Background

Citrus greening, also known as Huanglongbing disease of citrus, is considered to be one of the most serious citrus diseases in the world. Citrus greening is a bacterial disease caused by strains of the bacterial pathogen “ Candidatus Liberibacter asiaticus” that attacks the vascular system of host plants. The pathogen is phloem-limited, inhabiting the food-conducting tissue of the host plant, and causes yellow shoots, blotchy mottling and chlorosis, reduced foliage, and tip dieback of citrus plants. Citrus greening greatly reduces production, destroys the economic value of the fruit, and can kill trees. Once infected, there is no cure for a tree with citrus greening disease. In areas of the world where the disease is endemic, citrus trees decline and die within a few years and may never produce usable fruit.

The bacterial pathogen causing citrus greening can be transmitted by grafting and, under laboratory conditions, by parasitic plants. There also is some evidence that seed transmission may occur. The pathogen can also be transmitted by two insect vectors in the family Psyllidae: Diaphorina citri Kuwayama, the Asian citrus psyllid (ACP), and Trioza erytreae (del Guercio), the African citrus psyllid. ACP can also cause economic damage to citrus in groves and nurseries by direct feeding. Both adults and nymphs feed on young foliage, depleting the sap and causing galling or curling of leaves. High populations feeding on a citrus shoot can kill the growing tip. The African citrus psyllid is not known to exist in the United States.

In an interim rule  1 published in the Federal Register and effective on June 17, 2010  2 (75 FR 34322-34336, Docket No. APHIS-2008-0015), we amended our domestic quarantine regulations in 7 CFR part 301 by adding a new subpart, “Citrus Greening and Asian Citrus Psyllid” (§§ 301.76 through 301.76-11, referred to below as the regulations). The interim rule quarantined the States of Florida and Georgia, Puerto Rico, the U.S. Virgin Islands, two parishes in Louisiana, and two counties in South Carolina due to the presence of citrus greening and quarantined Alabama, Florida, Georgia, Guam, Hawaii, Louisiana, Mississippi, Puerto Rico, Texas, the U.S. Virgin Islands, three counties in South Carolina, portions of one county in Arizona, and all of three and portions of an additional three counties in California due to the presence of Asian citrus psyllid (ACP), a vector of the bacterial pathogen that causes citrus greening. The interim rule also established restrictions on the interstate movement of regulated articles from the quarantined areas. The interim rule was necessary on an emergency basis in order to prevent the spread of the plant pathogen and its vector to noninfested areas of the United States.

We solicited comments concerning the interim rule for 60 days, ending August 16, 2010. We received five comments by that date, from State departments of agriculture, commercial citrus nurseries, and a commercial distributor of citrus plants. The comments received are discussed below, by topic.

In § 301.76-2 of the interim rule, we designated all plant parts, including leaves (except fruit), of several genera and species, including Murraya paniculata (orange jasmine), as regulated articles for ACP and citrus greening.

One commenter agreed that orange jasmine is a host of ACP and citrus greening. Moreover, the commenter stated that recent studies conducted by American, Brazilian, and Chinese phytopathologists have determined that orange jasmine that is infected with citrus greening may spread the disease to other plants if ACP serves as the means of transmission. However, the commenter stated that the same researchers had also found titer levels of the bacterial pathogen associated with citrus greening in these newly infected plants to be low, and to decrease over time. (Titers are antibodies for a particular pathogen that are present within an organism's vascular system.) For this reason, the commenter suggested that APHIS should reevaluate whether to consider orange jasmine a regulated article for citrus greening.

We agree with the commenter that recent studies suggest that, if citrus greening is transmitted from an orange jasmine plant to other host plants, these host plants do not exhibit high densities of the bacterial pathogen associated with the disease. However, the preponderance of available scientific evidence, including the evidence cited by the commenter, suggests that orange jasmine can serve as a source of transmission of citrus greening. Hence we are making no change to the regulations in response to this comment.

In § 301.76-4 of the interim rule, in order to forestall the inadvertent but unauthorized noncommercial interstate movement of regulated nursery stock from an area quarantined for citrus greening, we required all nursery stock offered for commercial sale in such an area to be affixed with a plastic or metal tag with a prominent and legible statement alerting consumers to Federal prohibitions on the movement of the article. Alternatively, if the article is sold in a box or container, we allowed the statement to be printed on the box or container. We stated that the operator of the site of propagation of the nursery stock and the person offering the plants for commercial sale are jointly responsible for all such labeling.

One commenter stated that we should allow the statement to be printed on the back of existing identification tags required under State and local regulations.

Provided that the statement is prominently and legibly displayed, it may be printed on the back of such tags.

Another commenter pointed out that, as written, § 301.76-4 would require nursery stock produced in an area that is not quarantined for citrus greening, but shipped to a quarantined area for commercial sale, to be labeled prior to shipment or to be labeled by the person offering the plant for commercial sale. The commenter stated that commercial retailers of citrus nursery stock are unlikely to label their inventory; hence, it would fall to producers to label the nursery stock prior to shipment. The commenter further stated that smaller producers in the citrus industry often do not know the final destination of their nursery stock prior to shipment. The commenter concluded that § 301.76-4 would effectively require such producers to label their entire inventory, unless they were certain the nursery stock would not be shipped to an area quarantined for citrus greening. Accordingly, the commenter suggested that we modify the section so that all producers who ship regulated nursery stock interstate would have to label their plants, or so that the requirement would pertain to regulated nursery stock that is produced within an area quarantined for citrus greening, rather than offered for commercial sale within such an area.

Requiring all regulated nursery stock that will be moved in interstate commerce to be labeled in accordance with § 301.76-4 would place an undue burden on producers in areas that are not quarantined for citrus greening who ship primarily or exclusively to areas of the United States that also are not quarantined for this disease, and lacks a basis in risk.

Nursery stock that is offered for commercial sale in an area quarantined for citrus greening may not be safeguarded in a manner that precludes citrus greening from being introduced to the plants; this risk of introduction is especially pronounced for nursery stock offered for sale in an area quarantined both for citrus greening and for ACP, citrus greening's vector for short-distance spread. Accordingly, a regulated plant that was produced in an area that is not quarantined for citrus greening may become infected with the disease while it is being offered for commercial sale within such a quarantined area. Hence we consider it necessary to require that all consumers who purchase the regulated nursery stock within the quarantined area be alerted to Federal prohibitions on the interstate movement of the articles.

Finally, we appreciate the commenter's concern that commercial retailers may be disinclined to label such nursery stock in accordance with § 301.76-4. To that end, we have been working with commercial retailers since issuance of the interim rule to find methods to ensure that means exist for the retailers to comply with the provisions of § 301.76-4 in a manner that is not economically burdensome or disruptive.

Section 301.76-6 of the interim rule contained regulations governing the interstate movement of regulated articles from areas quarantined for ACP, but not for citrus greening. Paragraph (b) provides for the issuance of limited permits for the interstate movement of regulated nursery stock to areas of the United States other than American Samoa, Northern Mariana Islands, and those portions of Arizona, California, and South Carolina not quarantined due to the presence of ACP or citrus greening, if certain conditions were fulfilled.

One of these conditions was that the nursery stock be treated for ACP with an APHIS-approved soil drench or in-ground granular application no more than 30 days and no fewer than 20 days before shipment, followed by an APHIS-approved foliar spray no more than 10 days before shipment. Treatments must be applied according to their Environmental Protection Agency (EPA) label, including directions on application, restrictions on place of application and other restrictions, and precautions, and including statements pertaining to worker protection standards.

The interim rule also required the nursery stock to be moved in a container sealed with an agricultural seal placed by an inspector.

Several commenters stated that these conditions unnecessarily hindered interstate commerce.

Two commenters pointed out that, in requiring application of soil drenches or granular applications no more than 30 days and no fewer than 20 days before shipment of articles, we were providing a 10-day timeframe for such application. The commenters stated that this timeframe was insufficient for smaller producers, who often did not know the expected date of interstate movement of an article that far in advance. While recognizing the need for optimal absorption of the soil drench, the commenters requested a longer window of time for the application of that treatment.

The same commenters also stated that, by requiring the articles to be sealed in a shipping container and inspectors to seal each container with an agricultural seal prior to movement, we were, in effect, limiting shipment of the articles to normal business hours (8 a.m. to 4:30 p.m., Monday through Friday). The commenters stated that their shipments traditionally have tended to occur overnight or in the early morning. Because of these economic considerations, the commenters questioned whether the conditions were strictly necessary, especially for nursery stock that is not destined for an area in which ACP could become established.

The points raised by these commenters were addressed in an interim rule published in the Federal Register and effective on April 27, 2011 (76 FR 23449-23459, Docket No. APHIS-2010-0048). In that rule, we amended the regulations to provide that soil drenches may be applied no more than 90 but no less than 30 days prior to shipment, thus widening the window of time for applications to 60 days. We also amended the regulations to provide that nursery stock does not have to be moved interstate in a sealed shipping container unless it will transit a commercial citrus-producing area.

We are making several nonsubstantive editorial amendments to various provisions of the June 2009 interim rule in order to improve their clarity and facilitate regulatory compliance. These changes are described below.

In § 301.76-1 of the interim rule, we defined citrus greening as “a plant disease caused by several strains of the uncultured, phloem-limited bacterial pathogen ` Candidatus Liberibacter asiaticus'.” This definition, while accurate, did not specify that citrus greening is also commonly referred to as Huanglongbing disease of citrus by the international taxonomic community. We are amending the definition to specify that the disease is known by both names.

In the interim rule, paragraph (a) of § 301.76-6 provided for the issuance of certificates for the unrestricted movement of any regulated article from an area quarantined only for ACP, if, among other conditions, the article was treated with methyl bromide prior to movement. While the preamble of the rule noted that EPA and State and local environmental authorities may not authorize the use of methyl bromide on certain regulated articles, the regulatory text for paragraph (a) of § 301.76-6 did not. We are adding a footnote containing this information to paragraph (a).

As we mentioned above, in the interim rule, paragraph (b) of § 301.76-6 provided for the issuance of limited permits for the interstate movement of regulated nursery stock from an area quarantined only for ACP, subject to certain conditions. As we also mentioned above, one of these conditions required the nursery stock to be affixed prior to movement with a plastic or metal tag on which the statement “Limited permit: USDA-APHIS-PPQ. Not for distribution in American Samoa, Northern Mariana Islands, or those portions of AZ, CA, and SC not quarantined due to the presence of Asian citrus psyllid or citrus greening” is prominently and legibly displayed, or to be otherwise labeled with this statement. We stated that the limited permit statement was necessary in order to help prevent the introduction of ACP into areas with commercial citrus production but without established populations of ACP through the movement of regulated nursery stock.

However, since the interim rule was issued, established populations of ACP have been detected in two additional commercial citrus-producing areas, Northern Mariana Islands and American Samoa. In the April 2011 interim rule mentioned earlier in this document, we amended the regulations governing the statement on the limited permit to reflect the presence of ACP in American Samoa. In this final rule, we are again amending it to reflect the presence of ACP in Northern Mariana Islands.

In the interim rule, § 301.76-7 provided for the issuance of limited permits from areas quarantined for citrus greening. Paragraph (a) of § 301.76-7 provided for the issuance of limited permits for the interstate movement of regulated nursery stock for immediate export, if, among other conditions, the nursery stock is treated with an APHIS-approved soil drench or in-ground granular application, followed by an APHIS-approved foliar spray; with methyl bromide; or with irradiation. We intended these treatment options to mirror those contained in § 301.76-6 for regulated nursery stock moved interstate from an area quarantined only for ACP. However, while § 301.76-6 authorized regulated nursery stock to be treated with APHIS-approved soil drenches, granular applications, and foliar sprays, or fumigated with methyl bromide, it did not authorize nursery stock to be treated with irradiation. We are amending § 301.76-7 accordingly. (The April 2011 interim rule referenced above redesignated paragraph (a) as paragraph (b); hence we would amend paragraph (b) of § 301.76-7.)

In § 301.76-3 of the interim rule, paragraph (c) provided that a State or territory within the United States will be designated a quarantined area for ACP in which an established population of ACP has been detected. Paragraph (b) of § 301.76-3 provided that we may designate less than an entire State or territory as a quarantined area for ACP if the State or territory has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by the regulations on the interstate movement of regulated articles; and if the designation of less than the entire State or territory will still prevent the interstate spread of ACP.

As we mentioned above, we have detected established populations of ACP in American Samoa and Northern Mariana Islands; neither of these territories has adopted intra-territorial restrictions on the movement of regulated articles. We have also detected established populations of ACP in Ventura County and Santa Barbara County, CA, and detected citrus greening in portions of Hidalgo County, TX, and an area comprising portions of Los Angeles County and Orange County, CA.

Accordingly, we are designating both American Samoa and Northern Mariana Islands, in their entireties, as quarantined areas for ACP, and are expanding the quarantined area for ACP in California to include Ventura County in its entirety and portions of Santa Barbara County. We are also designating portions of Hidalgo County, TX, and an area comprising portions of Los Angeles County and Orange County, CA, as quarantined areas for citrus greening. The updated list of quarantined areas is available on the Internet, at http://www.aphis.usda.gov/plant_health/plant_pest_info/citrus_greening/index.shtml.

Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule, with the changes discussed in this document.

This final rule also affirms the information contained in the interim rule regarding Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, this action has been determined to be not significant for the purposes of Executive Orders 12866, and, therefore, has not been reviewed by the Office of Management and Budget.

This final rule follows an interim rule that quarantined the States of Florida and Georgia, Puerto Rico, the U.S. Virgin Islands, two parishes in Louisiana, and two counties in South Carolina due to the presence of citrus greening and quarantined Alabama, Florida, Georgia, Guam, Hawaii, Louisiana, Mississippi, Puerto Rico, Texas, the U.S. Virgin Islands, three counties in South Carolina, portions of one county in Arizona, and all of three and portions of an additional three counties in California due to the presence of Asian citrus psyllid, a vector of the bacterial pathogen that causes citrus greening. In this final rule, the list of quarantined areas for Asian citrus psyllid is being updated to include American Samoa, the Northern Mariana Islands, and all of one and portions of another additional county in California. Likewise, the list of quarantined areas for citrus greening is being updated to include portions of one county in Texas and an area comprising portions of two counties in California. The analysis that accompanies this rule considers the economic effects of the regulations on the current quarantined area and the benefits of imposing the quarantine.

Expected benefits and costs are examined, in accordance with Executive Orders 12866 and 13563, including expected economic impacts for small entities as required by the Regulatory Flexibility Act.

In the interim rule, APHIS imposed measures to prevent the spread of citrus greening and ACP to other commercial citrus-producing areas by prohibiting or restricting the movement of host material outside of areas quarantined for the pest or the disease. Although the majority of affected establishments in the quarantined areas are small entities, the effects of the interim rule on these businesses were minor. Affected entities were nursery operations and other production sites in Alabama, California, Florida, Georgia, Guam, Hawaii, Louisiana, Mississippi, Puerto Rico, South Carolina, Texas, and the U.S. Virgin Islands that produce citrus trees, orange jasmine, curryleaf, and other articles regulated by the rule.

This final rule designates American Samoa and the Northern Mariana Islands as quarantined areas for ACP, and extends the boundaries of the quarantine area for ACP in California to include all of one county (Ventura County) and portions of another additional county (Santa Barbara County). Producers in these areas that have relied on markets in commercial citrus-producing areas that are not currently quarantined for ACP or citrus greening will suffer the loss of those markets. However, it is unlikely that producers of citrus nursery stock in these areas currently produce citrus nursery stock intended for markets outside of the quarantine area. The effort to mitigate the further spread of ACP and citrus greening will serve to benefit to other citrus producing areas.

Accordingly, the interim rule amending 7 CFR parts 301 and 305 that was published at 75 FR 34322 on June 10, 2011, is adopted as a final rule, with the following changes:

As amended by Energy Independence and Security Act of 2007 (EISA 2007; Pub. L. 110-140), the Energy Policy and Conservation Act (EPCA) 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 dishwashers, 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 2 recommends specific energy conservation standards for dishwashers 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) 2, 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 dishwashers set forth in the direct final rule. These standards are set forth in TABLE 1—AMENDED ENERGY CONSERVATION STANDARDS FOR RESIDENTIAL DISHWASHERS

The standards apply to all products listed in TABLE 1—AMENDED ENERGY CONSERVATION STANDARDS FOR RESIDENTIAL DISHWASHERS that are manufactured in, or imported into, the United States on or after May 30, 2013. 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. (77 FR 31918 (May 30, 2012)).

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-B 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.

Pacific Gas and Electric Company (PG&E), Southern California Gas Company (SCGC), San Diego Gas and Electric (SDG&E), and Southern California Edison (SCE) (collectively, the “California Utilities”) expressed support for DOE's adoption of the standard levels proposed in the Joint Petition, 3 as did AHAM. 4 Additionally, ASAP, ASE, ACEEE, CFA, NCLC, NRDC, and NEEP commented in support of the standard levels in the direct final rule. 5

DOE received several adverse comments from private citizens. To make the comment summary and response easier to follow, the commenters are identified by their comment number. 6 7 8

Comment 15 stated that DOE should withdraw the direct final rule and move to a proposed rule because it failed to analyze several important factors. It stated that: (1) DOE did not examine the effects on two important demographics (wholesalers and retailers); (2) DOE did not adequately assess the significance of market and public institution failures that the rule attempts to correct; and (3) the life-cycle-cost savings for each individual dishwasher are so small that deviations from the agency's assumption of dishwashing habits or other mistakes could eliminate those savings.

Regarding the impacts of the standards on wholesalers and retailers, DOE estimated that the standards would likely cause a slight reduction in dishwasher unit sales. Because the standards are expected to result in a small increase in price, however, the net effect on revenue of wholesalers and retailers should be negligible.

Regarding failures of private markets or public institutions, Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action. DOE addressed this requirement in section VI.A of the direct final rule. In addition, in section V.C of the direct final rule, DOE discussed some of the reasons why consumers appear to undervalue energy efficiency improvements.

DOE acknowledges that there is uncertainty regarding the estimated cost savings. The methods and assumptions used by DOE, however, have been extensively reviewed and subject to public comment not only in the direct final rule to establish amended standards for dishwashers, but in other DOE rulemakings as well. The commenter did not provide any specific concerns with the assumptions used by DOE or offer any alternative assumptions for use in DOE's analysis.

Two of the private citizens questioned the estimated payback period in the direct final rule. Comment 14 notes that DOE estimates a median payback period of 11.8 years for a new dishwasher, and that the Consortium for Energy Efficiency lists the average life of a residential dishwasher at 11 years, which is shorter than the estimated payback period. Comment 16 notes that external sources estimate dishwasher lifetime at 9-12 years. Because the basis for published dishwasher lifetime estimates is uncertain, DOE conducted an analysis of residential dishwasher lifetimes in the field. As described in chapter 8 of the direct final rule technical support document (TSD), the analysis yielded an estimate of mean age for residential dishwashers of approximately 15 years, longer than the median payback period for the adopted energy conservation standards for standard-size dishwashers.

Comment 14 noted that the benefits attributed to emissions reductions represent between 17 and 35 percent of the total benefits from the new standard, and because the long-term effects of carbon dioxide (CO 2 ) emissions are unclear, DOE should not justify the standards using benefits from emissions reductions. DOE used a wide range of estimates of the value of avoiding a ton of CO 2 emissions that had been prepared by an interagency process that included a thorough review of the relevant literature (see appendix 16-A of the direct final rule TSD for discussion). Furthermore, the benefits from emissions reductions are only one of a number of factors that DOE considers in assessing whether a standard is economically justified. In the direct final rule, the Secretary concluded that at trial standard level (TSL) 2 for residential dishwashers (which represents the standards adopted), the benefits of energy savings, water savings, positive net present value (NPV) of consumer benefits, emission reductions, and the estimated monetary value of the CO 2 emissions reductions would outweigh the impacts on manufacturers.

Comment 16 notes that the benefits attributed to emissions reductions represent a global, not a domestic, value. The interagency process that developed the Social Cost of Carbon (SCC) estimates used by DOE focused on a global measure of SCC because of the distinctive nature of the climate change problem. Under current Office of Management and Budget (OMB) guidance in OMB Circular A-4, agencies must analyze economically significant proposed and final regulations from the domestic perspective, and analysis from the international perspective is conducted as appropriate. A global measure of SCC is used in DOE rulemakings because climate change involves a global externality: Emissions of most greenhouse gases (GHG) contribute to damages around the world even when they are emitted in the United States. Consequently, to address the global nature of the problem, the SCC must incorporate the full (global) damages caused by GHG emissions.

Comment 14 stated that the new standards may not represent a significant conservation of energy due to the presence of other energy efficiency programs, most notably the ENERGY STAR program. Comment 14 notes that the majority of dishwashers sold in the United States meet the ENERGY STAR specifications, which are more stringent than the new DOE energy conservation standards. DOE's analysis measures energy savings relative to a base case that includes the projected impacts of other energy efficiency programs. Although the term “significant” is not defined in EPCA, the U.S. Court of Appeals, in Natural Resources Defense Council v. Herrington, 768 F.2d 1355, 1373 (DC Cir. 1985), indicated that Congress intended “significant” energy savings in this context to be savings that were not “genuinely trivial.” DOE estimates that the new standards will save 0.07 quads of energy over the period from 2013 through 2047. DOE considers these to be significant reductions.

Comments 14 and 16 stated that due to the increased cost of a dishwasher under the new standards, some consumers will opt not to purchase a new dishwasher and will continue to use older less-efficient models or to hand wash, which would negatively impact the water and energy savings attributed to the new standard. DOE's analysis accounted for the possibility that some consumers may opt not to purchase new energy efficient dishwashers, and the estimated savings reflect this possibility.

Although AHAM expressed support for the direct final rule, AHAM raised several points that it clarified were not intended as adverse comments. 9

First, AHAM noted that the compliance date for the amended dishwasher standards represents an unusual case in which less lead time than usual is acceptable because manufacturers agreed to the shorter lead time as part of the consensus agreement. AHAM noted that ordinarily, and going forward, the statutory lead time of 3 years from the date of publication of a final rule adopting new or amended standards is necessary for manufacturers to design and produce products that comply with the new or amended standards. DOE acknowledges AHAM's comment.

Regarding DOE's estimate of typical dishwasher cycle time, AHAM does not object to the 1-hour cycle time estimate for purposes of the direct final rule, but notes that it may need to be studied in the future and that the average cycle time could be longer than 1 hour. DOE acknowledges AHAM's comment.

Regarding dishwasher performance, AHAM agrees that the efficiency levels in the direct final rule are not likely to adversely impact performance, but states that more stringent levels could adversely impact performance. AHAM stated that, as efficiency and water standards levels become more stringent, it may be necessary to evaluate performance in DOE's analysis. DOE acknowledges AHAM's comment.

AHAM opposed DOE's use of the Residential Energy Consumption Survey (RECS) and similar data for its energy and water use analysis. DOE acknowledges AHAM's comment. DOE uses RECS data for the energy and water use for the reasons explained in the direct final rule. 77 FR 31918, 31931 (May 30, 2012).

AHAM stated that the burden associated with reporting for certification is substantially more than 20 hours. It expressed hope that DOE will amend its certification, compliance, and enforcement rule to conform the scope of its annual report to the Federal Trade Commission report. DOE acknowledges AHAM's comment.

AHAM continues to oppose the use of experience curves in the projection of consumer product prices. DOE used experience curves to project product prices for dishwashers for the reasons stated in the direct final rule. 77 FR 31918, 31933 (May 30, 2012).

AHAM stated that any CO 2 analysis should include CO 2 emissions caused indirectly, as well as directly, from a standards change, such as increased carbon emissions required to manufacture a product at a given standard level. DOE has begun to include CO 2 emissions that occur in the full fuel cycle, which includes emissions that occur in production and transportation of fuels. DOE continues to believe that it is inappropriate to include emissions that occur in manufacturing or transport of appliances. EPCA directs DOE to consider the total projected amount of energy savings likely to result directly from a standard, and DOE interprets this to include only energy consumed at the point of use and in the production, processing and transportation of fuels used by appliances or equipment.

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 in 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. 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).

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

DOE reviewed the direct final rule and corresponding NOPR pursuant to the RFA and the policies and procedures discussed above. DOE certifies that the standards in the direct final rule will not have a significant impact on a substantial number of small entities. The factual basis for this certification is set forth below. DOE has considered the comments received on the economic impacts of the rule in adopting the standards set forth in the direct final rule; responses to these comments are provided in section II.

For manufacturers of residential dishwashers, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121.The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at: http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf. Residential dishwasher manufacturing is classified under NAICS 335228, “Other Major Household Appliance Manufacturing.” The SBA sets a threshold of 500 employees or less for an entity to be considered as a small business for this category.

To estimate the number of small businesses which could be impacted by the amended energy conservation standards, DOE conducted a market survey using all available public information to identify potential small manufacturers. DOE's research included the AHAM membership directory, product databases (Consortium for Energy Efficiency (CEE), California Energy Commission (CEC), and ENERGY STAR databases) and individual company Web sites to find potential small business manufacturers. DOE also asked interested parties and industry representatives if they were aware of any other small business manufacturers during manufacturer interviews and at previous DOE public meetings. DOE reviewed all publicly available data and contacted various companies, as necessary, to determine whether they met the SBA's definition of a small business manufacturer of covered residential dishwashers. DOE screened out companies that did not offer products covered by this rulemaking, did not meet the definition of a “small business,” or are foreign owned and operated.

Almost half of residential dishwashers are currently manufactured in the United States by one corporation that accounts for approximately 49 percent of the total market. Together, this manufacturer and three other manufacturers that do not meet the definition of a small business manufacturer comprise 99 percent of the residential dishwasher market. The small portion of the remaining residential dishwasher market (approximately 57,000 shipments) is supplied by a combination of approximately 15 international and domestic companies, all of which have small market shares. These companies are either foreign owned and operated or exceed the SBA's employment threshold for consideration as a small business under the appropriate NAICS code. Therefore, DOE did not identify any small business manufacturers of dishwashers. DOE received no comments on its estimate and retains this estimate for the certification.

Based on the discussion above, DOE continues to certify that the standards for residential dishwashers set forth in today's rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE transmitted the certification to the SBA as required by 5 U.S.C. 605(b).

Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has determined that the direct final rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR Part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)-(5). The rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this rule. DOE's CX determination or this direct final rule is available at http://cxnepa.energy.gov.

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 dishwashers 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 September 27, 2012. Compliance with these standards is required on May 30, 2013.

I. Authority and Rulemaking Background

As amended by Energy Independence and Security Act of 2007 (Pub. L. 110-140), the Energy Policy and Conservation Act (EPCA) 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 direct 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 washers, 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 2 recommends specific energy conservation standards for residential clothes washers 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) 3, 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 residential clothes washers set forth in the direct final rule. These standards are set forth in TABLE 1—AMENDED ENERGY CONSERVATION STANDARDS FOR RESIDENTIAL CLOTHES WASHERS. The standards apply to all products listed in TABLE 1—AMENDED ENERGY CONSERVATION STANDARDS FOR RESIDENTIAL CLOTHES WASHERS that are manufactured in, or imported into, the United States on or after March 7, 2015 for top loading clothes washers and January 1, 2018 for both top loading and front loading clothes washers. 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. (77 FR 32308 (May 31, 2012)).

As required by EPCA, DOE also simultaneously published a NOPR proposing the identical standard levels contained in the direct final rule. 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.

Pacific Gas and Electric Company, Southern California Gas Company, San Diego Gas and Electric, and Southern California Edison jointly expressed support for DOE's adoption of the standard levels proposed in the Joint Petition, 3 as did AHAM. 4 Additionally, ASAP, ASE, ACEEE, CFA, NCLC, NRDC, and NEEP commented in support of the standard levels in the direct final rule. 5 One private citizen also expressed support for the amended standards in the direct final rule. 6

DOE received one adverse comment from a private citizen. 7 The commenter does not support mandatory standards for residential clothes washers and believes energy efficiency standards should be voluntary and offered as a choice to the consumer. The commenter states that energy efficiency standards should consider clothes washer cleaning performance. Further, the commenter believes that energy efficiency standards are negatively impacting cleaning performance, and that the standards should allow manufacturers to implement a user override option on the clothes washer.

Regarding whether the energy efficiency standards should be mandatory or voluntary, EPCA requires DOE to consider whether to amend existing energy efficiency standards for residential clothes washers. EPCA further requires DOE to adopt those standards that achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. Manufacturers are required by EPCA to manufacture products that meet these standards. 42 U.S.C. 6295(g)(10), (o); 42 U.S.C. 6302. For the reasons stated in the direct final rule, DOE determined that the standards adopted for residential clothes washers meet the EPCA criteria. Manufacturers will be required to use these standards as of March 7, 2015 and January 1, 2018, as described in the direct final rule.

Regarding cleaning performance, in determining whether a new standard is economically justified, EPCA requires DOE to consider any lessening of the utility or the performance likely to result from the imposition of a new standard. 42 U.S.C. 6295(o)(2)(B)(i)(IV), (o)(4) DOE notes that the measurement of energy efficiency or energy or water use presumes the proper functioning of a product. DOE has considered performance generally in the development of these standards and has concluded that the TSL adopted in this direct final rule would not reduce the utility or performance of the clothes washers under consideration in this rulemaking.

Regarding the implementation of override features on a clothes washer, Federal regulations do not address any specific product features; rather, the standards specify allowable energy and water use. Manufacturers may use any product design, technology, or control strategy in their clothes washers as long as the products meet the amended minimum efficiency standards as measured according to DOE's test procedures at 10 CFR part 430, Subpart B, Appendix J2. Because manufacturers must produce clothes washers that comply with the minimum standards, however, including a feature that allowed the consumer to override the maximum allowable water use and minimally allowable energy use would not be consistent with EPCA.

Although AHAM expressed support for the direct final rule, AHAM raised several points that it stated were not intended as adverse comments. 8

AHAM noted that the compliance date for the amended clothes washer standards represents an unusual case in which less lead time than usual is acceptable because manufacturers agreed to the shorter lead time as part of the Consensus Agreement. AHAM agreed to this date as part of the Consensus Agreement, but it noted that without such agreement, DOE must specify the three-year statutory lead time. DOE acknowledges AHAM's comment.

AHAM commented that it believes the standby power level of 0.08 Watts that DOE associated with the selected standard levels is quite low. AHAM stated that 1-2 Watts of standby power are required to power electronic controls and to provide consumers with the usability they expect. AHAM also disagreed with DOE's conclusion that the cost to achieve 0.08 Watts is lower than the cost of achieving higher wattages of standby power. AHAM stated that if this were true, industry would already have products on the market that use only 0.08 Watts of standby power.

DOE described its approach to incorporating standby power levels in the direct final rule and in chapter 5 of the accompanying Technical Support Document (TSD). 77 FR 32335 DOE conducted standby power testing on a sample of representative clothes washers to determine the standby power levels associated with each TSL. DOE measured standby power values of 0.08 Watts or less on multiple clothes washer models with electronic controls. DOE's methods for identifying the technologies associated with each standby power level, as well as the costs associated with each standby power level, are described in detail in chapter 5 of the TSD.

Regarding clothes washer performance, AHAM agrees that the efficiency levels in the direct final rule are not likely to adversely impact performance, but stated that more stringent levels could adversely impact performance. AHAM stated that, as efficiency and water standards levels become more stringent, it may be necessary to evaluate performance in DOE's analysis. DOE acknowledges AHAM's comment.

AHAM opposed DOE's use of the Residential Energy Consumption Survey (RECS) and similar data for its energy and water use analysis. DOE acknowledges AHAM's comment. DOE used RECS data for the energy and water use analysis for the reasons explained in the direct final rule. 77 FR 32338-9 (May 31, 2012)

AHAM stated that the burden associated with reporting for certification is substantially more than 20 hours. AHAM encourages DOE to amend its certification, compliance, and enforcement rule to conform the scope of its annual report to the Federal Trade Commission report. DOE acknowledges AHAM's comment.

AHAM continues to oppose the use of experience curves in the projection of consumer product prices. DOE used experience curves to project product prices for residential clothes washers for the reasons stated in the direct final rule. 77 FR 32340

AHAM stated that it is not aware of a rebound effect for clothes washers, and it has no reason to believe that operating cost would change user behavior at the levels in the direct final rule. DOE acknowledges AHAM's comment.

AHAM stated that any CO 2 analysis should include CO 2 emissions that are caused indirectly, as well as directly, from a standards change, such as increased carbon emissions required to manufacture a product at a given standard level. DOE has begun to include CO 2 emissions that occur in the full fuel cycle, which includes emissions that occur in production and transportation of fuels. DOE continues to believe that it is inappropriate to include emissions that occur in manufacturing or transport of appliances. EPCA directs DOE to consider the total projected amount of energy savings likely to result directly from a standard, and DOE interprets this to include only energy consumed at the point of use and in the production, processing and transportation of fuels used by appliances or equipment.

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 document.

DOJ reviewed the amended standards in the direct final rule and the final TSD provided by DOE. 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).

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

DOE reviewed the direct final rule and corresponding notice of proposed rulemaking pursuant to the RFA and the policies and procedures discussed above. Set forth below is DOE's final regulatory flexibility analysis for the standards established in the DFR. DOE has considered the comments received on the rule in adopting the standards set forth in the direct final rule; responses to these comments are provided in section II.

A succinct statement of the need for, and objectives of, the rule is provided in the DFR published on May 31, 2012 (77 FR 32308) and not repeated here.

A summary of the comments received on the DFR is provided elsewhere in today's document and not repeated here.

For manufacturers of residential clothes washers, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121.The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf . Residential clothes washer manufacturing is classified under NAICS Code 335224, “Household Laundry Equipment Manufacturing.” The SBA sets a threshold of 1,000 employees or less for an entity to be considered as a small business for this category.

To estimate the number of small businesses who could be impacted by the amended energy conservation standards, DOE conducted a market survey using all available public information to identify potential small manufacturers. DOE's research included the AHAM membership directory, product databases (Consortium for Energy Efficiency, California Energy Commission, and ENERGY STAR databases) and individual company Web sites to find potential small business manufacturers. DOE also asked interested parties and industry representatives if they were aware of any other small business manufacturers during manufacturer interviews and at previous DOE public meetings. DOE reviewed all publicly available data and contacted various companies, as necessary, to determine whether they met the SBA's definition of a small business manufacturer of covered residential clothes washers. DOE screened out companies that did not offer products covered by this rulemaking, did not meet the definition of a “small business,” or are foreign owned and operated.

The majority of residential clothes washers are currently manufactured in the United States by one corporation that accounts for approximately 64 percent of the total market. Together, this manufacturer and three other manufacturers that do not meet the definition of a small business manufacturer comprise 92 percent of the residential clothes washer market. The small portion of the remaining residential clothes washer market (approximately 700,000 shipments) is supplied by a combination of 12 international and domestic companies, all of which have small market shares. Of the remaining 12 companies that manufacturer residential clothes washers for sale in the United States, DOE identified only one manufacturer that is considered a small business under NAICS Code 335224.

DOE received no comments on its estimate of the number of small businesses and retains that estimate for this final regulatory flexibility analysis.

The one small business manufacturer of residential clothes washers covered by this rulemaking has one product platform. It makes a top-loading standard residential clothes washer that currently meets a 1.85 MEF and a 6.75 WF. The product meets the 2015 energy conservation standards proposed in this direct final rule, but falls short of the 2018 standard. The unit does not offer warm rinse and has electromechanical controls, making it likely that three wash temperatures (hot, warm, cold) are available on all settings including Normal for test procedure purposes. Thus, it is likely the unit will have to undergo alterations to its basic design to meet the 2018 efficiency requirements.

This company appears to manufacture its residential clothes washer with less automation and more labor than some of the larger competitors. To change the design of their current product to meet the 2018 efficiency standards, one available design pathway would be increasing the volume of the wash basket, assuming there is enough clearance within the cabinet. Increasing the drum's radius would involve cutting slightly larger octagonal pieces of metal and would not be a capital intensive solution. With this pathway, the assembly process and fabrication time would essentially remain the same. This solution would also prevent the small business manufacturer from bearing the cost of retrofitting their manufacturing process and could result in lower per-unit conversion costs relative to larger manufacturers.

Based on the engineering analysis and manufacturer interviews, if two full-time engineers took one year to implement a larger drum radius within the existing cabinet it could cost the manufacturer roughly $200,000 to implement the design change for the 2018 compliance date. If the manufacturer were to incur additional tooling costs to implement this change, this could lead to an additional $200,000 in capital conversion costs. Because the small business manufacturer already meets the 2015 energy conservation standards, it would have 7 years from the announcement of today's direct final rule until it would have to make any changes to its current product in response to standards.

DOE rejected efficiency levels analyzed (TSLs 4 and 5) that would have achieved higher energy savings and other benefits than the standards set forth in the direct final rule. DOE determined that these TSLs were not economically justified, in significant part because of impacts to manufacturers.

DOE did not adopt TSLs 1 and 2, which would have further decreased the economic impacts to manufacturers. DOE determined based on its analysis, as explained in the DFR (77 FR 32308, May 31, 2012) that TSL3 achieves the maximum improvement in energy efficiency that was technologically feasible and economically justified. The direct final rule TSD also includes a regulatory impact analysis (RIA). For residential clothes washers, the RIA discusses the following policy alternatives: (1) No new regulatory action; (2) consumer rebates; (3) consumer tax credits; (4) manufacturer tax credits; (5) voluntary energy efficiency targets; (5) early replacement; and (6) bulk government purchases. While these alternatives may mitigate to some varying extent the economic impacts on small entities compared to the amended standards, DOE determined that the energy savings of these regulatory alternatives are at least 3.8 times smaller than those that would be expected to result from adoption of the amended standard levels. Thus, DOE rejected these alternatives and adopted the amended standards set forth in the DFR. (See chapter 17 of direct final rule TSD for further detail on the policy alternatives DOE considered.)

Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has determined that the direct final rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)-(5). The rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this rule. DOE's CX determination for this direct final rule is available at http://cxnepa.energy.gov.

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 washers 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 September 28, 2012. Compliance with these standards is required on March 7, 2015 and January 1, 2018, as noted in Table 1.

The following will not appear in the Code of Federal Regulations:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on June 6, 2012 (77 FR 33332), and proposed to supersede AD 94-14-05, Amendment 39-8957 (59 FR 35237, July 11, 1994); and AD 96-07-06, Amendment 39-9555 (61 FR 14014, March 29, 1996). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 33332, June 6, 2012) or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed—except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 33332, June 6, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 33332, June 6, 2012).

We estimate that this AD will affect 2 products of U.S. registry.

The actions that were required by AD 94-14-05, Amendment 39-8957 (59 FR 35237, July 11, 1994), and retained in this AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Required parts cost about $250 per product. Based on these figures, the estimated cost of the currently required actions is $335 per product.

The actions required by AD 96-07-06, Amendment 39-9555 (61 FR 14014, March 29, 1996), and retained in this AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the currently required actions is $85 per product.

We also estimate that it will take about 5 work-hours per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $650 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $2,150, or $1,075 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 33332, June 6, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2009-26-17, Amendment 39-16156 (74 FR 69268, December 31, 2009). That AD applies to the specified products. The NPRM published in the Federal Register on March 28, 2012 (77 FR 18719). That NPRM proposed to continue to require installing or replacing with improved parts, as applicable, the bonding straps between the metallic frame of the fillet and the wing leading edge ribs, on both the left and right sides of the airplane. That NPRM also proposed to continue to require, for certain airplanes, repositioning or replacing two bonding straps, doing a bonding-resistance check and an inspection to determine correct installation of certain bonding straps, and applicable corrective actions. That NPRM also proposed to add airplanes to the applicability, and depending on the airplane configuration, installing new braided bonding straps, inspecting to determine if a certain strap is installed and replacing with or installing a braided bonding strap if necessary, measuring the electrical resistance of the bonding straps, verifying that brackets have an acceptable fillet seal, and doing corrective actions if necessary.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 18719, March 28, 2012) and the FAA's response to each comment.

FedEx requested that previous actions accomplished on 51 of its airplanes using Boeing Service Bulletin DC10-53-111, Revision 4, dated September 21, 2006; or Boeing Service Bulletin DC10-53-111, Revision 7, dated March 16, 2011; be acceptable as terminating action for the actions specified in paragraph (j) of the NPRM (77 FR 18719, March 28, 2012).

We partially agree. We agree that the actions are acceptable, but do not agree to change the AD. We disagree that credit for previous actions should be added to the AD. Paragraphs (m)(3) and (m)(4) of this AD already allow previous accomplishment of the actions specified in paragraphs (g), (h), (i), and (j) of this AD, if those actions were done using alternative methods of compliance (AMOCs) approved in accordance with AD 2006-16-03, Amendment 39-14703 (71 FR 43962, August 3, 2006); and AD 2009-26-17, Amendment 39-16156 (74 FR 69268, December 31, 2009). Boeing Service Bulletin DC10-53-111, Revision 4, dated September 21, 2006, states that it is approved as an AMOC for AD 2006-16-03. We have not changed the final rule in this regard.

FedEx suggested that paragraphs (l)(3) and (l)(4) of the NPRM (77 FR 18719, March 28, 2012) be combined since they state the same thing.

We do not agree to combine paragraphs (l)(3) and (l)(4) of this AD, because those paragraphs state different requirements for different airplanes. We have not changed the final rule in this regard.

FedEx stated that Boeing Service Bulletin DC10-53-111, Revision 7, dated March 16, 2011, incorrectly specifies that the reason for the revision was to add fuselage 317 to the effectivity of that service bulletin. FedEx stated that fuselage 317 was not and does not need to be added to the effectivity of that service bulletin, because fuselage 317 is in the effectivity of Boeing Service Bulletin DC10-53-109, Revision 8, dated March 10, 2011.

We infer that FedEx is requesting that Boeing Service Bulletin DC10-53-111, Revision 7, dated March 16, 2011, be revised to correct the discrepancy in the stated reason for the revision of that service bulletin. We do not agree. Boeing issued Service Bulletin Information Notice DC10-53-111 IN 02, dated June 17, 2011, to clarify that fuselage 317 was not added to the effectivity of Boeing Service Bulletin DC10-53-111, Revision 7, dated March 16, 2011. No change to this final rule is necessary in this regard.

We have revised certain headings throughout this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 18719, March 28, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 18719, March 28, 2012).

We estimate that this AD affects 208 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive (AD) 2010-0214, dated November 2, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Mandatory Service Bulletins A340-32-5099, dated September 23, 2010; and A340-32-5101, dated October 20, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future.

This AD differs from the MCAI and/or service information as follows: The MCAI and the service information include a reporting requirement. This AD does not require reporting of the inspection results to the airplane manufacturer.

Since there are currently no domestic operators of this product, notice and opportunity for public comment before issuing this AD are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0996; Directorate Identifier 2011-NM-040-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

140 FERC ¶ 61,218 Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, John R. Norris, Cheryl A. LaFleur, and Tony T. Clark. Revision to Form No. 6 [Docket No. RM11-21-000] Order No. 767 Final Rule Issued September 20, 2012.

1. In this Final Rule, the Commission amends the instructions on page 700, Annual Cost of Service Based Analysis Schedule, of FERC Form No. 6, Annual Report of Oil Pipeline Companies, (Form 6) to ensure that oil pipelines report interstate-only barrel and barrel-mile data on lines (11) and (12) of page 700 and not a combination of interstate and intrastate throughput. 1 The Commission also directs pipelines that reported combined interstate and intrastate data in any field on lines (1) through (12) of page 700 of their 2010 Form 6  2 or their 2011 Form 6  3 to file within 90 days of the final rule's publication in the Federal Register revised page 700 data containing only interstate data for the years 2009, 2010, and 2011. 4

2. Page 700 of Form 6 serves as a preliminary screening tool for shippers to evaluate interstate pipeline rates subject to the Commission's jurisdiction. 5 Thus, in Order Nos. 620 and 620-A, the Commission clarified that page 700 must include only jurisdictional costs and jurisdictional revenues (i.e. interstate costs and interstate revenues) and not a combination of jurisdictional and non-jurisdictional data. 6 Page 700 contains data for the current year and previous year, which allows shippers and the Commission to evaluate the pipeline's cost changes during the prior year. 7

3. On July 29, 2011, the Commission issued a Notice of Proposed Rulemaking (NOPR)  8 proposing to modify the instructions for line (11)  9 and line (12)  10 of page 700 to specify that pipelines must report only interstate barrels and interstate barrel-miles, not a combination of interstate and intrastate throughput. The NOPR observed that the current instructions on page 700 for lines (11) and (12) may inadvertently have caused some pipelines to report barrel and barrel-mile throughput that combines interstate and intrastate data. 11

4. In addition to modifying the instructions for the page 700, the NOPR further proposed to require any pipeline that reported combined interstate and intrastate data in lines (1) through (12) on page 700 to file a revised page 700 of the 2010 Form 6 containing interstate-only data for 2009 and 2010.

5. On April 18, 2012, following the issuance of the NOPR and after the filing of comments in this proceeding, pipelines filed the 2011 Form 6, which contains page 700 data for 2011 and 2010.

6. Comments on the NOPR were due on October 3, 2011. Comments were filed by Valero Marketing and Supply Company (Valero); Air Transport Association of America and the National Propane Gas Association (ATA/NPGA); Magellan Pipeline, L.P. (Magellan); Association of Oil Pipelines (AOPL);  12 Enbridge Pipelines Inc.; and R. Gordon Gooch (Mr. Gooch). AOPL, Valero and Mr. Gooch filed reply comments, which the Commission accepts as they assisted our decision-making process.

7. The NOPR proposed to modify the instructions for line (11) and line (12) of page 700 to specify that pipelines must report only interstate barrels and interstate barrel-miles and not a combination of interstate and intrastate throughput.

8. Valero, ATA/NPGA, and Mr. Gooch support the clarification that pipelines are to report on page 700 only interstate barrels and barrel-miles. They state that this change is consistent with the purpose of page 700. Magellan also states that it supports the proposal. AOPL and Enbridge state that they do not oppose the proposal to change the instructions on page 700.

9. The Commission adopts the proposal to clarify that the barrel and barrel-mile data reported on lines (11) and (12) of page 700 must include interstate-only data and may not comingle interstate and intrastate data. None of the parties oppose this change. This modification will ensure that the interstate-only revenues and costs currently required to be reported on page 700 are accompanied by interstate-only volumes.

10. The NOPR proposed that pipelines that reported combined interstate and intrastate data in lines (1) through (12) on page 700 should file a corrected 2010 Form 6 page 700 containing interstate only data for 2009 and 2010.

11. Valero, ATA/NPGA, and Mr. Gooch support requiring pipelines that included intrastate data in the page 700 on the 2010 Form 6 to file revised 2009 and 2010 data containing interstate-only information. In addition, Valero and ATA/NPGA request that the Commission require pipelines to re-file corrected page 700 going back to the 2005 Form 6. Valero, ATA/NPGA, and Mr. Gooch state that once the Commission has gathered the page 700 information, it should then re-evaluate the appropriateness of the current oil pipeline index  13 based upon the prior years' page 700 information. The current index adjustment is the result of the Commission's recent five-year review of the index conducted in 2010. 14 Shipper parties had proposed using page 700 in the 2010 five-year review of the index level and now claim that the Commission rejected the use of the page 700 data only due to the interstate/intrastate mismatch on page 700, which is being remedied by this proceeding. Valero argues that burden on pipelines of re-filing data back to 2005 is likely to be negligible. Extrapolating from the cost estimates in the NOPR, Valero asserts that re-filing corrected Form 6, page 700 going back to 2005 would be $171.10 for a pipeline that is re-filing all five-years.

12. In contrast, AOPL, Magellan, and Enbridge oppose requiring any pipeline that comingled interstate and intrastate costs to re-submit 2009 page 700 data. AOPL and Magellan assert that there is no compelling regulatory need for the 2009 data. AOPL argues that requiring 2009 data is a retroactive action that is contrary to the precepts of administrative law. 15 These parties do not raise objections to filing interstate-only 2010 data as part of the 2011 Form 6 to be filed on April 18, 2012.

13. Additionally, AOPL and Magellan dispute the NOPR's estimate that re-filing 2009 and 2010 data will only be one hour per filer. AOPL contends that it can be difficult to determine whether a movement is interstate or intrastate. Similarly, Magellan states that until the most recent 2010 Form 6 filed on April 18, 2011, Magellan filed comingled interstate and intrastate throughput and operating cost data on its page 700. Based upon its own experience, Magellan estimates that revisions to 2009 data for other pipelines would require forty man-hours over a three-week period involving multiple personnel.

14. In its reply comments, AOPL asserts that Valero, ATA/NPGA, and Mr. Gooch's proposal to require re-filing of page 700 data going back the 2005 Form 6 is an improper collateral attack on the Commission's decisions in the 2010 Five-Year Index Review. AOPL adds that if the Commission considers using page 700 to calculate the index in the future, the Commission must address the objections that were raised in the last five-year review. 16

15. Also in its reply comments, AOPL reiterates its position that the request for corrected 2009 data has not been justified. AOPL contends that the burden of recalculating the 2010 Form 6, page 700 data substantially exceeds the one hour per filer estimated by the NOPR. AOPL states that sorting out the jurisdictional status of individual pipeline movements and recalculating the correct number of barrels and barrel-miles to each destination can be quite time consuming. Responding to Valero, ATA/NPGA, and Mr. Gooch, AOPL states that the further back in time the recalculation is required, the more difficult the data is to reconstruct. AOPL adds that there have been significant changes in pipeline ownership and operations since 2005, making it more difficult to reconstruct historic data.

16. In its reply comments, Valero denies that its request is a collateral attack on the 2010 Five-Year Index Review. Valero emphasizes the importance of the index level for shipper costs. Citing the NOPR's estimate of a total cost of $11,362.70 to correct the referenced reporting errors for the years 2009 and 2010, Valero asserts that requiring pipelines to file corrected data for 2006, 2007, and 2008 would cost $35,000. Valero disputes AOPL's and Magellan's claims regarding burden of filing revised interstate-only page 700 information. Valero observes that only one pipeline (Magellan) raised objections to the Commission's burden estimate. Valero states that pipelines such as Magellan already report intrastate and interstate revenue on page 301 of the Form 6. Thus, Valero concludes that pipelines should be fully aware of the corresponding interstate and intrastate movements, barrels, and barrel-miles, underlying these reported revenue amounts. Valero notes that pipelines are already required to report interstate-only data for lines (1) through (10).

17. In the NOPR, the Commission proposed to require any pipeline that reported comingled interstate and intrastate data on lines (1) through (12) of the 2010 Form 6, page 700 to file revised 2010 Form 6, page 700 data for the years 2010 and 2009. In addition, following the issuance of the NOPR and after the filing of comments, pipelines filed the 2011 Form 6 on April 18, 2012, which contains page 700 data for 2011 and 2010.

18. Accordingly, the Commission directs any pipeline that reported combined interstate and intrastate data in any field on lines (1) through (12) of page 700 of its 2010 Form 6 or page 700 of its 2011 Form 6 to file revised page 700 data containing only interstate data for the years 2009, 2010 and 2011.

19. This action ensures the availability of complete interstate cost per barrel-mile data consistent with the Commission's regulation of interstate oil pipeline rates and the intent of page 700 to enable the Commission and shippers to analyze interstate pipeline costs. For example, the interstate-only information for the year 2009, 2010 and 2011 will provide the Commission with useful information during the next five-year review of the Commission's index level. 17 In the recent 2010 Five-Year Index Review, parties urged the Commission to modify its existing practice and to use page 700 data to calculate the oil pipeline index. 18 The Commission determined that it could not use data from page 700 because the page 700 instructions, which are being corrected by this order, created a “mismatch between the page 700 total cost-of-service, which includes only interstate data, and the page 700 throughput data, which includes interstate and intrastate data.”  19 Thus, by collecting the interstate-only page 700 data for 2009, 2010 and 2011, as directed by this order, the Commission will have available complete page 700 data for the five-year (2009-2014) period to use during the 2015 Five-Year Index Review if deemed appropriate. 20

20. The Commission will not require pipelines to file revised page 700 data for the years prior to 2009. The sole purpose given by Valero, ATA/NPGA, and Mr. Gooch for requesting this information is to reconsider the conclusions of the Commission's 2010 Five-Year Index Review. The proposal to revisit the indexing calculation is a collateral attack on the recently completed 2010 Five-Year Index Review, which has been administratively final as of the Commission's order on rehearing. 21 A request to further reconsider the Commission's indexing methodology and to re-calculate the index level is unnecessary given the scope of that proceeding and the use of the Commission's established methodology. 22

21. In response to AOPL, Magellan, and Enbridge, the Commission does not view the re-filing requirement for the 2010 Form 6, page 700 and the 2011 Form 6, page 700 as creating an undue burden. The Commission is not persuaded that requiring pipelines to file revised 2009, 2010 or 2011 interstate only page 700 data will be as difficult or costly as AOPL, Magellan, and Enbridge suggest. This requirement will only affect pipelines that filed comingled interstate and intrastate data on the page 700. Regarding cost and revenue data, the Commission's directive does not impose an expense on pipeline parties that is not already embodied in existing Commission rules. The Commission clarified over a decade ago that cost and revenue information reported on lines (1) through (10) of page 700 data should include interstate-only data. 23 No party disputes this.

22. Regarding the barrel and barrel-mile data on lines (11) and (12), Magellan and AOPL contend that it is sometimes difficult to determine whether a shipment is interstate or intrastate. However, compliance with the existing requirement for pipelines to file only interstate costs and revenues on lines (1) through (10) requires a similar determination distinguishing between interstate shipments and intrastate shipments. 24

23. Magellan requests that the Commission permit flexibility in the methodology that pipelines adopt for allocating intrastate and interstate cost data in page 700. Magellan asserts that it is not possible to precisely segregate interstate cost data from intrastate cost data in all instances. Thus, Magellan asserts that a dual use pipeline will need to develop its own methodology for allocating such costs. Magellan states that prior to the Form No. 6 it filed in 2010, Magellan included both interstate and intrastate data on page 700. Magellan states that to do so, it developed and adopted a methodology to allocate operating expenses between interstate and intrastate movements based upon a barrel-mile analysis. Thus, Magellan states that it used this methodology to allocate operating expenses between interstate and intrastate movements on a barrel-mile basis.

24. The Commission will deny Magellan's request. We will not pass judgment in this proceeding on past or future page 700 submissions or the methodologies used to separate interstate from intrastate. The purpose of this order is to modify the instructions for lines (11) and (12) of page 700 related to reporting barrels and barrel-miles of throughput. In filing page 700, pipelines are required to follow the Commission's cost-of-service methodology. Magellan's request for clarification is further inapposite because the Commission clarified a decade ago in Order No. 620-A 25 that pipelines were only to report interstate (as opposed to interstate and intrastate) costs on lines (1) through (10) of page 700. To the extent that Magellan is concerned that its system creates novel circumstances, Magellan can seek specific guidance from the Commission or Commission Staff regarding the particular allocation methodology that it has adopted.

25. The parties raised multiple issues related to other aspects of page 700 or Form 6. Valero and ATA/NPGA contend that revisions should be made to page 700 so that each pipeline and/or system is separately reported on page 700. 26 Valero and ATA/NPGA also argue that pipelines should be required to provide the workpapers supporting page 700 to the shippers. ATA/NPGA also proposes to require pipelines to file the entire Form 6 before they can file for an index rate increase. 27

26. Parties also raised issues not involving Form 6. ATA/NPGA further asserts that the Commission should change the interest rate applicable to refunds and reparations. ATA/NPGA and Mr. Gooch also raise issues related to alleged over-recoveries by certain pipelines. ATA/NPGA and Mr. Gooch argue that pipelines showing over-recoveries on their Form No. 6 annual report should be required to show cause why their rates should not be considered unjust and unreasonable. Mr. Gooch also objects to the Commission's regulations and policies regarding protests and complaints against oil pipeline rates. Valero asserts that the Commission should clarify that shippers retain the right to challenge, via protest or complaint, the 2011 index rate increases for pipelines that have filed deficient cost and revenue data on page 700. Mr. Gooch also asks that the Commission clarify precisely how barrel-miles may be used to demonstrate reasonable grounds to believe that the rate increase is “substantially divergent” from the costs so that the resulting rates may not be just and reasonable.

27. In its reply comments, AOPL states that these comments are beyond the scope. AOPL adds that the Shippers have repeatedly raised and the Commission has repeatedly rejected (a) proposals to segregate Form 6 and page 700 data by pipeline system and (b) require pipelines to file their page 700 workpapers with the Form 6. 28 AOPL states that nothing has changed since the Commission last rejected these proposals in 2008. Specifically responding to Mr. Gooch's comments regarding pipeline over-recoveries, AOPL states that shippers have the option to file a complaint to the extent that they are concerned with the level of individual pipeline rates.

28. In his reply comments, Mr. Gooch contends that his comments are not beyond the scope because, he argues, they are a constitutionally protected petition for a redress of grievances. Mr. Gooch also reiterates his comments regarding alleged over-recoveries by certain pipelines and asserts that it is difficult to file complaints.

29. These issues are beyond the scope of this proceeding, which is limited to a minor correction to the throughput levels reported on page 700 and obtaining corrected data for 2009, 2010, and 2011. No party opposed the limited change to page 700 that was actually presented in the NOPR. Given the limited nature of the NOPR, this proceeding is not the appropriate forum for considering additional changes to FERC Form No. 6, such as the segregation of data or changing Commission policy to make available pipeline cost-of-service workpapers. Other issues, such as the Commission's policies regarding protests to pipeline rates, are also not before the Commission and will be addressed as they arise in litigation.

30. The Commission's estimate of the additional Public Reporting Burden and cost related to the final rule in Docket RM11-21-000 follow. The Commission recognizes that there will be a one-time increased burden involved in the initial implementation associated with: (a) Using only interstate figures for lines 1-12 of page 700, and (b) re-filing of revised data for lines (1) through (12) of page 700 for 2009, 2010, and 2011. Given the time it takes to verify data and file it with the Commission, we may have underestimated the one hour average per filer. Consequently we have revised the average burden to four hours for filing corrected 2009 and 2010 page 700 data. In this final rule, the Commission is also seeking revised 2011 data. Thus, we estimate an additional one-time burden of six hours per filer for the combined implementation and the re-filing of the page 700 for the 2009, 2010, and 2011 data. For the recurring effort involved in filing interstate data on lines (1) through (12) of page 700 for 2012 and future years, we estimate that the change in burden is negligible (after the initial implementation).

The additional one-time burden of 996 hours is being spread over the three years for the purposes of submittal to the Office of Management and Budget (OMB), giving an average additional annual burden of 332 hours.

Information Collection Costs: The Commission seeks comments on the costs and burden to comply with these requirements.

Total additional one-time cost = $68,733.96.

Title: FERC Form No. 6, Annual Report of Oil Pipeline Companies.

Action: Revision to the FERC Form 6.

OMB Control No: 1902-0022.

Respondents: Public and non-public utilities.

Frequency of Responses: Initial implementation and one-time re-filing of selected data for 2009, 2010, and 2011.

Necessity of the Information: This action ensures the availability of complete interstate cost per barrel-mile data consistent with the Commission's regulation of interstate oil and petroleum product pipeline rates and the intent of page 700 to enable the Commission and shippers to analyze interstate pipeline costs.

Internal review: The Commission has reviewed the proposed changes and has determined that the changes are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements.

31. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email: DataClearance@ferc.gov, Phone: (202) 502-8663, fax: (202) 273-0873]. Comments on the requirements of this rule may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at oira_submission@omb.eop.gov. Please reference OMB Control No. 1902-0022, FERC-6 and the docket number of this rulemaking in your submission.

32. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 31 The actions taken here fall within categorical exclusions in the Commission's regulations for information gathering, analysis, and dissemination. 32 Therefore, an environmental assessment is unnecessary and has not been prepared in this rulemaking.

33. The Regulatory Flexibility Act of 1980 (RFA) requires agencies to prepare certain statements, descriptions, and analyses of proposed rules that will have a significant economic impact on a substantial number of small entities. 33 Agencies are not required to make such an analysis if a rule would not have such an effect.

34. The Commission does not believe that this rule will have an adverse impact on small entities, nor will it impose upon them any significant costs of compliance. The Commission identified 29 small entities as respondents to the requirements in the proposed rule. 34 As explained above, the change to page 700 will not increase the burden of preparing page 700. Further, the time required to implement changes and to file any necessary one-time revision of the page 700 data as specified in this order is minimal (an average of six hours per company). The Commission does not estimate that there are any other regulatory burdens associated with this final rule. Thus, the Commission certifies that the final rule would not have a significant economic impact on a substantial number of small entities.

35. These regulations are effective December 31, 2012. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.

36. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

37. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

38. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov.

140 FERC ¶ 61,202 Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, John R. Norris, Cheryl A. LaFleur, and Tony T. Clark.

(Issued September 20, 2012)

1. The Energy Policy Act of 2005 added section 215 to the Federal Power Act (FPA), which requires a Commission-certified Electric Reliability Organization (ERO) to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. 1 Under this section, the ERO must, among other things, “allocate equitably reasonable dues, fees, and other charges among end users for all activities under this section,”  2 and the Commission also must issue regulations authorizing the ERO to enter into an agreement to delegate authority to a Regional Entity if the Regional Entity meets certain conditions. 3

2. In Order No. 672, the Commission adopted regulations in accordance with FPA sections 215(c)(2)(B) and 215(e)(4): 39.4, Funding of the Electric Reliability Organization; 39.8, Delegation to a Regional Entity; and 39.10, Changes to an Electric Reliability Organization Rule or Regional Entity Rule. 4

3. Section 39.4 of the Commission's regulations requires the ERO to file with the Commission its proposed annual budget for statutory and non-statutory activities 130 days before the beginning of its fiscal year. 5 This filing must also contain the line item budgets of each Regional Entity for statutory and non-statutory activities, and include supporting materials, including the ERO's and each Regional Entity's complete business plan and organization chart, and an explanation of the proposed collection of all dues, fees and charges and the proposed expenditure of funds collected. 6 After notice and opportunity for hearing, the Commission will issue an order accepting, rejecting, remanding or modifying the ERO's proposed budget and business plan no later than sixty days in advance of the beginning of the ERO's fiscal year. 7 If the ERO requires additional funding before or after the fiscal budget review process, it may file with the Commission for authority to collect a special assessment; it must demonstrate that the request is pursuant to an unforeseen, extraordinary circumstance. 8

4. Section 39.8 of the Commission's regulations requires the ERO to submit to the Commission for Commission approval any proposal to delegate the ERO's authority to a Regional Entity for the purpose of proposing or enforcing Reliability Standards. 9 Alternatively, if a Regional Entity is unable to negotiate a delegation agreement with the ERO within a reasonable amount of time, it may apply to the Commission to assign to it the ERO's authority. 10

5. Section 39.10 of the Commission's regulations requires the ERO to file with the Commission for Commission approval any proposed organization rule or rule change, including any Regional Entity rule or rule change. 11

6. Due to an internal Commission reorganization, the Office of Energy Market Regulation (OEMR) will be responsible to review ERO filings made pursuant to sections 39.4, 39.8, and 39.10 of the Commission's regulations. Accordingly, this Final Rule revises the delegations to the Director of OEMR, contained in section 375.307, to add authority to act pursuant to delegated authority on filings made pursuant to the aforementioned sections; thus, it reassigns from the Director of the Office of Electric Reliability (OER) to the Director of OEMR the delegations authorizing OER to act pursuant to sections 39.4, 39.8, and 39.10.

7. New section 375.307(a)(2)(v) delegates to the Director of OEMR the authority to take appropriate action on budget, business plan, and special assessment filings made pursuant to section 39.4.

8. New section 375.307(a)(2)(vi) delegates to the Director of OEMR the authority to take appropriate action on proposed ERO or Regional Entity organization rules or rule changes made pursuant to section 39.10.

9. New section 375.307(a)(2)(vii) delegates to the Director of OEMR the authority to take appropriate action on delegation agreement filings by the ERO or a Regional Entity made pursuant to section 39.8.

10. This Final Rule also revises that portion of section 375.303(a)(2)(i) stating that OER has the authority to approve revisions to ERO and Regional Entity rules or procedures, to reflect the change in Commission organization.

11. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. 12 This Final Rule contains no new or revised information collections. Therefore, OMB review of this Final Rule is not required.

12. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 13 Excluded from this requirement are rules that are procedural, ministerial, or internal administrative and management actions, programs or decisions. 14 This Rule falls within this exception; consequently, no environmental consideration is necessary.

13. The Regulatory Flexibility Act of 1980 (RFA)  15 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. This Final Rule concerns a matter of internal agency procedure and it will not have such an impact. An analysis under the RFA is therefore not required.

14. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( http://www.ferc.gov ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

15. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document (i.e., the sub docket number, 000) in the docket number field.

16. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at (866) 208-3676) or email at ferconlinesupport@ferc.gov , or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov .

17. The provisions of 5 U.S.C. 801 regarding Congressional review of Final Rules do not apply to this Final Rule because the rule concerns internal agency procedure and practice and will not substantially affect the rights of non-agency parties.

18. These regulations are effective on October 1, 2012. The Commission finds that notice and public comments are unnecessary because this Rule concerns only internal agency procedure and practice. Therefore the Commission finds good cause to waive the notice period otherwise required before the effective date of this Final Rule.

In consideration of the foregoing, the Commission amends Part 375, Chapter I, Title 18, Code of Federal Regulations, as follows:

I. Background A. Statutory Provisions

On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (“USA PATRIOT Act”). Title III of the USA PATRIOT Act amends the anti-money laundering provisions of the BSA, codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959, and 31 U.S.C. 5311-5314 and 5316-5332, to promote the prevention, detection, and prosecution of money laundering and the financing of terrorism. Regulations implementing the BSA appear at 31 CFR Chapter X. 1 The Secretary of the Treasury (the “Secretary”) has delegated his authority to administer the BSA and its implementing regulations to the Director of the Financial Crimes Enforcement Network. 2

Section 311 of the USA PATRIOT Act (“section 311”) added Section 5318A to the BSA, granting the Secretary the authority, upon finding that reasonable grounds exist for concluding that a foreign jurisdiction, foreign financial institution, class of international transactions, or type of account is of “primary money laundering concern,” to require domestic financial institutions and domestic financial agencies to take certain “special measures” against the primary money laundering concern. 3

Taken as a whole, Section 5318A provides the Secretary with a range of options that can be adapted to target specific money laundering and terrorist financing concerns most effectively. These options provide the authority to bring additional and useful pressure on those jurisdictions and institutions that pose money-laundering threats and the ability to take steps to protect the U.S. financial system. Through the imposition of various special measures, FinCEN can: Gain more information about the concerned jurisdictions, financial institutions, transactions, and accounts; monitor more effectively the respective jurisdictions, financial institutions, transactions, and accounts; and, ultimately, protect U.S. financial institutions from involvement with jurisdictions, financial institutions, transactions, or accounts that pose a money laundering concern.

Myanmar Mayflower Bank was incorporated in 1996 as a full-service commercial bank in Rangoon, Burma. At the time of the final rule, the bank maintained 25 branches and had 1,153 employees. The Banker's Almanac and Dun and Bradstreet reports indicated that Mayflower Bank was incorporated in 1994.

Asia Wealth Bank started its banking operation in 1995, was one of the largest private banks in Burma, and offered a wide variety of banking services. In August 2000, Asia Wealth Bank held 52 percent of the market share in fixed deposits of Burmese banks (over U.S. $23 billion). At the end of March 2001, it had 39 branches with a total of 3,200 employees (in December 2002, Dun and Bradstreet indicated only 2,200 employees).

Based upon review and analysis of relevant information, consultations with relevant Federal agencies and departments, and after consideration of the factors enumerated in section 311, the Secretary found that reasonable grounds existed for concluding that Myanmar Mayflower Bank and Asia Wealth Bank (“the Banks”) were financial institutions of primary money laundering concern. 4 Based on that finding, FinCEN issued a notice of proposed rulemaking to impose the special measure authorized under 31 U.S.C. 5318A(b)(5) against the Banks. 5

After consulting with required Federal agencies and parties, reviewing public comments received on the notice of proposed rulemaking, and considering additional relevant factors, FinCEN issued a final rule on April 12, 2004 that imposed the special measure authorized under 31 U.S.C. 5318A(b)(5) against the Banks. 6 The final rule requires covered financial institutions to terminate any correspondent or payable-through accounts for, or on behalf of, the Banks, and to apply due diligence reasonably designed to guard against indirect use of their correspondent or payable-through accounts by the Banks.

Subsequent to the issuance of the final rule related to the Banks, the Government of Burma revoked the licenses of the Banks in 2005 and neither financial institution currently exists. 7 Therefore, FinCEN hereby withdraws the finding that Myanmar Mayflower Bank and Asia Wealth Bank are financial institutions of primary money laundering concern, as of October 1, 2012. FinCEN is also repealing the final rule, as published in the Federal Register on April 12, 2004 (69 FR 19098) as 31 CFR 103.187 (now 31 CFR 1010.652), that was based upon the finding. FinCEN's withdrawal of the finding of primary money laundering concern against the Banks and the repeal of the related final rule do not acknowledge any remedial measures taken by the Banks, but are the result of the revocation of their licenses by the Government of Burma and the cessation of their business activities. Notwithstanding this document, the finding that the jurisdiction of Burma is of primary money laundering concern and the related outstanding 311 final rule imposing the special measure authorized under 31 U.S.C. 5318A(b)(5) on the jurisdiction of Burma are still in effect. 8

Although section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq .) requires notice and an opportunity for comment before an agency issues a final rule as well as a 30-day delayed effective date, it provides that an agency may dispense with these procedures when good cause exists. In this final rule, FinCEN has found that public comment procedures and delaying the effective date of the removal of the regulation would be contrary to the public interest. As discussed in this preamble, the Government of Burma revoked the licenses of the Banks that are the subject of the regulations and neither financial institution currently exists. Accordingly, FinCEN has found that good cause exists to dispense with prior notice and comment and a delay in effective date.

It has been determined that this rulemaking is not a significant regulatory action for purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required.

Section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), Public Law 104-4 (March 22, 1995), requires that an agency prepare a budgetary impact statement before promulgating a rule that may result in expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 202 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. FinCEN has determined that it is not required to prepare a written statement under Section 202 and has concluded that on balance the rule provides the most cost-effective and least burdensome alternative to achieve the objectives of the rule.

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), FinCEN certifies that this final regulation likely will not have a significant economic impact on a substantial number of small entities. The regulatory changes in this final rule merely remove the current obligations for financial institutions under 31 CFR 103.187 (now 31 CFR 1010.652).

This regulation discontinues the Office of Management and Budget Control Number 1506-AA63 assigned to the final rule and, as a result, reduces the estimated average burden of one hour per affected financial institution, totaling 5,000 hours. This regulation contains no new information collection requirements subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.).

For the reasons set forth above, 31 CFR part 1010 is amended as follows:

The Coast Guard will enforce the special local regulation for the annual San Francisco Bay Navy Fleet Week Parade of Ships and Blue Angels Demonstration in accordance with 33 CFR 100.1105.

Regulations for the Navy Parade of Ships will be enforced from 10:30 a.m. to 12:15 p.m. on October 6, 2012. Under the provisions of 33 CFR 100.1105, no person or vessel may enter or remain in regulated area “Alpha” within 500 yards of all parade vessels. No person or vessel shall anchor, block, loiter in, or impede the transit of the ship parade participants or official patrol vessels.

During the 2012 Fleetweek events, America's Cup World Series regattas will be held in conjunction with the U.S. Navy Blue Angels Activities as per an official agreement made between the America's Cup Race Management and the Fleetweek program coordinators. Regulations for the U.S. Navy Blue Angels Activities and the America's Cup World Series regattas will be enforced from noon until 6:30 p.m. on October 4, from 11:45 a.m. until 6 p.m. on October 5, from 11:45 a.m. until 6:30 p.m. on October 6, 2012, and from 11:15 a.m. until 4 p.m. on October 7, 2012. Within regulated area “Bravo” established in 33 CFR 100.1105(b)(2), no person or vessel may enter or remain within the waters of San Francisco Bay bounded by a line connecting the following points: beginning at 37° 49.096″ N, 122° 27.055' W, thence to 37° 49.389″ N, 122° 24.354″ W, thence to 37° 48.888″ N, 122° 24.272″ W, thence to 37° 48.598' N, 122° 26.973″ W and thence to the point of beginning (“Fleet Week box”) (NAD 83).

In the southern portion of regulated area “Bravo,” the Coast Guard will enforce a no-loitering area 75-yards south of the Fleet Week box, extending west from Pier 45 and ending at the western edge of the Fleet Week box. While transiting this no-loitering area, vessels shall proceed at a safe speed as not to cause a wake. This requirement will be strictly enforced to preserve the safety of both life and property. Except for persons or vessels authorized by the Patrol Commander, no person or vessel may anchor or loiter in the areas described above within regulated area “Bravo.”

When hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, a person or vessel shall come to an immediate stop. Persons or vessels shall comply with all directions given; failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 100.1105 and 5 U.S.C 552 (a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with extensive advance notification of this enforcement period via the Local Notice to Mariners, and Broadcast Notice to Mariners.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect vessels from the hazards associated with the installation of cable into the Chicago River, which are discussed further below.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

Between September 28, 2012 and October 8, 2012 John Burns Construction Company will be installing submarine cables beneath the waters of the Chicago River at both the West Adams Street and West Jackson Boulevard bridges. The Captain of the Port, Sector Lake Michigan, has determined that this cable installation project will pose a significant risk to public safety and property. Such hazards include collisions between contractors and vessel traffic, and the striking of keels and propellers against cable lines.

With the aforementioned hazards in mind, the Captain of the Port, Sector Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of vessels during the installation. This zone will be enforced between 4 a.m. and 5 p.m. on September 28, 2012 and October 5, and 8, 2012.

The safety zone will encompass all waters of the Chicago River in the vicinity of the West Adams Street and West Jackson Boulevard bridges.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Chicago River, Chicago, IL on September 28, and October 5 and 8, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only 3 days. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

This document addresses requests from Ohio to incorporate the following rules into the Ohio SIP.

Ohio's federally approved construction program, Ohio Administrative Code (OAC) 3745-31 (“Permits to Install New Sources of Pollution”) provides the authority for OEPA to issue PTIs to new sources of air pollution or modifications to existing sources of air pollution. For attainment areas, the program was conditionally approved into Ohio's SIP on October 10, 2001 (66 FR 51570) and fully approved on January 22, 2003 (68 FR 2909). For nonattainment areas, the program was fully approved on January 10, 2003 (68 FR 1366). Included in this program at OAC 3745-31-03 (“Permit to install exemptions”) are exemptions from the requirement to obtain a PTI before constructing or modifying a source of air pollution. The types of exemptions include permanent exemptions, Federal-based exemptions, discretionary exemptions, and PBR exemptions (exempting certain sources from the PTI requirement as long as they comply with the relevant provisions of the PBR rule).

On April 24, 2006, EPA received a request from OEPA to approve the addition of two permanent exemptions and six PBR provisions to the SIP. This document addresses the request.

Prior to the rulemaking, a minor source (that is, a source not subject to Title V of the Clean Air Act) in Ohio would be issued both a PTI under OAC 3745-31 and a Permit to Operate (PTO) under OAC 3745-35 (“Air Permits to Operate and Variances”). Ohio is now combining both permit programs into a new PTIO program. Under the PTIO program, a minor source would be issued one PTIO instead of a PTI and a PTO.

On June 30, 2008, the state regulations to implement the PTIO program became effective and OAC 3745-35 was rescinded. On July 18, 2008, OEPA submitted to EPA a request to approve the addition of the PTIO program and a general permit program to the SIP. The changes to Ohio's SIP involve the modification of various parts of OAC 3745-31, the removal of OAC 3745-35, and the addition of OAC 3745-31-29 to enable the issuance of federally enforceable general PTIs and general PTIOs. This document addresses the request.

EPA is approving the requested modifications and additions to the permanent exemption and PBR provisions in OAC 3745-31-03. The significant changes are as follows.

The permanent exemption from the requirement to obtain a PTI for organic liquid storage tanks is being expanded to cover larger tanks. Currently, the exemption only applies to tanks with a capacity less than 10,000-gallons; the modification would exempt tanks of less than 19,815-gallon capacity (except for gasoline storage tanks at bulk gasoline plants), tanks between 19,815 and 39,894-gallon capacity with maximum true vapor pressure less than 2.176 pounds per square inch absolute (psia), and tanks of 39,894-gallon or greater capacity with maximum true vapor pressure less than 0.508 psia. Note that permanent exemptions under this rule do not exempt any source from the requirements of the Clean Air Act, including but not limited to, being considered for purposes of determining whether a facility constitutes a major source or being included in a Title V permit application.

PBR exemptions from the requirement to apply for individual PTIs are being added for auto body refinishing facilities, gasoline dispensing facilities with Stage I controls, gasoline dispensing facilities with Stage I and Stage II controls, boilers and heaters, small printing facilities, and mid-size printing facilities that meet certain size, throughput, and process requirements. Each PBR exemption has requirements for emission limitation and/or control, monitoring and/or recordkeeping, reporting, and testing. Furthermore, the PBR exemptions rule now includes general provisions for recordkeeping, record retention, notification, and reporting requirements that apply to all sources utilizing the PBR exemptions. The general provisions clarify that the PBR exemptions do not exempt any source from the requirements of the Clean Air Act, including but not limited to, being considered for purposes of determining whether a facility constitutes a major source or being included in a Title V permit application.

In a December 1, 2008 letter, Ohio provided technical support for the PBR and PTIO provisions to demonstrate that the provisions are protective of the national ambient air quality standards, prevention of significant deterioration increments, reasonable further progress demonstrations and visibility, and are not in violation of section 193 of the Clean Air Act, “General Savings Clause.”

In a February 14, 2012 letter, Ohio provided a survey of the estimated emissions from the state's organic liquid storage tanks to demonstrate that the modified permanent exemption for organic liquid storage tanks would have no negative impact on air quality. In a May 24, 2012 email, Ohio clarified that in the context of this exemption, an “organic liquid” is an organic compound at the temperature and pressure experienced inside the storage tank, and that the organic liquid would have to remain a liquid to qualify for the exemption. The email further clarified that the “submerged fill” mentioned in this rule is the same as a “submerged fill pipe” as defined in OAC 3745-21-01(C)(6).

OAC Chapter 3745-35, which contained the rules for PTOs and Federally Enforceable State Operating Permits, is being rescinded in its entirety from the SIP. OAC 3745-31-29 (“General permits-to-install and general PTIO”) is being added to the SIP to make Ohio's general PTIs and general PTIOs federally enforceable. General PTIs and general PTIOs are based on model permits issued by OEPA. Sources may apply for coverage under a model permit rather than apply for individual permits. Only minor sources may qualify for coverage under a general permit.

Other, previously approved parts of Ohio's SIP are being modified as follows:

a. OAC 3745-15-03 (“Submission of emission information”), is being modified to replace all instances of “Board Director” to “Director.”

b. OAC 3745-31-01 (“Definitions”), which provides definitions for the permit program, is being expanded to include definitions for “permits to install and operate,” “PTIOs,” and “express permit processing.” The SIP revision submittal includes changes to the definitions of “Air contaminant source” and “Major stationary source” but, per OEPA's request in its July 18, 2008 submittal, we are not approving these two changes at this time.

c. OAC 3745-31-02 (“Requirements”) now requires sources to obtain PTIs or PTIOs before installation or modification, whether or not such sources are subject to Title V of the Clean Air Act (administered in Ohio under OAC 3745-77). Existing PTIs and PTOs remain effective until superseded by PTIOs. Note that this rule no longer contains the previously approved rule's provisions applying to solid waste disposal facilities and land application of sludge.

d. OAC 3745-31-04 (“Applications”) is being expanded to require PTIO applications.

e. OAC 3745-31-05 (“Criteria for decision by the director”) is being expanded to require PTIOs to contain the Best Available Technology (BAT), which is a previously SIP-approved requirement. Certain terms from the rescinded OAC 3745-35, such as conditional permits, are being incorporated into the new PTIO rules. Per Ohio's request in its July 18, 2008 submittal, we are not presently approving the provision that exempts sources with the potential to emit less than 10 tons per year from the BAT requirement.

f. OAC 3745-31-06 (“Termination”) is being rescinded in its entirety and replaced by a new OAC 3745-31-06 (“Completeness determination, processing requirements, public participation, public notice, and issuance”).

g. OAC 3745-31-07 (“Revocation”) is being expanded to cover termination, expiration, renewal, revision, and transfer.

h. OAC 3745-31-08 (“Procedure for decision by director”) is being rescinded in its entirety and replaced by a new OAC 3745-31-08 (“Registration status permit-to-operate”) that provides the ongoing requirements for non-Title V sources that received registration status under the rescinded OAC 3745-35.

i. OAC 3745-31-09 (“Air permit-to-install completeness determinations, public participation, and public notice”) is being rescinded in its entirety and replaced by a new OAC 3745-31-09 (“Variances on operation”) that has the provisions for variances that were in the rescinded 3745-35.

j. OAC 3745-31-10 (“Air stationary source obligations”) is undergoing relocation of certain terms to other parts of the SIP.

k. OAC 3745-31-20 is undergoing minor revisions to update rule citations.

l. OAC 3745-31-22 is undergoing removal of two references to pollution control projects, a component of federally required New Source Review (NSR) Reform regulations that was vacated from the Federal NSR program.

EPA is approving the modification of OAC 3745-31-03 to incorporate PBRs for auto body refinishing facilities, gasoline dispensing facilities with Stage I controls, gasoline dispensing facilities with Stage I and Stage II controls, boilers and heaters, small printing facilities, and mid-size printing facilities. EPA is approving the modification of OAC 3745-31-03 to incorporate permanent exemptions for organic liquid storage tanks of less than 19,815-gallon capacity, between 19,815 and 39,894-gallon capacity, and tanks of 39,894-gallon or greater capacity. EPA is approving the rescission of OAC 3745-35 and the modification of OAC 3745-15-03, 3745-31-01, 3745-31-02, 3745-31-04, 3745-31-05, 3745-31-06, 3745-31-07, 3745-31-08, 3745-31-09, 3745-31-10, 3745-31-20, and 3745-31-22 to accommodate Ohio's PTIO program, reorganize other provisions, and remove vacated NSR Reform provisions. EPA is approving OAC 3745-31-29, the program for General PTIs and General PTIOs, as an addition to the SIP.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective November 30, 2012 without further notice unless we receive relevant adverse written comments by October 31, 2012. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective November 30, 2012.

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

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

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

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

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

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

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

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

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

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

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 November 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Table of Contents I. Background II. This Action III. Final Action IV. Statutory and Executive Order Reviews I. Background

Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 38652), EPA promulgated a new annual PM 2.5 NAAQS and on October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On June 11, 2012, EPA proposed to approve Alabama's July 25, 2008, and September 23, 2009, infrastructure submissions for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. See 77 FR 34288. A summary of the background for today's final action is provided below. See EPA's June 11, 2012, proposed rulemaking at 77 FR 34288 for more detail.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. The data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM 2.5 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous PM NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this final rulemaking are listed below  1 and in EPA's October 2, 2007, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards.” and September 25, 2009, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards.”

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures. 2

• 110(a)(2)(D): Interstate transport. 3

• 110(a)(2)(E): Adequate resources.

• 110(a)(2)(F): Stationary source monitoring system.

• 110(a)(2)(G): Emergency power.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D. 4

• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

EPA is taking final action to approve Alabama's infrastructure submissions as demonstrating that the State meets certain applicable requirements of sections 110(a)(1) and (2) of the CAA for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. EPA notes that sections 110(a)(2)(D)(i) and (E)(ii) are not addressed by today's action. Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. ADEM certified that the Alabama SIP contains provisions that ensure the 1997 annual and 2006 24-hour PM 2.5 NAAQS are implemented, enforced, and maintained in Alabama.

EPA received no adverse comments on its June 11, 2012, proposed approval of Alabama's July 25, 2008, and September 23, 2009, infrastructure submissions. Additionally, on September 10, 2012, EPA signed a final rulemaking action approving revisions to Alabama's New Source Review (NSR) requirements. EPA is not taking action today on Alabama's NSR program, as these requirements are already approved in Alabama's SIP.

Alabama's infrastructure submissions, provided to EPA on July 25, 2008, and September 23, 2009, address all the required infrastructure elements for the 1997 annual and 2006 24-hour PM 2.5 NAAQS with the exception of sections 110(a)(2)(D)(i) and (E)(ii) which will be addressed in a separate action. EPA has determined that Alabama's July 25, 2008, and September 23, 2009, submissions are consistent with the requirements of CAA section 110 being acted upon today.

As already described, ADEM has addressed certain elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to ensure that 1997 annual and 2006 24-hour PM 2.5 NAAQS are implemented, enforced, and maintained in Alabama. EPA is taking final action to approve Alabama's July 25, 2008, and September 23, 2009, submissions for 1997 annual and 2006 24-hour PM 2.5 NAAQS (with the exception of sections 110(a)(2)(D)(i) and (E)(ii)) because these submissions are consistent with section 110 of the CAA. Today's action is not approving any specific rule, but rather making a determination that Alabama's already approved SIP meets certain CAA requirements.

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. Incorporation by Reference A. What is codification?

Codification is the process of including the rules and regulations that comprise the State's authorized hazardous waste management program in the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, 42 U.S.C. 6926(b), allows the Environmental Protection Agency to authorize State hazardous waste management programs. The State regulations authorized by the EPA supplant the federal regulations concerning the same matter with the result that after authorization the EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by the EPA with the consequence that the EPA enforces the authorized statutory provision. The EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is Federally enforceable. The EPA retains independent enforcement authority pursuant to sections 3007, 3008, 3013 and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973 and any other applicable statutory and regulatory provisions.

This action codifies the EPA's authorization of revisions to Idaho's hazardous waste management program. This direct final action codifies the State program in effect at the time the EPA authorized revisions to the Idaho hazardous waste management program in a final rule effective July 11, 2012 (77 FR 34229, June 11, 2012). Notice and an opportunity for comment regarding those revisions to the authorized State program were provided to the public at the time those revisions were proposed. The EPA is not reopening its decision to authorize changes to the State's program nor is the EPA requesting comment on those revisions.

Idaho initially received final authorization for its hazardous waste management program effective April 9, 1990 (55 FR 11015, March 26, 1990). Subsequently, the EPA authorized revisions to the State's program effective June 5, 1992 (57 FR 11580, April 6, 1992), August 10, 1992 (57 FR 24757, June 11, 1992), June 11, 1995 (60 FR 18549, April 12, 1995), January 19, 1999 (63 FR 56086, October 21, 1998), July 1, 2002 (67 FR 44069, July 1, 2002), March 10, 2004 (69 FR 11322, March 10, 2004), July 22, 2005 (70 FR 42273, July 22, 2005), February 26, 2007 (72 FR 8283, February 26, 2007), December 23, 2008 (73 FR 78647, December 23, 2008), and July 11, 2012 (77 FR 34229, June 11, 2012). The EPA first codified Idaho's authorized hazardous waste management program effective February 4, 1991 (55 FR 50327, December 6, 1990), and updated the codification of Idaho's program effective June 5, 1992 (57 FR 11580, April 6, 1992), August 10, 1992 (57 FR 24757, June 11, 1992), August 24, 1999 (64 FR 34133, June 25, 1999), March 8, 2005 (70 FR 11132, March 8, 2005), April 20, 2006 (71 FR 20341, April 20, 2006), April 6, 2010 (75 FR 17309, April 6, 2010). In this action, the EPA is revising subpart N of 40 CFR part 272, to include the most recent authorization revision effective July 11, 2012 (77 FR 34229, June 11, 2012).

This action incorporates by reference the authorized revisions to the Idaho hazardous waste management program by revising subpart N of 40 CFR part 272. Previously, 40 CFR 272.651, incorporated by reference Idaho's authorized hazardous waste management program, as amended, through 2008. Section 272.651 also referenced the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provided the legal basis for the State's implementation of the hazardous waste management program. In addition, Section 272.651 referenced the Memorandum of Agreement, the Attorney General's Statement and the Program Description which were evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA. This action updates those demonstrations of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program, as well as the Memorandum of Agreement, the Attorney General's Statement and the Program Description, all of which were evaluated as part of the approval process for the program revision effective on July 11, 2012 (77 FR 34229, June 11, 2012).

The EPA retains its independent enforcement authority under statutory provisions, including but not limited to, sections 3007, 3008, 3013 and 7003 of RCRA, and any other applicable statutory and regulatory provisions, to undertake inspections and enforcement actions and to issue orders in all authorized States. With respect to enforcement actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogues to these provisions. Therefore, the EPA is not incorporating by reference Idaho's inspection and enforcement authorities nor are those authorities part of Idaho's approved State program which operates in lieu of the Federal program. The EPA lists Idaho's authorities for informational purposes, and because the EPA considered them in determining the adequacy of Idaho's enforcement authorities. This action revises this listing for informational purposes where these authorities have changed under Idaho's revisions to State law and were considered by the EPA in determining the adequacy of Idaho's enforcement authorities. Idaho's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law.

The public is reminded that some provisions of Idaho's hazardous waste management program are not part of the federally authorized State program.

These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules for which Idaho is not authorized, which have been incorporated into the State regulations because of the way the State adopted federal regulations by reference; and

(3) State procedural and enforcement authorities which are necessary to establish the ability of the program to enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities.

State provisions that are “broader in scope” than the federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.651(c)(3) lists the Idaho regulatory provisions which are “broader in scope” than the federal program and which are not part of the authorized program being incorporated by reference. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by the EPA, the State may enforce such provisions under State law.

With respect to any requirement(s) pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized and which the EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, the EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.

This codification does not affect Federal HSWA requirements for which the State is not authorized. The EPA has authority to implement HSWA requirements in all States, including States with authorized hazardous waste management programs, until the States become authorized for such requirements or prohibitions unless the EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal Rules program. A HSWA requirement or prohibition, unless identified by the EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985).

Some existing State requirements may be similar to the HSWA requirements implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA enforces the HSWA requirements and not the State analogs.

This direct final action codifies revisions to the EPA-authorized hazardous waste management program in Idaho pursuant to RCRA section 3006 and imposes no requirements other than those imposed by State law. This action complies with applicable executive orders and statutory provisions as follows:

This action will codify revisions to the federally approved hazardous waste management program in Idaho. This type of action is exempt from review under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and EO 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This direct final rule does not establish or modify any information or recordkeeping requirements for the regulated community.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et seq., generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this direct final rule on small entities, small entity is defined as: (1) A small business, as codified in the Small Business Size Regulations at 13 CFR part 121; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The EPA has determined that this direct final action will not have a significant impact on small entities because the action will only have the effect of codifying authorized pre-existing State law requirements. After considering the economic impacts of this action, I certify that this action will not have a significant economic impact on a substantial number of small entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. This action imposes no new enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of the UMRA because it contains no regulatory requirements that might significantly or uniquely affect small government entities.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action addresses the codification of the authorized State hazardous waste management program in Idaho. Codification is the process of including the rules and regulations that comprise the State's authorized hazardous waste management program in the CFR. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications, as specified in Executive Order 13175. This action addresses the codification of the authorized State hazardous waste management program in Idaho. Codification is the process of including the rules and regulations that comprise the State's authorized hazardous waste management program in the CFR. Thus, the EPA has determined that Executive Order 13175 does not apply to this rule.

The EPA interprets Executive Order (EO) 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it codifies an approved state program into the CFR. Codification is the process of including the rules and regulations that comprise the State's authorized hazardous waste management program in the CFR.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a “significant regulatory action” as defined under Executive Order 12866.

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) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. 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 bodies. The NTTAA directs the EPA to provide Congress, through the OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. The EPA has determined that this action does not involve “technical standards” as defined by the NTTAA. Therefore, the EPA did not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action addresses codifying a revision of the authorized hazardous waste management program in the State of Idaho. The EPA has determined that the action is not subject to Executive Order 12898.

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document 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 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). This action will be effective November 30, 2012.

For the reasons set forth in the preamble, the EPA amends 40 CFR part 272 as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR Part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR Part 64 is amended as follows:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 65 is amended to read as follows:

Table of Contents for Preamble I. Abbreviations II. Regulatory History III. Basis and Purpose IV. Background V. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Abbreviations CFR Code of Federal Regulations NMC National Maritime Center NPRM Notice of proposed rulemaking U.S.C. United States Code II. Regulatory History

We did not publish a notice of proposed rulemaking (NPRM) for this rule. Under 5 U.S.C. 553(b)(A) and (b)(B) the Coast Guard finds this rule is exempt from notice and comment rulemaking requirements because these changes involve rules of agency organization, procedure, or practice. In addition, good cause exists for not publishing an NPRM for all revisions in the rule because the revisions are all non-substantive changes. This rule consists only of corrections and editorial, organizational, and conforming amendments. These changes will have no substantive effect on the public. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective upon publication in the Federal Register .

Each year, the printed editions of Titles 46 and 49 of the Code of Federal Regulations (CFR) are recodified on October 1. This rule, which becomes effective October 1, 2012, makes technical and editorial corrections throughout Titles 46 and 49. This rule does not create any substantive requirements.

This rule updates internal Coast Guard office symbols throughout Titles 46 and 49 of the CFR in order to conform to the office symbols that came into use with the Deputy Commandant for Operations 3.0 realignment effective May 6, 2012. This rule also updates various addresses for Coast Guard offices throughout Titles 46 and 49 of the CFR in order to conform to new mailing addresses and mailing address formats that came into use June 15, 2009.

Additional amendments to 46 CFR and 49 CFR are as follows:

This rule amends 46 CFR 1.01-10 and 1.01-15 to update the title of the National Maritime Center's (NMC's) satellite offices.

This rule amends 46 CFR 2.10-20 to add the option of using Pay.gov for online payment of fees related to vessel inspections.

This rule amends 46 CFR 10.107 and 10.217 to update the title of the NMC's satellite offices.

This rule amends 46 CFR 24.20-1 to correct the formatting. Currently, the first paragraph in 24.20-1 is designated as paragraph (a), which is incorrect because there is no paragraph (b).

This rule amends 46 CFR 25.01-1 to add a note stating that additional Coast Guard regulations applicable to Uninspected Passenger Vessels can be found in 33 CFR.

This rule amends 46 CFR 27.102 to correct a typographical error.

This rule amends 46 CFR 39.20-9 to correct a CFR reference.

This rule amends 46 CFR 46.10-60 to reflect the new Customs and Border Protection title Director, Field Operations, and to correct a formatting error: currently, the first paragraph is designated as paragraph (a), which is incorrect because there is no paragraph (b).

This rule amends 46 CFR 61.20-17, 61.20-21, and 61.40-10 to correct typographical errors.

This rule amends 46 CFR 67.3 to update the address and the title for the U.S. Customs office, and to update a reference to the Secretary of Transportation; the responsible party is now the Secretary of Homeland Security.

This rule amends 46 CFR 76.33-15 to correct a typographical error.

This rule amends 46 CFR 90.35-5 to correct a formatting error.

This rule amends 46 CFR 111.105-31 to correct a measurement whose decimal point is currently misplaced.

This rule amends 46 CFR 117.15 to remove the obsolete “grandfather” time provisions associated with these regulations. It also redesignates 46 CFR 117.15 and amends 117.200 to reflect that redesignation.

This rule amends 46 CFR 147.5 to correct a typographical error, and correct the format of a phone number.

This rule amends 46 CFR 148.3 to update an email address.

This rule amends 46 CFR 148.140 to correct the format of a phone number.

This rule amends 46 CFR 150.115 to correct the format of a phone number and add a Web site address.

This rule amends 46 CFR part 150, Table II to Part 150, to add an email address.

This rule amends 46 CFR part 153, Table 1 to Part 153, to correct the format of a phone number.

This rule amends 46 CFR 153.1608 to update and reformat a phone number.

This rule amends 46 CFR 160.077-5 to correct a typographical error.

This rule amends 46 CFR 164.018-7 to correct an address that was mistyped; it appeared without spaces between the words.

This rule amends 46 CFR 167.20 to update an address that has changed.

This rule amends a table in 46 CFR 171.080 by correcting the footnote, which currently directs readers to the wrong CFR citation.

This rule amends 46 CFR 180.15 to remove the obsolete “grandfather” time provisions associated with these regulations. It also redesignates 46 CFR 180.15 and amends 180.200 to reflect that redesignation.

This rule amends 46 CFR 401.110 to clarify the definition of Secretary of Homeland Security, rendering it gender neutral.

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

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Because this rule involves non-substantive changes and internal agency practices and procedures, it will not impose any additional costs on the public.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), rules exempt from the notice and comment requirements of the APA are not required to examine the impact of the rule on small entities. Nevertheless, 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.

There is no cost to this rule and we do not expect it to have an impact on small entities because the provisions of this rule are technical and non-substantive. It will have no substantive effect on the public and will impose no additional costs. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please consult Paul Crissy, Coast Guard; telephone 202-372-1093, email Paul.H.Crissy@uscg.mil. 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.

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).

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 will 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, as supplemented by Executive Order 13563, 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 that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(a) and (b) of the Instruction. This rule involves regulations that are editorial, procedural, and involve internal agency functions. 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 46 CFR parts 1, 2, 6, 8, 10, 11, 12, 15, 16, 24, 25, 26, 27, 28, 30, 31, 32, 34, 35, 39, 42, 46, 50, 52, 53, 54, 56, 57, 58, 59, 61, 62, 63, 64, 67, 70, 71, 76, 77, 78, 90, 91, 92, 95, 96, 97, 98, 105, 107, 108, 109, 110, 111, 114, 117, 125, 126, 127, 128, 130, 131, 133, 134, 147, 148, 150, 151, 153, 154, 159, 160, 161, 162, 164, 167, 169, 170, 171, 172, 174, 175, 179, 180, 188, 189, 193, 194, 195, 197, 199, and 401, and 49 CFR parts 450, 451, 452, and 453, as follows: