on Snake River Fall Chinook Salmon Recovery Plan” in the subject line of the email.

    Mail: Patricia Dornbusch, National Marine Fisheries Service, 1201 NE. Lloyd Boulevard, Suite 1100, Portland, OR 97232.

    Facsimile: (503) 230-5441.

    Instructions: Electronic copies of the Proposed Plan are available on the NMFS Web site at: http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/recovery_planning_and_implementation/snake_river/current_snake_river_recovery_plan_documents.html. Persons wishing to obtain an electronic copy on CD ROM of the Proposed Plan may do so by calling Bonnie Hossack at (503) 736-4741 or by emailing a request to [email protected] with the subject line “CD ROM Request for Snake River Fall Chinook Salmon Recovery Plan.”

    FOR FURTHER INFORMATION CONTACT:

    Patricia Dornbusch, NMFS Snake River Fall Chinook Salmon Recovery Coordinator, at (503) 230-5430, or [email protected]

    SUPPLEMENTARY INFORMATION: Background

    We are responsible for developing and implementing recovery plans for Pacific salmon and steelhead listed under the ESA of 1973, as amended (16 U.S.C. 1531 et seq.). Recovery means that the listed species and their ecosystems are sufficiently restored, and their future secured, to the point that the protections of the ESA are no longer necessary. Section 4(f)(1) of the ESA requires that recovery plans include, to the extent practicable: (1) Objective, measurable criteria which, when met, would result in a determination that the species is no longer threatened or endangered; (2) site-specific management actions necessary to achieve the plan's goals; and (3) estimates of the time required and costs to implement recovery actions. The ESA requires the development of recovery plans for each listed species unless such a plan would not promote its recovery.

    We believe it is essential to have local support of recovery plans by those whose activities directly affect the listed species and whose continued commitment and leadership will be needed to implement the necessary recovery actions. We therefore support and participate in collaborative efforts to develop recovery plans that involve state, tribal, and federal entities, local communities, and other stakeholders. For this Proposed Plan for threatened Snake River Fall Chinook Salmon, we worked collaboratively with state, tribal, and federal partners to produce a recovery plan that satisfies the ESA requirements. We have determined that this Proposed ESA Recovery Plan for Snake River Fall Chinook Salmon meets the statutory requirements for a recovery plan and are proposing to adopt it as the ESA recovery plan for this threatened species. Section 4(f) of the ESA, as amended in 1988, requires that public notice and an opportunity for public review and comment be provided prior to final approval of a recovery plan. This notice solicits comments on this Proposed Plan.

    Development of the Proposed Plan

    For the purpose of recovery planning for the ESA-listed species of Pacific salmon and steelhead in Idaho, Oregon, and Washington, NMFS designated five geographically based “recovery domains.” The Snake River Fall Chinook Salmon ESU spawning range is in the Interior Columbia domain. For each domain, NMFS appointed a team of scientists, nominated for their geographic and species expertise, to provide a solid scientific foundation for recovery plans. The Interior Columbia Technical Recovery Team included biologists from NMFS, other federal agencies, states, tribes, and academic institutions.

    A primary task for the Interior Columbia Technical Recovery Team was to recommend criteria for determining when each component population within an ESU or distinct population segment (DPS) should be considered viable (i.e., when they are have a low risk of extinction over a 100-year period) and when ESUs or DPSs have a risk of extinction consistent with no longer needing the protections of the ESA. All Technical Recovery Teams used the same biological principles for developing their recommendations; these principles are described in the NOAA technical memorandum Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units (McElhany et al., 2000). Viable salmonid populations (VSP) are defined in terms of four parameters: abundance, productivity or growth rate, spatial structure, and diversity.

    We also collaborated with state, tribal, and federal biologists and resource managers to provide technical information used to develop the Proposed Plan. In addition, NMFS established a multi-state (Idaho, Oregon, and Washington), tribal, and federal partners' regional forum called the Snake River Coordination Group that addresses the four ESA-listed Snake River salmon and steelhead species. They met twice a year to be briefed and provide technical and policy information to NMFS. We presented regular updates on the status of this Proposed Plan to the Snake River Coordination Group and posted draft chapters on NMFS' West Coast Region Snake River recovery planning Web page. We also made full drafts of the Proposed Plan available for review to the state, tribal, and Federal entities with whom we collaborated to develop the plan.

    In addition to the Proposed Plan, we developed and incorporated the Module for the Ocean Environment (Fresh et al. 2014) as Appendix D to address Snake River Fall Chinook Salmon recovery needs in the Columbia River estuary, plume, and Pacific Ocean. To address recovery needs related to the Columbia River Hydropower System, we developed and incorporated the Supplemental Recovery Plan Module for Snake River Salmon and Steelhead Mainstem Columbia River Hydropower Projects (NMFS 2014b) as Appendix E of this Proposed Plan. To address recovery needs related to the Lower Columbia River mainstem and estuary, we incorporated the Columbia River Estuary ESA Recovery Plan Module for Salmon and Steelhead (NMFS 2011a) as Appendix F. To address recovery needs for fishery harvest management in the mainstem Snake and Columbia Rivers, Columbia River estuary, and ocean, we developed and incorporated the Snake River Harvest Module (NMFS 2014a) as Appendix G.

    The Proposed Plan, including the recovery plan modules, is now available for public review and comment.

    Contents of Proposed Plan

    The Proposed Plan contains biological background and contextual information that includes description of the ESU, the planning area, and the context of the plan's development. It presents relevant information on ESU structure, guidelines for assessing salmonid population and ESU status, and a brief summary of Interior Columbia Technical Recovery Team products on population structure and species status. It also presents NMFS' proposed biological viability criteria and threats criteria for delisting.

    As described in Chapter 2 of the Proposed Plan, the historical Snake River fall Chinook salmon ESU consisted of two populations. The population above the Hells Canyon Dam Complex is extirpated, leaving only one extant population—the Lower Mainstem Snake River population. An ESU with a single population would be at greater extinction risk than an ESU with multiple populations. This is a key consideration in the proposed Snake River fall Chinook salmon biological viability criteria, since there is more than one possible scenario for achieving the criteria. The proposed viability criteria include two possible scenarios and a placeholder for developing additional scenarios that would be consistent with delisting. Scenario A focuses on achieving ESA delisting with two populations (i.e., the extant Lower Mainstem Snake River population and a recovered Middle Snake population above the Hells Canyon Complex). Scenario B illustrates a single-population pathway to delisting. The placeholder scenario describes a framework under which additional single-population scenarios could be developed that would involve developing natural production emphasis areas that would have a low percentage of hatchery-origin spawners. NMFS is interested in comments on how such additional scenarios might be developed, potentially for inclusion in the final recovery plan.

    The Proposed Plan also describes specific information on the following: Current status of Snake River Fall Chinook Salmon; limiting factors and threats throughout the life cycle that have contributed to the species decline; recovery strategies and actions addressing these limiting factors and threats; and a proposed research, monitoring, and evaluation program for adaptive management. For recovery actions, the Proposed Plan includes a table summarizing each proposed action, life stage affected, estimated costs, timing, and potential implementing entities. It also describes how implementation, prioritization of actions, and adaptive management will proceed. The Proposed Plan also summarizes time and costs (Chapter 9) required to implement recovery actions. In some cases, costs of implementing actions could not be determined at this time and NMFS is interested in additional information regarding scale, scope, and costs of these actions. We are also particularly interested in comments on establishing appropriate forums to coordinate implementation of the recovery plan.

    How NMFS and Others Expect To Use the Plan

    With approval of the final recovery plan, we will commit to implement the actions in the plan for which we have authority and funding; encourage other federal and state agencies and tribal governments to implement recovery actions for which they have responsibility, authority, and funding; and work cooperatively with the public and local stakeholders on implementation of other actions. We expect the recovery plan to guide us and other federal agencies in evaluating federal actions under ESA section 7, as well as in implementing other provisions of the ESA and other statutes. For example, the plan will provide greater biological context for evaluating the effects that a proposed action may have on a species by providing delisting criteria, information on priority areas for addressing specific limiting factors, and information on how the ESU can tolerate varying levels of risk.

    When we are considering a species for delisting, the agency will examine whether the section 4(a)(1) listing factors have been addressed. To assist in this examination, we will use the delisting criteria described in Section 3.2 and Section 3.3 of the Proposed Plan, which include both biological criteria and criteria addressing each of the ESA section 4(a)(1) listing factors, as well as any other relevant data and policy considerations.

    We will also work with the proposed implementation structure, as described in Chapter 8 of the Proposed Plan, to coordinate among existing forums, develop implementation priorities, and address science and adaptive management issues.

    Conclusion

    Section 4(f)(1)(B) of the ESA requires that recovery plans incorporate, to the extent practicable, (1) objective, measurable criteria which, when met, would result in a determination that the species is no longer threatened or endangered; (2) site-specific management actions necessary to achieve the plan's goals; and (3) estimates of the time required and costs to implement recovery actions. We conclude that the Proposed Plan meets the requirements of ESA section 4(f) and are proposing to adopt it as the ESA Recovery Plan for Snake River Fall Chinook Salmon.

    Public Comments Solicited

    We are soliciting written comments on the Proposed Plan. All substantive comments received by the date specified above will be considered and incorporated, as appropriate, prior to our decision whether to approve the plan. While we invite comments on all aspects of the Proposed Plan, we are particularly interested in comments on developing specific scenarios to address the placeholder recovery scenario, comments on the cost of recovery actions for which we have not yet determined implementation costs, and comments on establishing an appropriate implementation forum for the plan. We will issue a news release announcing the adoption and availability of the final plan. We will post on the NMFS West Coast Region Web site (www.wcr.noaa.gov) a summary of, and responses to, the comments received, along with electronic copies of the final plan and its appendices.

    Literature Cited Fresh, K. et al. 2014. Module for the Ocean Environment. NMFS Northwest Fisheries Science Center, Seattle, WA. http://www.westcoast.fisheries.noaa.gov/publications/recovery_planning/salmon_steelhead/domains/interior_columbia/snake/ocean_module.pdf. McElhany, P., M.H. Ruckelshaus, M.J. Ford, T.C. Wainwright, and E.P. Bjorkstedt. 2000. Viable salmon populations and the recovery of evolutionarily significant units. U.S. Dept. of Commerce, NOAA Tech. Memo., NMFS NWFSC 42, 156 p. NMFS (National Marine Fisheries Service). 2011. Columbia River Estuary ESA Recovery Plan Module for Salmon and Steelhead. NMFS Northwest Region. Portland, OR. January. Prepared for NMFS by the Lower Columbia River Estuary Partnership (contractor) and PC Trask & Associates, Inc., subcontractor. http://www.westcoast.fisheries.noaa.gov/publications/recovery_planning/salmon_steelhead/domains/interior_columbia/snake/estuary-mod.pdf. NMFS (National Marine Fisheries Service). 2014a. Supplemental recovery plan module for Snake River salmon and steelhead mainstem Columbia River hydropower projects. Portland, OR. http://www.westcoast.fisheries.noaa.gov/publications/recovery_planning/salmon_steelhead/domains/interior_columbia/snake/hydro_supplemental_recovery_plan_module_063014.pdf. NMFS (National Marine Fisheries Service). 2014b. Snake River Harvest Module. Portland, OR. http://www.westcoast.fisheries.noaa.gov/publications/recovery_planning/salmon_steelhead/domains/interior_columbia/snake/harvest_module_062514.pdf. Authority:

    16 U.S.C. 1531 et seq.

    Dated: October 27, 2015. Angela Somma, Chief, Endangered Species Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2015-27854 Filed 10-30-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE277 North Pacific Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) Groundfish Plan Team will meet in Seattle, WA.

    DATES:

    The meeting will be held on Monday, November 16, to Friday, November 20, 2015, from 8 a.m. to 5 p.m.

    ADDRESSES:

    The meeting will be held at the Alaska Fishery Science Center, Traynor Room 2076 and NMML Room 2039, 7600 Sand Point Way NE., Building 4, Seattle, WA 98115.

    Council address: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone: (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Diana Stram, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION: Agenda Monday, November 16, 2015 to Friday, November 20, 2015

    The Plan Teams will compile and review the annual Groundfish Stock Assessment and Fishery Evaluation (SAFE) reports, (including the Economic Report, the Ecosystems Consideration Chapter, and the stock assessments for BSAI and GOA groundfishes), and recommend final groundfish harvest specifications for 2016/17.

    PLEASE NOTE: Beginning October 10th, U.S. Driver's licenses will be accepted for admittance to the NOAA facility only if they are Real ID compliant. Alternative identification, such as a passport, will be required if a license is non-compliant. For more information see http://www.dhs.gov/real-id-public-faqs.

    The Agenda is subject to change, and the latest version will be posted athttp://www.npfmc.org/fishery-management-plan-team/goa-bsai-groundfish-plan-team/.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: October 28, 2015. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-27832 Filed 10-30-15; 8:45 am] BILLING CODE 3510-22-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION Joint Statement of Principles on Student Loan Servicing AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Policy Guidance.

    SUMMARY:

    On September 29, 2015, the Bureau of Consumer Financial Protection (Bureau) joined with the U.S. Department of the Treasury and the U.S. Department of Education to release a Joint Statement of Principles on Student Loan Servicing as a framework for policymakers and market participants looking to improve student loan servicing practices, promote borrower success, and mitigate defaults. This Policy Guidance sets forth those joint principles.

    DATES:

    This Policy Guidance is applicable November 2, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Michael Pierce, Program Manager, Office for Students and Young Americans, 1700 G Street NW., 20552, 202-435-7938.

    SUPPLEMENTARY INFORMATION:

    1. Policy Guidance Joint Statement of Principles on Student Loan Servicing

    The U.S. Department of Education, the U.S. Department of the Treasury, and the Consumer Financial Protection Bureau have developed a Joint Statement of Principles on Student Loan Servicing as a framework to improve student loan servicing practices, promote borrower success and minimize defaults.1

    1 On March 10, 2015, the President signed a Presidential Memorandum on a Student Aid Bill of Rights to Help Ensure Affordable Loan Repayment. The President directed the Secretary of Education, in consultation with the Secretary of the Treasury and the Director of the Consumer Financial Protection Bureau, to issue a report by October 1, 2015 on, among other things, recommendations concerning private and federal student loan servicing standards, flexible repayment opportunities for all student loan borrowers, and changes to bankruptcy laws. This Joint Statement of Principles on Student Loan Servicing informed this required report.

    General Principles for Student Loan Servicing  2

    Consistent with their respective authorities, responsibilities, and missions, the Departments and the Bureau are committed to working together so that all student loan borrowers have access to (1) the information they need to repay their loans responsibly and avoid default; (2) protections so that they will be treated fairly even if they are struggling to repay their loans; and (3) mechanisms so that errors are resolved expeditiously and assurances that student loan servicers, both in the marketplace and through federally-contracted companies, are held accountable for their conduct. The following principles have been developed to advance these goals.

    2 On September 30, 2015, the Consumer Financial Protection Bureau released Student Loan Servicing: Analysis of Public Input and Recommendations for Reform, analyzing comments the Bureau solicited from stakeholders including student loan borrowers, federal student loan servicers, private student loan market participants, policy experts, and state law enforcement officials and regulators as part of the Departments' and the Bureau's joint efforts to identify initiatives to strengthen student loan servicing.

    There are four main types of postsecondary education loans under which borrowers have outstanding balances. Direct Loans are federal loans made directly to borrowers by the U.S. Department of Education through the William D. Ford Federal Direct Loan program. Federal Family Education Loan Program (FFELP) loans were originated by private lenders and guaranteed by the federal government. Federal Perkins Loans, which are co-funded by institutions of higher education and the federal government, are originated and administered by participating institutions. Direct Loans, Perkins Loans and FFELP loans are made pursuant to Title IV of the Higher Education Act of 1965, as amended (HEA). The SAFRA Act enacted in 2010 ended new loan originations under the FFELP program in 2010, but a significant number of loans remain outstanding. Private student loans are made by depository and non-depository financial institutions, states, institutions of higher education, and other entities. Private loans are not governed by the Higher Education Act, but are subject to other federal and state laws. All Federal Direct Loans and some FFELP loans are held by the Department of Education and serviced pursuant to contracts with loan servicers and collection contractors. Servicing for Perkins Loans, privately-held FFELP loans, and private student loans is provided at the direction of the current loan holder, and servicing activities for Perkins and FFELP loans are governed by rules and regulations laid out by law and through the U.S. Department of Education. The economic incentives to provide servicing that best serves borrowers', loan holders', and taxpayers' needs vary across the different types of student loans.

    In addition, the respective loan types come with varying levels of consumer protections and special benefits. Direct Loans, in general, offer borrowers more protections than private or FFELP loans. Borrowers with FFELP loans continue to consolidate into the Direct Loan program to access certain protections and benefits including the Public Service Loan Forgiveness Program, the nonaccrual of interest for servicemembers serving in areas of hostilities, and certain income-driven repayment plans. For federal loans, pursuant to provisions in the HEA, institutions of higher education are required to provide certain disclosures to borrowers that provide them with clear and helpful information about their loans and repayment options as part of schools' statutorily required entrance and exit counseling duties.

    The Departments and the Bureau intend to work closely with one another, consistent with their respective authorities, to strengthen servicing protections for student loan borrowers, and will seek to ensure that student loan servicing is, where appropriate:

    Consistent. Student loan borrowers and servicers alike would benefit from a clear set of expectations for what constitutes minimum requirements for services provided by student loan servicers and servicer communications with borrowers, including adequate and timely customer service. Student loan borrowers should expect effective student loan servicing, including, but not limited to, conduct related to payment processing, servicing transfers, customer requests for information, error resolution, and disclosure of borrower repayment options and benefits. Such conduct should account for and recognize variations in loan features, terms, and borrower protections.

    Accurate and Actionable. Student loan borrowers often depend on servicers to provide basic information about account features, borrower protections, and loan terms. It is critical that information provided to borrowers by student loan servicers be accurate and actionable. Information, including explanation and instructions regarding borrowers' loans and repayment options, should be presented in a manner that best informs borrowers, helps them achieve positive outcomes, and mitigates the risk and costs of default.

    Accountable. Student loan servicers, whether for-profit, not-for-profit or government agencies, should be accountable for serving borrowers fairly, efficiently and effectively. If servicers fall short and violate federal or state consumer financial laws, the HEA, contractual requirements, or federal regulations, borrowers, federal and state agencies and regulators, and law enforcement officials should have access to appropriate channels for recourse, as authorized under law.

    Transparent. The public, including student loan borrowers, may benefit from information about the performance of private and federal student loans and the practices of individual student loan lenders and servicers, including information related to loan origination, loan terms and conditions, borrower characteristics, portfolio composition, delinquency and default, payment plan enrollment, utilization of forbearance and deferment, the administration of borrower benefits and protections, and the handling of borrower complaints. The federal government already makes much of this information available for federal student loans, and private-sector lenders and servicers should follow suit. Portfolio performance data, including data at the individual servicer level, should be available for all types of student loans.

    2. Regulatory Requirements

    This Policy Guidance is a non-binding general statement of policy. It does not establish any binding legal requirements. It is therefore exempt from notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b). Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a). The Bureau has determined that this Policy Guidance does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

    Dated: October 27, 2015. Christopher D'Angelo, Chief of Staff, Bureau of Consumer Financial Protection.
    [FR Doc. 2015-27775 Filed 10-30-15; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2015-ICCD-0128] Agency Information Collection Activities; Comment Request; Perkins Discretionary Grant Performance Report AGENCY:

    Department of Education (ED), Office of Career, Technical and Adult Education (OCTAE).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing an extension of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before January 4, 2016.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2015-ICCD-0128. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E115, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Laura Messenger, (202) 245-7840.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Perkins Discretionary Grant Performance Report.

    OMB Control Number: 1830-0574.

    Type of Review: An extension of an existing information collection.

    Respondents/Affected Public: State, Local and Tribal Governments.

    Total Estimated Number of Annual Responses: 88.

    Total Estimated Number of Annual Burden Hours: 156.

    Abstract: The Perkins Discretionary Grant Performance Report form and instructions will be used by grantees to meet Department of Education deadline dates for submission of performance and financial reports for the Office of Career, Technical and Adult Education (OCTAE) Division of Academic and Technical Education (DATE) discretionary grant programs, as required by the Education Department General Administrative Regulations (EDGAR 34 CFR 74.51, 74.52, 75.118, 75.253, 75.590, and 80.40). The Perkins Discretionary Grant Performance Report will be used by OCTAE discretionary grant recipients in lieu of the ED 524B Grant Performance Report and instructions because the ED 524B is not compatible with OCTAE-DATE(TM)s new Perkins Information Management System. Recipients of multi-year discretionary grants must submit interim performance reports, usually annually, for each year funding has been approved in order to receive a continuation award. The annual performance report should demonstrate whether substantial progress has been made toward meeting the approved goals and objectives of the project. OCTAE also requires recipients of `forward funded' grants that are awarded funds for their entire multi-year project up-front in a single grant award to submit an annual performance report. The Perkins Discretionary Grant Performance Report will be used for interim and final performance reporting. In both the annual and final performance reports, grantees are required to provide data on established performance measures for the grant program (e.g., Government Performance and Results Act measures) and on project performance measures that were included in the grantee(TM)s approved grant application, in order to demonstrate project success, impact and outcomes. The Perkins Discretionary Grant Performance Report form will also be used by grant recipients for other interim reporting such as quarterly or semi-annual performance and/or financial reporting.

    Dated: October 27, 2015. Tomakie Washington, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2015-27779 Filed 10-30-15; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2015-ICCD-0127] Agency Information Collection Activities; Comment Request; Mathematics and Science Partnerships Program AGENCY:

    Office of Elementary and Secondary Education (OESE), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before January 4, 2016.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2015-ICCD-0127. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E115, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Inas El-Sabban, (202) 205-3810.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Mathematics and Science Partnerships Program.

    OMB Control Number: 1810-0669.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: State, Local and Tribal Government.

    Total Estimated Number of Annual Responses: 450.

    Total Estimated Number of Annual Burden Hours: 4,500.

    Abstract: This supporting statement serves as an update to approved OMB package 1810-0669. Implemented under the No Child Left Behind Act of 2001, Title II, Part B, the Mathematics and Science Partnerships (MSP) program is a formula grant program strategically designed to improve the content knowledge of teachers and the academic performance of students in mathematics and science. By funding collaborative partnerships between science, technology, engineering, and mathematics (STEM) departments at institutions of higher education (IHEs), and high-need school districts, the MSP program enables the delivery of intensive, content-rich professional development intended to improve classroom instruction and, ultimately, to raise student achievement in math and science.

    Because MSP is a formula grant program, the size of individual state awards is based on student population and poverty rates, with no state receiving less than one half of one percent of the total appropriation. Each state is then responsible for administering a competitive grant making process to determine the distribution of funds across proposed MSP projects.

    Dated: October 27, 2015. Tomakie Washington, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2015-27778 Filed 10-30-15; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER15-1451-001.

    Applicants: California Independent System Operator Corporation.

    Description: Compliance filing: 2015-10-26 Filing in Compliance with Sept 25 2015 Order in Docket ER15-1451 to be effective 9/25/2015.

    Filed Date: 10/26/15.

    Accession Number: 20151026-5417.

    Comments Due: 5 p.m. ET 11/16/15.

    Docket Numbers: ER15-2208-002.

    Applicants: ISO New England Inc.

    Description: Compliance filing: Winter Reliability Compliance Filing to be effective 9/14/2015.

    Filed Date: 10/26/15.

    Accession Number: 20151026-5241.

    Comments Due: 5 p.m. ET 11/16/15.

    Docket Numbers: ER16-142-000.

    Applicants: Pacific Gas and Electric Company.

    Description: Tariff Cancellation: Notice of Termination of McAllister Ranch ID IA and WDT SA to be effective 12/31/2015.

    Filed Date: 10/26/15.

    Accession Number: 20151026-5007.

    Comments Due: 5 p.m. ET 11/16/15.

    Take notice that the Commission received the following land acquisition reports:

    Docket Numbers: LA15-3-000.

    Applicants: Alabama Electric Marketing, LLC, Astoria Generating Company, L.P., Big Sandy Peaker Plant, LLC, California Electric Marketing, LLC, Crete Energy Venture, LLC, CSOLAR IV South, LLC, CSOLAR IV West, LLC, High Desert Power Project, LLC, Kiowa Power Partners, LLC, Lincoln Generating Facility, LLC, New Covert Generating Company, LLC, New Mexico Electric Marketing, LLC, Rolling Hills Generating, L.L.C., Tenaska Alabama Partners, L.P., Tenaska Alabama II Partners, L.P., Tenaska Frontier Partners, Ltd., Tenaska Gateway Partners, Ltd., Tenaska Georgia Partners, L.P., Tenaska Power Management, LLC, Tenaska Power Services Co., Tenaska Virginia Partners, L.P., Texas Electric Marketing, LLC, TPF Generation Holdings, LLC, Wolf Hills Energy, LLC.

    Description: Quarterly Land Acquisition Report of the Tenaska MBR Sellers.

    Filed Date: 10/26/15.

    Accession Number: 20151026-5430.

    Comments Due: 5 p.m. ET 11/16/15.

    Take notice that the Commission received the following PURPA 210(m)(3) filings:

    Docket Numbers: QM14-3-000.

    Applicants: Entergy Arkansas, Inc., Entergy Gulf States Louisiana, L.L.C., Entergy Louisiana, LLC, Entergy Mississippi, Inc., Entergy New Orleans, Inc., Entergy Services, Inc., Entergy Texas, Inc., Entergy Services, Inc.

    Description: Response to Third Deficiency Letter of Entergy Services, Inc., et al.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5371.

    Comments Due: 5 p.m. ET 11/20/15.

    Take notice that the Commission received the following electric reliability filings:

    Docket Numbers: RD15-5-000; RD15-5-001; RD15-6-000.

    Applicants: North American Electric Reliability Corporation.

    Description: Clarifying Supplemental Information of the North American Electric Reliability Corporation Updating Implementation Plan.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5403.

    Comments Due: 5 p.m. ET 11/3/15.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 27, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2015-27842 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER14-2238-001.

    Applicants: Repsol Energy North America Corporation.

    Description: Notice of Change in Status of Repsol Energy North America Corporation.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5208.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER15-623-008.

    Applicants: PJM Interconnection, L.L.C.

    Description: Compliance filing: Revisions to the OATT and RAA to comply fully with the June 22 Order to be effective 7/22/2015.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5246.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER16-143-000.

    Applicants: Citizens Sunrise Transmission LLC.

    Description: § 205(d) Rate Filing: Annual TRBAA Filing to be effective1/1/2016.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5029.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER16-144-000.

    Applicants: Midcontinent Independent System Operator, Inc., Ameren Illinois Company.

    Description: § 205(d) Rate Filing: 2015-10-27_SA 2861 ATXI-AIC Construction Agreement—Ipava Substation to be effective 10/27/2015.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5121.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER16-145-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: SA 312 7th Revised—NITSA with Southern Montana to be effective 11/1/2015.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5123.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER16-146-000.

    Applicants: NorthWestern Corporation.

    Description: Initial rate filing: SA 760—NITSA with Beartooth Electric Cooperative to be effective 11/1/2015.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5134.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER16-147-000.

    Applicants: Northern States Power Company, a Minnesota corporation.

    Description: § 205(d) Rate Filing: 2015-10-27 NSP-SEY, StJms, HILLS,-NOC to be effective 1/1/2016.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5186.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER16-148-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: 4 GIAs & 4 Distribution Serv Agmts with FTS Master Tenant 1, LLC to be effective 12/27/2015.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5189.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: ER16-149-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 2015-10-27_SA 2854 MDU-MDU Facilities Construction Agreement (F109) to be effective 10/28/2015.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5245.

    Comments Due: 5 p.m. ET 11/17/15.

    Take notice that the Commission received the following land acquisition reports:

    Docket Numbers: LA15-3-000.

    Applicants: Bayonne Energy Center, LLC, Zone J Tolling Co., LLC, Macquarie Energy LLC.

    Description: Quarterly Land Acquisition Report of Bayonne Energy Center, LLC, et al.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5233.

    Comments Due: 5 p.m. ET 11/17/15.

    Docket Numbers: LA15-3-000.

    Applicants: Battery Utility of Ohio, LLC, Border Winds Energy, LLC, Pleasant Valley Wind, LLC, Joliet Battery Storage LLC, West Chicago Battery Storage LLC.

    Description: Quarterly Land Acquisition Report of Battery Utility of Ohio, LLC, et al.

    Filed Date: 10/27/15.

    Accession Number: 20151027-5234.

    Comments Due: 5 p.m. ET 11/17/15.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 27, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2015-27843 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 184-244] El Dorado Irrigation District; Notice of Availability of Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed an application to amend the El Dorado Project license filed by El Dorado Irrigation District (licensee). The licensee proposes constructing an earthen stability buttress, raising the crest of the dam, and upgrading appurtenant facilities. No Federal lands would be involved in the proposed action. The project is located on the South Fork American River adjacent to the unincorporated community of Pollock Pines in El Dorado, County, California.

    An environmental assessment (EA) has been prepared for Commission staff's review of the proposed action, containing staff's analysis of the proposed action and concluding that approval of the proposal, with staff's recommended measures, would not constitute a major federal action significantly affecting the quality of the human environment. The EA is available for electronic review and reproduction at the Commission's Public Reference Room, located at 888 First Street NE., Room 2A, Washington, DC 20426. The EA may also be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter the docket number (P-184) in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected] or toll-free at (866) 208-3372 or for TTY, (202) 502-8659.

    Any comments on the EA should be filed by November 27, 2015, and addressed to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1-A, Washington, DC 20426. Please reference the project name and project number (P-184-244) on all comments filed. Comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “eFiling” link. For further information, please contact CarLisa Linton at (202) 502-8416 or [email protected]

    Dated: October 26, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27804 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 14376-002] Cave Run Energy, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications

    On August 14, 2015, Cave Run Energy, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of a hydropower project located at the U.S. Army Corps of Engineers' (Corps) Cave Run Dam, located on the Licking River in Rowan and Bath Counties, Kentucky. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.

    The proposed project would consist of the following: (1) A bifurcation structure constructed at the end of the dam's outlet conduit; (2) a powerhouse containing three turbine/generating units with a total capacity of 4.95 megawatts; (3) a 70-foot-long, 150-inch-diameter steel penstock; (4) a 1,200-foot-long, 12.7-kilovolt transmission line. The proposed project would have an average annual generation of 20,000 megawatt-hours, and operate utilizing surplus water from the Cave Run Dam, as directed by the Corps.

    Applicant Contact: Mr. Mark Boumansour, Cave Run Energy, LLC, 1401 Walnut St., Suite 220, Boulder, CO 80302. (303) 440-3378.

    FERC Contact: Dustin Wilson, phone: (202) 502-6528.

    Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected] or toll free at 1-866-208-3676, or for TTY, (202) 502-8659. Although the Commission strongly encourages electronic filing, documents may also be paper-filed. To paper-file, mail an original and seven copies to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site athttp://www.ferc.gov/docs-filing/elibrary.asp. Enter the docket number (P-14376-000) in the docket number field to access the document. For assistance, contact FERC Online Support.

    Dated: October 26, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27805 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Numbers: RP16-65-000.

    Applicants: Texas Eastern Transmission, LP.

    Description: § 4(d) Rate Filing: PCB TETLP DEC 2015 FILING to be effective 12/1/2015.

    Filed Date: 10/21/15.

    Accession Number: 20151021-5080.

    Comments Due: 5 p.m. ET 11/2/15.

    Docket Numbers: RP16-66-000.

    Applicants: ANR Pipeline Company.

    Description: ANR Pipeline Company Request for Waiver of FERC Gas Tariff Part 6.3 of the General Terms & Conditions.

    Filed Date: 10/21/15.

    Accession Number: 20151021-5156.

    Comments Due: 5 p.m. ET 11/2/15.

    Docket Numbers: RP16-67-000.

    Applicants: Algonquin Gas Transmission, LLC.

    Description: § 4(d) Rate Filing: KeySpan Ramapo 11-1-2015 Release to BUG to be effective 11/1/2015.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5073.

    Comments Due: 5 p.m. ET 11/4/15.

    Docket Numbers: RP16-68-000.

    Applicants: Texas Eastern Transmission, LP.

    Description: § 4(d) Rate Filing: Negotiated Rate—Chevron TEAM2014 Release to Sequent 8938592 to be effective 11/1/2015.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5096.

    Comments Due: 5 p.m. ET 11/4/15.

    Docket Numbers: RP16-69-000.

    Applicants: Clear Creek Storage Company, L.L.C.

    Description: Compliance filing Clear Creek Storage Company, L.L.C.—Order No. 801 Compliance Filing to be effective 11/23/2015.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5163.

    Comments Due: 5 p.m. ET 11/4/15.

    Docket Numbers: RP16-70-000.

    Applicants: Exelon Generating Company, LLC, Summit Natural Gas of Maine.

    Description: Joint Petition of Exelon Generating Company, LLC and Summit Natural Gas of Maine, Inc. for Limited Waivers and Clarification under RP16-70.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5264.

    Comments Due: 5 p.m. ET 11/4/15.

    Docket Numbers: RP16-71-000.

    Applicants: Trailblazer Pipeline Company LLC.

    Description: § 4(d) Rate Filing: Neg Rate 2015-10-23 Twin Eagle & Tenaska Extension w HK to be effective 11/1/2015.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5329.

    Comments Due: 5 p.m. ET 11/4/15.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    Filings in Existing Proceedings

    Docket Numbers: RP14-247-000.

    Applicants: Sea Robin Pipeline Company, LLC.

    Description: Report Filing: RP14-247 Rate Case Refund Report.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5115.

    Comments Due: 5 p.m. ET 11/4/15.

    Docket Numbers: RP16-41-001.

    Applicants: Iroquois Gas Transmission System, L.P.

    Description: Tariff Amendment: 10/23/15 Negotiated Rates—Emera Energy Services, Inc. (RTS) 2715-24 & -25 AMND to be effective 11/1/2015.

    Filed Date: 10/23/15.

    Accession Number: 20151023-5261.

    Comments Due: 5 p.m. ET 11/4/15.

    Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 26, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2015-27844 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 12686-004] Baker County, Oregon; Notice of Availability of Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969, and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47,897), the Office of Energy Projects has reviewed Baker County, Oregon's (Baker County) application for a license to construct its proposed Mason Dam Hydroelectric Project, and has prepared an Environmental Assessment (EA). The proposed 3.4-megawatt (MW) project would be located on the Powder River, at the existing U.S. Bureau of Reclamation's (Reclamation) Mason Dam, near Baker City, in Baker County, Oregon. The project would occupy federal land managed by Reclamation and the U.S. Forest Service.

    The EA contains Commission staff's analysis of the potential environmental impacts of the proposed hydroelectric project. The EA concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.

    A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected] or toll-free at 1-866-208-3676, or for TTY, 202-502-8659.

    You may also register online at www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    Any comments should be filed within 45 days from the date of this notice.

    The Commission strongly encourages electronic filings. Please file comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp.

    You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support. In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. Please affix “Project No. 12686-004” to all comments.

    Please contact Kenneth Hogan (Commission Staff) by telephone at (202) 502-8434, or by email at [email protected], if you have any questions.

    Dated: October 27, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27839 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP16-4-000] Tennessee Gas Pipeline Company, L.L.C.; Notice of Application

    Take notice that on October 9, 2015, Tennessee Gas Pipeline Company, L.L.C. (Tennessee) filed an application with the Federal Energy Regulatory Commission, pursuant to section 7(c) of the Natural Gas Act (NGA), to construct, install, modify, operate, and maintain certain pipeline facilities located in Pennsylvania, as described in more detail below, all as more completely described in the Application. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (886) 208-3676 or TYY, (202) 502-8659.

    Any questions regarding the application should be directed to Patrick Stewart, Senior Counsel, Tennessee Gas Pipeline Company, L.L.C., 1001 Louisiana Street, Houston, Texas 77002, phone: (713) 369-8765, facsimile: (713) 420-1601, email: [email protected]; or Debbie Kalisek, Regulatory Affairs, Tennessee Gas Pipeline Company, L.L.C., 1001 Louisiana Street, Houston, Texas 77002, phone: (713) 420-3292, facsimile: (713) 420-1605, email: [email protected]

    Specifically, Tennessee requests authorization for the construction and operation of the Orion Project, which include: (1) An approximately 8.23 mile long, 36-inch diameter pipeline loop along Tennessee's existing 300 Line right-of-way in Wayne and Pike Counties, Pennsylvania, ending at existing Compressor Station 323 (Loop 322); (2) an approximately 4.68 mile long, 36-inch diameter pipeline loop along Tennessee's existing 300 Line right-of-way in Pike County, Pennsylvania, beginning at Compressor Station 323 (Loop 323); and (3) certain appurtenant and auxiliary facilities. Tennessee has executed binding precedent agreements with shippers for 100 percent of the 135,000 Dth per day of incremental firm transportation capacity created by the Orion Project. The Orion Project is estimated to cost $143,549,615.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

    However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and seven copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    Comment Date: November 16, 2015.

    Dated: October 26, 2015. Kimberly D. Bose, Secretary.
    [FR Doc. 2015-27803 Filed 10-30-15; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2015-0533; FRL-9936-52-OEI] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; Servicing of Motor Vehicle Air Conditioners (Renewal) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR, which is abstracted below, describes the nature of the information collection and its estimated burden and cost.

    DATES:

    Additional comments may be submitted on or before December 2, 2015.

    ADDRESSES:

    Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2015-0533 to (1) EPA online using www.regulations.gov (our preferred method), by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460, and (2) OMB by mail to: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street NW., Washington, DC 20503.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca von dem Hagen, Environmental Protection Agency, Stratospheric Protection Division, Office of Atmospheric Programs, MC 6205J, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 343-9445; fax number: (202) 343-2362; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On August 13, 2015 (40 FR 48529), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received one (1) comment during the comment period, which is addressed in the ICR supporting statement. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.

    EPA has established a public docket for this ICR, which is available for online viewing at www.regulations.gov, or in person viewing at the Air Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC.

    Use EPA's electronic docket and comment system at www.regulations.gov, to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose public disclosure is restricted by statute.

    Title: Servicing of Motor Vehicle Air Conditioners.

    ICR numbers: EPA ICR No. 1617.08, OMB Control No. 2060-0247.

    ICR Status: This ICR is scheduled to expire on October 31, 2015. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it 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 when approved, are listed in 40 CFR part 9, are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9.

    Abstract: Section 609 of the Clean Air Act Amendments of 1990 (Act) provides general guidelines for the recovery and recycling of motor vehicle air conditioners. It states that “no person repairing or servicing motor vehicles for consideration may perform any service on a motor vehicle air conditioner involving the refrigerant for such air conditioner without properly using approved refrigerant recovery and/or recovery and recycling equipment (hereafter referred to as “refrigerant handling equipment”) and no such person may perform such service unless such person has been properly trained and certified.” In 1992, EPA developed regulations under section 609 that were published in 57 FR 31240, and codified at 40 CFR Subpart B (Section 82.30 et seq.). The information required to be collected under the Section 609 regulations is: Approved refrigerant handling equipment; approved independent standards testing organizations; technician training and certification; and certification, reporting and recordkeeping.

    Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 5 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

    Respondents/Affected Entities: The following is a list of NAICS codes for organizations potentially affected by the information requirements covered under this ICR. It is meant to include any establishment that may service or maintain motor vehicle air conditioners. 4411 Automobile Dealers; 4413 Automotive Parts, Accessories, and Tire Stores; 44711 Gasoline Stations with Convenience Stores; 45299 All Other General Merchandise Stores; 811198 All Other Automotive Repair and Maintenance; Other affected groups include: Independent Standards Testing Organizations; Organizations with Technician Certification Programs.

    Estimated Number of Respondents: 50,318.

    Frequency of Response: On occasion, biennially, only once.

    Estimated Total Annual Hour Burden: 4,164.

    Estimated Total Annual Cost: $224,619.62, includes $0 annualized capital or O&M costs.

    Changes in the Estimates: There is a decrease of 359 hours in g the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. This decrease is due to an adjustment in the calculation to estimate the burden resulting from required submissions for new equipment certifications.

    Courtney Kerwin, Acting Director, Collection Strategies Division.
    [FR Doc. 2015-27849 Filed 10-30-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OW-2015-0714; FRL-9936-47-OW] Notice of a Public Meeting of the National Drinking Water Advisory Council AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The U.S. Environmental Protection Agency (EPA) is announcing a meeting of the National Drinking Water Advisory Council (NDWAC), as authorized under the Safe Drinking Water Act. The meeting is scheduled for November 17, 18 and 19, 2015. The NDWAC typically considers issues associated with drinking water protection and public drinking water systems. During this meeting, the NDWAC will focus discussions on developing recommendations for the EPA Administrator on the Lead and Copper National Primary Drinking Water Regulation—Long Term Revisions.

    DATES:

    The meeting on November 17, 2015, will be held from 8:30 a.m. to 4:15 p.m.; November 18, 2015, from 8 a.m. to 5 p.m.; and November 19, 2015, from 8 a.m. to noon, eastern time.

    ADDRESSES:

    The public meeting will be held in Crystal City, Arlington, Virginia. The exact location of the meeting will be noticed in the Federal Register no later than the week before the meeting, posted at http://water.epa.gov/drink/ndwac/ and posted at www.regulations.gov under Docket ID No. EPA-HQ-OW-2015-0714.

    FOR FURTHER INFORMATION CONTACT:

    For more information about this meeting or to request written materials, contact Michelle Schutz of the Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency, by phone at 202-564-7374 or by email at [email protected] For additional information about the NDWAC meeting, please visit http://water.epa.gov/drink/ndwac/or www.regulations.gov (search for Docket ID No. EPA-HQ-OW-2015-0714).

    SUPPLEMENTARY INFORMATION:

    Details about Participating in the Meeting: Teleconferencing will be available during the meeting. The number of teleconference connections available for the meeting is limited and will be offered on a first-come, first-served basis. The teleconference number is (1) 866-299-3188; when prompted, enter conference code 202 564 7347.

    To ensure adequate time for public involvement, individuals or organizations interested in presenting an oral statement should notify Michelle Schutz by November 9, 2015, by email at [email protected] or by phone at 202-564-7374. The NDWAC will allocate 45 minutes for the public's input (from 9:30 a.m. to 10:15 a.m., eastern time) at the meeting on November 18, 2015. Oral statements will be limited to three minutes at the meeting. It is preferred that only one person present a statement on behalf of a group or organization. Any person who wishes to file a written statement can do so before or after the NDWAC meeting. Written statements intended for the meeting must be received by November 9, 2015, to be distributed to all members of the NDWAC before any final discussion or vote is completed. Any statement received on or after the date specified will become part of the permanent file for the meeting and will be forwarded to the NDWAC members for their information.

    National Drinking Water Advisory Council: The NDWAC was created by Congress on December 16, 1974, as part of the Safe Drinking Water Act (SDWA) of 1974, Public Law 93-523, 42 U.S.C. 300j-5, and is operated in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. The NDWAC was established under the SDWA to provide practical and independent advice, consultation and recommendations to the EPA Administrator on the activities, functions, policies and regulations required by the SDWA.

    Special Accommodations: For information on access or services for individuals with disabilities, please contact Michelle Schutz at 202-564-7374 or by email at [email protected] To request an accommodation for a disability, please contact Michelle Schutz at least 10 days prior to the meeting to give the hosting facility as much time as possible to process your request.

    Dated: October 27, 2015. Peter Grevatt, Director, Office of Ground Water and Drinking Water.
    [FR Doc. 2015-27883 Filed 10-30-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-R10-CERCLA-10-2015-0134; FRL-9936-44-Region-10] Proposed CERCLA Administrative Cost Recovery Settlement; Ashue Road Site, Wapato, Yakima County, WA AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; request for public comment.

    SUMMARY:

    In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation and Liability Act, as amended (CERCLA), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of response costs incurred for the Ashue Road Site located at Section 17, Township 11, Range 19 in Wapato, Yakima County, Washington. Under this proposed settlement, the settling parties are Groat Bros., Inc., T.W. Clark Construction, LLC, and the Wapato School District No. 207. The proposed settlement requires the settling parties to pay $95,000 to the Environmental Protection Agency Hazardous Substance Superfund. Upon payment of this sum to Environmental Protection Agency (EPA), the settling parties will be released from their obligations for payments to EPA for costs EPA incurred at the Site prior to the effective date of the proposed settlement.

    For 30 days following the date of publication of this notice, the EPA will receive written comments relating to the proposed settlement. The EPA will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The EPA's response to any comments received will be available for public inspection at the U.S. EPA Region 10 Office, located at 1200 Sixth Avenue, Seattle, Washington 98101.

    DATES:

    Comments must be received on or before December 2, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-CERCLA-10-2015-0134, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Ted Yackulic, Assistant Regional Counsel, Office of Regional Counsel, Mail Stop ORC-113, Environmental Protection Agency, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101; telephone number: (206) 553-1218; fax number: (206) 553-1762; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information

    The ASHUE ROAD SITE is located at Section 17, Township 11, Range 19 in Wapato, Yakima County, WA, and is located on fee property within the reservation for the Yakama Nation. The Site covers approximately 2.46 acres. There is a residential home within the Site. The area surrounding the Site supports agricultural and residential uses. During 2012 a portion of the Wapato High School in Wapato, Washington was demolished. The Wapato School District No. 207 engaged T.W. Clark Construction, LLC as the general contractor for the demolition work. T.W. Clark Construction, LLC hired Groat Bros., Inc. as sub-contractor for performing demolition work and transporting demolition materials from the High School. The demolition work included the demolition of materials that contained asbestos. A portion of materials generated during the Wapato High School demolition project were transported to the Site for disposal. The Site is not licensed by the State of Washington, Yakima County, or the Yakama Nation to receive demolition materials or materials that contain hazardous substances for disposal. EPA conducted a field investigation of the Site on October 5, 2012. EPA's investigation revealed the presence of asbestos in the demolished materials disposed of at the Site. Asbestos is a hazardous substance. EPA oversaw the performance of a removal action at the Site by T.W. Clark Construction, LLC, and Groat Bros. Inc. The removal action involved the excavation and off-Site disposal of the high school demolition wastes. EPA incurred approximately $311,330.96 performing or overseeing the performance of response costs at the Site. Pursuant to the terms of the CERCLA Section 122(h)(1) Settlement Agreement for Recovery of Response Costs, the settling parties will pay EPA $95,000. In return for the payment of this amount, EPA covenants not to sue the settling parties for past response costs—response costs incurred by EPA prior to the effective date of the Settlement Agreement—at the Site. In the event that EPA continues to incur response costs at the Site, EPA's covenant not to sue does not include costs incurred by EPA after the effective date of the Settlement Agreement.

    Dated: October 15, 2015. Chris D. Field, Manager, Emergency Management Program, EPA Region 10.
    [FR Doc. 2015-27885 Filed 10-30-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9936-43-Region 6] Public Water System Supervision Program Revision for the State of Oklahoma AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of tentative approval.

    SUMMARY:

    Notice is hereby given that the State of Oklahoma is revising its approved Public Water System Supervision (PWSS) program. Oklahoma has adopted the Revised Total Coliform Rule (RTCR) by reference under Title 252 Chapter 631 Subchapters 1-3 of the Oklahoma Administrative Code Pertaining to the Oklahoma Department of Environmental Quality Pubic Water Supply Operation. EPA has reviewed and approved the RTCR primacy application submitted by Oklahoma. Therefore, EPA intends to approve this PWSS program revision package, which gives the Oklahoma Department of Environmental Quality primary enforcement responsibility for implementing the Revised Total Coliform Rule for all public water systems regulated by the state.

    DATES:

    All interested parties may request a public hearing. A request for a public hearing must be submitted by December 2, 2015 to the Regional Administrator at the EPA Region 6 address shown below. Frivolous or insubstantial requests for a hearing may be denied by the Regional Administrator. However, if a substantial request for a public hearing is made by December 2, 2015, a public hearing will be held. If no timely and appropriate request for a hearing is received and the Regional Administrator does not elect to hold a hearing on his own motion, this determination shall become final and effective on December 2, 2015. Any request for a public hearing shall include the following information: The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; a brief statement of the request