This final rule revises the delegations of authority within the Department of Agriculture to carry out the various authorities of the Secretary of Agriculture in section 9008 of FSRIA (formerly the Biomass Research and Development Act of 2000) (7 U.S.C. 8108), as added by section 9001(a) of the Food, Conservation, and Energy Act of 2008, Public Law 110-246.

Currently, the authority to carry out section 9008 of FSRIA is delegated to the Under Secretary for REE, as reflected in 7 CFR 2.21(a)(1)(cci). The authority to administer the grants program known as the Biomass Research and Development Initiative (7 U.S.C. 8108(e)) is further delegated to the Director of NIFA within the REE mission area, as reflected in 7 CFR 2.66(a)(156).

This final rule divides responsibilities for carrying out section 9008 of FSRIA between the REE and RD mission areas, as follows. The Under Secretary for REE will continue to exercise delegated authority to administer the Biomass Research and Development Initiative program, as well as consult and coordinate, as appropriate, with the Under Secretary for RD and other mission areas of the Department as necessary in carrying out this authority. These authorities are further delegated to the Director of NIFA. The delegations in 7 CFR 2.21(a)(1)(cci) and 2.66(a)(156) are revised accordingly.

The Under Secretary for RD is delegated the responsibility to carry out all other authorities of the Secretary in 7 U.S.C. 8108, including administration of the Biomass Research and Development Board and Biomass Research and Development Technical Advisory Committee, and submission of reports to Congress. The Under Secretary for RD will consult and coordinate, as appropriate, with the Under Secretary for REE and other mission areas of the Department in carrying out these authorities. A new delegation is added to 7 CFR 2.17(a)(30) to reflect the delegation of these authorities.

Finally, the Under Secretary for RD will serve as the designated “point of contact” referenced in 7 U.S.C. 8108 for the Department, except that the point of contact for purposes of administering the Biomass Research and Development Initiative program will continue to be the Under Secretary for REE.

This rule relates to internal agency management. Accordingly, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register . This rule also is exempt from the provisions of Executive Orders 12866 and 12988. This action is not a rule as defined by the Regulatory Flexibility Act, Public Law 96-354, and the Small Business Regulatory Fairness Enforcement Act, 5 U.S.C. 801 et seq., and thus is exempt from the provisions of those Acts. This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, Title 7 of the Code of Federal Regulations is amended as set forth below:

DOE published a direct final rule to establish amended energy conservation standards for residential clothes dryers and room air conditioners on April 21, 2011. 76 FR 22454 (April 21, 2011).

EPCA (42 U.S.C. 6291 et seq. ), as amended, grants DOE authority to issue a final rule (hereinafter referred to as a “direct final rule”) establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary, that contains recommendations with respect to an energy conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). EPCA also requires a NOPR that proposes an identical energy conservation standard to be published simultaneously with the final rule. A public comment period of at least 110 days must be provided. 42 U.S.C. 6295(p)(4). Not later than 120 days after issuance of the direct final rule, if one or more adverse comments or an alternative joint recommendation are received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously published notice of proposed rulemaking. DOE must publish in the Federal Register the reason why the direct final rule was withdrawn. Id.

During the rulemaking proceeding to develop amended standards for residential clothes dryers and room air conditioners, DOE received the “Agreement on Minimum Federal Efficiency Standards, Smart Appliances, Federal Incentives and Related Matters for Specified Appliances” (the “Joint Petition”), a comment submitted by groups representing manufacturers (the Association of Home Appliance Manufacturers (AHAM), Whirlpool Corporation (Whirlpool), General Electric Company (GE), Electrolux, LG Electronics, Inc. (LG), BSH Home Appliances (BSH), Alliance Laundry Systems (ALS), Viking Range, Sub-Zero Wolf, Friedrich A/C, U-Line, Samsung, Sharp Electronics, Miele, Heat Controller, AGA Marvel, Brown Stove, Haier, Fagor America, Airwell Group, Arcelik, Fisher & Paykel, Scotsman Ice, Indesit, Kuppersbusch, Kelon, and DeLonghi); energy and environmental advocates (American Council for an Energy Efficient Economy (ACEEE), Appliance Standards Awareness Project (ASAP), Natural Resources Defense Council (NRDC), Alliance to Save Energy (ASE), Alliance for Water Efficiency (AWE), Northwest Power and Conservation Council (NPCC), and Northeast Energy Efficiency Partnerships (NEEP)); and consumer groups (Consumer Federation of America (CFA) and the National Consumer Law Center (NCLC)) (collectively, the “Joint Petitioners”). This collective set of comments, which DOE refers to in this notice as the “Joint Petition”  1 or “Consensus Agreement” recommends specific energy conservation standards for residential clothes dryers and room air conditioners that, in the commenters' view, would satisfy the EPCA requirements in 42 U.S.C. 6295(o). The Joint Petition also sets forth compliance dates for these recommended standards. The compliance dates are June 1, 2014 for room air conditioners and January 1, 2015 for clothes dryers.

As discussed in the direct final rule, DOE determined that the relevant criteria under 42 U.S.C. 6295(p)(4) were satisfied and that it was appropriate to adopt amended energy conservation standards for clothes dryers and room air conditioners through the direct final rule. In publishing the direct final rule, however, DOE inadvertently specified a compliance date 3 years after publication of the direct final rule in the Federal Register , rather than specifying the compliance dates set forth in the Joint Petition. DOE proposed to amend the compliance dates in a proposed rule published in the Federal Register on May 9, 2011. 76 FR 26656. DOE received two comments in support of the amended compliance dates, and no commenters objected to those dates. In today's rule, DOE adopts those compliance dates. Specifically, for room air conditioners, DOE adopts a compliance date of June 1, 2014, and for clothes dryers, DOE adopts a compliance date of January 1, 2015. In addition, elsewhere in today's Federal Register , DOE published a document confirming adoption of the standards set forth in the direct final rule and announcing the effective date of the direct final rule.

DOE finds good cause to waive the 30-day delay in effective date under the Administrative Procedure Act (5 U.S.C. 553(d)). A 30-day delay is unnecessary because the compliance dates established in today's final rule are intended merely to ensure that the compliance dates for the energy conservation standards set forth in DOE's direct final rule published on April 21, 2011 are the same as those recommended in the Joint Petition. Further, as DOE also published a document elsewhere in today's Federal Register confirming adoption of the standards set forth in the direct final rule and announcing the effective date of the direct final rule, any delay in the effective date of this rule could cause confusion among interested parties.

The regulatory reviews conducted for this final rule remain unchanged from those conducted for the direct final rule establishing the amended energy conservation standards. DOE does not believe that the changes in the compliance dates—approximately one and a half months for room air conditioners and eight and a half months for clothes dryers—would result in changes to those analyses. Please see the direct final rule for further details.

For the reasons set forth in the preamble, DOE amends chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:

As amended by Energy Independence and Security Act of 2007 (EISA 2007; Pub. L. 110-140), the Energy Policy and Conservation Act authorizes DOE to issue a direct final rule establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary of Energy (Secretary), that contains recommendations with respect to an energy conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). A notice of proposed rulemaking (NOPR) that proposes an identical energy conservation standard must be published simultaneously with the final rule, and DOE must provide a public comment period of at least 110 days on the direct final rule. 42 U.S.C. 6295(p)(4). Not later than 120 days after issuance of the direct final rule, if one or more adverse comments or an alternative joint recommendation are received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously published NOPR. DOE must publish in the Federal Register the reasons why the direct final rule was withdrawn. Id.

During the rulemaking proceeding to consider amending energy conservation standards for residential clothes dryers and room air conditioners, DOE received the “Agreement on Minimum Federal Efficiency Standards, Smart Appliances, Federal Incentives and Related Matters for Specified Appliances” (the “Joint Petition” or “Consensus Agreement”), a comment submitted by groups representing manufacturers (the Association of Home Appliance Manufacturers (AHAM), Whirlpool Corporation (Whirlpool), General Electric Company (GE), Electrolux, LG Electronics, Inc. (LG), BSH Home Appliances (BSH), Alliance Laundry Systems (ALS), Viking Range, Sub-Zero Wolf, Friedrich A/C, U-Line, Samsung, Sharp Electronics, Miele, Heat Controller, AGA Marvel, Brown Stove, Haier, Fagor America, Airwell Group, Arcelik, Fisher & Paykel, Scotsman Ice, Indesit, Kuppersbusch, Kelon, and DeLonghi); energy and environmental advocates (American Council for an Energy Efficient Economy (ACEEE), Appliance Standards Awareness Project (ASAP), Natural Resources Defense Council (NRDC), Alliance to Save Energy (ASE), Alliance for Water Efficiency (AWE), Northwest Power and Conservation Council (NPCC), and Northeast Energy Efficiency Partnerships (NEEP)); and consumer groups (Consumer Federation of America (CFA) and the National Consumer Law Center (NCLC)) (collectively, the “Joint Petitioners”). This collective set of comments  1 recommends specific energy conservation standards for residential clothes dryers and room air conditioners that, in the commenters' view, would satisfy the EPCA requirements at 42 U.S.C. 6295(o).

After careful consideration of the Consensus Agreement, the Secretary determined that it was submitted by interested persons who are fairly representative of relevant points of view on this matter. DOE noted in the direct final rule that Congress provided some guidance within the statute itself by specifying that representatives of manufacturers of covered products, States, and efficiency advocates are relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the Consensus Agreement was signed and submitted by a broad cross-section of the manufacturers who produce the subject products, their trade associations, and environmental, energy efficiency and consumer advocacy organizations. Although States were not signatories to the Consensus Agreement, they did not express any opposition to it from the time of its submission to DOE through the close of the comment period on the direct final rule. Moreover, DOE stated in the direct final rule that it does not interpret the statute as requiring absolute agreement among all interested parties before DOE may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness ( i.e., “as determined by the Secretary”). Accordingly, DOE determined that the Consensus Agreement was made and submitted by interested persons fairly representative of relevant points of view.

Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly submitted recommendation for an energy or water conservation standard is in accordance with 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. As stated in the direct final rule, this determination is exactly the type of analysis DOE conducts whenever it considers potential energy conservation standards pursuant to EPCA. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that it adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in significant conservation of energy. Upon review, the Secretary determined that the Consensus Agreement submitted in the instant rulemaking comports with the standard-setting criteria set forth under 42 U.S.C. 6295(o). Accordingly, the Consensus Agreement levels, included as trial standard level (TSL) 4 for both clothes dryers and room air conditioners, were adopted as the amended standard levels in the direct final rule.

In sum, as the relevant statutory criteria were satisfied, the Secretary adopted the amended energy conservation standards for clothes dryers and room air conditioners set forth in the direct final rule. These standards are set forth in Table 1. The standards apply to all products listed in Table 1 that are manufactured in, or imported into, the United States on or after June 1, 2014 for room air conditioners and on or after January 1, 2015 for clothes dryers. These compliance dates were set forth in the proposed rule issued on May 9, 2011 (76 FR 19913) and are adopted in a final rule published elsewhere in today's Federal Register ( see section V of this notice for further details.) For a detailed discussion of DOE's analysis of the benefits and burdens of the amended standards pursuant to the criteria set forth in EPCA, please see the direct final rule. (76 FR 22454 (April 21, 2011))

As required by EPCA, DOE also simultaneously published a NOPR proposing the identical standard levels contained in the direct final rule. As discussed in section II.A.4 of this notice, DOE considered whether any comment received during the 110-day comment period following the direct final rule was sufficiently “adverse” as to provide a reasonable basis for withdrawal of the direct final rule and continuation of this rulemaking under the NOPR. As noted in the direct final rule, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, DOE weighs the substance of any adverse comment(s) received against the anticipated benefits of the Consensus Agreement and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule.

Commenters stated that DOE did not consider the views of all relevant parties, including appliance installers and energy suppliers. Commenters also stated that DOE did not explain its process for determining whether the Joint Petition was submitted by relevant parties, including a determination of which parties are “not” relevant. (American Gas Association (AGA), No. 62 at pp. 4-5;  2 AGL Resources (AGL), No. 63 at p. 8; American Public Gas Association (APGA), No. 61 at p. 2)

As explained above, EPCA authorizes DOE to issue a direct final rule establishing an energy conservation standard on receipt of a statement that, in relevant part, is submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary. While providing some guidance by specifying that representatives of manufacturers of covered products, States, and efficiency advocates are relevant parties to any consensus recommendation, EPCA affords DOE significant discretion in determining whether this requirement has been met. (42 U.S.C. 6295(p)(4)(A)) DOE notes that EPCA does not require that “all” relevant parties be parties to any consensus agreement. EPCA also does not require DOE to specify parties that it determines are not relevant to any consensus agreement.

In the direct final rule, DOE explained how the Consensus Agreement met the requirement that it be submitted jointly by interested persons that are fairly representative of relevant points of view. DOE noted that the Consensus Agreement was signed and submitted by a broad cross-section of the manufacturers who produce the subject products, their trade associations, and environmental, energy efficiency and consumer advocacy organizations. DOE further noted that although States were not signatories to the Consensus Agreement, they did not express any opposition to it. States also did not file any adverse comments during the comment period for the direct final rule.

Moreover, DOE stated in the direct final rule that it does not interpret the statute as requiring absolute agreement among all interested parties before DOE may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness ( i.e., “as determined by the Secretary”). DOE acknowledges that appliance installers and energy suppliers may also be relevant parties within the meaning of 42 U.S.C. 6295(p)(4), but does not believe that the existence of other potentially relevant parties indicates that the Consensus Agreement was not submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates). In addition, DOE notes that it derived the installation costs for the clothes dryers from the 2010 RS Means Residential Cost Data, which is commonly used as an installation cost reference source by the installers for estimating the labor hours and regional labor cost. DOE also notes that the clothes dryer design that meets the new energy conservation standard does not require additional installation cost compared to the models that meet the existing energy conservation standard. Energy suppliers—Edison Electric Institute and California Utilities (gas and electric)—provided technology information that could improve the products' efficiency, and also recommended improvements to the existing test procedures in response to the framework document for this rulemaking, made available for comment on October 9, 2007, and the preliminary analysis document, made available for public comment on February 23, 2010. 3

For the reasons stated above, DOE affirms its conclusion in the direct final rule that the Joint Petition satisfies the requirement of 42 U.S.C. 6295(p)(4) that it be a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary.

AGA objected to DOE's use of a learning curve to forecast product prices. (AGA, No. 62 at p. 3) APGA stated that learning curve price reductions should not be included in this direct final rule because DOE's most recent policy on this topic, set forth in DOE's notice of data availability (NODA) on Equipment Price Forecasting in Energy Conservation Standards Analysis (76 FR 9696, Feb. 22, 2011), has not been finalized. (APGA, No. 61 at p. 2)

APGA also presented as relevant to this rulemaking several issues that it had raised in its comments in response to the NODA. Summarizing these issues, AGA stated that DOE has not justified use of “learning curve” price effects with respect to the covered products, and that the price adjustment approach, based on a wide variety of products and not specific to the design options under consideration, is inconsistent with the approach of using engineering costs. (AGA, No. 62 at p. 3) Laclede Gas Company (Laclede Gas) stated that the “learning curve” is one of many assumptions made by DOE leading to a biased outcome. (Laclede Gas, No. 59 at p. 4)

In the NODA, DOE stated that when data are available to project potential cost reductions over time for a particular appliance or type of equipment, DOE plans to use these data as part of its analyses. 76 FR 9699 (Feb. 22, 2011). Therefore, use of the experience curve approach in the direct final rule, as described below, is appropriate.

For the direct final rule, DOE examined historical producer price indices for room air conditioners and household laundry equipment and found a long-term declining real price trend for both products. Consistent with the method proposed in the NODA, DOE used experience curve fits with the historical data on prices and cumulative production to forecast product costs. The experience curve approach captures a variety of factors that together shaped the observed historical trends, and is consistent with the costing approach in the engineering analysis, which estimated the incremental costs of considered design options in 2010. DOE did not attempt to forecast how those costs may change in the future because the available data did not permit DOE to estimate how only the incremental costs of design options may change.

Laclede Gas expressed concern that DOE has not implemented the National Academy of Sciences (NAS) conclusions that DOE's measurement of energy use should be based on full-fuel cycles, which takes into account the amount of energy consumed and lost from the fuel's production through the final point of use. (Laclede Gas, No. 59 at p. 4)

As discussed in the direct final rule, Section 1802 of the Energy Policy Act of 2005 directed DOE to contract a study with the National Academy of Science (NAS) to examine whether the goals of energy efficiency standards are best served by measurement of energy consumed, and efficiency improvements, at the actual point-of-use or through the use of the full-fuel-cycle, beginning at the source of energy production. (Pub. L. 109-58 (August 8, 2005)). NAS appointed a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” to conduct the study, which was completed in May 2009. The NAS committee noted that DOE uses what the committee referred to as “extended site” energy consumption to assess the impact of energy use on the economy, energy security, and environmental quality. The extended site measure of energy consumption includes the energy consumed during the generation, transmission, and distribution of electricity but, unlike the full-fuel-cycle measure, does not include the energy consumed in extracting, processing, and transporting primary fuels. A majority of the NAS committee concluded that extended site energy consumption understates the total energy consumed to make an appliance operational at the site. As a result, the NAS committee recommended that DOE consider shifting its analytical approach over time to use a full-fuel-cycle measure of energy consumption when assessing national and environmental impacts, especially with respect to the calculation of greenhouse gas emissions.

In response to the NAS committee recommendations, DOE issued a Notice of Proposed Policy proposing to incorporate a full-fuel cycle analysis into the methods it uses to estimate the likely impacts of energy conservation standards on energy use and emissions. 75 FR 51423 (August 20, 2010). Specifically, DOE proposed to use full-fuel-cycle (FFC) measures of energy and greenhouse gas (GHG) emissions, rather than the primary (extended site) energy measures it currently uses. DOE recently published a final policy statement on these subjects (76 FR 51281, August 18, 2011) and will take steps to begin implementing that policy in future rulemakings and other activities.

Commenters stated that DOE did not consider the adverse comments consistent with 42 U.S.C. 6295(p)(4). Specifically, commenters asserted that DOE was required to weigh adverse comments independent of other aspects of the direct final rule, except where the comments conflict with DOE's analysis in the rule, to avoid what the commenters view as ad hoc and administratively inappropriate trade-offs. Commenters also asserted that weighing the adverse comments against the benefits of the direct final rule was not authorized by EPCA. (AGA, No. 62 at p. 4; APGA, No. 61 at p. 2)

EPCA, in relevant part, authorizes DOE to adopt in a direct final rule jointly recommended energy conservation standards that are in accordance with the provisions of 42 U.S.C. 6295(o). Not later than 120 days after issuance of the direct final rule, if one or more adverse comments or an alternative joint recommendation are received relating to the direct final rule, the Secretary is required to determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law.

In the discussion that follows, DOE first explains its rationale for establishing the standards set forth in the direct final rule. DOE then explains the process for determining whether adverse comments received may provide a reasonable basis for withdrawal of the direct final rule and addresses commenters' concerns about that process.

As stated in the direct final rule, DOE's determination as to whether the standards levels in a consensus agreement meet the requirements for adoption set forth in 42 U.S.C. 6295(o) is exactly the type of analysis DOE conducts whenever it considers potential energy conservation standards pursuant to EPCA. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that DOE adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in significant conservation of energy. This analysis includes a determination of whether the benefits of the standard outweigh its burdens, considering, to the maximum extent practicable, the seven criteria set forth in EPCA. These factors include the economic impact on manufacturers and consumers, operating cost savings compared to any increase costs, energy savings, any lessening of utility, the impact of any lessening of competition, the need for national energy and water savings, and any other factors that the Secretary considers appropriate. For the reasons stated in the direct final rule, DOE stated that it considered submission of the Consensus Agreement as another such factor. Upon review, and for the reasons set forth in the direct final rule, the Secretary determined that the Consensus Agreement submitted for residential clothes dryers and room air conditioners comports with the standard-setting criteria set forth under 42 U.S.C. 6295(o). Accordingly, the consensus agreement levels, included as TSL 4 for both clothes dryers and room air conditioners, were adopted as the amended standard levels in the direct final rule.

In considering whether any comment received on the direct final rule is sufficiently “adverse” such that it may provide a reasonable basis for withdrawal of the direct final rule and continuation of this rulemaking under the NOPR, DOE stated in the direct final rule that it is the substance, rather than the quantity, of comments that ultimately determines whether a direct final rule will be withdrawn. DOE also stated that it weighs the substance of any adverse comment(s) received against the anticipated benefits of the Consensus Agreement and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE noted that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. DOE does not agree that adverse comments must be weighed independently of the benefits of the standards in the direct final rule. DOE notes that EPCA affords the Secretary significant discretion in determining whether adverse comments may provide a reasonable basis for withdrawal of the direct final rule. EPCA requires DOE to make its decision whether to withdraw the direct final rule “based on the rulemaking record relating to the direct final rule.” In addition, DOE believes that weighing the substance of any adverse comments against the benefits of the standards adopted in the direct final rule is authorized by, and completely consistent with, EPCA because EPCA requires DOE to make these same types of determinations, weighing factors as varied as impacts to consumers and manufacturers and the need of the nation for energy savings, when deciding whether a standard is economically justified. DOE also believes that analysis of the substance of the adverse comments to determine whether further consideration would lead to a change in the results of the rulemaking, as well as the consideration of comments already addressed as insufficient to justify withdrawal, is an appropriate exercise of the Secretary's discretion and use of limited resources. DOE's analysis of the adverse comments received is provided throughout this section.

Commenters also suggested that DOE extend the comment period on the NOPR published simultaneous with the direct final rule. In the commenters' view, DOE needs to deliberate on the comments advocating withdrawal before closing the comment period on the NOPR so that stakeholders are aware of the rulemaking path DOE is pursuing. Commenters also noted that there is no requirement for the comment periods to have the same end date, and that withdrawal of the direct final rule may generate unique information for stakeholders to inform their comments on the NOPR. (AGA, No. 62 at p. 5; APGA, No. 61 at p. 3)

DOE is required by 42 U.S.C. 6295(p)(4) to publish a NOPR proposing standards identical to those set forth in the direct final rule simultaneously with the direct final rule. DOE published the direct final rule and corresponding NOPR on April 21, 2011. (76 FR 22324 (NOPR); 76 FR 22454 (direct final rule)) DOE is not required to provide for identical comments periods on the NOPR and direct final rule. DOE typically provides for a 60-day comment period on an energy conservation standards NOPR. For the NOPR proposing energy conservation standards for residential clothes dryers and room air conditioners, however, DOE provided for a longer comment period to match the 110-day comment period provided for the direct final rule. DOE believed that an earlier closing date could be confusing to commenters and was not warranted given that the direct final rule provided for a 110-day comment period. DOE does not believe that further extension of the comment period on the NOPR is necessary. The time provided for DOE to deliberate on whether to withdraw the direct final rule is specified in EPCA, which states that not later than 120 days after publication of the direct final rule in the Federal Register ( i.e., 10 days after the close of the comment period), DOE must withdraw the direct final rule if it receives one or more adverse comments that may provide a reasonable basis for withdrawal. In addition, the standards proposed in the NOPR are identical to those set forth in the direct final rule, and in the event DOE determines that withdrawal is warranted, EPCA requires DOE to proceed with the simultaneously published NOPR. DOE's path in the event of withdrawal is therefore known when the direct final rule and NOPR are published—DOE considers the comments received and determines whether to issue amended standards in a final rule. Because the standards proposed in the NOPR, and the analyses by which those standards were developed, are identical to those in the direct final rule, DOE would not expect that withdrawal would generate unique information to inform stakeholders' comments on the NOPR.

AGA, APGA, and AGL stated that the results of DOE's consumer impact analysis do not provide sufficient economic justification for TSL 4 for gas clothes dryers. They stated that the average life-cycle cost (LCC) benefit of $2 is highly questionable as a positive economic justification, and that at TSL 4 more consumers would experience a net cost than would experience an LCC benefit. They also stated that the mean payback period for TSL 4 is much longer than the median payback period reported in the direct final rule. (AGA, No. 62 at p. 2; AGL, No. 63 at p. 2; APGA, No. 61 at pp. 1-2)

DOE reports median payback period because it is a better indicator of consumer impacts than mean payback period, which can be skewed by a small number of consumers with a larger payback period. For gas clothes dryers at TSL 4, the average LCC savings are estimated at $2. Sixty-eight percent of consumers will experience either a net benefit or no cost ( i.e., LCC decrease or no change in LCC) in 2014, while approximately one-third of consumers would experience a net cost ( i.e., LCC increase) in 2014. DOE considered these LCC impacts in the direct final rule in its analysis of the seven factors that EPCA directs DOE to evaluate in determining whether a potential energy conservation standard is economically justified (42 U.S.C. 6295(o)(2)(B)(i)). In the direct final rule, DOE concluded that at TSL 4 for residential clothes dryers, the benefits of energy savings, generating capacity reductions, emission reductions and the estimated monetary value of the CO 2 emissions reductions, and positive NPV of consumer benefits outweigh the economic burden on some consumers due to the increases in product cost and the profit margin impacts that could result in a reduction in industry net present value for the manufacturers. Thus, the Secretary concluded that TSL 4 offers the maximum improvement in efficiency that is technologically feasible and economically justified, and will result in the significant conservation of energy.

AGA noted inconsistencies between DOE's LCC analysis and its recalculated values using the same analytical tools that would change the LCC savings into a cost. AGA stated that without any changes to the user inputs or other variables, it ran the simulation with the Crystal Ball software and calculated a $7 average LCC cost for gas dryers at TSL 4, making the adopted standard for gas dryers not economically justifiable. (AGA, No. 62 at pp. 1-2) In reviewing the LCC spreadsheet for gas clothes dryers, DOE consistently reproduced the results for the gas dryers at TSL 4 as reported in the technical support document (TSD) ( i.e., an average savings of $2) using MS Excel 2007 and Crystal Ball software version 7.3.2. (2009). The different outcome from AGA's simulation runs could be due to different software versions, different initial settings for Crystal Ball, or other factors, though the information provided by AGA was insufficient for DOE to determine the cause of the differences.

Laclede Gas stated that because the direct final rule presents energy efficiency ratings for clothes dryers based on site energy, it misleads consumers into thinking that electric resistance heat is more efficient than the direct use of natural gas for clothes drying. (Laclede Gas, No. 59 at pp. 2-3) The units in which DOE expresses energy conservation standards for appliances are based on the definitions of “energy efficiency” and “energy use” provided by EPCA. The term “energy efficiency” means the ratio of the useful output of services from a consumer product to the energy use of such product, determined in accordance with applicable test procedures, and the term “energy use” means the quantity of energy directly consumed by a consumer product at point of use, determined in accordance with test procedures. (42 U.S.C. 6291(4-5)) DOE acknowledges that the energy conservation standards in the direct final rule are higher for standard vented electric dryers than for vented gas dryers (3.73 CEF vs. 3.30 CEF, respectively), but DOE does not find it credible that this fact would lead consumers to thereby prefer electric dryers. While clothes dryers do not have EnergyGuide labels, any such label would feature the estimated annual operating cost, not the energy efficiency rating. The estimated average annual operating cost of a gas dryer meeting the amended standard is less than the similar cost for an electric dryer meeting the amended standard, so it is implausible to expect that the standards would lead consumers to prefer electric dryers over gas dryers.

In a related comment, Laclede Gas stated that DOE ignored the potential for fuel switching from gas to electric clothes drying. (Laclede Gas, No. 59 at p. 4) DOE did not consider switching between gas and electric clothes dryers as a result of the standards because the average incremental cost of the standards for standard-size gas and electric clothes dryers is approximately the same ($13). Thus, DOE believes that the standards would be unlikely to induce fuel switching, particularly given the additional costs associated with such switching ( e.g., the need to install a new dedicated electrical outlet).

AGA stated that DOE's use of the Annual Energy Outlook ( AEO ) 2010 Reference Case for energy prices under-accounts for the expansion of the U.S. natural gas resource base resulting from technological innovations for production of gas from tight shales. AGA recommended that DOE conduct its analysis using the AEO Low Growth price scenario. (AGA, No. 62 at p. 4) DOE traditionally uses the Reference Case forecast from the most recent AEO available at the time of the analysis for its default energy price forecast, and conducts sensitivity analysis using the Low Growth and High Growth Cases. For this rulemaking, the 2010 AEO was the most recent available forecast.

AGA, APGA, and Laclede Gas stated that DOE's estimated range of impacts under TSL 4 for direct domestic employment in the manufacture of gas dryers indicates that job loss is the more likely outcome of the standards. (AGA, No. 62 at pp. 2-3; APGA, No. 61 at p. 1; Laclede Gas, No. 59 at p. 4)

The results for clothes dryers under TSL 4 in the direct final rule show impacts ranging from a gain of 460 jobs to a potential loss of 3,962 jobs. The potential loss reflects a scenario in which all existing production would be moved outside of the United States. DOE believes that this outcome is unlikely for the reasons stated in the direct final rule. Specifically, at TSL 3 through TSL 5, DOE analyzed design options for the most common clothes dryer product classes that would add labor content to the final product. If manufacturers continue to produce these more complex products in-house, it is likely that employment would increase in response to the amended energy conservation standards. At TSL 3 through TSL 5, gains in domestic production employment are likely because, while requiring more labor, the necessary changes could be made within existing product platforms. The ability to make product changes within existing platforms mitigates some of the pressure to find lower labor costs, as relocating manufacturing facilities would disrupt production and add significant capital costs.

Laclede Gas stated that the energy factors established for clothes dryers do not fulfill the scientific integrity objectives established by the President's Memorandum on scientific integrity, published on May 9, 2009, 4 and that there is no scientific integrity in mandating standards that unfairly discriminate against the direct use of natural gas. (Laclede Gas, No. 59 at p. 2)

DOE notes that the President's memo requires the Director of the Office of Science and Technology Policy (OSTP) to develop recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch based on the principles enumerated in the memorandum. DOE further notes that OSTP issued a memorandum to the heads of executive departments and agencies on December 17, 2010 pursuant to the President's May 9, 2009 memorandum ( http://www.whitehouse.gov/sites/default/files/microsites/ostp/scientific-integrity-memo-12172010.pdf ). The memorandum provides guidance to agencies to implement the Administration's policies on scientific integrity. The OSTP memo stated that agencies should develop policies  5 that, among other things, strengthen the actual and perceived credibility of Government research, which would include ensuring that data and research used to support policy decisions undergo independent peer review by qualified experts, where feasible and appropriate. Agency policies should also, among other things, establish principles for conveying scientific and technological information to the public.

As stated in the direct final rule, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report” dated February 2007 has been disseminated and is available at the following Web site: http://www1.eere.energy.gov/buildings/appliance_standards/peer_review.html. DOE also makes its analyses and results available to the public in the TSD developed for its energy conservation standards rulemakings. The TSD for the direct final rule to establish energy conservation standards for residential clothes dryers and room air conditioners is available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/residential_clothes_dryers_room_ac_direct_final_rule_tsd.html.

DOE further notes that both memoranda state explicitly that they are not intended to create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, agents or any other person.

Lastly, DOE disagrees with the commenter's assertion that the amended standards for clothes dryers unfairly discriminate against the direct use of natural gas. As discussed in section II.B.2 of this notice, DOE finds no reason to expect that the standards will cause consumers to prefer electric dryers over gas clothes dryers.

AHAM commented that the energy conservation standards for residential clothes dryers adopted in the direct final rule incorporate 0.08 Watts (W) of standby power for the vented clothes dryer product classes. AHAM stated that this standby power level is low and requested that DOE provide additional information on how that level was determined. AHAM indicated that approximately 1-2 W of standby power is required to power electronic controls and provide consumers with the usability they expect. AHAM provided the example of the product's central processing unit (CPU), which it stated must run while the product is not in active mode and that the touch pad must remain active. AHAM added that without those two elements a hard off switch would be required and, as a result, the consumer would be required to wait for the product to power up at the start of use. AHAM stated that consumers are not likely to accept such a wait time to turn on the product. (AHAM, No. 60 at p. 2)

As noted in chapter 5 of the direct final rule TSD, the standby power levels for clothes dryers (including the 0.08 W standby power level) were developed based on DOE testing and reversing engineering analysis of products in its test sample. The 0.08 W standby power level corresponds to a clothes dryer with electronic controls that uses a conventional linear power supply, along with a transformerless power supply that enables the CPU to remain on at all times while disabling the main linear power supply whenever the clothes dryer is “asleep” (after periods of user inactivity). This power supply design, incorporated with a “soft” power pushbutton and triac to control power through the transformer, would provide just enough power through the transformerless power supply to maintain the microcontroller chip while the clothes dryer is not powered on. The control logic monitors the clothes dryer for key-presses, door openings, etc., and when user activity is detected, the logic activates the main linear power supply to power the remainder of the control board. DOE notes that this design option and standby power level was observed in DOE's sample of units that were tested and reverse-engineered for the preliminary analyses. As a result, DOE believes that products incorporating this design option are currently available on the market and do not require a hard on/off switch. In addition, DOE is unaware of any differences in the time required to power up the controls using this power supply design versus a conventional linear power supply or switch mode power supply that also power down the display after a period of user inactivity. For these reasons, DOE believes that the standby power level analyzed and adopted in the direct final rule for vented dryer product classes is appropriate.

AHAM also commented that DOE did not indicate what standby power levels were incorporated into the energy conservation standards adopted in the direct final rule for room air conditioners. As a result, AHAM stated it was unable to comment on the appropriateness of the adopted standard levels. (AHAM, No. 60 at p. 2) DOE has provided additional information on the standby power levels incorporated into the standards adopted in the direct final rule for room air conditioners that can be found on the DOE Web site at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/room_ac_efficiency_level_standby_table.pdf.

The same parties that submitted the Joint Petition also submitted a separate comment (Joint Comment) which supported the final adoption of the standards in the direct final rule, but also noted that DOE's revised clothes dryer test procedure that published in January 2011 did not incorporate their recommendations to amend the test procedure to better account for the effectiveness of automatic termination controls. 76 FR 972 (Jan. 6, 2011) As part of this recommendation, the Joint Comment stated that DOE should revise its test procedure to measure the energy use of automatic termination controls so that the procedure includes the entire cycle, including the cool-down period. The Joint Comment stated that it intends to submit new data gathered by manufacturers along with a petition requesting a revision to the DOE test procedure to account for the effectiveness of automatic termination controls and include the full cycle, including cool-down. The petition will also request a parallel revision to the energy conservation standard to reflect the test procedure change, as required by EPCA. The Joint Comment added that amending the test procedure to capture the energy use of the entire dryer cycle could save significant amounts of energy over 30 years and urged DOE to act upon their upcoming petition as soon as possible. (Joint Comment, No. 64 at p. 1)

As noted in the clothes dryer test procedure request for information (RFI) notice issued on August 9, 2011 and published in the Federal Register on August 12, 2011 (76 FR 50145-48), DOE has initiated a new test procedure rulemaking for clothes dryers to further investigate the effects of automatic cycle termination on the energy efficiency. In the RFI, DOE stated that it seeks information, data, and comments regarding methods for more accurately measuring the effects of automatic cycle termination in its clothes dryer test procedure. In particular, DOE seeks information, data, and comments on the following topics as they relate to automatic cycle termination: test load characteristics, accuracy of different automatic cycle termination sensors and controls, conditions of water used to wet the dryer test load, and automatic termination cycle settings to be tested.

AHAM expressed concern regarding the use of experience curves in equipment price forecasting. It stated that using experience curves (1) Does not make the analysis more accurate; (2) gives the appearance, but not the reality, of a more objective analysis; (3) hides the subjectivity in the data selection process rather than in the analysis itself; and (4) has no material effect on the ordering of the conclusions. (AHAM, No. 60 at p. 2) As discussed in section IV.F.1 of the direct final rule, DOE evaluated the above concerns (and those expressed by other commenters on the NODA) and determined that retaining the assumption-based approach of a constant real price trend was not consistent with the historical data for the products covered in this rule. Instead, consistent with the method proposed in the NODA, DOE used experience curve fits to forecast product costs. To evaluate the impact of the uncertainty of the price trend estimates, DOE performed price trend sensitivity calculations in the national impact analysis to examine the dependence of the analysis results on different analytical assumptions. DOE found that for the selected standard levels the benefits outweighed the burdens under all scenarios. DOE notes that it may modify its price trend forecasting methods as more data and information becomes available.

AHAM stated that, to understand the total environmental impact, DOE's analysis should also consider indirect CO 2 emissions, such as increased carbon emissions required to manufacture a product at a given standard level, increased transportation and related emissions, and reduced carbon emissions from peak load reductions. (AHAM, No. 60 at p. 2) As discussed in section II.A.3, DOE is evaluating the full-fuel-cycle measure, which includes the energy consumed in extracting, processing, and transporting primary fuels. DOE's current accounting of primary energy savings and the full-fuel-cycle measure are directly linked to the energy used by appliances or equipment. DOE believes that energy used in the manufacture or transport of appliances or equipment falls outside the boundaries of “directly” as intended by EPCA. Thus, DOE did not consider such energy use in the national impact analysis. DOE did not include the emissions associated with such energy use for the same reason.

DOE received one comment from a private citizen generally supporting the standards in the direct final rule.

EPCA directs DOE to consider any lessening of competition that is likely to result from new or amended standards. It also directs the Attorney General of the United States (Attorney General) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) DOE published a NOPR containing energy conservation standards identical to those set forth the direct final rule and transmitted a copy of the direct final rule and the accompanying TSD to the Attorney General, requesting that the U.S. Department of Justice (DOJ) provide its determination on this issue. DOE has published DOJ's comments at the end of this notice.

DOJ reviewed the amended standards in the direct final rule and the final TSD provided by DOE, and also conducted interviews with industry members. As a result of its analysis, DOJ concluded that the amended standards issued in the direct final rule are unlikely to have a significant adverse impact on competition. DOJ further noted that the amended standards established in the direct final rule were the same as recommended standards submitted in the Joint Petition signed by industry participants who believed they could meet the standards (as well as other interested parties).

In the direct final rule and corresponding NOPR published in the Federal Register on April 21, 2011, DOE provided for a compliance date for the amended energy conservation standards for residential clothes dryers and room air conditioners of 3 years after the date of publication, or April 21, 2014. The standards set forth in the direct final rule and NOPR were consistent with the Consensus Agreement that served as the basis for those rulemaking actions. The Consensus Agreement also provided specific compliance dates for both products—June 1, 2014 for room air conditioners and January 1, 2015 for clothes dryers. The compliance date of the direct final rule and NOPR did not correspond with the compliance dates specified in Consensus Agreement. As a result, DOE proposed to amend the compliance dates set forth in the direct final rule and corresponding NOPR to be consistent with the compliance dates set out in the consensus agreement. DOE received comments in support of the amended compliance dates and did not receive any comments objecting to those amended dates. In a final rule published elsewhere in today's Federal Register , DOE adopts the compliance dates for the standards established in the direct final specified in the Consensus Agreement—June 1, 2014 for room air conditioners and January 1, 2015 for clothes dryers.

Pursuant to the National Environmental Policy Act and the requirements of 42 U.S.C. 6295(o)(2)(B)(i)(VI), DOE prepared an environmental assessment (EA) of the impacts of the standards for clothes dryers and room air conditioners in the direct final rule, which was included as chapter 15 of the direct final rule TSD. DOE found that the environmental effects associated with the standards for clothes dryers and room air conditioners were not significant. Therefore, after consideration of the comments received on the direct final rule, DOE issued a Finding of No Significant Impact (FONSI) pursuant to NEPA, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance with NEPA (10 CFR part 1021). The FONSI is available in the docket for this rulemaking and at: http://www.eere.energy.gov/buildings/appliance_standards/residential/pdfs/fonsi.pdf. 6

In summary, based on the discussion above, DOE has determined that the comments received in response to the direct final rule for amended energy conservation standards for residential clothes dryers and room air conditioners do not provide a reasonable basis for withdrawal of the direct final rule. As a result, the amended energy conservation standards set forth in the direct final rule were effective on August 19, 2011. Pursuant to the document published elsewhere in today's Federal Register , compliance with these standards is required on June 1, 2014 for room air conditioners and on January 1, 2015 for clothes dryers.

Correction

In the Federal Register issue of Wednesday, August 17, 2011, in FR Doc. 2011-20957, please make the following two corrections:

1. On page 50883, in the third column, please remove in the heading of the document “[USCBP-2010-0008; BP Dec. 11-17]” and add in its place “[USCBP-2010-0008; CBP Dec. 11-17]”;

2. On page 50886, in the second column, the last sentence of the second full paragraph, please remove the term “a C-TPAT member” and add in its place the term “an Importer Self-Assessment (“ISA”) member”.

Background TTB Authority

The Alcohol and Tobacco Tax and Trade Bureau (TTB) is responsible for the administration and enforcement of chapters 51 and 52 of the Internal Revenue Code of 1986 (IRC). These provisions of the IRC concern the taxation of distilled spirits, wine, beer, tobacco products, and cigarette papers and tubes. TTB's responsibilities include promulgating regulations to implement the statutory provisions pertaining to the time and method for payment of the applicable excise taxes. See 26 U.S.C. 5061 pertaining to distilled spirits, wine, and beer and 26 U.S.C. 5703 pertaining to tobacco products and cigarette papers and tubes. Prior to January 24, 2003, TTB's predecessor agency, the Bureau of Alcohol, Tobacco and Firearms (ATF) administered these statutory provisions and the regulations thereunder. The regulations implementing the times and methods for payment of these Federal excise taxes are now found in the TTB regulations at 27 CFR parts 19, 24, 25, 26, 40, 41, and 70.

Generally, the Federal excise taxes on distilled spirits, wine, beer, tobacco products, and cigarette papers and tubes are paid on the basis of a semimonthly tax return. The semimonthly periods covered by the tax return are from the 1st day to the 15th day of each month and from the 16th day to the last day of that month. The return must be filed and the tax payment must be made no later than the 14th day after the last day of each semimonthly period.

Section 712 of the Uruguay Round Agreements Act (the URAA), Public Law 103-465, 108 Stat. 4809, enacted on December 8, 1994, amended sections 5061(d) and 5703(b)(2) of the IRC to accelerate the time for payment of taxes for most of the second semimonthly period of September. These amendments were adopted in order to ensure receipt of these taxes during the fiscal year to which they relate.

The amendments made by the URAA divided the second semimonthly period in September into two payment periods for distilled spirits, wine, beer, tobacco products, and cigarette papers and tubes. The first of these payment periods runs from September 16 through September 26, and the second of these payment periods runs from September 27 through September 30. The tax return and payment for the period September 16 through September 26 are due on or before September 29 except that, for taxpayers that are not required to pay taxes through electronic funds transfer (EFT), this first payment period ends on September 25 and taxes are due on or before September 28. The statutory amendments did not include an accelerated payment deadline for the second payment period (September 27 through 30) and therefore payment for it is due according to the general semimonthly payment rule (that is, on or before October 14).

The amendments made by the URAA also included a “safe harbor” rule covering the first (accelerated) payment period for taxes due for distilled spirits, wine, beer, tobacco products, and cigarette papers and tubes, which permits the taxpayer to meet its obligation to pay tax for that payment period based on payment of a proportion (11/15ths) of the tax liability incurred for the period September 1 through September 15. In addition to the above, the amendments made by the URAA added a special due date rule (that is, the following day) when the due date for the new first (accelerated) payment in September falls on a Sunday.

On June 28, 1995, ATF published a temporary rule (T.D. ATF-365) in the Federal Register at 60 FR 33665, to implement the changes to sections 5061 and 5703 of the IRC made by section 712 of the URAA. Specifically in this regard, T.D. ATF-365 amended 27 CFR parts 19, 24, 25, 70, 250 (now part 26), 270 (now part 40), 275 (now part 41), and 285 (now part 40), primarily by adding various provisions to those parts relating to reporting and tax payment for distilled spirits, wine, beer, tobacco products, and cigarette papers and tubes.

In addition, T.D. ATF-365 made extensive amendments to the firearms and ammunition excise tax regulations in 27 CFR part 53, some of which were made in response to changes to the IRC by section 712 of the URAA. Subsequent legislation substantially changed the affected IRC provisions.

Section 11127 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (the SAFETEA), Public Law 109-59, 119 Stat. 1144, enacted on August 10, 2005, amended IRC section 5061(d) by redesignating paragraphs (4) and (5) as paragraphs (5) and (6), respectively, and adding a new paragraph (4), which allows certain small Federal alcohol excise taxpayers to pay taxes quarterly rather than on a semimonthly basis as provided in section 5061(d) before the amendment. Application of this new provision commenced with quarterly tax payment periods beginning on and after January 1, 2006.

On February 2, 2006, TTB published in the Federal Register (71 FR 5598) a temporary rule, T.D. TTB-41, that amended 27 CFR parts 19, 24, 25, 26, and 70 to implement the new quarterly tax payment procedures of section 5061(d)(4) of the IRC. This temporary rule revised or otherwise amended regulatory texts concerning return or payment periods that had been adopted in T.D. ATF-365. The affected provisions were: Paragraph (a) of § 19.522, paragraph (a) of § 19.523, paragraph (b) and the heading of paragraph (c) of § 24.271, paragraphs (c) and (d) of § 25.164, the section heading and paragraph (a)(1) of § 25.164a, and paragraphs (b) and (d) of § 250.112 (now § 26.112).

When T.D. ATF-365 was published, a notice of proposed rulemaking was published in the same issue of the Federal Register inviting public comments on that temporary rule; TTB has no record of comments received by ATF in response to this comment solicitation, and no action was taken by ATF to adopt the T.D. ATF-365 temporary regulations as a final rule. A number of subsequent changes to the ATF/TTB regulations were made that affected the texts adopted in T.D. ATF-365, the most substantively significant of which were the changes to the alcohol excise tax payment provisions made by T.D. TTB-41, which included some revisions of the provisions implementing the URAA section 712 special September rule to accommodate the SAFETEA section 11127 quarterly payment procedure. When T.D. TTB-41 was published, a notice of proposed rulemaking was published in the same issue of the Federal Register inviting public comments on that temporary rule. Only one comment was received in response to that comment solicitation, and that commenter expressed support for the rulemaking.

In view of the fact that the regulatory amendments adopted in T.D. TTB-41 in part involved a revision of, and thus depended on, amendments previously made by T.D. ATF-365, TTB determined that it would not be practical to take final action on the T.D. TTB-41 regulations without first finalizing those earlier regulatory amendments. However, because of the significant period of time that had elapsed since T.D. ATF-365 was published, and because there is no record of comments received in response to the notice of proposed rulemaking published in connection with T.D. ATF-365, TTB decided that the best approach would be to publish one new temporary rule that reissued the regulatory texts adopted in T.D. ATF-365 and in T.D. TTB-41, with necessary changes to the T.D. ATF-365 texts to conform them to later amendments.

Accordingly, on January 20, 2011, TTB published in the Federal Register (76 FR 3502) a temporary rule, T.D. TTB-89, which updated and reissued the alcohol and tobacco regulations contained in T.D. ATF-365 and T.D. TTB-41. We note that T.D. ATF-365 included amendments to the firearms and ammunition excise tax regulations. Due to the passage of the Firearms Excise Tax Improvement Act of 2010 on August 16, 2010, the part 53 regulations were not addressed in T.D. TTB-89, and will be addressed in a separate rulemaking document rather than in this final rule document. In conjunction with the publication of T.D. TTB-89, TTB published a notice of proposed rulemaking, Notice No. 115, in the same issue of the Federal Register (76 FR 3584) inviting comments on T.D. TTB-89. TTB received no comments during the comment period, which closed on March 21, 2011.

The temporary regulations published in T.D. TTB-89 included, with updates, the changes to part 19 of the TTB regulations that were contained in T.D. ATF-365 and T.D. TTB-41. However, on February 16, 2011, TTB published a final rule (T.D. TTB-92) in the Federal Register at 76 FR 9080, which completely revised the distilled spirits plant regulations in 27 CFR part 19 and which took effect on April 18, 2011. This revision of part 19 included the substance of the changes to part 19 contained in T.D. TTB-89, with the only differences involving the reorganization of the regulatory sections in question and editorial wording changes to enhance the clarity of the texts. In view of the adoption of those texts in the T.D. TTB-92 final rule, it is not necessary to include them in this final rule action.

Accordingly, TTB has determined that, with the exception of the amendments to part 19, the temporary regulations published as T.D. TTB-89 should be adopted as a final rule without change.

Pursuant to the requirements of the Regulatory Flexibility Act (5 U.S.C. chapter 6), we certify that these regulations will not have a significant economic impact on a substantial number of small entities. Any revenue effects of this rulemaking on small businesses flow directly from the underlying statutes. Accordingly, a regulatory flexibility analysis is not required.

This is not a significant regulatory action as defined in E.O. 12866. Therefore, it requires no regulatory assessment.

The collections of information in the regulations contained in this final rule have been previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506) and assigned control numbers 1513-0009, 1513-0053, 1513-0083, 1513-0090, and 1513-0104. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. There is no new collection of information imposed by this final rule.

Because this final rule document implements provisions of law that were effective on January 1, 1995, and January 1, 2006, and the regulations adopted in this final rule are already in effect as temporary regulations, it has been determined, pursuant to 5 U.S.C. 553(d)(3), that good cause exists to issue these regulations without a delayed effective date.

Kara T. Fontaine and Jennifer Berry of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document.

On June 20, 2011, we published a notice of proposed rulemaking (NPRM) entitled “Special Local Regulations for Marine Events; Patuxent River, Solomons, MD” in the Federal Register (76 FR 118). We received no comments on the proposed rule. No public meeting was requested, and none was held.

On September 24 and 25, 2011, the Chesapeake Bay Power Boat Association will sponsor power boat races on the Patuxent River near Solomons, MD. The event consists of offshore power boats racing in a counter-clockwise direction on an irregularly-shaped course located between the Governor Thomas Johnson Memorial (SR-4) Bridge and the U.S. Naval Air Station Patuxent River, MD. The start and finish lines will be located near the Solomon's Pier. A large spectator fleet is expected during the event. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels.

The Coast Guard received no comments in response to the NPRM. No public meeting was requested and none was held.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Patuxent River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners and marine information broadcasts, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety determined to be necessary. Vessel traffic will be able to transit safely through a portion regulated area, westward and southward of the spectator fleet area.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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. This rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the Patuxent River during the event.

Although this regulation prevents traffic from transiting a portion of the Patuxent River at Solomons, MD during the event, this rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Though the regulated area extends across the entire width of the river, vessel traffic will be able to transit safely around the spectator fleet and race course areas within the regulated area. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 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 is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

On October 1, 2010, PADEP submitted to EPA a SIP revision concerning the adoption of the EPA CTGs for large appliance and metal furniture coating processes.

Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including RACT, for sources of emissions. Section 182(b)(2)(A) provides that for certain nonattainment areas, States must revise their SIPs to include RACT for sources of VOC emissions covered by a CTG document issued after November 15, 1990 and prior to the area's date of attainment.

EPA defines RACT as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” (44 FR 53761, September 17, 1979). In subsequent Federal Register notices, EPA has addressed how states can meet the RACT requirements of the CAA.

CTGs are intended to provide state and local air pollution control authorities information that should assist them in determining RACT for VOCs from various sources, including large appliance coatings and metal furniture coatings. In developing these CTGs, EPA, among other things, evaluated the sources of VOC emissions from this industry and the available control approaches for addressing these emissions, including the costs of such approaches. Based on available information and data, EPA provides recommendations for RACT for VOCs from large appliance coatings and metal furniture coatings.

In December 1977, EPA published CTGs for large appliance coatings (EPA-450/2-77-034) and surface coating of metal furniture (EPA-450/2-77-032). These CTGs discuss the nature of VOC emissions from these industries, available control technologies for addressing such emissions, the costs of available control options, and other items. EPA promulgated national standards of performance for new stationary sources (NSPS) for large appliance coatings in 1982 (40 CFR part 60, subpart SS) and surface coating of metal furniture in 1982 (40 CFR part 60, subpart EE). The NSPS requires VOC emissions limits based on VOC content of low VOC coating materials. EPA also published a national emission standard for hazardous air pollutants (NESHAP) for large appliance coatings in 2002 (40 CFR part 63, subpart NNNN) and surface coating of metal furniture in 2003 (40 CFR part 63, subpart RRRR). The NESHAP establishes national emission standards for hazardous air pollutants and emissions limits based on the organic hazardous air pollutants (HAP) content of low organic HAP coating materials.

In 2006 and 2007, after conducting a review of currently existing state and local VOC emission reduction approaches for these industries, reviewing the 1977/1978 CTGs and the NESHAPs for these industries, and taking into account the information that has become available since then, EPA developed new CTGs for surface coating of large appliances, entitled Control Techniques Guidelines for Large Appliance Coatings (Publication No. EPA 453/R-07-004; September 2007) and surface coating of metal furniture, entitled Control Techniques Guidelines for Metal Furniture Coatings (Publication No. EPA 453/R-07-005; September 2007).

Large appliance coatings include, but are not limited to, materials referred to as paint, topcoats, basecoats, primers, enamels, and adhesives used in the manufacture of large appliance parts or products. Coatings are a critical constituent to the large appliance industry. The metal furniture coatings product category includes the coatings that are applied to the surfaces of metal furniture. Metal furniture coatings serve decorative, protective, and functional purposes. VOC emissions from large appliance and metal furniture surface coating processes result from the evaporation of the components of the coatings and cleaning materials.

On October 1, 2010, PADEP submitted to EPA a SIP revision concerning the adoption of the EPA CTGs for large appliance and metal furniture coatings. EPA develops CTGs as guidance on control requirements for source categories. States can follow the CTGs or adopt more restrictive standards. PADEP amended existing regulations at 25 Pa. Code sections 129.51 and 129.52 (relating to general and surface coating processes) and added section 129.52(a) (relating to control of VOC emissions from large appliance and metal furniture surface coating processes) in order to control VOC emissions from large appliance and metal furniture surface coating processes. This action affects sources that use large appliance and metal furniture surface coating processes in the Commonwealth of Pennsylvania.

Regulation, section 129.51(a), entitled “Equivalency” includes large appliance and metal furniture surface coating processes and provides an alternative method for owners and operators of facilities to achieve compliance with air emission limits. Regulation, section 129.52, entitled “Surface coating processes” specifies the requirements and emission limits for various surface coating processes. Section 129.52 also establishes that the requirements and limits for metal furniture coatings and large appliance coatings already specified in this section are superseded by the requirements and limits in section 129.52(a) (relating to control of VOC emissions from large appliance and metal furniture surface coating processes). New regulation, section 129.52(a), entitled “Control of VOC emissions from large appliance and metal furniture surface coating processes” establishes the following emissions limits of VOCs for large appliance and metal surface coatings shown in Tables 1 and 2.

The emission limits in Tables 1 and 2 provide consistency in the number of significant digits. The emission limit of 3.3 lb/gal was revised to 3.34 lb/gal in the Baked—“General, One Component” and “General, Multi-Component” and in the Air Dried—“General, One Component” coatings. The 4.62 lb/gal emission limit in the Air Dried—“General, Multi-Component” and “Extreme High Gloss” coatings provides consistency with the limit in section 129.52. Although the 4.62 lb/gal emission limit is greater than the 4.5 lb/gal emission limit recommended in the CTGs, the difference is due to different methodologies used for rounding during the conversion from metric units to English units. However, the emission reduction that will be achieved is equivalent. Further details of Tables 1 and 2 can be found in a Technical Support Document (TSD) prepared for this rulemaking. Additionally, the regulation establishes applicability, limitations, exempt solvents, application techniques, and work practices.

Pennsylvania's October 1, 2010 SIP revision meets the CAA requirement to include RACT for sources covered by the EPA CTGs for the large appliance and metal furniture coating processes. Therefore, EPA is approving the Pennsylvania SIP revision for adoption of the CTG standards for large appliance and metal furniture coating processes. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the Proposed Rules section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 24, 2011 without further notice unless EPA receives adverse comment by September 23, 2011. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 24, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action pertaining to Pennsylvania's adoption of the CTG standards for large appliance and metal furniture coating processes may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, pesticide manufacturer, hydroelectric power facility operator or water supply system operator. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

• Hydroelectric power generation (NAICS code 221111).

• Water supply and irrigation systems (NAICS code 221310).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the harmonized test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines .”

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0087 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 24, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2009-0087, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

• Mail: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of March 16, 2009 (74 FR 11100) (FRL-8405-1), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 9F7511) by Marrone Bio Innovations, Inc. (formerly Marrone Organic Innovations, Inc.), 2121 Second Street, Suite B-107, Davis, CA 95618. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Pseudomonas fluorescens strain CL145A in or on all food commodities when applied as a molluscicide. This notice referenced a summary of the petition prepared by the petitioner, Marrone Bio Innovations, Inc. (formerly Marrone Organic Innovations, Inc.), which is available in the docket via http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit VII.C.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *” Additionally, section 408(b)(2)(D) of FFDCA requires that the EPA consider “available information concerning the cumulative effects of [a particular pesticide's] * * * residues and other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Pseudomonas fluorescens is ubiquitous in soil and water and is commonly associated with plants, including those food plants consumed raw. The Manual of Clinical Microbiology (8th edition) states the following: “ Pseudomonas spp. have a worldwide distribution with a predilection for moist environments. They are found in water and soil and on plants, including fruits and vegetables” (Ref. 1). Although Pseudomonas fluorescens is of low virulence and usually not clinically significant, it has been associated with opportunistic infections in compromised patients when Pseudomonas fluorescens -contaminated blood product was used for transfusions.

In the past, EPA has registered several pesticide products, each containing a different isolate of Pseudomonas fluorescens as an active ingredient:

1. Pseudomonas fluorescens strain NCIB 12089—used as a mushroom blotch control agent and exempted from the requirement of a tolerance (40 CFR 180.1129) in the Federal Register of August 24, 1994 (59 FR 43490) (FRL-4899-5);

2. Pseudomonas fluorescens A506 and Pseudomonas fluorescens 1629RS—used for reduction of frost and frost damage on various food crops and exempted from the requirement of a tolerance (40 CFR 180.1114) in the Federal Register of September 16, 1992 (57 FR 42700) (FRL-4161-1); and

3. Pseudomonas fluorescens EG-1053—used for control of the Pythium - Rhizoctonia seedling disease complex of cotton and exempted from the requirement of a tolerance (40 CFR 180.1088) in the Federal Register of March 10, 1988 (53 FR 7740) (FRL-3339-2).

Out of these isolates, only Pseudomonas fluorescens A506 is still contained in an actively registered pesticide product.

Pseudomonas fluorescens strain CL145A is a naturally occurring bacterial species that was isolated from a river mud sample in the northeastern United States. This isolate is being registered as a biocontrol agent for zebra mussels ( Dreissena polymorpha ) and quagga mussels ( Dreissena bugensis ) that infest enclosed and other confined static or flowing water infrastructures (e.g., water storage chambers and tanks, pipes, general plumbing and equipment, and other water conveyance structures associated with civil infrastructure). When a zebra or quagga mussel ingests artificially high densities of Pseudomonas fluorescens strain CL145A, a toxin within this bacterium's cells destroys the digestive system of the mussel.

All mammalian toxicology data requirements supporting the request for an exemption from the requirement of a tolerance for residues of Pseudomonas fluorescens strain CL145A in or on all food commodities have been fulfilled with data submitted by the petitioner or data waiver requests that have been granted by EPA. Acceptable (i.e., data that are scientifically sound and useful for risk assessment) acute oral toxicity, acute inhalation toxicity, and acute pulmonary toxicity/pathogenicity data, which addressed potential routes of exposure to the active ingredient and which tested doses significantly higher than or comparable to the labeled application rates, were classified in Toxicity Categories IV or III (toxicity studies) (see 40 CFR 156.62) or indicated that Pseudomonas fluorescens CL145A was not toxic, infective and/or pathogenic (toxicity/pathogenicity study). The overall conclusions from all toxicological information submitted by the petitioner is described below, while more in-depth synopses of the study results can be found in the associated Biopesticides Registration Action Document provided as a reference in Unit IX. (Ref. 2).

1. Acute oral toxicity—rat (Harmonized Guideline 870.1100; Master Record Identification Number (MRID No.) 476402-02). An acceptable acute oral toxicity study demonstrated that Pseudomonas fluorescens strain CL145A was not toxic to rats when dosed at 5,000 milligrams per kilogram (mg/kg) (or 2.35 × 10 10 colony-forming units per kilogram (CFU/kg)). The no observed adverse effect level (NOAEL) and median lethal dose (LD 50 ) (i.e., a statistically derived single dose that can be expected to cause death in 50% of test animals) were greater than 5,000 mg/kg (or greater than 2.35 × 10 10 CFU/kg) (Toxicity Category IV).

2. Acute oral toxicity/pathogenicity (Harmonized Guideline 885.3050; MRID No). 477494-03). The rationale provided in support of a data waiver request for acute oral toxicity/pathogenicity stated that Pseudomonas fluorescens is considered an ubiquitous inhabitant of soil and water and is found on the surface and roots of a variety of plant types, including food plants consumed raw. Pseudomonads and, in particular, Pseudomonas fluorescens are considered a benign part of the regular human diet commonly occurring on the surface of leafy green vegetables and other food stuffs (Refs. 1, 3, and 4). Additionally, an acute oral toxicity study conducted on rats (MRID No. 476402-02) found the NOAEL and LD 50 were greater than 5,000 mg/kg, corresponding to greater than 2.35 × 10 10 CFU/kg (Toxicity Category IV). Based on this rationale, oral infectivity, clearance, and pathogenicity testing for Pseudomonas fluorescens strain CL145A was waived. It should be noted that this is a different data requirement from the acute oral toxicity test (Harmonized Guideline 870.1100; MRID No. 476402-02), which only evaluated toxicity, but not pathogenicity and infectivity potential, of the microbial pest control agent.

3. Acute inhalation toxicity—rat (Harmonized Guideline 870.1300; MRID No. 476402-04). An acceptable acute inhalation toxicity study demonstrated that Pseudomonas fluorescens strain CL145A was not toxic to rats when exposed to approximately 0.225 milligrams per liter (mg/L) (or 1.1 × 10 6 colony-forming units per liter (CFU/L)). The NOAEL and median lethal concentration (LC 50 ) were greater than 0.225 mg/L (or greater than 1.1 × 10 6 CFU/L) (Toxicity Category II but upgraded to Toxicity Category III with the results of MRID No. 482767-02. The dose used in the acute pulmonary toxicity/pathogenicity study (MRID No. 482767-02), which looked at the same route of exposure and did not show any toxicity, pathogenicity, and/or infectivity, was greater than the dose used in the study described in this unit. Thus, this allowed the Toxicity Category, as initially established in this study, to be upgraded from II to III.).

4. Acute pulmonary toxicity/pathogenicity—rat (Harmonized Guideline 885.3150; MRID No. 482767-02). An acceptable acute pulmonary toxicity and pathogenicity study demonstrated that Pseudomonas fluorescens strain CL145A was not toxic, infective, and/or pathogenic to rats when dosed intratrachaelly at 3.4 × 10 8 colony-forming units (CFU)/rat. As detailed in the acute inhalation toxicity study summary in this unit, this study upgraded the Toxicity Category for MRID No. 476402-04 from II to III.

5. Acute dermal toxicity—rat (Harmonized Guideline 870.1200; MRID No. 476402-03). An acceptable acute dermal toxicity study demonstrated that Pseudomonas fluorescens strain CL145A was not toxic to rats when dosed at 5,050 mg/kg (or 2.38 × 10 10 CFU/kg). The LD 50 was greater than 5,050 mg/kg (or greater than 2.38 × 10 10 CFU/kg) (Toxicity Category IV).

6. Acute eye irritation—rabbit (Harmonized Guideline 870.2400; MRID No. 476402-05). An acceptable acute eye irritation study demonstrated that Pseudomonas fluorescens strain CL145A was practically non-irritating to rabbits (irritation symptoms cleared by 48 hours; Toxicity Category IV).

7. Primary dermal irritation—rabbit (Harmonized Guideline 870.2500; MRID No. 476402-06). An acceptable primary dermal irritation study demonstrated that Pseudomonas fluorescens strain CL145A was practically non-irritating to rabbits (irritation symptoms cleared by 24 hours; Toxicity Category IV).

In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

Pseudomonas fluorescens strain CL145A end-use products are not labeled for direct application to food crops. Any potential food exposures would be as a result of its presence in water. Thus, minimal dietary exposure to this microbial pesticide may occur through irrigation water, wash water or drinking water (see discussions of food and drinking water exposures in this unit); however, the lack of acute oral toxicity, as exhibited in a toxicology test on rats, and the rationales justifying the waiver of acute oral toxicity/pathogenicity testing (see Unit III.B.) support the establishment of a tolerance exemption for residues of Pseudomonas fluorescens strain CL145A.

1. Food. Exposure to this microbial active ingredient through food is expected to be minimal. Pseudomonas fluorescens strain CL145A end-use products are not labeled for direct application to food crops. Rather, Pseudomonas fluorescens strain CL145A will be applied to water in enclosed and other confined static or flowing water infrastructures to control zebra and quagga mussels. The treatment areas are limited to completely enclosed pipe or water conveyance systems or concrete chambers with defined inlets or outlets. Nevertheless, water drawn downstream from points of application (e.g., pump stations and irrigation systems) and used to irrigate or wash food crops may contain Pseudomonas fluorescens strain CL145A. Concentrations of Pseudomonas fluorescens will be diluted as water flows past points of application and thus will rapidly decrease. Also, natural degradation (e.g., environmental factors such as ultraviolet light, nutrient depletion and bacterial grazing/predation by protists and others) and manmade filtering operations are expected to greatly lower the overall level of the pesticide after application (Refs. 5 and 6). Furthermore, Pseudomonas fluorescens is considered ubiquitous in soil and water and is commonly associated with plants, including food plants consumed raw; thus, this microorganism is already part of the normal human diet (Refs. 1, 3, and 4). Exposure to Pseudomonas fluorescens strain CL145A through food that has come into contact with treated irrigation or wash waters is not expected to exceed background levels of similar Pseudomonads already present in the human diet (Refs. 1, 3, and 4). Nonetheless, in the unlikely event that this microbial pesticide is present on food, the acute oral toxicity and pathogenicity data/information demonstrated no toxicity, infectivity and/or pathogenicity is likely to occur with any exposure level of Pseudomonas fluorescens strain CL145A (see additional discussion in Unit III.B.).

2. Drinking water exposure. Much like food exposure, drinking water exposure is expected to be negligible for similar reasons:

i. Concentrations of Pseudomonas fluorescens strain CL145A will be diluted as water flows past points of application;

ii. Natural degradation (e.g., environmental factors such as ultraviolet light, nutrient depletion and bacterial grazing/predation by protists and others) of the microbial active ingredient will occur; and

iii. Flocculation and filtering at water treatment plants will further inactivate and decrease levels of Pseudomonas fluorescens strain CL145A (Refs. 5 and 6). Additionally, Pseudomonas fluorescens is already present naturally in soil, in water, and on plants, thereby making it a part of the normal human diet (Refs. 1, 3, and 4). Exposure to Pseudomonas fluorescens strain CL145A through drinking water is not expected to exceed background levels of similar Pseudomonads already present in the human diet (Refs. 1, 3, and 4). Nonetheless, in the unlikely event that this microbial pesticide is present in drinking water, the acute oral toxicity and pathogenicity data/information demonstrated no toxicity, infectivity and/or pathogenicity is likely to occur with any exposure level of Pseudomonas fluorescens strain CL145A (see additional discussion in Unit III.B.).

Dermal and inhalation non-occupational exposure to Pseudomonas fluorescens strain CL145A is expected to be minimal to non-existent. Pseudomonas fluorescens strain CL145A end-use products are labeled for application to use sites—enclosed and other confined static or flowing water infrastructures infested with zebra and/or quagga mussels—that are not considered residential areas.

1. Dermal exposure. Although dermal exposure to Pseudomonas fluorescens strain CL145A may occur when water from a treated dam or industrial facility is discharged to surface water and is subsequently used by a community water system in a residential area, such exposure is expected to be minimal due to dilution, natural degradation, and filtering at water treatment plants (Refs. 5 and 6). Moreover, acute dermal toxicity and primary dermal irritation tests demonstrated that Pseudomonas fluorescens strain CL145A is not toxic and is practically non-irritating via the dermal route of exposure (see additional discussion in Unit III.B.).

2. Inhalation exposure. Inhalation exposure to Pseudomonas fluorescens strain CL145A is not anticipated with the labeled (i.e., water-based) molluscicide use. If inhalation exposure to Pseudomonas fluorescens strain CL145A were to occur in gardens, lawns, or buildings (i.e., residential areas), such exposure would not exceed EPA's level of concern given the acute inhalation toxicity and acute pulmonary toxicity/pathogenicity tests that demonstrated Pseudomonas fluorescens strain CL145A's lack of toxicity, pathogenicity and/or infectivity (see additional discussion in Unit III.B.).

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance exemption, EPA consider “available information concerning the cumulative effects of [a particular pesticide's] * * * residues and other substances that have a common mechanism of toxicity.”

EPA has not found Pseudomonas fluorescens strain CL145A to share a common mechanism of toxicity with any other substances. Pseudomonas fluorescens strain CL145A affects gut function in the target molluscs and does not produce a similar toxic response in the other species tested. For the purposes of this tolerance action, therefore, EPA has assumed that Pseudomonas fluorescens strain CL145A does not have a common mechanism of toxicity with other substances. Following from this, therefore, EPA concludes that there are no cumulative effects associated with Pseudomonas fluorescens strain CL145A that need to be considered. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, EPA either retains the default value of 10X or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

Based on the acute toxicity and pathogenicity data/information discussed in Unit III.B., EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to the residues of Pseudomonas fluorescens strain CL145A. Such exposure includes all anticipated dietary exposures and all other exposures for which there is reliable information. EPA has arrived at this conclusion because, considered collectively, the data (e.g., lack of toxicity noted for oral, dermal, and inhalation routes of exposure) available on Pseudomonas fluorescens strain CL145A do not demonstrate toxic, pathogenic, and/or infective potential to sensitive populations from exposure to this microbial pest control agent. Thus, there are no threshold effects of concern and, as a result, an additional margin of safety is not necessary.

An analytical method is not required for enforcement purposes since EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. In this context, EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for Pseudomonas fluorescens strain CL145A.

In response to the Notice of Filing, EPA received one comment, protesting the presence of this product in food, the proposed exemption from the requirement of a tolerance, and the toxicity of the product. In response, EPA again emphasizes that Pseudomonas fluorescens strain CL145A is present naturally in soil and water (Refs. 1, 3, and 4), is not toxic, pathogenic, and/or infective for dietary considerations (see additional discussion in Unit III.B.), and, in any event, is expected to degrade quickly in the environment (Ref. 6). Biological materials from dead cells would be consumed by degradative microflora in treatment areas, and the few live cells diluted in treated waters would likely not approach the levels of Pseudomonas fluorescens already present in water, in soil, and on foods (Refs. 1, 3, 4, and 6). EPA has concluded there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Pseudomonas fluorescens strain CL145A in or on all food commodities (see Unit VIII.). Thus, under the standard in FFDCA section 408(c)(2), a tolerance exemption is appropriate.

EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Pseudomonas fluorescens strain CL145A. Therefore, an exemption from the requirement of a tolerance is established for residues of Pseudomonas fluorescens strain CL145A in or on all food commodities when applied as a molluscicide.

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

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

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require EPA consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl .

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0430 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 24, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0430, by one of the following methods.

• Federal eRulemaking Portal: http://www.regulations.gov . Follow the on-line instructions for submitting comments.

• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register Wednesday, July 6, 2011 (76 FR 39358) (FRL-8875-6), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP 1E7862) filed by BASF Corporation, 100 Campus Drive, Florham Park, NJ 07932. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt; CAS Reg. No. 129811-24-1. That notice included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any comments.

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

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymer's number average MW of is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt.

For the purposes of assessing potential exposure under this exemption, EPA considered that 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt is 2,863 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt to share a common mechanism of toxicity with any other substances, and 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt.

Accordingly, EPA finds that exempting residues of 2-Propenoic acid, polymer with ethenylbenzene and (1-methylethenyl) benzene, sodium salt from the requirement of a tolerance will be safe.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these rules from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

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

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes, or otherwise have any unique impacts on local governments. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

Although this action does not require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994), EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. As such, to the extent that information is publicly available or was submitted in comments to EPA, the Agency considered whether groups or segments of the population, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticide discussed in this document, compared to the general population.

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

On September 11, 2007, NHTSA published a final rule that upgraded Federal Motor Vehicle Safety Standard (FMVSS) No. 214, “Side impact protection,” (72 FR 51908, Docket No. NHTSA-2007-29134). Until the final rule, the only dynamic test in FMVSS No. 214 was a moving deformable barrier (MDB) test simulating an intersection collision with one vehicle being struck in the side by another vehicle. The 2007 final rule upgraded FMVSS No. 214 to add a pole test to the standard. The pole test requires all vehicles with a gross vehicle weight rating (GVWR) of 4,536 kilograms (kg) or less (10,000 pounds (lb) or less) to protect front seat occupants in a vehicle-to-pole test simulating a vehicle crashing sideways into narrow fixed objects, such as utility poles and trees. The pole test requires vehicle manufacturers to assure head and improved chest protection in side crashes for a wide range of occupant sizes and over a broad range of seating positions.

Under the September 11, 2007 final rule, vehicles are tested with two sizes of test dummies. A test dummy known as the ES-2re represents mid-size adult male occupants. A test dummy known as the SID-IIs represents smaller stature occupants. The SID-IIs is the size of a 5th percentile adult female. Both the ES-2re and the SID-IIs test dummies are used in the new pole test and in the MDB test. (Prior to the rule, only a first-generation side impact dummy (SID) (49 CFR part 572 subpart F), representing a mid-size adult male, was used in the MDB test.)

The agency received petitions for reconsideration on the September 11, 2007 final rule. The agency addressed the petitions for reconsideration in two documents prior to today's document. To respond to petitioners' concerns about lead time as quickly as possible, the lead time issue, and other matters that needed to be resolved or clarified concerning lead time and the phasing-in of the new requirements, were addressed in an initial response to petitions published June 9, 2008 (73 FR 32473, Docket No. NHTSA-2008-0104).

On March 15, 2010 (75 FR 12123, Docket No. NHTSA-2010-0032), the agency addressed the remaining issues raised by the petitions for reconsideration. In that document, the agency clarified or revised aspects of the test procedures relating to, among other matters: vehicle setup (adjusting the non-struck side seat; adjusting head restraints, shoulder belt anchorages, and adjustable steering wheels, clarifying the vehicle test attitude tolerance); test dummy setup (positioning the SID-IIs; removing redundant foot positioning procedures); and other technical matters.

The agency received an April 29, 2010 petition for reconsideration of the March 15, 2010 final rule from the Alliance of Automobile Manufacturers (Alliance). 1 The Alliance sought to address “a small number of areas where the recent FMVSS [No.] 214 requirements are not consistent with the current version of the side impact [New Car Assessment Program] NCAP test procedures.” The issues raised by the petitioner relate to the location of the seat on the non-impact side during testing, the adjustment of the SID-IIs lower neck bracket and the height adjustment specification for the head restraint for the SID-IIs. In addition, the Alliance requested changes to various provisions of the NCAP side impact test procedure.

Prior to the September 1, 2007 final rule, the test procedure for the MDB test in FMVSS No. 214 (S6.3) specified that, when using the SID, “Adjustable seats are placed in the adjustment position midway between the forward most and rearmost positions. * * *” (Emphasis added.) NCAP currently has the same specification for the adult male test dummy in the MDB test.

The September 1, 2007 final rule included the following specification for front seat adjustment in the MDB test using the ES-2re dummy (S8.3.1.3): “If the passenger seat does not adjust independently of the driver seat, the driver seat shall control the final position of the passenger seat.”  2

If the passenger seat adjusts independently of the driver seat, the final rule was silent on specifying a seat positioning procedure for the non-impacted (or “non-struck”) side of the vehicle.

In a petition for reconsideration of the September 1, 2007 final rule, the Alliance recommended “adding a section that adopts the current FMVSS 214 seat position of the non-impacted side when the driver and passenger seats move independently of each other, which places the front seat on the non-impacted [side] at the same fore/aft location as the struck-side seat.”  3 In response, NHTSA stated in the March 15, 2010 final rule preamble that “[W]e agree with the Alliance that the seat on the non-struck side should be aligned with the impacted seat, with regard to two adjacent seats with the ability to adjust independently of each other.” However, no regulatory text change was made by the March 15, 2010 final rule.

The Alliance requests in its April 29, 2010 petition for reconsideration that NHTSA amend S8.3.1.3 (testing with the ES-2re) to add the sentence: “If the passenger seat adjusts independently of the driver seat, the fore/aft location of the seat on the non-struck side shall be aligned with the fore/aft location of the seat on the struck side.” The Alliance also requests the provision be placed in the regulatory text pertaining to the MDB test that specifies adjustment of the second row seats when tested with the SID-IIs (S8.3.3.3) and in the pole test for adjusting front row seats with the SID-IIs test dummy (S10.3.2.3).

Agency Response: We are clarifying our statement in the preamble to the March 15, 2010 final rule. In doing so, we are mainly denying the Alliance's requests.

When we agreed in the March 15, 2010 preamble that the seat on the non-struck side should indeed be “aligned” with the impacted seat (75 FR at 12131), we were referring to vehicles in which the driver seat and the front passenger seat have the same seat track configuration (length and relative fore-aft position in the vehicle). Thus, the driver seat and the passenger seat would be set up mid-track and both seats would be “aligned.”

It was our intention that the driver seat and the front passenger seat be in the mid-track position when positioning the 50th percentile adult male dummy in FMVSS No. 214 tests, as it has been done historically. FMVSS No. 214 has always used the mid-track position when positioning the SID dummy in the MDB test. 4 NCAP currently specifies using the mid-track position when positioning the ES-2re 50th percentile adult male dummy in the side impact MDB test. 5 NHTSA did not intend to change that mid-track specification in FMVSS No. 214 and in NCAP when testing with the 50th percentile adult male test dummies.

If the driver seat track and the front passenger seat track are the same length, and relative fore-aft position in the vehicle, and if the driver and front passenger seats are similar in shape and configuration, “aligning” the seats would result in both being positioned mid-track. However, if the tracks are different lengths, have a different fore-aft location, or if the seats differ in shape, the mid-track positions may differ and it is unclear what “aligning” the seats on the struck side and non-struck side means. For these reasons, in retrospect, we do not believe the term “aligned” should be used to describe how the seats on the struck side and non-struck side should be set up. Instead, we will clarify S8.3.1.3 to specify that if the passenger seat adjusts independently of the driver seat, the procedures of S8.3.1 will be used to position the driver seat and the passenger seat. 6 That is, the seats will be in the mid-track position.

It was also our intention that, for the pole test, the front seat in which the SID-IIs 5th percentile adult female test dummy is placed will be in the most forward position (S10.3.2.3.2). NCAP currently specifies using the most forward position. 7 If the tracks for the driver seat and for the front passenger seat are of different lengths or relative position, the forward-most position will differ. If such seats were to be “aligned,” one of the seats may not be in its forward-most position, which is contrary to our intent. Use of the “aligned” concept also introduces imprecision into the standard as to the meaning of the term as applied to two seats of dissimilar dimension, which we wish to avoid.

We thus deny the Alliance's specific request. However, we will clarify S10.3.2.3 to specify that if the passenger seat adjusts independently of the driver seat, the procedures of S10.3.2 will be used to position each seat. That means that the front seats will be positioned full-forward when testing with the SID-II (see S10.3.2.3.2).

For the reasons explained above, we also deny the Alliance's suggestion to incorporate the “aligned” concept in S8.3.3.3. This section specifies how to position an adjustable second row seat for a SID-IIs 5th percentile adult female test dummy in the MDB test. Under S8.3.3.3, the struck side is adjusted to its full down, full rearward position. We will revise S8.3.3.3 so that it applies to a non-struck seat that adjusts independently of the struck seat. This means that, in an MDB test, adjustable second row seats being tested will be placed full down, full rearward.

The March 15, 2010 final rule added the following sentence to the end of S12.3.2(a)(9) for positioning the dummy in the driver's seat: “Adjust the lower neck bracket to level the head as much as possible.” This was in response to an Alliance petition for reconsideration on the September 2007 final rule. The purpose of the amendment was to clarify that the lower neck bracket may be used to position the dummy's head if the adjustable seat back cannot achieve the ± 0.5 degree tolerance for head leveling.

In its petition for reconsideration of the March 15, 2010 final rule, the Alliance suggested the new sentence that was added to S12.3.2(a)(9) should be added to the dummy positioning procedures for both the front and rear seat passengers in S12.3.3(a)(9) and S12.3.4(h), respectively, to keep the head leveling procedure consistent in all seating positions. The Alliance further suggested that S12.3.2(a)(10), S12.3.3(a)(10) and S12.3.4(i) are unnecessary, if the new sentence is added as the petitioner suggested, and should be deleted.

Agency Response: We generally agree with the request, but there are aspects with which we do not entirely concur.

We agree that there is some unneeded overlap between S12.3.2(a)(9), adopted by the March 2010 final rule, and S12.3.2(a)(10). Therefore, we have decided to more fully integrate the two sections into a revised S12.3.2(a)(9). The revised section clarifies the head leveling procedure for all seat types (i.e., seats with adjustable seat backs and those with non-adjustable seat backs). The instruction that was in S12.3.2(a)(10) (to “minimize the angle”) has not been deleted but is now integrated into the procedures of S12.3.2(a)(9).

Specifications that were related to steering wheel interaction that were previously part of S12.3.2(a)(9) are now moved to S12.3.2(a)(10). Section S12.3.2(a)(11) is changed to remove a reference to S12.3.2(a)(10). S12.3.2(a)(12) remains unchanged.

We also agree with the Alliance's suggestion that the specification—that the lower neck bracket could be used to level the head—should also be included in the procedures for positioning the front passenger dummy (S12.3.3(a)(9)) and the rear dummy (S12.3.4(h)). The instruction is reasonable because it better ensures that the dummy's head can be leveled. Accordingly, we have incorporated the specification in the head leveling procedures of those two sections, along with clarifying the head leveling procedures. Yet, as noted above for S12.3.2(a)(10), the instruction that was in S12.3.3(a)(9) and S12.3.4(h) (to “minimize the angle”) has not been deleted but is now integrated into the procedures of S12.3.3(a)(9) and S12.3.4(h). The remainder of S12.3.3(a) and S12.3.4 remain basically the same. Our changes are consistent with the Alliance's request, while not a verbatim implementation of it.

In the March 2010 final rule, the agency agreed with the Alliance that the potential exists where the lowest possible detent position may not be the lowest possible position for the head restraint adjustment. It was the agency's intent to position the head restraint in contact with the top of the seat back as the seat back may provide a “stop” for the downward adjustment of the head restraint, just as a detent does at other positions of adjustment. To further clarify the position of the head restraint when testing with the SID-IIs dummy, we revised the standard to state that if it is possible to achieve a position lower than that associated with the detent range, the head restraint will be set to its lowest possible position. The change was consistent with the positioning of head restraints for testing in FMVSS No. 202, “Head restraints.”  8

The Alliance petitioned the agency to make clear that we were referring to in-use positions and not stowed positions, to be consistent with the NCAP test procedure. The NCAP laboratory test procedure states that the head restraint is to be placed at its lowest and most full forward in-use position, not including stowed positions. 9

Agency Response: We are granting the request to specify in the regulatory text (S8.3.3.2 and S10.3.2.2) that the allowable positions of head restraint adjustment excludes non-use positions. “Non-use positions” are as specified by S4.4 of FMVSS No. 202a, “Head restraints.” Under this section of FMVSS No. 202a, there are three kinds of non-use positions under which it is not necessary to meet the minimum head restraint height requirement. This change will provide greater clarity when positioning the head restraint when testing with the SID-IIs dummy.

In addition to the requested changes in its petition for reconsideration of the FMVSS No. 214 final rule, the Alliance requested changes to NCAP's side impact test procedure. Changes were suggested for the positioning of the SID-IIs in vehicles with small rear seats and the seat adjustment procedure for the SID-IIs, in addition to other issues.

Agency Response: The purpose of this final rule is to address the petition for reconsideration related to the FMVSS No. 214 rulemaking. The Alliance's suggestions related to the NCAP test procedure will be addressed separately and in the context of that program. A copy of the agency's response to these issues is included in the docket for the NCAP test procedure, Docket No. NHTSA-2008-0141.

The agency has learned of the following technical errors that are in need of correction. These are corrected by today's document.

In the 2010 final rule the agency modified S12.2.1 to address petitions on shoulder belt anchorage positioning for the ES-2re. In so doing, we inadvertently removed S12.2.1(a)-(d). Today we are restoring those sections to the standard.

Section S12.2.1(b)(2) (as set forth in the September 11, 2007 final rule) stated that the correct position of the dummy pelvis may be checked relative to the H-point of the H-point Manikin by using the “M3 holes” in the ES-2re pelvis. In the last two sentences of S12.2.1(b)(2), there was a statement that the M3 holes are indicated with an “Hm” stamp and a statement as to where the Hm stamp may be found on the dummy. These statements were in error because 49 CFR part 572 subpart U does not require the Hm stamp to be marked on the ES-2re dummy. Further, the test dummy can be positioned without the stamp, so there was no need for the reference to the stamp.

Accordingly, as noted above, while today's document maintains the first sentence of S12.2.1(b)(2), we have edited the remainder of the section by removing the statements concerning the Hm stamp.

While reviewing the Alliance's petition, the agency saw a need for the following correction. S8.3.3.2 and S10.3.2.2 state that for seats with adjustable seat backs, the seat back is adjusted to the manufacturer's nominal design riding position, or if not specified, the first detent rearward of 25 degrees from the vertical. We have determined that the seat back adjustment provisions specified in S8.3.3.2 and S10.3.2.2 are unnecessary in the test procedure since the seat back is fully reclined in S12.3.3(2) and S12.3.4(b), prior to placement of the test dummy in the seat. Therefore, we have deleted the last two sentences in S8.3.3.2 and 10.3.2.2. We believe this change will have no effect on the MDB or pole test.

In S5(a)(1), the reference to “S8.4” is in error. S8.4 is the steering wheel adjustment procedure. We are replacing the reference to S8.4 with a reference to “S8.3.” S8.3 is the appropriate section for seat back adjustment procedures.

In S12.3.3(b)(3), the last word (“possible”) is missing (“* * * place the lower leg as perpendicular to the thigh as possible”). We are correcting the text.

The agency has considered the impact of this rulemaking action under E.O. 12866, E.O. 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has also been determined to be not significant under the Department's regulatory policies and procedures.

This document corrects or clarifies aspects of the test procedures specified by the September 11, 2007 and March 15, 2010 final rules or makes minor adjustments to those procedures. The minimal impacts of today's amendment do not warrant preparation of a regulatory evaluation.

The Regulatory Flexibility Act of 1980, as amended, requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations and small governmental jurisdictions. I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not significantly affect small manufacturers since it simply corrects or clarifies aspects of the test procedures specified by the September 11, 2007 and March 15, 2010 final rules, or makes minor adjustments to those procedures. Small organizations and small governmental units will not be significantly affected since there are not likely to be any cost impacts associated with this action on the price of new motor vehicles.

NHTSA has examined today's rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The rule will not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.

The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e) Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved.

However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.

To this end, the agency has examined the nature ( e.g., the language and structure of the regulatory text) and objectives of today's rule and finds that this rule, like many NHTSA rules, would prescribe only a minimum safety standard. As such, NHTSA does not intend that this final rule would preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by today's rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard proposed here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.

The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995). This final rule will not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually.

NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.

With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA notes as follows.

The issue of preemption is discussed above in connection with E.O. 13132. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

Under the PRA of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule has no “collections of information” (as defined at 5 CFR 1320.3(c)).

Under the National Technology Transfer and Advancement Act of 1995 (NTTAA)(Pub. L. 104-113), all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.

Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the International Organization for Standardization (ISO) and the Society of Automotive Engineers. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

There are no voluntary consensus standards applicable to this final rule.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?

• Are the requirements in the rule clearly stated?

• Does the rule contain technical language or jargon that isn't clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rule easier to understand?

If you have any responses to these questions, please write to us with your views.

In consideration of the foregoing, NHTSA amends 49 CFR Chapter V as set forth below.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, consistent with the allocations established in the Consolidated Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and subsequent rulemaking.

The 2011 BFT fishing year began on January 1, 2011, and ends December 31, 2011. The 2011 BFT quota specifications (76 FR 39019, July 5, 2011) established a quota of 435.1 mt for the General category fishery (the commercial tunas fishery in which handgear is used). Each of the General category time periods (January, June-August, September, October-November, and December) is allocated a portion of the annual General category quota, thereby ensuring extended fishing opportunities in years when catch rates are high and quota is available. The General category fishery is open until December 31, 2011, or until the General category quota is reached.

Starting on September 1, the General category daily retention limit (§ 635.23(a)(2)), is scheduled to revert back to the default retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) curved fork length or greater) per vessel per day/trip. This default retention limit applies to General category permitted vessels and HMS Charter/Headboat category permitted vessels (when fishing commercially for BFT).

Under 50 CFR 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of three per vessel based on consideration of the criteria provided under § 635.27(a)(8), which include: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal distribution, abundance, or migration patterns of BFT; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and a review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds.

For the 2010 fishing year, NMFS adjusted the General category limit from the default level of one large medium or giant BFT as follows: Two large medium or giant BFT for January (74 FR 68709, December 29, 2009), and three large medium or giant BFT for June through December (75 FR 30730, June 2, 2010; and 75 FR 51182, August 19, 2010). For the 2011 fishing year, NMFS adjusted the January limit to two large medium or giant BFT (75 FR 79309, December 20, 2010), and adjusted the June through August limit to three large medium or giant BFT (76 FR 32086, June 3, 2011).

Despite an elevated three-fish daily retention limit, 2011 General category landings remain low. As of August 8, 2011, 86.9 mt of the 2011 General category quota of 435.1 mt have been landed, and landings rates remain at approximately 1 mt per day. Given the rollover of unused quota from the January and June-August time periods, current catch rates, and the fact that the daily retention limit will automatically revert to one large medium or giant BFT per vessel per day on September 1, 2011, absent agency action, NMFS anticipates the full 2011 General category quota will not be harvested. Increasing the daily retention limit from the default of one fish may mitigate rolling an excessive amount of unused quota from one time-period subquota to the subsequent time-period subquota.

Based on considerations of the available quota, fishery performance in recent years, and the availability of BFT on the fishing grounds, NMFS has determined that the General category retention limit should be adjusted to allow for retention of the anticipated 2011 General category quota, and that the same approach used for September through December 2010 is warranted. Therefore, NMFS increases the General category retention limit from the default limit to three large medium or giant BFT per vessel per day/trip effective September 1, 2011, through December 31, 2011. Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the daily limit of three fish may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, and applies to vessels permitted in the General category as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.

This adjustment is intended to provide a reasonable opportunity to harvest the U.S. landings quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities; to help achieve optimum yield in the General category BFT fishery; to collect a broad range of data for stock monitoring purposes; and to be consistent with the objectives of the Consolidated HMS FMP.

NMFS selected the daily retention limit for September-December 2011 after examining an array of data as it pertains to the determination criteria. These data included, but were not limited to, current and previous catch and effort rates in the BFT fisheries, quota availability, previous public comments on inseason management measures, and stock status. NMFS will continue to monitor the BFT fishery closely through the mandatory dealer landing reports, which NMFS requires to be submitted within 24 hours of a dealer receiving BFT. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. NMFS will address the January 2012 General category daily retention limit via a separate inseason action later in the year, if necessary.

Closure of the General category or subsequent adjustments to the daily retention limits, if any, will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9260, or access http://www.hmspermits.gov, for updates on quota monitoring and retention limit adjustments.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the Consolidated HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement these retention limits is impracticable as it would preclude NMFS from acting promptly to allow harvest of BFT that are available on the fishing grounds. Analysis of available data shows that the General category BFT retention limits may be increased with minimal risks of exceeding the ICCAT-allocated quota.

Delays in increasing these retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Limited opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen who depend upon catching the available quota within the time periods designated in the Consolidated HMS FMP. Adjustment of the retention limit needs to be effective September 1, 2011, or as soon as possible thereafter, to minimize any unnecessary disruption in fishing patterns and for the impacted sectors to benefit from the adjustments so as to not preclude fishing opportunities for fishermen who have access to the fishery only during this time period. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction ( i.e., the default General category retention limit is one fish per vessel per day/trip whereas this action increases that limit and allows retention of additional fish), there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under 50 CFR 635.23(a)(4), and is exempt from review under Executive Order 12866.

The U.S. pelagic longline fishery based in American Samoa targets albacore for canning in Pago Pago, and also catches skipjack, yellowfin, and bigeye tunas, and other pelagic fish. The fishery interacts with (hooks or entangles) Pacific green sea turtles, which are listed as threatened under the Endangered Species Act (ESA). Most of the turtle interactions occur in waters shallower than 100 m, and most are fatal. To reduce these interactions, the Council recommended in Amendment 5 that NMFS require fishermen on American Samoa longline vessels and other U.S. longline vessels that fish south of the Equator to configure their fishing gear so that longline hooks are set to fish deeper than 100 meters, away from the primary turtle habitat. Accordingly, this final rule requires fishermen on vessels longer than 40 ft to use float lines that are at least 30 meters long, and maintain a distance between float lines and adjacent branch lines with hooks of at least 70 meters. Fishermen on these longer vessels are required to deploy at least 15 branch lines between floats. The possession or landing of more than 10 swordfish, which tend to inhabit near-surface waters, is prohibited as another means of discouraging shallow longlining.

Another requirement was not part of Amendment 5. In a September 16, 2010, Biological Opinion resulting from ESA Section 7 consultation, NMFS issued a requirement that each branch line (connected to the main line and terminating in a single baited hook) be at least 10 meters long to help ensure that hooks fish deeper than 100 m from the surface. This final rule implements that requirement.

This final rule also makes administrative clarifications to the names of several tuna and marlin species caught in western Pacific pelagic fisheries.

On June 7, 2011, NMFS published a proposed rule and request for public comments (76 FR 32929); the comment ended on July 22, 2011. Additional background information on this final rule is found in the preamble to the proposed rule and is not repeated here. NMFS responds to comments, as follows.

Comment 1: The use of short float lines or branch lines to catch swordfish should be prohibited to facilitate enforcement.

Response: NMFS agrees and, thus, both the proposed rule and this final rule require U.S. longline vessels fishing south of the Equator to use float lines at least 30 m long and branch lines at least 10 m long to reduce interactions with Pacific green sea turtles. Because swordfish typically are caught near the surface, the gear requirements will discourage shallow longline fishing for swordfish, resulting in additional protection for turtles. NMFS is also limiting the number of swordfish that can be retained on a longline vessel to 10 to further discourage shallow longline fishing.

Comment 2: One commenter asked if the rule would allow fishermen to shorten float lines by tying knots in the lines.

Response: The rule requires float lines to be at least 30 m long. Although a fisherman could shorten a float line by, for example, tying knots in the line, NMFS clarifies that the requirement is for the float line to be at least 30 m long while deployed. Float lines must not be shortened so their effective length when deployed is less than 30 m. This is part of the overall gear configuration that is intended to have the hooks fish deeper than 100 m, and shortening a float line could result in hooks fishing shallower than 100 m, with a resulting increase in risk to turtles.

Comment 3: Small longline vessels (Class A, 40 ft (12.2 m) and shorter), which are not included in this action, might be interacting with turtles.

Response: There is little information on interactions between these smaller longline vessels (alia) and sea turtles. From 1990-2002, the Secretariat of the Pacific Community (then the South Pacific Commission) deployed observers on alia in (Western, or independent) Samoa; during this time, no sea turtle interactions were observed. In 2003-04, data collectors aboard a high-producing alia in American Samoa also reported no interactions with sea turtles, seabirds, or marine mammals. To date, only one sea turtle interaction has been reported in the American Samoa alia fishery, and this was with a leatherback sea turtle.

Class A vessels are small and the fishing gear is technologically simple. Thus, the float line length requirement may be unduly burdensome and restrict a vessel's fishing operations. Few alia have been operational in recent years, with no expected change. Two alia operated in 2007 and only one fished in 2008-09. If the Class A fishery becomes more active, or if these small vessels are found to interact with turtles, the Council and NMFS may revisit management of Class A vessels.

There are no changes in the final rule.

The Administrator, Pacific Islands Region, NMFS, determined that Pelagic FEP Amendment 5 is necessary for the conservation and management of the pelagic longline fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

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

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

For the reasons set out in the preamble, 50 CFR part 665 is amended as follows: