The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) regulates the importation of animals and animal products into the United States to guard against the introduction of animal diseases not currently present or prevalent in this country.

The regulations in 9 CFR part 94 (referred to below as the regulations) prohibit or restrict the importation of specified animals and animal products to prevent the introduction into the United States of various animal diseases, including classical swine fever (CSF), foot-and-mouth disease (FMD), swine vesicular disease (SVD), and rinderpest. These are dangerous and communicable diseases of ruminants and swine.

The regulations in 9 CFR part 98 govern the importation of animal germplasm to prevent the introduction of contagious diseases of livestock and poultry into the United States. Subparts A and B of part 98 apply to animal embryos, and subpart C (§§ 98.30 through 98.38) applies to animal semen.

Sections 94.0, 94.9, and 94.10 of the regulations provide for the listing of regions of the world that APHIS considers free of, or low-risk for, CSF. The APHIS-defined European CSF region, consisting of countries of Europe that we currently recognize as a single region with regard to CSF, is currently the only region we consider low-risk for CSF. Sections 94.24 and 98.38 specify restrictions necessary to mitigate the risk of introducing CSF into the United States via pork, pork products, live swine, and swine semen from that region.

Section 94.12 of the regulations provides for the listing of regions that are declared free of SVD, and § 94.13 of the regulations provides for the listing of regions that have been determined to be free of SVD, but that are subject to certain restrictions because of their proximity to or trading relationships with SVD-affected regions.

Section 94.1 of the regulations provides for the listing of regions of the world that are declared free of rinderpest or free of both rinderpest and FMD. Section 94.11 of the regulations provides for the listing of regions that have been determined to be free of rinderpest and FMD, but that are subject to certain restrictions because of their proximity to or trading relationships with rinderpest- or FMD-affected regions.

On February 11, 2011, we published in the Federal Register a proposed rule  1 (76 FR 7721-7731, Docket No. APHIS-2008-0043) to add Estonia, Hungary, Slovakia, and Slovenia to the APHIS-defined EU CSF region. (NOTE: In a final rule published on November 10, 2011 [76 FR 70037-70040, Docket No. APHIS-2009-0093], APHIS changed the term “APHIS-defined EU CSF region” to “APHIS-defined European CSF region.”) We also proposed to add Estonia, Slovakia, and Slovenia to the list of regions we consider free of SVD and to add Slovakia and Slovenia to the list of regions considered free of FMD and rinderpest. Finally, we proposed to amend § 98.38 to remove the 40-day post-collection holding period for swine semen and donor boars prior to export of swine semen from the APHIS-defined EU CSF region to the United States. Except for semen collected from swine in Denmark, Finland, the Republic of Ireland, Sweden, or the United Kingdom, we required that, before swine semen may be exported to the United States, the semen and donor boars be held at the semen collection center for at least 40 days following collection of the semen, and that the donor boars, along with all other swine at the semen collection center, exhibit no clinical signs of CSF.

We solicited comments concerning the proposed rule for 60 days ending April 12, 2011, and received three comments by that date. They were from an organization representing the pork industry within the United States and two private citizens. These comments are discussed below by topic.

In order for APHIS to evaluate the CSF, SVD, FMD, and/or rinderpest status of their respective countries, the Governments of Estonia, Hungary, Slovakia, and Slovenia provided us with information regarding the authority, organization, and infrastructure of the official veterinary services in their countries; the status of their countries and adjacent regions with regard to the disease(s) under evaluation; the degree to which their countries are separated from regions of higher risk; and livestock demographics and marketing practices. They also provided information regarding vaccination against the disease(s) of interest; the extent of active disease control programs for the diseases; movement controls and biosecurity for movement from higher risk regions; disease surveillance; diagnostic laboratory capabilities; and emergency response capacity.

Based on this information, a site visit to each country, and other publicly available information, APHIS prepared an evaluation regarding the CSF and SVD status of Estonia; an evaluation regarding the CSF status of Hungary; an evaluation regarding the CSF, SVD, FMD, and rinderpest status of Slovakia; and an evaluation regarding the CSF, SVD, FMD, and rinderpest status of Slovenia. The conclusions in these evaluations led us to issue the proposed rule.

One commenter stated that, since the evaluations were finalized, FMD has been detected in Bulgaria. The commenter stated that European Commission  2 (EC) regulations regarding FMD are adequate to monitor, detect, control, and eradicate the disease in Member States, but also suggested that the introduction of FMD into Bulgaria was due to that country's failure to adhere to EC regulations regarding passive surveillance and disease reporting. The commenter suggested that this failure may be indicative of the potential for similar failures in passive surveillance and disease reporting in Estonia, Hungary, Slovakia, and Slovenia. Accordingly, the commenter requested that we not finalize the proposed rule until the EC finishes its review of the outbreaks in Bulgaria and implements corrective actions to make certain that all EU Member States are conducting adequate passive surveillance for FMD, and until we prepare new evaluations to take those additional measures into consideration insofar as they pertain to Estonia, Hungary, Slovakia, and Slovenia.

Because Bulgaria is an EU Member State, and thus eligible for intra-Community trade, APHIS concurs with the commenter that the outbreaks of FMD in Bulgaria are an issue of concern, and accordingly has been monitoring the disease situation in that country. The EC has provided APHIS officials stationed within the EU with regular updates regarding the outbreaks, and has posted updated outbreak information for the general public at the Web site for its Standing Committee on the Food Chain and Animal Health.

To summarize, on January 4, 2011, FMD was detected in a single wild boar in Bulgaria. Since then, there have been multiple outbreaks, primarily along the border between Bulgaria and Turkey. In response to the outbreaks, Bulgarian officials implemented measures to delineate the scope of the outbreaks and to control and eradicate the disease in domestic livestock within the country.

To date, we have no evidence that domestic ruminant populations in other Member States should be considered exposed to or potentially affected with FMD. Indeed, the EC recently reduced the restricted area of Bulgaria that is covered by EC measures designed to prevent the spread of FMD. Furthermore, as the commenter conceded, current EC regulations, if adhered to, are sufficient to detect, control, and eradicate FMD whenever it occurs within a Member State.

Based on the information provided to us by Estonia, Hungary, Slovakia, and Slovenia, as corroborated by our site visits to the countries, we believe the countries have implemented the relevant EC legislation regarding surveillance for CSF, SVD, FMD and/or rinderpest, and that producers in these countries can recognize clinical signs of the diseases and report any such potentially affected animals in a timely manner. Therefore, we are not granting the commenter's request. We will, however, continue to closely monitor the current FMD situation in Bulgaria.

The same commenter asserted that our conclusion—that live swine, swine semen, pork, and pork products may safely be imported into the United States from Estonia, Hungary, Slovakia, and Slovenia, subject to the restrictions of the regulations—was based on the absence of FMD within the EU. Accordingly, the commenter requested that we not finalize the proposed rule until we prepare new assessments that take into consideration the presence of FMD in Bulgaria. Similarly, another commenter asked what information had been taken into consideration in reaching our conclusions.

As noted above, our conclusions were based on an evaluation of the information supplied by Estonia, Hungary, Slovakia, and Slovenia regarding the authority, organization, and infrastructure of the veterinary services in their countries; the status of their countries and adjacent regions with regard to the disease(s) under evaluation; the degree to which their countries are separated from regions of higher risk; livestock demographics and marketing practices; vaccination against the disease(s) of interest; the extent of active disease control programs for the diseases; movement controls and biosecurity for movement from higher risk regions; disease surveillance; diagnostic laboratory capabilities; and emergency response capacity. Cumulatively, this information demonstrated the countries' compliance with existing EC regulations, which mitigate the likelihood that CSF, SVD, FMD, and/or rinderpest will be introduced into the domestic swine populations within the countries, and led to our conclusion that, by applying the restrictions of the regulations, swine, swine semen, pork, and pork products may safely be imported from Estonia, Hungary, Slovakia, or Slovenia into the United States.

In addition, we note that Estonia and Hungary have been listed under § 94.11 since 2002 and 1994, respectively, as regions that are free of FMD but subject to certain restrictions because of their trading relationships with FMD-affected countries.

A commenter pointed out that, in our evaluation of Slovakia with regard to CSF, SVD, FMD, and rinderpest, we noted that Slovakian veterinary inspectors are not stationed at every border crossing into the country to inspect passenger baggage. The commenter also pointed out that, at those crossings where inspectors are stationed, there are certain hours throughout the day when the crossings are unattended by the inspectors. The commenter suggested that Slovakia needed to position inspectors at all ports of entry and needed to expand inspection coverage beyond normal working hours. Additionally, the commenter pointed out that, in the evaluation of Hungary with regard to CSF, we noted that posters alerting travelers to prohibitions on the importation of certain animal products in personal baggage were not displayed at several of the border inspection posts (BIPs) in the country. As a result, the commenter questioned our basis for concluding that the risk posed by the importation of contaminated animal products in passenger baggage is sufficiently mitigated at ports of entry into these two countries and stated that we had not provided sufficient evidence to support this conclusion.

Slovakia has stationed inspectors at the busiest border crossings during those hours of the day when the most travelers enter the country through these border crossings. Slovakia's actions are consistent with EC regulation (EC) 206/2009, which allows a country to utilize a risk-based approach to establishing controls at ports of entry to minimize the likelihood that animal products imported into the country in personal baggage will serve as fomites for diseases affecting livestock. 3 Our determination that the risk posed by the importation of contaminated animal products in passenger baggage is sufficiently mitigated at ports of entry into Slovakia was based on this consistency, on the physical and technological infrastructure of the BIPs, on the apparent volume of passenger baggage entering through these BIPs at the time of our site visit, on the number of inspectors employed at the BIPs and the training afforded to these inspectors, and on the auditing and monitoring of inspections conducted by the State Veterinary and Food Administration of the Slovak Republic, the veterinary authority for Slovakia.

Requiring Slovakia to station inspectors at all ports of entry and beyond normal business hours would be significantly more stringent than EC standards, and is not necessary to reach a determination that the risk that contaminated products will enter the country in passenger baggage has been sufficiently mitigated.

We agree with the commenter that posters alerting travelers to prohibitions and restrictions on the importation of animal products in personal baggage help to reduce the risk that contaminated products may enter Hungary in such baggage, and should be fully incorporated into their controls at all ports of entry into the country. However, the presence or absence of such posters was not our sole consideration in determining whether Hungary has sufficiently mitigated the risk that contaminated products will enter Hungary in passenger baggage. As we did for Slovakia, we evaluated the physical and technological infrastructure of the BIPs, the number of inspectors stationed at BIPs and other border crossings, the degree to which these inspectors have been trained to inspect personal baggage, the volume of passenger baggage entering the country, the number of random and targeted luggage searches, and the reporting and monitoring requirements governing these inspections that have been imposed by the veterinary authority for Hungary. Collectively, the results of these evaluations led us to conclude that the risk that contaminated products will enter Hungary in passenger baggage is sufficiently mitigated.

The same commenter pointed out that, in our evaluation of Slovakia, we noted that the majority of swine holdings in the country are small, and that biosecurity on those farms is somewhat lacking in comparison to biosecurity standards at larger, commercially maintained premises within the country. The commenter further pointed out that we conceded that these swine have more of a risk of exposure to CSF, SVD, FMD, and rinderpest, and that the primary mitigation we cited was the lack of movement of swine from these facilities or the movement only for custom slaughter. The commenter suggested that access to a lucrative market such as the United States could change these production practices, and increase the likelihood that such producers will instead choose to export their swine. The commenter suggested that this, in turn, could increase the risk that swine or pork products contaminated with CSF, SVD, FMD, or rinderpest virus could be imported to the United States from Slovakia. Accordingly, the commenter requested that we prepare a new evaluation that takes this possible change in marketing practices into consideration.

We do not consider a new evaluation to be necessary. Such producers have had access to foreign markets within the EU and throughout the world for an extended period of time, and have not changed their marketing practices. Moreover, even if these marketing practices were to change in the manner suggested by the commenter, all such animals and animal products would still be subject to EC regulations and U.S. import requirements, which we consider to be effective in mitigating the risk of importation of affected swine and/or contaminated products into the United States.

As noted above, we proposed to remove one of the conditions for the importation of swine semen from the APHIS-defined EU CSF region, which required, with limited exceptions, that before swine semen may be exported to the United States, the semen and donor boars be held at the semen collection center for at least 40 days following collection of the semen, and that the donor boars, along with all other swine at the semen collection center, exhibit no clinical signs of CSF. We proposed to remove this requirement on the grounds that, since we established the requirement, the EC has modified its regulations to strengthen controls for CSF introduction or dissemination via infected germplasm, and we have strengthened our own regulations governing the importation of swine semen from a CSF-affected region. We also noted that the majority of swine semen used for artificial insemination is less than 5 days old and the current prohibition, therefore, was burdensome to exporters and inhibited trade.

One commenter stated that, in the event of an outbreak of CSF, it often takes several days to conduct an epidemiological investigation. The commenter stated that, if we were to remove the requirement, there is a possibility that swine semen contaminated with CSF virus could be imported into the United States and used to inseminate domestic sows before the scope of the outbreak is delineated and a prohibition on the importation of swine semen from the affected country into the United States is put in place. The commenter asked that APHIS provide to the U.S. pork industry a detailed response plan for exposure of U.S. swine to fresh semen that is epidemiologically linked to a CSF case in the exporting country.

Current EU regulations specify conditions for approval and supervision of artificial insemination centers, pre-admission quarantine and testing of boars, serologic testing for CSF, clinical observation of donor boars, and movement controls and epidemiologic investigation procedures in the event that an outbreak of CSF is suspected. The movement controls include restrictions on the movement of swine semen, and epidemiologic investigations may include inspections of swine semen collection facilities. Because of these interlocking safeguards and our own regulations and policies, we consider the possibility that CSF virus-contaminated germplasm will be exported to the United States from a country within the APHIS-defined European CSF region to be remote, even with the removal of the 40-day holding period.

In the unlikely event that the scenario proposed by the commenter comes to pass, we would take actions consistent with the outbreak of any foreign animal disease within the United States. In collaboration with State animal health officials and other emergency response partners, we would determine the scope of the outbreak, identify potentially affected animals, place the appropriate restrictions or prohibitions on the movement of those animals, implement the mitigation measures necessary to prevent further disease spread, and conduct cleaning and disinfection of affected premises and articles.

When we published the proposed rule for this action in February 2011, the countries included in the APHIS-defined EU CSF region (now APHIS-defined European CSF region), and foreign regions considered free of or affected with various animal diseases and pests, including CSF, SVD, rinderpest, and FMD, were listed in our animal and animal product import regulations in 9 CFR parts 92, 93, 94, 96, and 98. In a final rule  4 published in the Federal Register on January 10, 2012 (77 FR 1388-1396, Docket No. APHIS-2009-0035), we removed lists of regions classified with respect to certain animal diseases and pests from those regulations. The lists are now posted on APHIS' Web site, rather than published in the Code of Federal Regulations.

Accordingly, the proposed addition of Estonia, Hungary, Slovakia, and Slovenia to the APHIS-defined European CSF region, the proposed additions of Estonia, Slovakia, and Slovenia to the list of regions APHIS considers free of SVD, and the proposed addition of Slovakia and Slovenia to the list of regions APHIS considers free of FMD and rinderpest do not need to be finalized through rulemaking. Instead, this preamble provides notice that we are amending the lists on APHIS' Web site ( http://www.aphis.usda.gov/import_export/animals/animal_disease_status.shtml ). Copies of the lists are also be available via postal mail, fax, or email upon request to the Sanitary Trade Issues Team, National Center for Import and Export, Veterinary Services, Animal and Plant Health Inspection Service, 4700 River Road Unit 38, Riverdale, Maryland 20737.

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

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this rule. The economic analysis identifies hog and pig producers as the small entities most likely to be affected by this action, and considers the effects on domestic prices associated with increased imports of swine, swine semen, pork, and pork products. Based on the information presented in the analysis, we expect that domestic pork producers will experience only a minimal loss of welfare as a result of this action. The analysis provides a basis for the APHIS Administrator's determination that this action will not have a significant economic impact on a substantial number of small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1), or by contacting the person listed under FOR FURTHER INFORMATION CONTACT .

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Environmental assessments and findings of no significant impact have been prepared for this final rule. The environmental assessments provide a basis for the conclusion that the importation of swine, swine semen, pork, and pork products from Estonia, Hungary, Slovakia, and Slovenia under the conditions specified in the rule will not have a significant impact on the quality of the human environment. Based on the findings of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that environmental impact statements need not be prepared.

The environmental assessments and findings of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessments and findings of no significant impact may be viewed on the Regulations.gov Web site. 5 Copies of the environmental assessments and findings of no significant impact are also available for public inspection at USDA, Room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 799-7039 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT .

This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we are amending 9 CFR part 98 as follows:

This final rule incorporates by reference into Part 430 the following standard:

ANSI Z21.56-2006 (“ANSI Z21.56”), Standard for Gas-Fired Pool Heaters, approved December 13, 2005, IBR approved for Appendix P to Subpart B.

Copies of the ANSI Z21.56-2006 can be purchased from the American National Standards Institute, 11 West 42nd Street, New York, New York 10036, (212) 642-4936, or http://webstore.ansi.org.

Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291 et seq.; EPCA or the Act) sets forth a variety of provisions designed to improve energy efficiency. Part A  1 of Title III (42 U.S.C. 6291-6309) establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles,” including residential water heaters, direct heating equipment, and pool heaters (all of which are referenced below as “covered products”). 2 (42 U.S.C. 6292(a)(4), (9), and (11))

Under the Act, this program consists essentially of four parts: (1) Testing; (2) labeling; (3) establishing Federal energy conservation standards; and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for certifying to DOE that their products comply with applicable energy conservation standards adopted pursuant to EPCA and for making representations about the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted under EPCA. (42 U.S.C. 6295(s))

Under 42 U.S.C. 6293, EPCA sets forth criteria and procedures that DOE must follow when prescribing or amending test procedures for covered products. EPCA provides, in relevant part, that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use, and must not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) Finally, in any rulemaking to amend a test procedure, DOE must determine the extent to which the proposed test procedure would alter the product's measured energy efficiency. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2))

On December 19, 2007, the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110-140, was enacted. The EISA 2007 amendments to EPCA, in relevant part, require DOE to amend the test procedures for all covered products to include measures of standby mode and off mode energy consumption. Specifically, section 310 of EISA 2007 provides definitions of “active mode,” “standby mode,” and “off mode” (42 U.S.C. 6295(gg)(1)(A)); however, the statute permits DOE to amend these definitions in the context of a given product (42 U.S.C. 6295(gg)(1)(B)). The statute requires integration of such energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product, unless the Secretary determines that: (1) The current test procedures for a covered product already fully account for and incorporate the standby mode and off mode energy consumption of the covered product; or (2) such an integrated test procedure is technically infeasible for a particular covered product, in which case the Secretary shall prescribe a separate standby mode and off mode energy use test procedure for the covered product, if technically feasible. (42 U.S.C. 6295(gg)(2)(A))

Under the statutory provisions adopted by EISA 2007, any such amendment must consider the most current versions of IEC Standard 62301, Household electrical appliances—Measurement of standby power, and IEC Standard 62087, Methods of measurement for the power consumption of audio, video, and related equipment . 3 Id. At the time of enactment of EISA 2007, the most current version of the relevant IEC standard was IEC Standard 62301 (First Edition 2005-06). 4

DOE's test procedures for residential water heaters are found in the Code of Federal Regulations (CFR) at 10 CFR 430.23(e) and 10 CFR part 430, subpart B, appendix E. The test procedures include provisions for determining the energy efficiency (energy factor (EF)), as well as the annual energy consumption of these products.

There are separate test procedures for the two types of direct heating equipment ( i.e., vented home heating equipment and unvented home heating equipment), specifically 10 CFR 430.23(g) and 10 CFR part 430, subpart B, appendix G for unvented home heating equipment, and 10 CFR 430.23(o) and 10 CFR part 430, subpart B, appendix O for vented home heating equipment. (Hereafter in this notice, the terms “vented heater” and “unvented heater” are used as shorthand to describe the two types of direct heating equipment.) The vented heater test procedures include provisions for determining energy efficiency (annual fuel utilization efficiency (AFUE)), as well as annual energy consumption. The unvented heater test procedures currently have no provisions for determining energy efficiency, as all unvented heaters are considered 100-percent efficient, because there is no opportunity for energy loss as is the case for vented heaters. However, for unvented heaters that are the primary heating source for the home, there is a calculation of annual energy consumption based on a single assignment of active mode hours. For unvented heaters that are not the primary heating source for the home, there are no calculation provisions for either efficiency or annual energy consumption. Given that unvented heaters are considered 100-percent efficient, DOE has not established a test procedure for determining energy efficiency of these products (and thus, has not established energy conservation standards for these products), as there would be no energy savings that would result from such actions.

DOE's test procedures for pool heaters are found at 10 CFR 430.23(p) and 10 CFR part 430, subpart B, appendix P. The test procedures include provisions for determining two energy efficiency descriptors ( i.e., thermal efficiency and pool heater heating seasonal efficiency), as well as seasonal energy consumption.

The test procedures for residential water heaters include a full-year accounting of energy use, both electricity and fossil fuel as applicable to a given water heater. Specifically, the standby loss testing in the existing test procedure is synonymous with what EISA 2007 asks for inclusion in all test procedures, and, the EISA 2007 definition of “off mode” is inapposite to water heater operation. Accordingly, it was tentatively concluded that the current test procedures for water heaters already fully account for and incorporate measurement of standby mode and off mode energy consumption, as required by EISA 2007.

It is important to note that fossil-fueled direct heating equipment and pool heaters typically consume both fossil fuel and electricity. Electric direct heating equipment only consumes electricity. In the existing test procedures for direct heating equipment, fossil-fuel energy consumption is accounted for comprehensively over a full-year cycle, thereby satisfying EISA 2007 requirements for fossil-fuel standby mode and off mode energy consumption. In the existing test procedures for pool heaters, fossil-fuel standby mode is included but off mode is not included. Electrical energy consumption in standby mode and off mode is not accounted for in either the direct heating equipment or pool heater test procedure.

Proposed amendments to account for the energy consumption in standby mode and off mode of the products subject to this rulemaking were included in a notice of proposed rulemaking (NOPR) that was published in the Federal Register on August 30, 2010. 75 FR 52892. DOE's proposal was presented and explained at a public meeting on September 24, 2010 at DOE headquarters in Washington, DC. DOE invited written comments, data, and information on the NOPR and accepted such material through November 15, 2010. Based upon public comments, DOE subsequently issued a supplemental notice of proposed rulemaking (SNOPR) which would reference the updated second edition of the IEC Standard 62301. 76 FR 56347 (Sept. 13, 2011). DOE invited written comments, data, and information on the SNOPR through October 13, 2011. 5

In general, DOE has retained the approach to incorporate standby mode and off mode presented in the August 2010 NOPR, as well as incorporation by reference of the latest version of the relevant industry standard proposed in the September 2011 SNOPR, with some modifications based upon public comment input.

As proposed in the August 2010 NOPR, DOE is amending its test procedures for direct heating equipment and pool heaters to provide for the measurement of electrical standby mode and off mode power by using the IEC's Standard 62301, “Household electrical appliances—Measurement of standby power,” as well as language to clarify application of this IEC standard. In addition, this final rule adds new calculations to determine annual energy consumption associated with the standby mode and off mode measured power. For pool heaters, the calculations are expanded to include an off mode for fossil-fuel energy consumption, which was not previously accounted for by the test procedure. For vented direct heating equipment, DOE has determined that it is not technically feasible to integrate standby mode and off mode electrical energy consumption into the calculation of overall energy efficiency (annual fuel utilization efficiency (AFUE)). This is primarily because the magnitude of the electrical energy for standby mode and off mode would be so comparatively small that in most cases, no change in the reported AFUE would result from the integration. However, the amendments for pool heaters provide for an integrated efficiency metric, because, for this product, it is technically feasible to integrate standby mode and off mode energy consumption into the calculation of overall annual energy efficiency. The amendments for unvented heaters only required measurement of standby mode and off mode energy consumption and, unlike the amendments for vented heaters, do not require this consumption to be integrated into an annual energy consumption accounting. This is because a detailed annual energy consumption accounting is not deemed appropriate for this product type ( i.e., no annual accounting at all for supplemental heaters and only a simplified assigned value for primary heaters). No amendments are prescribed for residential water heaters, because the existing test procedure and metric for water heaters already account for standby mode and off mode energy consumption.

In the August 30, 2010 NOPR and at the subsequent September 24, 2010 public meeting, DOE sought input from interested parties on the proposed amendments to the DOE test procedures to address the standby mode and off mode energy consumption of residential water heaters, direct heating equipment, and pool heaters. Seven written comments were received from interested parties including: Bradford White Corporation (BWC), the Hearth, Patio & Barbecue Association (HPBA), the Air-Conditioning, Heating and Refrigeration Institute (AHRI), the American Council for an Energy-Efficient Economy (ACEEE), the Association of Home Appliance Manufacturers (AHAM), Natural Resources Defense Council (NRDC), and Pacific Gas and Electric Company (PG&E). All comments were generally supportive of the proposed amendments but asked for clarification and consideration of some specific modifications to possibly improve the amendments.

In addition, three comments were received in response to the September 13, 2011 SNOPR to incorporate IEC Standard 62301 (Second Edition). Comments were submitted by AHRI, AHAM, and a joint comment from Appliance Standards Awareness Project, American Council for an Energy-Efficiency Economy, and Northwest Energy Efficiency Alliance (ASAP et al ). These comments were all supportive of the incorporation of IEC Standard 62301 (Second Edition).

The following discussion addresses the five specific issues that were identified in both comment periods and at the public hearing.

As discussed in the August 2010 NOPR, the test procedures for residential water heaters include a full-year accounting of energy use, both electricity and fossil fuel as applicable to a given water heater. 75 FR 52892, 52895 (August 30, 2010). Specifically, the standby loss testing in the existing test procedure is synonymous with what EISA 2007 asks for inclusion in all test procedures, and the EISA 2007 definition of “off mode” is inapposite to water heater operation. Accordingly, it was tentatively concluded that the current test procedures for water heaters already fully account for and incorporate measurement of standby mode and off mode energy consumption, as required by EISA 2007. (42 U.S.C. 6295(gg)(2)(A))

Bradford White and AHRI were supportive of DOE's determination that the existing water heater test procedures already fully account for standby mode and off mode energy consumption and that no amendments are necessary. (Bradford White, No. 7 at p.1, AHRI, No. 13 at p. 2)

ACEEE also supported the determination, but expressed concern that DOE “does not recognize that some `residential' water heaters now have a true `Off' switch and that the future may bring more water heaters with `off' modes that are power consuming.” ACEEE also opined that consideration of this issue, now rather than later, would be beneficial. (ACEEE, No. 14 at p. 1) DOE agrees that if a more complete or accurate measure of energy consumption or energy efficiency can be developed, it should be considered for adoption in the DOE test procedures as soon as possible. However, there exist a number of analytical questions that would need to be investigated and answered before DOE could take such action for residential water heaters, as explained below.

The ACEEE comment focuses on adding provisions to measure the power that might be consumed during a possible off mode and not on the due diligence necessary to develop a consistent and credible basis for defining and measuring off mode energy consumption in the water heater test procedures. DOE's market research did not identify any residential water heater with an “Off” switch. Moreover, ACEEE did not identify any basic model of water heater with an “Off” switch, so DOE is unaware of the existence of such products and thus cannot analyze them for power consumption in off mode. Consequently, DOE has concluded that while ACEEE raises an issue that should be kept in mind, it remains a hypothetical concern at this time. The current test procedure accounting assumes residential water heaters are in service for the entire year and do not have or operate in an off mode. This assumed level of service is representative of how residential water heaters are used in most households and, therefore, consistent with statutory requirements. More specifically, EPCA requires that new or amended test procedures shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3) (emphasis added)) This is not to say that every residential water heater will be used this way in the field, but rather, it is the most representative use cycle or period of use. The commenter's suggested off mode that might be the subject of a DOE water heater test procedure amendment would be best described as “out of service” mode. Here, it is important to note that all water heaters can be taken out of service for various reasons and by various methods ( e.g., circuit breakers, gas valves). DOE realizes that residential water heaters can be taken out of service for various reasons, but DOE is not aware what design feature of current residential water heaters would in fact produce an out of service mode different ( i.e., an off mode) than that which would occur normally ( e.g., disconnecting the power supply in a unoccupied home).

The ACEEE comment seems to suggest that a more conveniently placed “Off” switch (one which would allow the consumer to disconnect the water heater from its electrical power or fossil-fuel source) could be a design feature that needs to be addressed in the test procedure. Here, it is important to note that the purpose of the test procedures is to develop a uniform basis of differentiation in terms of energy efficiency or annual consumption that would be associated with any design feature. As such, for purposes of a possible test procedure amendment, a determination would need to be made regarding the consumer behavioral difference that, in fact, may result from an off mode design feature and what, if any, energy savings would result. As noted above, DOE is not aware of any developments in this area by the water heating industry. Further, DOE published a request for information (RFI) which initiated a rulemaking and data collection process broadly to consider amendments to DOE's test procedures for residential water heaters. 76 FR 63211 (Oct. 12, 2011). This RFI did identify those portions of the test procedure where DOE believes amendments may be warranted, but it also invited interested parties to provide comments on any aspect of the residential water heater test procedure. DOE did not receive any comments asking for adoption of an off period, as suggested by ACEEE.

This is not to say there may not be some possible energy savings potential for this concept eventually, but rather that DOE believes it is not appropriate to include such concept in the analytical basis of the test procedure at this time.

In consideration of all of the above, DOE cannot, at this time take action to amend the water heater test procedure in the manner suggested by the commenter until the off switch concept is more fully developed and the need for such amendment has been established. With that said, DOE continues to monitor advancements in technologies related to all regulated products, including water heaters, and it will consider applicable technological improvements in its development of both test procedures and energy conservation standards in the context of future rulemakings.

As noted in the August 2010 NOPR, EPCA, as amended by EISA 2007, requires that test procedures be amended to include standby mode and off mode energy consumption, taking into consideration the most current versions of Standards 62301 and 62087 of the International Electrotechnical Commission. 75 FR 52892, 52893-94 (August 30, 2010) ( citing 42 U.S.C. 6295(gg)(2)(A)). The August 2010 NOPR proposed to amend the DOE test procedures for direct heating equipment and pool heaters by referencing IEC Standard 62301 (First Edition) to obtain the standby mode and off mode measured wattage. Id. at 52895. The amended DOE test procedures would use these measured wattages in calculations to accomplish the incorporation of standby mode and off mode energy consumption into the test procedures. DOE reviewed the IEC Standard 62301 (First Edition) and tentatively concluded that it would be generally applicable to direct heating equipment and pool heaters, although some clarification would be needed. Specifically, because there is a possible conflict with provisions of the existing procedures, the NOPR proposed to clarify where the IEC provisions would apply and where the DOE test procedure provisions would apply. Id. at 52897 and 52900-01. With these clarifications, the NOPR proposed to reference IEC Standard 62301 (First Edition) for the wattage measurements. It is noted that IEC Standard 62301 (First Edition) had been incorporated by reference in 10 CFR 430.3, Materials incorporated by reference, as part of the final rule amending the residential furnaces and boilers test procedure. 75 FR 64621 (Oct. 20, 2010).

In written comments on the August 2010 NOPR, AHRI and AHAM asked that DOE consider referencing a revised version of the industry standard—IEC Standard 62301 (Second Edition). Both commenters cited technical improvements in the latter version that they expect would enhance repeatability and reproducibility of test results. (AHRI, No. 13 at p. 1, AHAM, No. 15 at p. 2) AHAM additionally commented that the Final Draft International Standard (FDIS) version of IEC Standard 62301 would be preferable to the Committee Draft for Vote (CDV) version of the standard, both of which were available at the time of DOE's NOPR. (AHAM, No. 15 at p.2) The CDV of IEC Standard 62301 was released on August 28, 2009, and the FDIS of IEC Standard 62301 was released on October 29, 2010. On this matter, DOE notes that because IEC has now formally adopted IEC Standard 62301 (Second Edition), DOE is no longer considering earlier draft versions. In any event, the adopted version is consistent with the preference suggested by AHRI and AHAM.

As mentioned above, since the time of the August 2010 NOPR, the IEC Standard 62301 technical committee has officially revised its standard. Specifically, a second edition of IEC Standard 62301 has been issued by IEC with a final publication date of January 27, 2011.

DOE has conducted a review of the second edition of IEC Standard 62301, which is consistent with the requirement in EISA 2007 for DOE to consider the most current version of that standard. (42 U.S.C. 6295(gg)(2)(A)) As a result of its investigation, DOE agrees with AHRI and AHAM that some improvement to the test procedures may be possible with the incorporation of the second edition of the IEC standard as applied to the products that are the subject of this rulemaking. Specifically, IEC Standard 62301 (Second Edition) revises the standard's power measurement accuracy provisions, based on technical submissions that showed the inability to achieve the accuracy levels required by the first edition for certain operating regimes with the use of typical instrumentation. A more comprehensive specification of required accuracy is provided in IEC Standard 62301 (Second Edition) that depends upon the characteristics of the power being measured. The other major change in IEC Standard 62301 (Second Edition) that relates to the measurement of standby mode power consumption of covered products involves the specification of stability criteria required to measure that power. IEC Standard 62301 (Second Edition) contains more detailed techniques to evaluate the stability of the power consumption and to measure the power consumption for stable loads with less burdensome methods such as direct meter reading, if certain clearly described conditions are met. DOE believes that the changes incorporated in IEC Standard 62301 (Second Edition) would allow for use of less burdensome methods when appropriate and would ensure accurate measures of standby mode energy consumption over a range of operating conditions encountered by typical residential heating products.

As discussed above, DOE published a supplemental notice of proposed rulemaking in the Federal Register on September 13, 2011 (the September 2011 SNOPR), which proposed to use the second edition of IEC Standard 62301 in lieu of the first edition. 76 FR 56347. Comments on the SNOPR were received from AHAM and AHRI, and a joint comment was submitted by the Appliance Standards Awareness Project, American Council for an Energy-Efficient Economy, and Northwest Energy Efficiency Alliance (ASAP et al ). All comments were supportive of the use of IEC Standard 62301 (Second Edition). (AHAM, No. 22 at p. 1, AHRI, No. 24 at p. 1, and ASAP et al, No. 23 at p. 1) In addition, ASAP et al added that referencing the most recent version of the IEC Standard 62301 would facilitate international harmonization of standby mode and off mode test procedures. (ASAP et al, No. 23 at p. 1)

Accordingly, for the reasons discussed above, DOE is incorporating IEC Standard 62301 (Second Edition) into DOE's test procedure regulations for residential direct heating equipment and pool heaters. To this end, this final rule adds a new reference in 10 CFR 430.3, Materials incorporated by reference, for IEC Standard 62301 (Second Edition) but does not remove the existing reference to IEC Standard 62301 (First Edition) at 10 CFR 430.3(m)(1). (Although DOE has determined that the provisions of IEC Standard 62301 (Second Edition) shall be applicable to residential direct heating equipment and pool heaters, the Department is currently maintaining the existing reference to IEC Standard 62301 (First Edition), because other covered products continue to reference that standard.) In addition, DOE is issuing a number of editorial changes in the various appendices (G, O, and P) which are necessary for residential direct heating equipment and pool heaters to allow for the correct referencing. For example, the definition sections of the individual appendices need to define IEC Standard 62301 as the second edition instead of the first edition. Also, there are some section numbering differences in the second edition which impact the text of the measurement provisions of DOE's various test procedures. Finally, as an editorial improvement, DOE is unifying the standby mode and off mode nomenclature used in the various test procedures. Specifically, the uniform nomenclature for electrical power consumption in standby mode and off mode will be P W,SB and P W,OFF , respectively. All of these changes are reflected in the regulatory text which can be found at the end of this final rule.

In the August 2010 NOPR, DOE proposed only to add certain measurement provisions to the existing test procedures for unvented heaters and not to include added or amended calculations to quantify annual standby mode and off mode energy consumption. In addition, DOE tentatively concluded that for some manually-controlled portable heaters, no testing for standby mode or off mode is required, because the units are expected to be inoperable during these modes. 75 FR 52892, 52898-99 (August 30, 2010). AHRI, AHAM, and NRDC were supportive of the proposed amendments for unvented heaters, including the exclusion from the requirement to conduct standby mode and off mode testing when there is a means to disconnect the power source and instructions to do so are clearly visible. AHRI and NRDC asked that the exclusion provisions be clarified to avoid ambiguity and possible operational problems. AHAM fully supported these provisions and offered further evidence as to the appropriateness of the exclusion provisions. (AHRI, No. 13 at p. 2, AHAM, No. 15 at p. 2-3, and, NRDC, No. 16 at p. 1-2.) AHAM restated its support for these provisions in its comments on the September 2011 SNOPR. (AHAM, No. 22 at p. 2.) AHRI additionally questioned the necessity of any amendments for unvented gas space heaters. (AHRI, No. 13 at p. 2.)

The August NOPR proposed for unvented heaters to add separate provisions to measure the possible standby mode and off mode energy consumption for both fossil fuel and electricity. These added provisions would allow for exclusion from the standby mode and off mode requirements if there is means to disconnect the electric or gas power source when not in use and instructions to do so are clearly visible. This exclusion is identical to what is currently in the existing vented heater test procedures as applied to pilot lights on manually-controlled heaters. DOE believes this exclusion should also apply to unvented heaters so equipped.

After carefully considering the public comments and available information, DOE reviewed the proposed provisions for unvented heaters, particularly the exclusion provisions, and has reached the following conclusions. For electric heaters, DOE has decided to adopt the regulatory provisions, as proposed. The commenters did not provide specific additional clarification, and DOE does not see where such additional guidance or information would be beneficial. For gas unvented heaters, DOE recognizes the point the commenters make regarding clear instructions and the point that AHRI raises concerning the unnecessary turning on and off of pilot lights during the heating season. (AHRI, No. 13 at p. 2) However, DOE believes this issue is best addressed by the industry in its development of instructions and labels and not within the scope of this DOE test procedure rulemaking.

Regarding AHRI's suggestion to not require any amendments for unvented heaters (because to AHRI's knowledge, there are not any unvented heaters that have electrical standby mode and off mode energy consumption), DOE is not convinced there is no possibility for these products to experience electrical standby mode or off mode energy consumption, either currently or in the future. It is important to note, today's final rule does not require any testing for the products that AHRI reports as having no possibility of electrical standby mode or off mode energy consumption ( i.e., unvented heaters that have no electrical connection at all). Adopting the amendments as proposed will allow DOE to meet its EISA 2007 mandate without adding unnecessary burden on the manufacturers of current products of this product type.

The NOPR proposed an integrated thermal efficiency metric for pool heaters, but did not propose an integrated annual fuel utilization efficiency for vented heaters. All commenters that provided input on this issue were supportive of the proposal not to integrate the standby mode and off mode energy consumption into the AFUE metric for vented heaters because such integration would not likely change the reported AFUE numerical value. AHRI, NRDC, and PG&E all recommended that DOE adopt the same approach for pool heaters. AHRI restated its opposition to integrating standby mode and off mode energy consumption into the efficiency metric for pool heaters when commenting on the September 2011 SNOPR. These commenters believed that integration would not materially affect the reported value generated by the efficiency metric for pool heaters. A second objection raised by these commenters involved the use of the term “integrated thermal efficiency,” who argued that this terminology has specific meaning in the pool heater industry which is not consistent with the meaning proposed by DOE. (AHRI, No. 13 at pp. 2-5, ACEEE, No. 14 at pp. 1-2, NRDC, No. 016 at pp. 2-3, PG&G 017 at p. 2, and, AHRI, No. 24 at p. 1)

DOE considered proposing an integrated AFUE for vented heaters that would incorporate the standby mode and off mode energy consumption into the existing AFUE metric by adding this additional energy consumption to the active energy consumption already captured by the AFUE quotient. However, DOE has determined that such integration is technically infeasible for vented heaters. This is because the electrical standby mode and off mode energy usage would typically be relegated to background noise vis-à-vis the much greater active mode energy consumption, due to the fact that most manufacturers' ratings of AFUE (as well as the current energy conservation standards) are presented to the nearest whole number, and the magnitude of the energy for standby mode and off mode would be so comparatively small that it would not likely change the reported value. As a result, DOE expects that in most cases, no change in the reported AFUE would result from integration. For these reasons, DOE believes integrating electrical standby mode and off mode energy consumption into the AFUE descriptor for vented heaters would not provide useful or meaningful information and is, therefore, technically infeasible.

DOE's proposed approach for vented heaters would allow for the measurement of standby mode and off mode electrical  6 energy consumption of all vented heater products. Although the magnitude of energy savings may be small for a given unit, it could be substantial when aggregated across the full range of this covered product over DOE's typical 30-year analysis period for setting standards. As required by EPCA, DOE will further address the standby mode and off mode electrical energy consumption of vented heaters in the next energy conservation standards rulemaking. (42 U.S.C. 6295(gg)(3))

Unlike the integrated AFUE for vented heaters, DOE tentatively concluded in the August 2010 NOPR that an integrated efficiency metric for pool heaters is technically feasible and would provide measurable performance differentiation. 75 FR 52892, 52900 (August 30, 2010). As explained in the NOPR, this is because the standby mode and off mode energy consumption for pool heaters is significant relative to the active mode energy consumption, as expressed in the original thermal efficiency descriptor. There were two contributing factors to this conclusion: (1) The standby mode and off mode energy consumption includes both fossil fuel and electrical energy consumption (thereby contributing to the overall magnitude of such energy consumption), and (2) pool heaters have a relatively smaller number of operating hours associated with active mode energy consumption. In support of this determination of a significant difference, the NOPR maintained that a standing pilot light alone could move the efficiency metric a few percentage points. Id. Further in support, and realizing that some pool heaters do not have standing pilot lights, DOE testing shows a 1 percentage point difference based solely on the added electrical standby mode and off mode consumption of a unit without a standing pilot light. Certain commenters argued that although the relative magnitude of the effect is larger for pool heaters than direct heating equipment, it is still very small and, as a result, would not allow for effective consumer information or government regulation. (AHRI, No. 13 at pp. 3-5, and, PG&G 017 at p. 2) Additional opposition to the integration was pointed out in the comments of NRDC, which stated that the commingling of electricity and fossil fuels in the integrated metric is not preferred, because it does not allow for separate analysis of the source energy value of electrical standby mode and off mode energy consumption. (NRDC, No. 016 at pp. 2-3.) These commenters preferred the separate metric approach for both test procedures and energy conservation standards.

DOE has reviewed this issue, carefully considering the public comments, and has determined it must maintain the integrated efficiency metric approach for pool heaters because it is technically feasible to do so. This is DOE's mandate under EPCA, as amended by EISA 2007. (42 U.S.C. 6295(gg)(2)(A)) As with vented heaters (and any other future energy conservation standards rulemaking for covered consumer products), DOE must address the standby mode and off mode energy consumption in the next standards rulemaking. The integrated metric adopted in this final rule will be the regulating metric for purposes of pool heater standards, once the standard is amended to also address standby mode and off mode energy consumption.

Finally, on the matter of the commenters' objection to the terminology “integrated thermal efficiency,” DOE has retained this terminology in this final rule, for the reasons described below. By way of background, EPCA's definition of “efficiency descriptor” specifically states that for pool heaters, the descriptor shall be thermal efficiency. (42 U.S.C. 6291(22)(E)) Accordingly, the “integrated thermal efficiency” terminology was proposed to maintain consistency with the statute. This approach would allow for the integration and incorporation of standby mode and off mode energy consumption into the test procedure as called for in 42 U.S.C. 6295(gg)(2)(A) and eventual incorporation in the energy conservation standard as called for in 42 U.S.C. 6295(gg)(3). The original “thermal efficiency” descriptor would remain in the test procedure to provide the regulating basis for the current energy conservation standard. Commenters pointed out that the term “thermal efficiency” has a specific meaning in the industry. Specifically, “thermal efficiency” is based on the industry test methods (ANSI Z21.56, “Standard for Gas-Fired Pool Heaters”) and describes the pool heater's performance in terms of heating water and not the unit's overall performance, including the energy liability that might be associated with standby mode and off mode operation. AHRI suggested that the existing test procedure terminology “heating seasonal efficiency” would be preferable, because it is an extension of thermal efficiency that includes the pilot light consumption in standby mode and is ideally suited for modification to include the standby mode and off mode electrical energy consumption. (However, DOE notes that the heating seasonal efficiency descriptor, as suggested by AHRI, does not fully account for the standby hours in the non-heating season, unlike DOE's integrated thermal efficiency descriptor. Moreover, DOE believes that including the non-heating standby hours in a seaonal metric could also cause confusion, because the metric would then be a bit of a misnomer.)

Nevertheless, despite commenters' preference for a different metric and terminology to measure the performance of pool heaters, one cannot lose sight of the fact that EPCA specifically states that the efficiency descriptor for pool heaters shall be thermal efficiency (42 U.S.C. 6291(22)(E)), and the statute also requires DOE to account for standby mode and off mode energy consumption in an integrated metric, if technically feasible (42 U.S.C. 6295(gg)(2)(A) and (3)). Thus, DOE does not have lattitude to adopt other metrics as commenters suggested. Instead, the Department is adopting integrated thermal efficiency in order to implement both of these statutory requirements. Furthermore, DOE also believes that there are advantages to maintaining consistency of its terminology related to standby mode and off mode across the test procedures for various products. DOE is confident that manufacturers and other interested stakeholders will be able to grasp the relevant terminology for purposes of the DOE test procedure. Accordingly, DOE has today prescribed “integrated thermal efficiency” (TE I ) as the integrated efficiency descriptor for pool heaters.

To further clarify its test procedure regulations for pool heaters, DOE is also prescribing a number of editorial changes to 10 CFR 430.23(p). These edits are largely housekeeping matters designed to correct the references to sections of appendix P that have now changed numerically because of today's final rule.

HPBA filed two sets of comments on the August 2010 NOPR. In the first set of comments, HPBA concluded that the provisions related to measurement of standby mode and off mode energy consumption “will probably have a minimal inpact on vented hearth heating products.” However, in its second set of comments, HPBA stated more broadly that the test procedures for direct heating equipment are not applicable to decorative hearth products, specifically the products covered by ANSI Standard Z21.50, “Vented Gas Fireplaces.” According to HPBA, decorative hearth products are intended to provide ambiance rather than heat, so, therefore, HPBA believes decorative hearth products are not covered “direct heating equipment” and that heating efficiency is not an appropriate measure of performance for these products. Further, HPBA maintains that even if heating efficiency was desired for these appliances, the DOE test method is inapplicable as a means to determine heating efficiency, given a number of inappropriate assumptions regarding their representative average use. ACEEE recognized this concern of HPBA but suggested the matter not be addressed in a test method rulemaking. (HPBA, No. 8 at p. 1 and No. 12 at p. 1-4. ACEEE, No. 14 at p. 1.)

In response, DOE notes that the scope of the current test procedure rulemaking is limited to provisions related to measurement of standby mode and off mode energy consumption of residential water heaters, direct heating equipment, and pool heaters. HPBA concedes that the specific provisions at issue here would have minimal impact on vented hearth heating products. On HPBA's larger question regarding the applicability of the DOE test procedure for measuring the AFUE of vented hearth heaters, DOE has concluded that the test procedure does provide the technical capability to generate AFUE values for all vented hearth heaters. If modifications to the test procedure are warranted to optimize the testing of such units, such concerns will be addressed in a separate test procedure rulemaking for water heaters, direct heating equipment, and pool heaters, which is currently underway. As noted earlier, DOE published an RFI for that rulemaking in the Federal Register on October 12, 2011. 76 FR 63211.

However, DOE notes that in its November 18, 2011 final rule for direct heating equipment energy conservation standards, DOE adopted a definition of “vented hearth heater” which contains an exclusion for decorative hearth products. 76 FR 71836, 71859. Units that fall within the exclusion would not be subject to the otherwise applicable energy conservation standards, and they would likewise not be required to be tested under the DOE test procedure.

NRDC suggested that DOE should review the burner operating hours (BOH) estimate in the test procedures for each appliance type. (NRDC No. 016, pp. 1-2) NRDC further added that these estimates are referenced from earlier ANSI standards, some of which are well over ten years old. It is noted here that these estimates are relevant to the matter of this rulemaking because BOH is used as an approximation of the active mode time duration for both direct heating equipment and pool heaters. This concept of using the existing test procedures assignment of BOH as an approximation of active mode time duration was developed in the August 2010 NOPR. 75 FR 52892, 52897 (August 30, 2010). No comments were received objecting to this assignment. The NRDC comment relates to the numerical value of the current test procedure estimate and whether there is a need to update the numerical value of these assignments in the test procedures.

DOE has reviewed this matter, and for the reasons explained below, DOE has concluded that there is not a need to change the test procedure estimates of BOH for direct heating equipment or pool heaters. These test procedure estimates are not referenced from old ANSI standards as the commenter suggests, but rather independent assignments and equations developed within the various rulemakings establishing the DOE test procedures. With these representative bases established, the test procedures can yield uniform results. The direct heating equipment BOH is based primarily on an estimate of heating degree days that would be typical of where direct heating equipment is used. For the national average case, 2950 heating degree days is assigned. 43 FR 20147, 20182 (May 10, 1978). The BOH for direct heating equipment is then calculated from this heating degree day assignment and a number of other factors that can affect the BOH of direct heating equipment. Typically, the test procedure yields values of 700-800 BOH for DHE. The level of national average heating degree days is representative of a southern-tier U.S. location which DOE believes is still appropriate for the distribution of direct heating equipment. That is, the inherently smaller capacities of DHE, as compared to central furnaces would suggest that DHE product types address on average a relatively milder or more southern heating requirement. A review of the 2009 Residential Energy Consumption Survey (available at www.eia.gov ) supports this southern tier approach for DHE products. Specifically, the RECS 2009 Table HC6.6, “Space Heating in U.S. Homes, By Climate Region,” reports that a majority of households having this type of product (termed in RECS 2009 as “room heaters” and “wall and floor pipeless furnaces”) are in the two southernmost of the five climate zones used by RECS.

Further, a review of the 2005 Residential Energy Consumption Survey (also available at www.eia.gov ) provided more data supporting DOE's current approach to BOH. A weighted average of the heating degree days using the distribution of room heaters and wall and floor pipeless furnaces resulted in an estimate that homes in which direct heating equipment is installed are subjected to an annual heating degree day number of 2900. Considering the uncertainty in this value, DOE considers this estimate to be highly consistent with the existing value in the test method, and accordingly, DOE has concluded that there is no justification for modifying the heating degree days that form the basis of the determination of burner operating hours for direct heating equipment. It should be noted that the data released for the 2009 RECS do not yet contain sufficient information to determine this weighted average more precisely. However, these data are supportive of the southern tier assignment for national average heating degree days as currently provided in the DOE test procedure. It is important to note that the regional calculations in this test procedure allow for other assignments based on geographic location.

Investigating this issue further, DOE looked at another source of information to determine if the DHE test procedures' overall calculation methodology would need amending. To this end, DOE reviewed the estimates of energy consumption contained in the recent analysis supporting amended energy conservation standards for DHE. 75 FR 20112 (April 16, 2010). That analysis reported BOH similar to that estimated in the DOE test procedure (700-800 hours) for DHE used as primary heating appliances; however, a smaller number is reported for BOH in this analysis for some types of DHE that could be used as supplemental heaters. 7 That lower estimate is important to bear in mind in a standards analysis in order to avoid overestimating the energy savings that might be associated with a given standard level. However, DOE believes supplemental use or any non-use of a product should not be part of the test procedures' representative use calculations. Rather, a better basis of the representative use calculations would be calculations that include full use of the product. Given the significant portion of DHE products that are used as primary heating sources and the product's potential to be used on a regular basis, DOE has concluded that the test procedure should assume full use. Moreover, persons relying on energy use estimates when making purchasing decisions and planning on frequent use of the product would not be served by reducing the estimate to account for the marginal use of the product by others.

In sum, DOE has reviewed all aspects of the current BOH assignments and calculations for direct heating equipment and has not found any potential for systematic error or unrepresentative results. More specifically, DOE did not find any research or data that contradicts the representativeness of this existing basis of determining direct heating equipment BOH.

Somewhat less complicated than direct heating equipment, the pool heater test procedure includes a direct assignment of BOH, without need for the complicated suite of calculations found in the DHE test procedure. This simplified approach is reasonable because the energy consumption of pool heaters is not typically affected by the various factors accounted for in the DHE test procedure calculations ( e.g., oversizing, climatic effects, and the lack of modulating controls). Accordingly, the pool heater test procedure assumes a single assignment of 104 BOH. This assignment is based on survey data available at the time proposed amendments for the test procedure were developed in 1993. 58 FR 44538, 44548, 44571 (August 23, 1993). On review, this level of usage is still deemed representative. Specifically, the 2005 Residential Energy Conservation Survey (available at www.eia.gov ) reports similar usage for pool heaters.

In sum, DOE has reviewed the numerical assignments as well as the analytical basis for BOH in both the direct heating equipment and pool heaters test procedures and maintains that they are representative of the average use cycles that would be encountered by present day appliances.

In addition to proposing the use of the second edition of IEC Standard 62301, the September 2011 SNOPR clarified rounding guidance and sampling provisions applicable to the new measures of energy consumption ( i.e., P W,SB and P W,OFF ).

For these new values of energy consumption, the September 2011 SNOPR clarified that the rounding guidance provided in IEC Standard 62301 (Second Edition) would apply. 76 FR 56347, 56350-51 (Sept. 13, 2011). Specifically, DOE proposed to add the following sentence to the measurement provisions of the proposed regulatory text, where appropriate: “The recorded standby power (P W,SB ) (or off mode power P W,OFF , where appropriate) shall be rounded to the second decimal place, and for loads greater than or equal to 10W, at least three significant figures shall be reported.” Id. at 56353-54. DOE requested comments as to the adequacy and appropriateness of this clarification. AHRI opined that the second decimal place rounding represents an unnecessarily stringent level of precision when one considers the annualized accounting of total electrical energy consumption as represented in the term E SO . (AHRI No. 24 at p. 2) DOE believes the IEC rounding provisions for the wattage measurements are appropriate and within the capabilities of the instrumentation specified in the IEC standard. Specifically, DOE's review of IEC Standard 62301—compliant instrumentation has determined that one can easily support this level of reporting precision. Moreover, the test procedures for other DOE covered products already utilize IEC Standard 62301 for the wattage measurements, and DOE believes there is benefit in measuring standby mode and off mode energy consumption of various covered products in a consistent manner. In sum, carrying the IEC level of precision through the annualized consumption calculations does not represent any additional burden, because it is simply a matter of running a calculation and reporting the results. Accordingly, DOE has concluded that these comments do not justify a departure from the IEC provisions, so DOE is adopting the rounding guidance as proposed.

The September 2011 SNOPR clarified that the sampling provisions already used for the measures of energy consumption in the existing test procedures for direct heating equipment and pool heaters would also apply to the new measures of energy consumption for standby mode and off mode. Id. at 56350-51. No comments were received regarding the clarification of applicable sampling provisions for the new measures of energy consumption. Accordingly, for the reasons above, DOE has decided to adopt the proposed approach presented in the SNOPR in today's final rule.

The effective date for these amendments is January 16, 2013. At that time, representations may be made about residential direct heating equipment and pool heaters using the new metrics P W,SB and P W,OFF reflecting standby mode and off mode energy use, as well as any other measure of energy consumption which depends on P W,SB and P W,OFF , which were adopted pursuant to these amendments. The compliance date for any representations relating to standby mode and off mode of direct heating equipment and pool heaters is June 17, 2013; on or after that date, any such representations must be based upon results generated under these test procedures and sampling plans. However, DOE would clarify that use of these proposed test procedure amendments related to standby mode and off mode energy consumption would not be required for purposes of energy conservation standards compliance, until the compliance date of the next standards final rule that addresses standby mode and off mode.

More specifically, the introductory sentences to 10 CFR part 430, subpart B, Appendix O for vented direct heating equipment and Appendix P for pool heaters, read as follows: “The procedures and calculations that refer to standby mode and off mode energy consumption * * * need not be performed to determine compliance with energy conservation standards for these products at this time.” The above statement will be removed as part of a future rulemaking to amend either energy conservation standards for direct heating equipment or standards for pool heaters to account for standby mode and off mode energy consumption, and compliance with the applicable test procedure provisions will be required on the compliance date of those amended energy conservation standards. A statement has also been added to the introductory note to these appendices to clarify that any representations pertaining to standby mode and off mode energy consumption of these products that are made on or after a date 180 days after the date of publication of this test procedure final rule in the Federal Register must be based upon results generated under this test procedure, consistent with the requirements of 42 U.S.C. 6293(c)(2). Although this is a statutory requirement under 42 U.S.C. 6293(c), DOE has concluded that it would be useful to explicitly state this requirement in DOE's regulations.

In amending a test procedure, EPCA directs DOE to determine to what extent, if any, the test procedure would alter the measured energy efficiency or measured energy use of a covered product. (42 U.S.C. 6293(e)(1)) If the amended test procedure alters the measured energy efficiency or measured energy use, the Secretary must amend the applicable energy conservation standard to the extent the amended test procedure changes the energy efficiency of products that minimally comply with the existing standard. (42 U.S.C. 6293(e)(2)) The current energy conservation standards for vented direct heating equipment and pool heaters are based on existing test procedure metrics—annual fuel utilization efficiency (AFUE) and thermal efficiency (E t ), respectively—neither of which is affected by the inclusion of electrical standby mode and off mode energy consumption in other metrics adopted as part of today's final rule. There are no energy conservation standards for unvented direct heating equipment. As explained further below, today's test procedure final rule has no effect on any current energy conservation standard.

As provided by EPCA, amendments to the test procedures to include standby mode and off mode energy consumption shall not be used to determine compliance with previously established standards. (42 U.S.C. 6295(gg)(2)(C)) The inclusion of a standby mode and off mode test method in this final rule will not affect a manufacturer's ability, using existing metrics, to demonstrate compliance with the existing energy conservation standards for direct heating equipment or pool heaters. The standby mode and off mode tests need not be performed to determine compliance with the current energy conservation standards for these products, because the current standards do not comprehensively account for electrical standby mode and off mode energy consumption. (For the reasons stated above, this final rule does not prescribe test procedure amendments for residential water heaters. Accordingly, there is no effect on water heater compliance.)

EPCA requires that new or amended test procedures shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) For the reasons that follow, DOE has determined that incorporation by reference of IEC Standard 62301 (Second Edition), along with the other modifications and additional calculations described above, satisfy this requirement.

As noted previously, the DOE test procedures, as amended, reference provisions from the incorporated IEC Standard 62301 (Second Edition) for the measurement of standby mode and off mode energy consumption, which is a widely-accepted and used international standard. Based on its analysis of IEC Standard 62301 (Second Edition), DOE has determined that the test methods and equipment that the amendments require for measuring standby mode and off mode power do not differ substantially from the test methods and equipment in the current DOE test procedure for residential direct heating equipment and pool heaters. Therefore, testing of these products pursuant to today's final rule will not require any significant investment in new test facilities or equipment. For these reasons, DOE does not believe that the standby mode and off mode test procedure provisions will add significant costs.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996) requires preparation of an initial regulatory flexibility analysis (IRFA) for any rule that, by law, must be proposed for public comment and a final regulatory flexibility analysis (FRFA) for any such rule that an agency adopts as a final rule, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. A regulatory flexibility analysis examines the impact of the rule on small entities and considers alternative ways of reducing negative effects. Also, 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 DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site at www.gc.doe.gov/gc/office-general-counsel .

Today's final rule adopts test procedure provisions to measure standby mode and off mode energy consumption of residential direct heating equipment and pool heaters, generally through the incorporation by reference of IEC Standard 62301 (Second Edition) and the modifications and additional calculations described in detail in the August 2010 NOPR. DOE reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. 68 FR 7990.

As noted above, the test procedure incorporates by reference provisions from IEC Standard 62301 (Second Edition)  8 for the measurement of standby mode and off mode energy consumption. IEC Standard 62301 (Second Edition) is widely accepted and used internationally to measure electric power in standby mode and off mode. Based on its analysis of IEC Standard 62301 (Second Edition), DOE determined that the test methods and equipment that the amendments require for measuring standby mode and off mode power do not differ substantially from the test methods and equipment in the current DOE test procedure for direct heating equipment and pool heaters. Even if the testing facility decides to upgrade its measurement instrumentation to meet today's rule, an applicable meter (i.e., one that complies with IEC Standard 62301) would cost $3,000 or less. Therefore, testing of direct heating equipment and pool heaters pursuant to today's final rule will not require any significant investment in test facilities or new equipment. The testing time to conduct the standby mode and off mode testing on a single unit is estimated at 15 minutes to 60 minutes. Assuming a laboratory technician would be present at a cost of $60 per hour, this time represents a labor cost range of $15 to $60. This range of cost would be related to the stability of the electrical consumption being measured, with a longer testing time being required for unstable measurements in order to allow for accurate averaging. It is important to note, that the second edition of IEC Standard 62301 sought improvement in this area by more clearly defining the stability criteria and allowing for less burdensome direct meter reading methods, thereby reducing testing time in cases where the criteria are met. In the worst case, the impacts of the potential incremental instrument and labor costs are still small compared to the overall financial investment needed to undertake a business enterprise involving the testing of consumer products. For these reasons, DOE has concluded that the standby mode and off mode test procedure provisions will not add significant costs.

For the manufacturers of the three types of heating products, 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, 30848-49 (May 15, 2000), as amended at 65 FR 53533, 53544-45 (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(1).pdf . Residential water heater manufacturing is classified under NAICS 335228—“Other Major Household Appliance Manufacturing.” DHE and pool heater manufacturing are classified under NAICS 333414—“Heating Equipment (except Warm Air Furnaces) Manufacturing.” The SBA sets a threshold of 500 employees or less for an entity to be considered as a small business for both of these categories. However, since DOE has determined that it is not necessary to establish additional standby mode and off mode test procedure provisions for water heaters in this rulemaking, there is no need to analyze the impact of this rulemaking on water heater manufacturers.

In a recent review of the residential DHE and pool heater markets, DOE identified 10 manufacturers of only vented DHE, 3 manufacturers of only unvented DHE, 2 manufacturers of both vented and unvented DHE, and 1 pool heater manufacturer that can be considered small businesses. DOE's research involved reviewing several industry trade association membership directories ( e.g., AHRI and HPBA), product databases ( e.g. AHRI, CEC, and ENERGY STAR databases), individual company Web sites, and marketing research tools ( e.g. Dun and Bradstreet reports) to create a list of all domestic small business manufacturers of direct heating equipment and gas-fired pool heaters covered by this rulemaking. In the August 2010 NOPR, DOE identified a similar number of small business manufacturers and tentatively certified that this rule would not have a significant impact on a substantial number of small entities. 75 FR 52892, 52901-02 (August 30, 2010). Additionally, as discussed above, DOE hereby confirms that the IEC Standard 62301 (Second Edition) would be expected to reduce testing burden relative to the first edition and confirms that this 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's certification and supporting statement of factual basis was provided to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b). DOE did not receive any comments or public testimony regarding a significant economic impact on any small entities. Thus, DOE reaffirms and certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Manufacturers of residential direct heating equipment and pool heaters must certify to DOE that their products comply with all applicable energy conservation standards. In certifying compliance, manufacturers must test according to the applicable DOE test procedures, including any amendments adopted for those test procedures on the date that compliance is required. DOE has established regulations for the certification and recordkeeping requirements for all covered products and commercial equipment, including residential direct heating equipment and pool heaters (76 FR 12422 (March 7, 2011)). The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB Control Number 1910-1400. Public reporting burden for the certification is estimated to average 20 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

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

DOE is establishing a final rule to amend the test procedure for residential direct heating equipment and pool heaters to address measurement of the standby mode and off mode energy consumption of these products. DOE has determined that this final rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), and DOE's implementing regulations at 10 CFR part 1021. Specifically, this final rule, which adopts an industry standard for measurement of standby mode and off mode energy consumption, amends an existing rule without affecting the amount, quality, or distribution of energy usage, and, therefore, will not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A5 found in 10 CFR part 1021, subpart D, which applies to any rulemaking that interprets or amends an existing rule without changing the environmental effect of that rule. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. 64 FR 43255 (August 10, 1999). The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States, and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process that it will follow in the development of such regulations. 65 FR 13735. DOE has examined this final rule and determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of today's final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) Therefore, Executive Order 13132 requires no further action.

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

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)) For regulatory actions likely to result in a rule that may cause expenditures by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. (This policy is also available at http://www.gc.doe.gov .) DOE examined today's final rule, which modifies the current test procedures for direct heating equipment and pool heaters according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 15, 1988), DOE has determined that this final rule would not result in any takings that might require compensation under the Fifth Amendment to the United States Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's final rule is not a significant regulatory action under Executive Order 12866 or any successor order; would not have a significant adverse effect on the supply, distribution, or use of energy; and has not been designated by the Administrator of OIRA as a significant energy action. Therefore, DOE has determined that this rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects for this rulemaking.

Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101 et seq. ), DOE must comply with all laws applicable to the former Federal Energy Administration, including section 32 of the Federal Energy Administration Act of 1974 (Pub. L. 93-275), as amended by the Federal Energy Administration Authorization Act of 1977 (Pub. L. 95-70). (15 U.S.C. 788) Section 32 provides in relevant part that where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Federal Trade Commission (FTC) concerning the impact of commercial or industry standards on competition.

Certain of the amendments and revisions in this final rule incorporate testing methods contained in the following commercial standard, the International Electrotechnical Commission (IEC) Standard 62301, “Household electrical appliances—Measurement of standby power” (Second Edition, 2011-01). DOE has evaluated this standard and is unable to conclude whether it fully complies with the requirements of section 32(b) of the Federal Energy Administration Act ( i.e., that it was developed in a manner that fully provides for public participation, comment, and review). DOE has consulted with the Attorney General and the Chairman of the FTC concerning the impact on competition of requiring manufacturers to use the test methods contained in this standard, and neither recommended against incorporation of this standard.

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

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

For the reasons stated in the preamble, DOE is amending part 430 of Chapter II, Subchapter D of Title 10 of the Code of Federal Regulations, as set forth below:

I. Background

The Debt Collection Improvement Act of 1996 (DCIA) amended section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Adjustment Act) (28 U.S.C. 2461 note), to require the head of each Federal agency, by regulation published within 180 days of the enactment of the DCIA, and at least once every four years thereafter, to adjust the maximum authorized amount of each CMP which the agency is authorized to assess. The agency is required to use the inflation adjustment formula set forth in section 5(b) of the Inflation Adjustment Act.

To satisfy the requirements of the DCIA, the FDIC is amending part 308 of its regulations (12 CFR part 308) of its regulations pertaining to its Rules of Practice and Procedure that address CMPs. The amount of each CMP that the FDIC has jurisdiction to impose has been increased according to the prescribed formula, or maintained at the previous level if warranted. The penalties specified in part 308 of the FDIC's regulations were last adjusted in 2008 (73 FR 73153, Dec. 2, 2008).

In addition, the FDIC is amending Part 390 of its regulations (12 CFR part 390) to adjust the maximum authorized CMP amounts it may assess against State savings associations under applicable laws. Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) transferred the functions, powers, and duties of the Office of Thrift Supervision (OTS) relating to State savings associations to the FDIC effective one year after July 21, 2010, the date that the Dodd-Frank Act was enacted. The Dodd-Frank Act also amended section 3 of the Federal Deposit Insurance Act (FDI Act) to designate the FDIC as the “appropriate Federal banking agency” for State savings associations. The FDIC transferred 12 CFR 509.103, the OTS regulation that prescribed procedures regarding assessment of CMPs against State savings associations, and the maximum permissible CMP amounts, to new part 390 of the FDIC's regulations. See 76 FR 47652 (Aug. 5, 2011). The amounts in the OTS regulation were last adjusted in 2008, and therefore are also subject to review and adjustment as provided by the DCIA.

Any increase in penalty amounts under the DCIA shall apply only to violations that occur after the effective date of the amended regulations.

The Inflation Adjustment Act requires that each CMP amount be increased by the “cost of living” adjustment, which is defined as the percentage by which the Consumer Price Index (CPI-U)  1 for the month of June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the calendar year in which the amount of the CMP was last set or adjusted pursuant to law. Any increase is to be rounded to the nearest multiple of: (A) $10 in the case of penalties less than or equal to $100; (B) $100 in the case of penalties greater than $100, but less than or equal to $1,000; (C) $1,000 in the case of penalties greater than $1,000, but less than or equal to $10,000; (D) $5,000 in the case of penalties greater than $10,000, but less than or equal to $100,000; (E) $10,000 in the case of penalties greater than $100,000, but less than or equal to $200,000; and (F) $25,000 in the case of penalties greater than $200,000. Under the DCIA, the first time that a CMP was adjusted following implementation of the DCIA in 1996, the increase could not exceed ten percent of the then-current original penalty amount, even though the intervening cost-of-living exceeded ten percent. As a general matter, under the DCIA, a particular CMP will not be increased for inflation or cost-of-living when the “rounding” process fails to reach the level warranting adjustment, as shown in the Summary of Adjustments chart below. In those cases, a particular CMP might be increased at a subsequent future quadrennial adjustment, when the level of inflation for the years since the last prior adjustment is taken into account. An example of the computation steps is found at 73 FR 73153 (Dec. 2, 2008), which published the FDIC's adjustments of CMPs in 2008.

Under the Inflation Adjustment Act, the FDIC must adjust for inflation the maximum civil monetary penalties which it has authority to assess under the FDIA and other statutes. The following chart displays the adjusted civil money penalty amounts for the enumerated statutes. The amounts in this chart apply to violations that occur after December 31, 2012:

Discussion

We have received reports that the flap/stabilizer electronic control unit (FSECU) is not detecting failures of the brake feature in the horizontal stabilizer electric motor unit (HSEMU), or failures of drive solenoids for hydraulic valves in the flap hydraulic control module (FHCM) during the system power-on self test (SPOST). The potential for undetected horizontal stabilizer actuator (HSA) brake failures results from the FSECU executing its SPOST before 115VAC and hydraulic power are available during the airplane power-on sequence. The root cause of this issue is the failure of the system power-up test logic to first consider whether hydraulic and electrical power have been supplied to the system articles under test; the test logic therefore does not provide accurate information about the condition of the articles. Failure to test the brake-holding torque functionality and capability exposes the airplane to a potential latent failure of a protective feature critical to the safe operation of the horizontal stabilizer system. These conditions, if not corrected, could result in a potential runaway horizontal stabilizer pitch trim system and consequent loss of pitch control. Further, failure of the FHCM drive solenoid valves to halt uncommanded flap motion could result in uncommanded flap motion or flap runaway.

We reviewed the following service information:

• Gulfstream G350 Alert Customer Bulletin 11, including Service Reply Card, dated December 4, 2012, which includes Revision 31, dated December 4, 2012, of the Gulfstream G350 Airplane Flight Manual Document GAC-AC-G350-OPS-0001.

• Gulfstream G450 Alert Customer Bulletin 11, including Service Reply Card, dated December 4, 2012, which includes Revision 33, dated December 4, 2012, of the Gulfstream G450 Airplane Flight Manual Document GAC-AC-G450-OPS-0001.

• Section 1-27-40, “Flap/Stabilizer System Preflight Check,” of the Gulfstream G350 Airplane Flight Manual Document GAC-AC-G350-OPS-0001, Revision 31, dated December 4, 2012.

• Section 1-27-40, “Flap/Stabilizer System Preflight Check,” of the Gulfstream G450 Airplane Flight Manual Document GAC-AC-G450-OPS-0001, Revision 33, dated December 4, 2012.

• Section 2-03-20, “Before Starting Engines,” of the Gulfstream G350 Airplane Flight Manual Document GAC-AC-G350-OPS-0001, Revision 31, dated December 4, 2012.

• Section 2-03-20, “Before Starting Engines,” of the Gulfstream G450 Airplane Flight Manual Document GAC-AC-G450-OPS-0001, Revision 33, dated December 4, 2012.

For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for Docket No. FAA-2012-1225.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires accomplishing the actions specified in the service information identified previously, except as discussed under “Differences Between the AD and the Service Information.”

This AD requires compliance within 3 days. However, these actions are recommended before further flight by Gulfstream G350 Alert Customer Bulletin 11, dated December 4, 2012; and Gulfstream G450 Alert Customer Bulletin 11, dated December 4, 2012. We have determined that the 3-day compliance time required by this AD will adequately ensure safety while avoiding the need to ground the fleet.

Although the service information recommends that operators contact Gulfstream if a successful test is not achieved, this AD requires operators to repair those conditions before further flight in accordance with a method approved by the FAA.

We consider this AD interim action. Gulfstream is in the process of updating software intended to terminate the actions required by this AD. Once this upgrade is developed, approved, and available, we might consider further rulemaking to require the upgraded software.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because failure of the brake feature in the HSEMU could result in a runaway horizontal stabilizer pitch trim system which, if left uncorrected, could result in loss of airplane pitch control. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2012-1225 and Directorate Identifier 2012-NM-219-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.

We estimate that this AD affects 200 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in 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.

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:

The FDA Food Safety Modernization Act (FSMA), enacted on January 4, 2011, amended section 415 of the FD&C Act, in relevant part, to require that facilities engaged in manufacturing, processing, packing, or holding food for consumption in the United States submit additional registration information to FDA, including an assurance that FDA will be permitted to inspect the facility at the times and in the manner permitted by the FD&C Act. Section 415 of the FD&C Act, as amended by FSMA, also requires food facilities required to register with FDA to renew such registrations every other year and provides FDA with authority to suspend the registration of a food facility in certain circumstances.

FDA has prepared this guidance to restate the legal requirements in section 415 of the FD&C Act. Previously, this guidance restated the legal requirements of FDA's food facility registration regulation at 21 CFR part 1, Subpart H (§§ 1.225 through 1.243), implementing section 415 of the FD&C Act, as added by the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. This guidance also served as FDA's Small Entity Compliance Guide for 21 CFR part 1, Subpart H in accordance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121). Because section 415 of the FD&C Act was amended by section 102 of FSMA in 2011, FDA is revising this document to provide guidance on section 415 of the FD&C Act, as amended by FSMA. This updated guidance is intended to help any entity comply with the requirements of section 415 of the FD&C Act, including the amendments made by section 102 of FSMA. This document continues to serve as FDA's Small Entity Compliance Guide for 21 CFR Part 1, Subpart H.

FDA is issuing this guidance consistent with FDA's good guidance practices regulation (21 CFR 10.115) as level 1 guidance. Consistent with FDA's good guidance practices regulation, the Agency will accept comments, but it is implementing this guidance document immediately, in accordance with 21 CFR 10.115(g)(2), because the Agency has determined that prior public participation is not feasible or appropriate because the updated guidance document is merely specifying the new requirements of section 102 of FSMA, many of which are already in effect. This guidance represents the Agency's current thinking on the registration of food facilities. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.

This guidance refers to previously approved collections of information found in FDA regulations and section 415 of the FD&C Act. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in §§ 1.230 through 1.235 and section 415 of the FD&C Act have been approved under OMB control number 0910-0502.

Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see ADDRESSES ) or electronic comments to http://www.regulations.gov. It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

Persons with access to the Internet may obtain the document at either http://www.fda.gov/RegulatoryInformation/Guidances/default.htm or http://www.regulations.gov. Always access an FDA guidance document by using FDA's Web site listed previously to find the most current version of the guidance.

The temporary regulations that are the subject of these amendments are under sections 162, 165, 167,168, 263, 263A, and 1016 of the Internal Revenue Code. The temporary regulations (TD 9564) were published in the Federal Register on Tuesday, December 27, 2011 (76 FR 81060). Because the temporary regulations are applicable to taxable years beginning on or after January 1, 2012, the IRS and the Treasury Department are concerned that taxpayers are expending resources to comply with temporary regulations that may not be consistent with forthcoming final regulations. For more information about the temporary regulations and these amendments, see Notice 2012-73, which is in IRB 2012-51.

Taxpayers choosing to apply the provisions of the temporary regulations to taxable years beginning on or after January 1, 2012, may continue to rely on the procedures by which a taxpayer may obtain the automatic consent of the Commissioner of Internal Revenue to change its methods of accounting provided in Revenue Procedures 2012-19 (2012-14 IRB 689), and 2012-20 (2012-14 IRB 700), both of which are available at IRS.gov.

For the reasons discussed, the IRS and the Treasury Department have decided to amend the applicability dates of the temporary regulations.

Accordingly, 26 CFR part 1 is amended by making the following technical amendments.

The Norfolk Southern Corporation, owner and operator of the swing span Norfolk Southern #V2.8 Railroad Bridge, mile 2.7, at Norfolk, VA, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.1007(a), to accommodate bearing replacement.

Under the normal operating schedule the bridge shall be left in the open position at all times and will only be closed for the passage of trains and to perform periodic maintenance. The Norfolk Southern #V2.8 Bridge, at mile 2.7, across the Elizabeth River (Eastern Branch) in Norfolk, VA, has a vertical clearance in the closed position to vessels of 6 feet above mean high water.

To facilitate bearing replacement, the drawbridge will be maintained in the closed-to-navigation position from 8 a.m. on December 18, 2012, to 8 a.m. on December 21, 2013. The bridge normally operates in the open position with several vessels transiting a week. Coordination with waterway users has been completed.

The Coast Guard will inform the users of the waterway through our Local and Broadcast Notices to Mariners of the opening restrictions of the draw span to minimize transiting delays caused by this temporary deviation. There are no alternate routes available. Mariners able to pass under the bridge in the closed position may do so at any time and the bridge is not able to open for emergencies. Mariners are advised to proceed with caution.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this 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 to do so would be impracticable due to the lack of advance notice of the underlying dispute. Delayed promulgation may result in injury or damage to the maritime public, vessel crews, the vessels themselves, the facilities, and law enforcement personnel from protest activities that could occur prior to conclusion of a notice and comment period.

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 because to do otherwise would be impracticable since the arrival of grain-shipment vessels cannot be delayed by the Coast Guard and protest activities are unpredictable and potentially volatile and may result in injury to persons, property, or the environment. Delaying the effective date until 30 days after publication may mean that grain-shipment vessels will have arrived or departed the Columbia and Willamette Rivers before the end of the 30 day period. This delay would eliminate the safety zone's effectiveness and usefulness in protecting persons, property, and the safe navigation of maritime traffic before 30 days have elapsed.

Due to a labor dispute regarding grain-shipment vessels involved in commerce with the Columbia Grain facility, a safety zone is needed to help ensure the safe navigation of maritime traffic on the Columbia and Willamette Rivers while grain-shipment vessels transit to and from grain export facilities in the Sector Columbia River Captain of the Port Zone. There is the potential for injury and damage to both protestors and shipping due to the labor dispute. The Coast Guard believes that a safety zone is needed to allow maximal use of the waterway consistent with safe navigation and to ensure that protestors and other river users are not injured by deep-draft vessels with maneuvering characteristics with which they may be unfamiliar.

This rule establishes a temporary safety zone around grain-shipment vessels involved in commerce with the Columbia Grain facility on the Willamette River in Portland, OR, and the United Grain Corporation facility on the Columbia River in Vancouver, WA while they are located on the Columbia and Willamette Rivers. This safety zone extends to waters 500 yards ahead of the vessel and 200 yards abeam and astern of the vessel. No person or vessel may enter or remain in the safety zone without authorization from the Sector Columbia River Captain of the Port or his designated representatives.

This rule has been enforced with actual notice since November 16, 2012 and it will be enforced until 30 days from date of publication in the Federal Register. If unsafe conditions continue beyond that date, the Coast Guard will consider extending the duration of the safety zone.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and 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. Although this rule will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The safety zone is limited in size; (ii) the official on-scene patrol may authorize access to the safety zone; (iii) the safety zone will effect a limited geographical location for a limited time; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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 term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities some of which may be small entities: the owners and operators of vessels intending to operate in the area covered by the safety zone created in this rule.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone is limited in size; (ii) the official on-scene patrol may authorize access to the safety zone; (iii) the safety zone will effect a limited geographical location for a limited time; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 , 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 INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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 temporary safety zone around grain-shipment vessels involved in commerce with the Columbia Grain facility on the Willamette River in Portland, OR, and the United Grain Corporation facility on the Columbia River in Vancouver, WA while they are located on the Columbia and Willamette Rivers. This rule 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 Part 165 as follows:

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

On June 15, 2012, Indiana submitted to EPA replacement budgets based on MOVES2010a for the South Bend/Elkhart, Indiana area. This SIP revision, if approved, would replace MOBILE6.2-based approved budgets in the 1997 8-hour ozone maintenance plan for South Bend/Elkhart, Indiana with MOVES2010a-based budgets. Indiana supplemented the SIP revision request on August 17, 2012. The August 17, 2012, submittal letter with the state public comment documentation completed the requirements for the SIP submittal. On October 4, 2012, EPA proposed to approve the Indiana SIP revision request (see 77 FR 60661). Additional explanatory information is contained in EPA's October 4, 2012, proposal.

Under section 176(c) of the Clean Air Act (CAA), transportation plans, Transportation Improvement Programs (TIPs), and transportation projects must “conform” to (i.e., be consistent with) the SIP before they can be adopted or approved. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS or delay an interim milestone. The transportation conformity regulations can be found at 40 CFR parts 51 and 93. The South Bend/Elkhart area must use the updated budgets to demonstrate transportation conformity. On the effective date of EPA's approval of the submitted budgets, the budgets must be used by local, state and Federal agencies in determining whether transportation activities conform to the SIP as required by section 176(c) of the CAA.

The MOVES model is EPA's state-of-the-art tool for estimating highway emissions. The model is based on analyses of millions of emission test results and considerable advances in the agency's understanding of vehicle emissions. MOVES incorporates the latest emissions data, more sophisticated calculation algorithms, increased user flexibility, new software design, and significant new capabilities relative to those reflected in MOBILE6.2.

States that revise their existing SIPs to include MOVES budgets must show that the SIP continues to meet applicable requirements with the new level of motor vehicle emissions contained in the budgets. The transportation conformity rule (40 CFR 93.118(e)(4)(iv)) requires that “the motor vehicle emissions budget(s), when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given implementation plan submission).”

EPA has determined, based on its evaluation, that the area's maintenance plan continues to serve its intended purpose with the MOVES2010a-based budgets and that the budgets themselves meet the adequacy criteria in the conformity rule at 40 CFR 93.118(e)(4). The basis for this conclusion is contained in the proposed approval (77 FR 60661).

The State public comment period on the proposal ended on July 18, 2012. The State offered to hold a public hearing on request but one was not requested. The State received no public comments during the comment period.

EPA had a 30 day public comment period on the proposed approval. The public comment period closed on November 5, 2012. EPA received no comments during the public comment period.

EPA is approving new MOVES2010a-based budgets for the South Bend/Elkhart, Indiana 1997 ozone maintenance area because the submitted budgets should continue to keep emissions below the attainment level and maintain air quality. On the effective date of this rulemaking, the submitted MOVES2010a-based budgets will replace the existing, MOBILE6.2-based budgets in the State's 1997 8-hour ozone maintenance plan and will be used in future transportation conformity analyses for the area. The previously approved MOBILE6.2-based budgets will no longer be applicable for transportation conformity purposes. The table below contains the MOVES2010a-based budgets for the South Bend/Elkhart, Indiana area which are being approved in this action.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 15, 2013. 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:

Entities potentially affected by this action are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as biodiesel and renewable diesel. Regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to engage in activities that may be affected by today's action. To determine whether your activities would be affected, you should carefully examine the applicability criteria in 40 CFR part 80, subpart M. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.

On March 26, 2010, the Environmental Protection Agency (EPA) published changes to the Renewable Fuel Standard program regulations as required by 2007 amendments to CAA 211(o). This rulemaking is commonly referred to as the “March, 2010 RFS2 final rule”. As part of the March, 2010 RFS2 final rule we analyzed various categories of biofuels to determine whether the complete lifecycle GHG emissions (domestic and international) associated with the production, distribution, and use of those fuels meet minimum lifecycle greenhouse gas reduction thresholds as specified in CAA section 211(o) (i.e., 60% for cellulosic biofuel, 50% for biomass-based diesel and advanced biofuel, and 20% for other renewable fuels). Our final rule focused our lifecycle analyses on fuels that were anticipated to contribute relatively large volumes of renewable fuel by 2022 and thus did not cover all fuels that either are contributing or could potentially contribute to the program. In the preamble to the final rule, EPA indicated that it had not completed the GHG emissions impact analysis for several specific biofuel production pathways but that this work would be completed through supplemental rulemaking processes. Since the final rule was issued, we have continued to examine several additional pathways. On June 12, 2012, we published a Notice of Data Availability Concerning Renewable Fuels Produced From Grain Sorghum Under the RFS Program ( see 77 FR 34915). In that notice of data availability, we provided an opportunity for comment on EPA's analysis of grain sorghum used as a feedstock to produce ethanol under the RFS program. Today's final rule describes our lifecycle analysis of ethanol made from grain sorghum (“grain sorghum ethanol”) and presents our determination that grain sorghum ethanol qualifies as renewable fuel (20% lifecycle GHG reduction as compared to baseline fuel) or as advanced biofuel (50% lifecycle GHG reduction as compared to baseline fuel) if produced pursuant to specified pathways. The modeling approach EPA used in this analysis is the same general approach used in the March, 2010 RFS2 final rule for lifecycle analyses of other biofuels. 1 The March, 2010 RFS2 final rule preamble and Regulatory Impact Analysis (RIA) provides further discussion of our approach.

The analysis EPA has prepared for grain sorghum ethanol uses the same set of models that was used for the March, 2010 RFS2 final rule. To estimate the domestic agricultural impacts presented in the following sections, we used the Forestry and Agricultural Sector Optimization Model (FASOM) developed by Texas A&M University. To estimate the international agricultural sector impacts, we used the Food and Agricultural Policy and Research Institute international models as maintained by the Center for Agricultural and Rural Development (FAPRI-CARD) at Iowa State University. For more information on the FASOM and FAPRI-CARD models, refer to the March, 2010 RFS2 final rule preamble (75 FR 14670) or the March, 2010 RFS2 final rule Regulatory Impact Analysis (RIA). 2 The models require a number of inputs that are specific to the pathway being analyzed, including projected yields of feedstock per acre planted, projected fertilizer use, and energy use in feedstock processing and fuel production. The docket includes detailed information on model inputs, assumptions, calculations, and the results of our assessment of the lifecycle GHG emissions performance of specified pathways for producing grain sorghum ethanol.

To assess the impacts of an increase in renewable fuel volume from business-as-usual (what is likely to have occurred without the RFS biofuel mandates) to levels required by the statute, we established a control case and other cases for a number of biofuels analyzed for the March, 2010 RFS2 final rule. The control case included a projection of renewable fuel volumes that might be used to comply with the RFS renewable fuel volume mandates in full. The other cases are designed such that the only difference between a given case and the control case is the volume of an individual biofuel, all other volumes remaining the same. In the March, 2010 RFS2 final rule, for each individual biofuel, we analyzed the incremental GHG emission impacts of increasing the volume of that fuel to the total mix of biofuels needed to meet the EISA requirements.

For the analysis of grain sorghum ethanol, we applied the same methodology as in the March, 2010 RFS2 final rule. In this case, we compared a scenario that included 200 million gallons of grain sorghum ethanol to another scenario that included 300 million gallons of grain sorghum ethanol, ensuring that all other renewable fuel volumes are equal between the two scenarios. The scenario with 200 million gallons of grain sorghum ethanol will henceforth be referred to as the “control case,” which was developed to account for the current production of grain sorghum ethanol which is approximately 200 million gallons per year ( see Chapter 1 of the March, 2010 RFS2 final rule RIA). All other volumes for each individual biofuel in this new control case remain identical to the control case used in the March, 2010 RFS2 final rule. The scenario with 300 million gallons of grain sorghum ethanol will be referred to as the “grain sorghum” case. For the grain sorghum case, our modeling assumes approximately 300 million gallons of sorghum ethanol would be consumed in the United States in 2022. The modeled scenario includes 2.06 billion lbs of grain sorghum to be used to produce the additional 100 million gallons of ethanol in 2022.

Our volume scenario of approximately 200 million gallons of grain sorghum ethanol in the control case, and 300 million gallons in the grain sorghum case in 2022, is based on several factors including historical volumes of grain sorghum ethanol production, potential feedstock availability and other competitive uses ( e.g., animal feed or exports). Our assessment is described further in the inputs and assumptions document that is available through the docket (EPA 2011). Based in part on consultation with experts at the United States Department of Agriculture (USDA) and industry representatives, we believe that these volumes are reasonable for the purposes of evaluating the impacts of producing additional volumes of ethanol from grain sorghum.

The FASOM and FAPRI-CARD models, described above, project how much grain sorghum will be supplied to ethanol production from a combination of increased production, decreases in others uses ( e.g., animal feed), and decreases in exports, in going from the control case to the grain sorghum case.

Based on information from industry stakeholders, as well as in consultation with USDA, both the FASOM and FAPRI-CARD models assume perfect substitution in the use of grain sorghum and corn in the animal feed market in the U.S. Therefore, when more grain sorghum is used for ethanol production, grain sorghum that is used in feed decreases. Either additional corn or additional sorghum production will be used in the feed market to make up for this decrease, depending upon the relative cost of additional production. This assumption is based on conversations with industry and the USDA, reflecting the primary use of sorghum in the U.S. as animal feed, just like corn. We received a number of comments in response to our Notice of Data Availability (NODA) for Renewable Fuels Produced from Grain Sorghum Under the RFS Program (77 FR 34915, June 12, 2012) that support this assumption.

The United States is one of the largest producers and exporters of grain sorghum. Two other large producers of grain sorghum, India and Nigeria, do not actively participate in the global trade market for sorghum. Rather, all grain sorghum in those two countries is produced for domestic consumption. Therefore, as the U.S. diverts some of its exports of grain sorghum for the purposes of ethanol production, we would expect close to no reaction in the production levels of grain sorghum in India and Nigeria. Historical data on prices, production, and exports from USDA, FAOSTAT (the Statistics Division of the Food and Agriculture Organization of the U.N.), and FAPRI support this assumption. 3 We received several comments in response to our NODA that supported our proposed assumption that production of grain sorghum in India and Nigeria is not impacted by changes in production and trade of grain sorghum in the U.S. It should be noted that India and Nigeria are unique in this behavior in regards to grain sorghum production, consumption and trade. Other countries are expected to vary their harvested area in response to changes in U.S. grain sorghum exports, which can be seen in Table II-4 below.

As we did for our analysis of other feedstocks in the March, 2010 RFS2 final rule, we assessed what the GHG emissions impacts would be from the use of additional volumes of sorghum for biofuel production. The information provided in this section discusses the assumptions and outputs of the analysis using the FASOM and FAPRI-CARD agro-economic models to determine changes in the agricultural and livestock markets. These results from FASOM and FAPRI-CARD are then used to determine the GHG emissions impacts due to land use change and other factors. Finally, we include our analysis of the GHG emissions associated with different processing pathways and how the choice of technologies affect the lifecycle GHG emissions associated with grain sorghum ethanol.

As discussed in the March, 2010 RFS2 final rule and the accompanying peer review, there are inherent challenges in reconciling the results from two different models. However, using two models provides a more complete and robust analysis than either model would be able to provide alone. We have attempted to align as many of the key assumptions as possible to get a consistent set of modeling results although there are structural differences in the models that account for some of the differences in the model results. For example, since FASOM is a long-term dynamic optimization model, short-term spikes are smoothed out over the five year reporting period. In comparison, the FAPRI-CARD model captures annual fluctuations that may include short-term supply and demand responses. In addition, some of the discrepancies may be attributed to different underlying assumptions pertaining to elasticities of supply and demand for different commodities. These differences, in turn, affect projections of imports and exports, acreage shifting, and total consumption and production of various commodities.

EPA received no significant comments regarding the results from the FASOM and FAPRI-CARD models, nor did EPA receive recommendations that the models be re-run with different assumptions. Therefore, the results from these two models are identical to those results presented and discussed in the NODA. For more detailed results, please refer to the NODA. Given the importance of the land use change results for our emissions analysis we are presenting these identical results for reference in this final rule.

In the FASOM model, the increase in grain sorghum area harvested is relatively modest, at an additional 4 thousand acres, due to the fact that demand for grain sorghum for use in ethanol production is being met by a shift of grain sorghum from one existing use (in the animal feed market) to another (ethanol production). Meeting the subsequent gap in supply of animal feed, however, leads to an increase of 141 thousand corn acres in 2022. Another way to describe this interaction is that it is relatively more profitable to take grain sorghum out of the feed market for ethanol production and grow more corn, than it is to simply grow more grain sorghum for ethanol production. Due to the increased demand for corn production and harvested area, soybean harvested area would decrease by 105 thousand acres (corn and soybeans often compete for land). Other crops in the U.S., such as wheat, hay, and rice, are projected to have a net increase of 53 thousand acres.

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 for the modified BFEs for each community listed. These modified elevations 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.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

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.

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

Accordingly, 44 CFR part 67 is amended as follows:

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

The 2010 ICCAT recommendation regarding western BFT management resulted in baseline U.S. quotas for 2011 and for 2012 of 923.7 mt (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). The 2011 BFT quota rule (76 FR 39019, July 5, 2011) implemented the base quota of 435.1 mt for the General category fishery (the commercial tunas fishery in which handgear is used). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a portion of the annual General category quota. The 2012 BFT quota specifications (77 FR 44161, July 27, 2012) also put 41.8 mt into the Reserve category for inseason adjustments, and potential quota transfers, scientific research collection, and accounting for potential overharvest in any category except the Purse Seine category.

The 2012 General category fishery is open until December 31, 2012, or until the General category quota is reached, whichever comes first. The 2013 General category fishery will open on January 1, 2013. This fishery may remain open until the “January subquota” amount is reached or March 31 (whichever comes first). The General category will then reopen for the remainder of the 2013 fishing year on June 1, 2013.

Consistent with the allocation scheme established in the Consolidated HMS FMP and implementing regulations, the baseline category subquotas were established in the 2011 BFT quota rule as follows: 23.1 mt for January; 217.6 mt for June through August; 115.3 mt for September; 56.6 mt for October through November; and 22.6 mt for December. Although NMFS published quota specifications for 2012 (77 FR 44161, July 27, 2012), the baseline General category quota and subquotas as codified have not changed from the amounts established for the 2011 fishing year. The 2012 ICCAT recommendation regarding western BFT management did not result in changes to the baseline U.S. quota for 2013.

Under § 635.27(a)(7), NMFS has the authority to allocate any portion of the Reserve category to any other category, other than the Angling category school BFT subquota (for which there is a separate reserve), after considering determination criteria provided under § 635.27(a)(8), which include: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made; the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of BFT before the end of the fishing year; the estimated amounts by which quotas for other gear categories of the fishery might be exceeded; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal distribution, abundance, or migration patterns of BFT; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and a review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds.

NMFS has considered the determination criteria regarding inseason adjustments and their applicability to the General category fishery for the remainder of the 2012 fishing year. These considerations include, but are not limited to, the following:

As of November 28, 2012, the General category has landed 428 mt, or 98.4 percent of its 2012 quota of 435.1 mt. Without a quota transfer at this time, most or all of the December subquota established in the 2011 final quota rule per the Consolidated HMS FMP (i.e., 5.2 percent of the General category quota, which is 22.6 mt for December 2012) effectively would not be available to fishermen who participate in the December fishery because nearly the entire General category quota has been used as of the end of November. Overall, approximately 72 percent (536 mt) of the total of the commercial BFT subquotas (747.2 mt, as published in the 2012 BFT quota specifications) has been harvested as of November 28, 2012. The Purse Seine, Harpoon, and Trap categories are not expected to use all of their available 2012 quotas (i.e., approximately 175 mt or more may remain unused). Also, as set out in the 2012 BFT quota specifications, NMFS will need to account for 2012 BFT landings and dead discards within the U.S. quota, consistent with ICCAT recommendations.

A transfer from the Reserve category decreases the amount of unused quota available, if needed, to account for all landings and dead discards within the total 2012 U.S. quota once the dead discard information is available. However, our best estimates, in part based on a review of dead discard amounts over prior years and an initial examination of preliminary recreational landings estimates, indicate that the risk of exceeding the overall quota is very small. In the process of setting the 2012 BFT specifications, NMFS has already accounted up front for half of the current best estimate of the 2012 bluefin tuna dead discards, and held a portion of the 2011 underharvest in the Reserve category rather than allocating it fully, indicating it could provide for greater management and accounting flexibility later in the fishing year. A quota transfer at this time would provide additional opportunities to harvest the available U.S. bluefin quota without exceeding it, while preserving the opportunity for General category fishermen to participate in the winter mid-Atlantic bluefin fishery that typically begins in December. In addition, several Atlantic tuna dealers are currently providing biological samples from BFT caught by General category vessels to support ongoing NMFS-approved research regarding reproduction status and feeding habits. Continued BFT landings would support the collection of a broad range of data for these studies and for stock monitoring purposes.

Based on the considerations above, as well as the available quota, fishery performance in recent years, and the availability of BFT on the fishing grounds, NMFS has determined that a quota transfer is warranted and transfers 40 mt from the Reserve category to the General category. Thus, the General category quota is adjusted to 475.1 mt for the 2012 fishing year. Once the adjusted General category quota has been reached, or on December 31, 2012 (whichever comes first), the 2012 General category fishery will be closed. The 2013 General category fishery begins January 1, 2013.

Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) over a range of zero to a maximum of five per vessel based on consideration of the relevant criteria provided under § 635.27(a)(8), and listed above.

For the 2012 fishing year to date, NMFS has adjusted the General category limit from the default level of one large medium or giant BFT as follows: Two large medium or giant BFT for January (76 FR 76900, December 9, 2011), and three large medium or giant BFT for June through August (77 FR 28496, May 15, 2012), and three large medium or giant BFT for September through December (77 FR 53150, August 31, 2012). Unless changed, the General category daily retention limit starting on January 1 would be the default retention limit of one large medium or giant BFT per vessel per day/trip (§ 635.23(a)(2)). This default retention limit applies to General category permitted vessels and to HMS Charter/Headboat category permitted vessels when fishing commercially for BFT.

NMFS has considered the set of criteria cited above and their applicability to the General category BFT retention limit for the January 2013 General category fishery. These considerations include, but are not limited to, the following: Biological samples collected from BFT landed by General category fishermen and provided by BFT dealers continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. As this action would be taken consistent with the quotas previously established and analyzed in the 2011 BFT quotas final rule (76 FR 39019, July 5, 2011), and consistent with objectives of the Consolidated HMS FMP, it is not expected to negatively impact stock health.

A principal consideration is the objective of providing opportunities to harvest the full General category quota without exceeding it based upon the Consolidated HMS FMP goal: “Consistent with other objectives of this FMP, to manage Atlantic HMS fisheries for continuing optimum yield so as to provide the greatest overall benefit to the Nation, particularly with respect to food production, providing recreational opportunities, preserving traditional fisheries, and taking into account the protection of marine ecosystems.” Under the two-fish limit that applied in January 2012, the available subquota was reached on January 22. However, in other recent years, there has been an underharvest of the January subquota. Under the two-fish limit that applied during January 2011 and January 2010 (when fishing on the January subquota was authorized for January 1 through 31), January landings were 34 percent of the baseline subquota (7.9 mt out of 23.1 mt) and 11 percent (2.7 mt out of 23.8 mt), respectively. Thus, the default one-fish limit likely would be overly restrictive and would not support the objective of providing opportunities to harvest the full January subquota, without exceeding it. Based upon the ICCAT recommended quota, the baseline 2013 General category January subquota is 23.1 mt. Although NMFS has the authority to set the daily retention limit higher than two BFT, under a higher limit (and fish availability), the rate of harvest of the January subquota could be accelerated and result in a relatively short fishing season. A short fishing season may preclude or reduce fishing opportunities for some individuals or geographic areas. Therefore, in order to maintain an equitable distribution of fishing opportunities, a retention limit closer to the low end of the allowable range of retention limits (i.e., two fish) is warranted. A potential ancillary benefit from a subquota period that is open for an extended duration is that any scientific information (including biological samples) collected from BFT may be from fish collected over a broader temporal and geographic range than currently sampled. Lastly, fishery participants have supported this retention limit in prior seasons.

Therefore, based on these considerations, NMFS has decided that a two-fish General category retention limit is warranted for the January subquota. It would provide a reasonable opportunity to harvest the U.S. quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities, help achieve optimum yield in the General category BFT fishery, allow collection of a broad range of data for stock monitoring purposes, and be consistent with the objectives of the Consolidated HMS FMP. Therefore, NMFS increases the General category retention limit from the default limit (one) to two large medium or giant BFT per vessel per day/trip, effective January 1, 2013, through March 31, 2013, or until the 23.1- mt January subquota is harvested, whichever comes first.

Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the daily limit of two fish may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, and applies to those vessels permitted in the General category as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.

NMFS will continue to monitor the BFT fishery closely through the mandatory dealer landing reports, which NMFS requires to be submitted within 24 hours of a dealer receiving BFT. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments or closure are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas.

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

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

The regulations implementing the Consolidated HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the quota transfer for the remainder of 2012 is impracticable as it would preclude NMFS from acting promptly to allow continued harvest of BFT that are available on the fishing grounds via a quota transfer from the Reserve category to the General category. Affording prior notice and opportunity for public comment to adjust the retention limit for the portion of the General category season that begins January 1, 2013, is impracticable as NMFS needs to wait until it has necessary data and information about the fishery before it can select the appropriate retention limit for a time period prescribed by regulation. By the time NMFS has the needed data, implementing the retention limit following a public comment period would preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria. Analysis of available data shows that the General category BFT retention limits may be increased with minimal risks of exceeding the ICCAT-allocated quota.

Delays in increasing these retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Limited opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen that depend upon catching the available quota within the time periods designated in the Consolidated HMS FMP. Adjustment of the retention limit needs to be effective January 1, 2013, or as soon as possible thereafter, to minimize any unnecessary disruption in fishing patterns, to allow the impacted sectors to benefit from the adjustment, and to provide fishing opportunities for fishermen who have access to the fishery only during this time period. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under 50 CFR 635.23(a)(4) and 635.27(a)(7), and is exempt from review under Executive Order 12866.