On September 26, 2014 (79 FR 57721), the NRC published a direct final rule amending its regulations in part 70 of Title 10 of the Code of Federal Regulations (10 CFR) to increase the time licensees are allowed to submit a written follow-up report from within 30 days to within 60 days after the initial report of an event, update the reporting framework for certain situations, and remove redundant reporting requirements. These amendments affect a licensee or an applicant that is, or plans to be, authorized to possess greater than a critical mass of special nuclear material.

A companion proposed rule was also published in the Federal Register on September 26, 2014 (79 FR 57840) which provided an opportunity for public comment. In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on January 26, 2015. The substantive changes being made in this rulemaking are to reporting provisions in 10 CFR 70.74 and Appendix A to part 70. These changes increase the time—from 30 to 60 days—that licensees subject to part 70, Subpart H ( Additional Requirements for Certain Licensees Authorized to Possess a Critical Mass of Special Nuclear Material ) will have to submit a written follow-up report after the initial report of certain significant events to the NRC Operations Center.

The NRC received one public comment (ADAMS Accession No. ML14296A322). The commenter agrees with the proposed changes, but the commenter requested that the NRC also revise a 10 CFR 70.50 reporting provision that is within part 70, Subpart G ( Special Nuclear Material Control, Records, Reports and Inspections ). The commenter wants licensees subject to Subpart G to also be given 60 rather than 30 days to submit a written follow-up report.

The comment letter does not warrant the withdrawal of the direct final rule. The direct final rule is of limited scope, and arose from PRM-70-8 (ADAMS Accession No. ML091110449, dated April 16, 2009, filed by the Nuclear Energy Institute) that did not seek changes to 10 CFR 70.50. The commenter has not provided a sufficient basis to expand the direct final rule's scope to include revising the 30-day reporting requirement in 10 CFR 70.50, and the NRC does not agree with the commenter's claim that his proposal meets the criteria for being a significant adverse comment. Therefore, this rule will become effective as scheduled.

Title III of the Energy Policy and Conservation Act of 1975, as amended (“EPCA” or, in context, “the Act”) sets forth a variety of provisions designed to improve energy efficiency. Part A of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products Other Than Automobiles. The National Energy Conservation Policy Act (NECPA), Pub. L. 95-619, amended EPCA to add Part A-1 of Title III, which established an energy conservation program for certain industrial equipment. (42 U.S.C. 6311-6317)  1 The Department of Energy (“DOE”) is charged with implementing these provisions.

Under EPCA, this program consists essentially of four parts: (1) Testing; (2) labeling; (3) Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for the labeling of consumer products and DOE implements the remainder of the program. The testing requirements consist of test procedures that manufacturers of covered products and equipment must use (1) as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) for making representations about the efficiency of those products and equipment. Similarly, DOE must use these test requirements to determine whether the products comply with any relevant standards promulgated under EPCA. For certain consumer products and industrial equipment, DOE's existing testing regulations allow the use of an alternative efficiency determination method (AEDM) or an alternative rating method (ARM), in lieu of actual testing, to simulate the energy consumption or efficiency of certain basic models of covered products under DOE's test procedure conditions.

In addition, EPCA (through 42 U.S.C. 6299-6305 and 6316) authorizes DOE to enforce compliance with the energy and water conservation standards (all non-product specific references herein referring to energy use and consumption include water use and consumption; all references to energy efficiency include water efficiency) established for certain consumer products and industrial equipment. (42 U.S.C. 6299-6305 (consumer products), 6316 (industrial equipment)) DOE has promulgated enforcement regulations that include specific certification and compliance requirements. See 10 CFR part 429; 10 CFR part 431, subparts B, U, and V.

On February 26, 2013, members of the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) unanimously decided to form a working group to engage in a negotiated rulemaking effort on the certification of the compliance of commercial HVAC, WH, and refrigeration equipment. A notice of intent to form the Commercial Certification Working Group (“the Working Group”) was published in the Federal Register on March 12, 2013, to which DOE received 35 nominations. 78 FR 15653. On April 16, 2013, DOE published a notice of open meeting that announced the first meeting and listed the 22 nominated individuals (and their affiliations) who were selected to serve as members of the Working Group, in addition to two members from ASRAC, and one DOE representative. 78 FR 22431. The members of the Working Group were selected to ensure a broad and balanced array of stakeholder interests and expertise, and included efficiency advocates, manufacturers, a utility representative, and third-party laboratory representatives.

During the Working Group's first meeting, Working Group members voted to expand the scope of the negotiated rulemaking efforts to include developing methods of estimating equipment performance based on AEDM simulations. AEDMs are computer modeling or mathematical tools that predict the performance of non-tested basic models. They are derived from mathematical and engineering principles that govern the energy efficiency and energy consumption characteristics of a type of covered equipment. AEDMs, when properly developed, can provide a relatively straight-forward and reasonably accurate means to predict the energy usage or efficiency characteristics of a basic model of a given covered product or equipment and reduce the burden and cost associated with testing. Where authorized by regulation, AEDMs enable manufacturers to rate and certify the compliance of their basic models by using the projected energy use or energy efficiency results derived from these simulation models in lieu of testing.

The Working Group discussed the particular elements that the AEDM simulations should address for each equipment type and other related considerations, including validation requirements for AEDMs, DOE verification of models rated with an AEDM, and the consequences for misuse of the AEDM construct. As required, the Working Group submitted an interim report to ASRAC on June 26, 2013, summarizing the group's recommendations regarding AEDMs for commercial HVAC, WH, and refrigeration equipment. The interim report to ASRAC can be found at http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-NOC-0023-0046. ASRAC subsequently voted unanimously to approve the recommendations in the interim report for AEDMs.

On October 22, 2013, DOE published in the Federal Register a Supplemental Notice of Proposed Rulemaking (“the October 2013 AEDM SNOPR”) regarding alternative efficiency determination methods, basic model definitions, and certification compliance dates for commercial HVAC, refrigeration, and WH equipment. 78 FR 62472. The October 2013 AEDM SNOPR also proposed a process for DOE to conduct verification testing to ensure that models rated with an AEDM perform to their certified ratings. As part of the verification testing process, the Working Group recommended that a manufacturer may elect to have a DOE representative and a manufacturer's representative on site for the initial test of up to 10 percent of the basic models that they have rated with an AEDM. DOE adopted most of the provisions from the October 2013 AEDM SNOPR in a December 31, 2013 final rule (“the December 2013 final rule”). 78 FR 79579. However, commenters raised concerns over DOE's proposal allowing manufacturers to witness verification tests. In reviewing their comments, DOE determined that its proposed regulatory text, which was based in large part on the Working Group's recommendation, may not have been sufficiently clear. As a result, DOE published a Supplemental Notice of Proposed Rulemaking (“the September 2014 SNOPR”) clarifying the process for witnessing the test set-up as part of the AEDM verification process. The Department's intent was to establish a clear process while ensuring that the regulatory text reflects the recommendations of the Working Group. 79 FR 57842 (September 26, 2014).

The final rule adopts the approach proposed in the September 2014 SNOPR.

As described in the background section of this notice, DOE proposed clarifications regarding witnessing the verification test set-up for models rated with an AEDM. See 79 FR 57842. DOE received three comments in response—two from manufacturers and one from a trade association. These comments are discussed in more detail below, and a full set of comments can be found at: http://www.regulations.gov/#!docketDetail;D=EERE-2011-BT-TP-0024.

DOE proposed regulatory text to state explicitly that manufacturers may elect to witness the test set-up of verification tests. DOE proposed this clarification to better align the regulatory text with the Working Group's recommendation on this issue. See 79 FR at 57845.

Continental suggested that, given its own problematic experiences with third-party testing, DOE should allow manufacturers the option to be present for the duration of any verification test to ensure that no issues requiring additional manufacturer input arise. (Continental, No. 0111 at p.1) Continental went on to state that they understand and concur with DOE's decision to only allow manufacturers to be present for the test setup, given manufacturer's ability to review the test data, calculations and final results. (Id.)

DOE's proposed approach to verification testing uses a number of different steps to help ensure that commercial HVAC, WH, and refrigeration equipment is tested correctly. First, the proposal would allow manufacturers to witness the set-up for AEDM verification testing for a selection of basic models rated with an AEDM. Second, if a lab encounters an issue during a verification test and requires additional information to test in accordance with the applicable DOE test procedure, under already existing regulations, DOE may coordinate a meeting between the manufacturer and the test facility to resolve that issue. See 10 CFR 429.70(c)(5)(iv)(E). Third, if a model performs worse than its certified rating during testing, DOE also already provides the manufacturer with the test report, and manufacturers may present any claims that the test was performed incorrectly. See 10 CFR 429.70(c)(5)(v). In light of these pre-existing provisions, expanding the witness testing provisions beyond the Working Group's recommendation to allow manufacturers to witness the set-up of the test is unnecessary. Consequently, consistent with the Working Group's recommendation, DOE is adopting regulatory text that allows manufacturers to elect to witness the test set-up for a basic model. That election would be made as part of that basic model's certification report.

In the September 2014 SNOPR, DOE proposed to maintain that a manufacturer may select up to 10 percent of its certified basic models rated with an AEDM to witness the set-up of any verification test performed by DOE. DOE remarked that this threshold was negotiated through detailed discussions with the Working Group, who collectively concluded that this level would be acceptable to both industry and efficiency advocates while not being overly burdensome for DOE to administer. DOE noted that manufacturers were not required to select 10 percent of eligible basic models and that manufacturers could decline to attend the test set-up when notified. DOE also noted that the 10 percent was a limit on how many basic models a manufacturer might pre-select for witnessing test set-up; it was not an indication that DOE would test 10 percent of that manufacturer's basic models. 79 FR at 57846.

Hussmann expressed little confidence that a third-party laboratory can properly set-up and test a remote supermarket case because third-party laboratories do not understand the issues to look for prior to and during an actual test—issues like discharge temperature and air flow. Hussmann recommended that remote supermarket case manufacturers should be allowed to be present at all test set-ups (rather than simply 10 percent) and data collection periods (rather than just set-up) until the third-party laboratories have established thorough knowledge of how to prepare a remote supermarket case to be tested. (Hussmann, No. 0110 at pp. 1-2) Hussmann provided no substantiating data or other information for its assertions.

While DOE acknowledges manufacturer concerns that their equipment is tested properly, DOE disagrees that supermarket case manufacturers (along with other commercial refrigeration equipment manufacturers who will be similarly affected by this provision) should be allowed to witness the set-up and data collection of all remote condensing commercial refrigerator and freezer verification tests. The Department reiterates its position from the Working Group negotiation meetings that third-party test facilities should have sufficient expertise in conducting the relevant test and that DOE's test procedures should be written in a manner that allows the test facility to administer the test procedure without DOE's or a manufacturer's supervision. ([Docket No. EERE-2013-BT-NOC-0023], Department of Energy, Public Meeting Transcript, No. 0041 pp. 34 and 36)

Moreover, the Working Group, which included Hussmann, unanimously voted in favor of the 10 percent approach detailed in the September 2014 NOPR. ([Docket No. EERE-2013-BT-NOC-0023], 2013-06-24 Appliance Standards and Rulemaking Federal Advisory Committee Commercial HVAC, WH, and Refrigeration Certification Working Group Alternative Efficiency Determination Methods, No. 0046 at p. 5) After reaching a consensus among the broad array of interests represented at the numerous ASRAC meetings that led to the development of this approach, DOE is highly reluctant, without further substantive and compelling data, to alter the comprehensively crafted and unanimously supported recommendation set forth by the Working Group.

Continental commented that it appreciated DOE's efforts to clarify the rules regarding witnessing the test set-up for up to 10 percent of the manufacturer's certified basic models rated with an AEDM. Continental sought, however, additional clarity regarding DOE's proposal in the form of additional sample scenarios to further explain DOE's approach. (Continental, No. 0111 at p. 2)

In response to Continental's request, DOE is clarifying that a manufacturer may witness the test set-up for up to 10 percent of the basic models rated with an AEDM per validation class submitted to DOE for certification. The validation classes for commercial HVAC, WH, and refrigeration equipment can be found in 10 CFR 429.70(c)(2)(iv). As an example, if a manufacturer submits for certification 100 basic models of single package vertical air conditioners rated with an AEDM and 100 basic models of package terminal air conditioners rated with an AEDM, then the manufacture may elect to witness the test set-up for up to 10 single package vertical air conditioners and 10 package terminal air conditioners because single package vertical air conditioners and package terminal air conditioners fall into separate validation classes. In contrast, if a manufacturer submits to DOE for certification 100 single package vertical air conditioners rated with an AEDM and 100 single package vertical heat pumps rated with an AEDM, then the manufacturer may elect to witness the test set-up no more than 20 basic models made up of any combination of single package vertical air conditioners and/or single package vertical heat pumps because single package vertical air conditioners and single package vertical heat pumps are part of the same validation class. The manufacturer may select any combination of models rated with an AEDM within the same validation class for witnessing the test set-up of a verification test.

Further, DOE is clarifying that if a manufacturer submits for certification fewer than 10 basic models rated with an AEDM per validation class, then the manufacturer may elect to witness the verification test set-up for one basic model from that validation class. Manufacturers that submit for certification 10 or more basic models rated with an AEDM per validation class must use the following method to determine the maximum number of basic models for which it may witness the verification test set-up. The manufacturer should first calculate 10 percent of the total number of basic models rated with an AEDM per validation class, and then truncate the resulting product. For example, if a manufacturer submits for certification 56 water source heat pump basic models rated with an AEDM, then the manufacturer may elect 5 water source heat pump basic models to witness the verification test set-up.

DOE plans to provide additional examples in a separate guidance document.

Additionally, DOE notes that if a manufacturer selects one or more individual models per basic model then DOE considers the manufacturer to have selected the entire basic model, including all individual models associated with it as a model for which the manufacturer opts to witness the verification test set-up. That basic model will count towards the total number of basic models for which the manufacturer has elected to witness the verification test set-up and is subject to the 10 percent limit.

Consistent with the above discussion, this final rule adopts regulations allowing manufacturers to witness the set-up of a selection of verification test performed by DOE. Manufacturers may select up to 10 percent of its basic models per validation class submitted to DOE for certification and rated with an AEDM.

The Department also proposed a framework to address situations where a manufacturer exceeds the 10 percent limit. See 79 FR at 57846. If the unit is obtained through retail channels, DOE will review the certification submissions from the manufacturer that were on file as of the date DOE purchased a basic model. If the unit is obtained directly from the manufacturer, DOE will review the certification submissions from the manufacturer that were on file as of the date DOE notifies the manufacturer that the basic model has been selected for testing. DOE will review the certification submissions from the manufacturer to determine if the manufacturer has chosen to be present for testing of the selected basic model. DOE will also verify that the manufacturer has not selected more than 10 percent of the manufacturer's basic models per validation class rated with an AEDM and submitted to DOE for certification. If DOE discovers that the manufacturer has exceeded the 10 percent limit, DOE will notify the manufacturer of this fact and deny its request to be present for the testing of the selected basic model. The manufacturer must update its certification submission to ensure it has selected no more than 10 percent of its basic models per validation class rated with an AEDM to witness the test set-up for any future verification testing. See id. DOE received no comments on this aspect of the proposal and is adopting it in this final rule.

In the September 2014 SNOPR, DOE proposed that the 10 percent requirement would apply to all of the basic models per validation class rated with an AEDM that are submitted to DOE for certification by a given manufacturer no matter how many AEDMs a manufacturer has used to develop its ratings. See id. DOE proposed that it would perform testing without a manufacturer's representative present for each basic model DOE selects for assessment testing unless either: (1) The manufacturer has elected to have the opportunity to witness the test set-up as part of its allocated 10 percent; or (2) the manufacturer requires the basic model to be started only by a factory-trained installer per the installation manual instructions. For those basic models that a manufacturer has requested to witness the initial verification test set-up, the manufacturer would be unable to request that the unit be retested. The results from this initial test would be used to make a definitive determination regarding the validity of the basic model's rating from the AEDM. For those basic models that are initially tested without the manufacturer present for test set-up, a manufacturer would be automatically eligible to request a retest for those basic models where the initial results indicate a potential rating issue (non-compliance or discrepancy with the certified rating). See id.

AHRI commented that DOE's proposal that a manufacturer forfeits any opportunity to request a retest of the basic model if the manufacturer's representative is present for the initial test set-up for any reason is too severe. AHRI added that the provision incorrectly assumes that all problems that may arise during the course of an efficiency test are related to an issue involving the set-up of the unit. AHRI agreed with this proposal insofar as it limits the manufacturer's ability to request a retest because of a set-up issue. However, if some other problem occurs during the testing which is unrelated to any set-up procedure, the manufacturer should still have the option to request a retest. AHRI suggested that the language be rewritten to state, “If a manufacturer's representative is present for the initial test set-up for any reason, the manufacturer forfeits any opportunity to request a retest of the basic model based on a claim that the unit was set up improperly.” (AHRI, No. 0112 at 2)

DOE disagrees with AHRI's assessment. The Working Group unanimously recommended that manufacturers who are on-site for the test set-up of a verification test would not be allowed to automatically request a retest. ([Docket No. EERE-2013-BT-NOC-0023], Department of Energy, 2013-06-24 Appliance Standards and Rulemaking Federal Advisory Committee Commercial HVAC, WH, and Refrigeration Certification Working Group Alternative Efficiency Determination Methods, No. 0046 at p. 5)] Additionally, attending the set-up of a verification test is optional. As proposed in the September 2014 SNOPR, when DOE selects a model for verification testing and the manufacturer has elected in its certification report to witness that model's testing set-up, DOE will alert the manufacturer of its testing selection. At this point, the manufacturer may decide whether to be present at the set-up of the verification test. 79 FR at 57846.

DOE also disagrees with AHRI's suggestion to allow manufacturers to automatically require the Department to retest for reasons other than improper set-up. In the case where a model fails to meet its certified rating, DOE provides the manufacturer with all documentation related to the test set-up, test conditions, and test results for the unit. At this time the manufacturer may present claims regarding the validity of the test. 10 CFR 429.70(c)(5)(v). If the manufacturer identifies problems that occurred during the test that impact the validity of the test ( e.g. , a malfunctioning measurement device), DOE would consider the test to be invalid. DOE does not make compliance determinations based on invalid testing and would retest the sample unit to obtain valid test results. DOE does not believe that, in the absence of any problems with the conduct of the verification test, it is necessary to permit the retesting of a unit when a manufacturer has already attended the verification test's set-up. Consequently, DOE's adopted approach does not permit the retesting of a basic model under these circumstances. (In contrast, for those basic models that are initially tested without the manufacturer present for test set-up, a manufacturer would be automatically eligible to request a retest for those basic models where the initial results indicate a potential rating issue.)

In the September 2014 SNOPR, DOE proposed the following scenarios for notifying the manufacturer if DOE conducts AEDM verification testing on a basic model for which a manufacturer elected to witness the test set-up. If the unit is obtained through retail channels, DOE would notify the manufacturer of the basic model's selection for testing and provide the manufacturer the option to be present for test set-up once the unit has arrived at the test laboratory and is scheduled to be tested. If the manufacturer does not respond within five calendar days, the manufacturer would waive the option to be present for test set-up, and DOE would then proceed with the test set-up without a manufacturer's representative present. If DOE has obtained a unit directly from the manufacturer, DOE would provide the manufacturer with the option to be present for test set-up at the time the unit is ordered. DOE would then specify the date (not less than five calendar days) by which the manufacturer would notify DOE whether the manufacturer chooses to have a representative present. If the manufacturer does not notify DOE of its choice by the date specified, the manufacturer would waive the option to be present for test set-up. DOE would then proceed with the test set-up without a manufacturer's representative present. DOE also notes that any time a manufacturer's representative requests to be on-site for the test set-up, a DOE representative would also be present at the third-party test facility. Additionally, 10 CFR 429.70(c)(5)(iv)(A) would continue to apply prior to, during, and after the manufacturer's representative is on site; that is, the manufacturer's representative cannot communicate with a third-party test facility regarding verification testing without the DOE representative present. DOE received no comments on this aspect of the proposal and is adopting it in this final rule.

DOE proposed to amend its regulations to provide that information necessary for testing certain products (such as the override code for controls that would otherwise prevent the completion of testing in accordance with the applicable DOE test procedure) must accompany the certification submission for a basic model of those products. DOE also proposed that failure to provide this information would preclude a manufacturer being present for testing of a basic model of its product. If, in the course of testing a selected basic model, DOE discovers that the necessary information for completing the test has not been provided, DOE will contact the manufacturer to obtain that information and complete the testing. The September 2014 SNOPR also explained that the failure to submit with a certification report equipment-specific, supplemental information necessary to operate the basic model is a prohibited act as described at 10 CFR 429.102(a)(1), subject to the maximum civil penalty described at 10 CFR 429.120. 79 FR at 57845.

AHRI commented that it did not recall any discussion by the Working Group where the failure to supply supplemental information would be considered a prohibited act. AHRI asserted that DOE's proposed approach was an inappropriate and unnecessary expansion of the scope of prohibited acts. AHRI added that, if a manufacturer does not provide supplemental information, the model will likely fail testing. AHRI also stated that, because a manufacturer cannot provide additional information at any time other than at certification, a model would fail the verification test if the manufacturer failed to provide the required information. At that point, DOE would be able to apply fully the penalties and remedies specified. (AHRI, No. 0112, at 1-2)

AHRI's comments suggest that it misunderstood the purpose of these portions of the proposal. DOE may determine a basic model's compliance with the applicable energy conservation standard only through testing of that basic model. 10 CFR 429.106 and 429.110(c)(3). AHRI appears to be commenting about situations in which it may be highly desirable for a manufacturer to provide testing instructions because the basic model is not likely to pass verification testing without those instructions. DOE's proposal addressed a problem wherein DOE cannot test—it is impossible to test—a basic model without additional testing information. For example, DOE has found that certain PTACs require special codes to be entered to make the unit perform under test conditions; without those codes, the unit will not perform at test conditions and DOE cannot obtain a valid test. In such a situation, DOE proposed to contact the manufacturer, but the manufacturer would forfeit its opportunity to be present for test set-up. 79 FR at 57846

Contrary to AHRI's assertion that DOE would not consider any testing instructions not provided at certification under any circumstances, DOE explained in the September 2014 SNOPR that, if a manufacturer has not provided supplemental information required for testing, then DOE will obtain the information from the manufacturer and complete the testing. 79 FR at 57846. In addition, if for other reasons DOE is unable to test a unit, the Working Group recommended, and DOE has already codified in its regulations, that DOE may coordinate a meeting between the manufacturer and test facility to resolve any technical issues. See 10 CFR 429.70(c)(5)(iv)(E).

In this rule, DOE is requiring that, if necessary to run a valid test, the equipment-specific, supplemental information for commercial HVAC, WH, and refrigeration equipment must include any additional testing and testing set-up instructions.

DOE also proposed that, if the unit is obtained through retail channels, DOE will review the certification submissions from the manufacturer that were on file as of the date DOE purchased a basic model. If DOE has obtained a unit directly from the manufacturer, DOE will review the certification submissions from the manufacturer that were on file as of the date DOE notifies the manufacturer that the basic model has been selected for testing. At this time, DOE will determine if the manufacturer provided necessary supplemental instructions. Additionally, for the purposes of conducting the verification test DOE will use the most recent version of supplemental instructions on file as of the date DOE purchased a basic model or the date DOE notified the manufacturer of the verification testing. DOE received no comments on these proposals and is adopting them in this rule.

DOE notes that manufacturers will also need to provide the complete name of the PDF containing the supplemental testing instructions as part of the certification report. If the manufacturer changes the supplemental testing instructions and as a result changes the file name, then the manufacturer must update the certification report accordingly.

DOE notes that 10 CFR 429.102(a)(1) establishes that the failure to properly certify covered products and covered equipment in accordance with 10 CFR 429.12 and 10 CFR 429.14 through 429.54 is a prohibited act. The Working Group recommended that manufacturers of certain kinds of commercial refrigeration, HVAC, and WH equipment should be required to submit a supplemental Portable Document Format (PDF) file with additional testing information with the certification report. The Working Group specified that the supplemental information would be required for commercial refrigeration equipment and most types of commercial HVAC equipment. DOE codified these requirements in 10 CFR 429.42(b)(4) and 10 CFR 429.43(b)(4). DOE's statement in the September 2014 SNOPR regarding the consequences of failing to provide supplemental information necessary to operate the basic model information was reiterating an existing prohibited act subject to the maximum civil penalty prescribed at 10 CFR 429.120—not proposing a new provision or reflecting a change in regulations due to the Working Group's recommendations.

DOE proposed to clarify its treatment of “private” model numbers under 10 CFR 429.7(b)(3). “Private” model numbers were created in a final rule published May 5, 2014, which adopted the recommendations of the Working Group with respect to the data elements to include in certification reports. See 79 FR 25486, 25491. These “private” models numbers addressed concerns raised by Working Group participants during the negotiated rulemaking indicating that the model numbers can, in certain circumstances, comprise confidential business information. The Working Group reached a consensus that, in limited circumstances, manufacturers should be able to identify when disclosure of an individual model number would reveal confidential business information and that DOE should treat that information as confidential in those specific instances. DOE has discovered, however, that, as drafted, the language at 10 CFR 429.7 may permit a much broader range of model numbers to be identified as “private” than had been intended, which would result in fewer identified models in DOE's public Compliance Certification Database. Specifically, the current language could be interpreted to permit a manufacturer to mark as “private” any model number that is not available in public marketing materials. Accordingly, DOE proposed to revise the regulatory text to better reflect the negotiated position of the working group. DOE received no comments on this aspect of the proposal and is adopting it in this final rule.

DOE also clarified in its September 2014 SNOPR that variable refrigerant flow system assessment and enforcement testing is governed by 10 CFR 431.96(f), and would not be subject to any of the proposed requirements. 79 FR at 57845. DOE received no comments on this aspect of the proposal and is adopting this approach in the final rule.

Finally, Continental urged DOE to publish the product templates for certifying commercial refrigeration equipment—specifically, for equipment with either single compartment or multiple compartments—on the Compliance Certification Management System Web page as quickly as possible. Continental believes a minimum of 90 calendar days should have been allowed for manufacturers to complete their certifications. (Continental, No. 0111 at p. 2) The CRE certification templates are available at: https://www.regulations.doe.gov/ccms/templates/product_templates .

DOE notes that it adopted the certification requirements for commercial refrigeration equipment in a final rule for which manufacturers negotiated to have over 180 days to collect the required certification information. See 79 FR 25486 (May 5, 2014). Accordingly, DOE will not provide additional time to supplement that which has already been provided.

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 action was not subject to review under the 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. ) requires the preparation of a regulatory flexibility analysis (RFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003 to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://www.energy.gov/sites/prod/files/gcprod/documents/eo13272.pdf .

DOE reviewed the requirements in the Final Rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. As discussed in more detail below, DOE found that the provisions of this rule will not increase testing and/or reporting burden. Accordingly, manufacturers will not experience increased financial burden as a result of this rulemaking.

This Final Rule clarifies how DOE intends to exercise its authority to validate AEDM performance and verify the performance of commercial HVAC, WH, and refrigeration equipment certified using an AEDM. Specifically, DOE is allowing representatives of commercial HVAC, WH, and refrigeration equipment manufacturers to witness the test set-up for DOE-initiated verification testing for up to 10 percent of a manufacturer's basic models certified to DOE and that are rated with an AEDM. The selection of basic models and the decision to witness the test set-up for verification testing is at the discretion of the manufacturer. Thus, because these proposed changes would apply irrespective of a manufacturer's size and would provide these entities with added flexibility to witness the testing set-up of their equipment, DOE certifies that this rulemaking would not have a significant impact on a substantial number of small entities.

Manufacturers of the covered equipment addressed in the Final Rule must certify to DOE that their equipment comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their equipment according to the applicable DOE test procedures for the given equipment type, including any amendments adopted for those test procedures, or use the appropriate AEDMs to develop the certified ratings of the basic models. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including the equipment at issue in this rule. (79 FR 25486 (May 5, 2014)). The collection-of-information requirement for these certification and recordkeeping provisions is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB Control Number 1910-1400. Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

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

DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq. ) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this rule is changing DOE's verification testing regulations so it would not affect the amount, quality or distribution of energy usage, and, therefore, would not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A6 under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this rulemaking and has 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 this rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

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

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

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

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

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

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any 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.

This rule allows manufacturers of commercial HVAC, WH, and refrigeration equipment the opportunity to witness the set-up for DOE verification testing for up to 10 percent of basic models submitted to DOE for certification and rated with an AEDM, and is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, DOE has not prepared a Statement of Energy Effects.

Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a rule authorizes or requires use of commercial standards, the notice of rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition. This rule amending DOE's regulations relating to the verification test procedure for commercial HVAC, WH, and refrigeration equipment rated with an AEDM does not involve the use of any commercial standards.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this 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 supplemental notice of proposed rulemaking.

For the reasons set forth in the preamble, DOE is amending part 429 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Saab AB, Saab Aerosystems Model 340B airplanes. The SNPRM published in the Federal Register on August 12, 2014 (79 FR 47025). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on June 3, 2013 (78 FR 33010).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2013-0253, dated October 18, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on all Saab AB, Saab Aerosystems Model 340B airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2013-0460-0005 .

We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM (79 FR 47025, August 12, 2014) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the SNPRM (79 FR 47025, August 12, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the SNPRM (79 FR 47025, August 12, 2014).

We estimate that this AD affects 109 airplanes of U.S. registry.

We also estimate that it will take about 12 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $10 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $112,270, or $1,030 per product.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2013-0460 ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GROB-WERKE Models G115EG and G120A airplanes. The NPRM was published in the Federal Register on October 23, 2014 (79 FR 63340). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

The MCAI can be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0848-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 63340, October 23, 2014) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 63340, October 23, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 63340, October 23, 2014).

We consider this AD interim action. GROB Aircraft is currently working on a final technical solution to resolve the unsafe condition. If final action is later identified, we might consider further rulemaking.

We estimate that this AD will affect 6 products of U.S. registry. We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $2,040, or $340 per product.

In addition, we estimate that any necessary follow-on actions will take about 4 work-hours and require parts costing $600, for a cost of $940 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0848; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Beechcraft Corporation Model G58 airplanes. The NPRM published in the Federal Register on October 7, 2014 (79 FR 60384). The NPRM was prompted by reports of fuel leaks due to fuel cells that did not properly fit; improper installation of fuel components, which may cause loads on fuel cells and breach of fuel cells; and improper installation of fuel hoses and clamps, which may cause fuel leaks in Model G58 airplanes. The NPRM proposed to require inspecting for and replacing, as necessary, certain fuel cells. The NPRM also proposed to require inspecting and replacing parts, as necessary, of the left and right fuel system installations and correcting torques on fuel system fittings; and prohibit future installations of certain fuel cells. We are issuing this AD to correct the unsafe condition on these products.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 60384, October 7, 2014) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the NPRM (79 FR 60384, October 7, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 60384, October 7, 2014).

We estimate that this AD affects 18 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary installations/replacements that are required based on the results of inspections. We have no way of determining the number of airplanes that might need these installations/replacements:

According to Beechcraft Corporation, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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:

On February 14, 2012, the FAA Modernization and Reform Act of 2012 (the Act) was signed into law. Section 403 of the Act requires U.S. air carriers to accept musical instruments on their passenger flights either as carry-on baggage or checked baggage, provided that certain conditions are met. The passage of Section 403 is Congress' response to difficulties musicians have encountered when transporting their instruments during air travel. The statute directs the Department of Transportation (Department or DOT) to issue a final rule to implement the requirements set forth in section 403.

During the past year, the Department has been engaged in dialogue with musicians as well as representatives of airlines and industry associations to address the difficulties musicians face when traveling by air with musical instruments. In July 2014, DOT Secretary Anthony Foxx hosted a “Flying with Musical Instruments” meeting to provide airline representatives, musicians, and government officials an opportunity to exchange ideas on ways to prevent or resolve difficulties encountered by musicians when flying with their instruments while still ensuring the safety of passengers and crew. At the meeting, several members of various musician organizations described problems that musicians encounter when traveling by air with their musical instruments, particularly when bringing instruments as carry-on baggage. Airline representatives in attendance described their policies for transport of musical instruments as carry-on or checked baggage. Many airlines have already adopted policies concerning the air transportation of musical instruments that mirror the requirements in Section 403 of the Act. The stakeholders recognized that, while most airlines' current policies regarding musical instruments are consistent with the statute, frontline customer service agents and flight crew may not always be well-versed in those policies and may not communicate those policies accurately and effectively to musicians. By the same token, the meeting attendees also agreed that many musicians were not very well informed about airline policies regarding transporting musical instruments or about the measures they can take to better prepare themselves to ensure that the transport goes smoothly.

Since then, the stakeholders have voluntarily taken certain steps to better understand the extent of the problem and prevent or minimize confusion over musical instruments as carry-on baggage. The American Federation of Musicians (AFM) has shared with the airline industry a survey it conducted among its members that identified problematic areas when traveling by air with instruments. Airlines for America (A4A), the trade organization for major U.S. airlines, established a page on its Web site that provides a summary of member airlines' baggage policy regarding musical instruments and links to each individual carrier's Web page for that information. The Department has created a Web page providing useful tips and information for consumers on how to prepare for air travel with musical instruments. The Department also convened a follow-up meeting in September 2014, and may conduct additional such meetings to further explore problems facing musicians when traveling by air that are not specifically addressed by the statute. This cooperation between musician organizations and airline representatives as a parallel approach to the Department's rulemaking may achieve the optimal result of ensuring the safe transport of musical instruments by air and increasing efficiency and customer satisfaction.

Section 403 of the Act covers “[a]n air carrier providing air transportation.” According to the definition in 49 U.S.C. 40102(a)(2), “air carrier” means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation. 49 U.S.C. 40102(a)(5) provides that “air transportation” includes foreign air transportation or interstate air transportation. Those terms in turn are defined in 49 U.S.C. 40102(a) to mean the transportation of passengers or property by aircraft as a common carrier for compensation. Thus, this final rule implementing Section 403 covers all U.S. certificated and commuter carriers, as well as air taxis operating under exemption authority, that provide air transportation to the public directly, regardless of the size of the aircraft they operate, and all indirect carriers such as public charter operators. It covers the scheduled and charter flights operated by these carriers in domestic or international air transportation. This final rule covers public charter operators only to the extent the public charter operator at issue handles checked and carry-on baggage acceptance for the flight. In this situation, if the carriage of a musical instrument is consistent with the Federal Aviation Administration (FAA)-approved carry-on baggage or checked baggage program of the direct air carrier operating a public charter flight and there is room for the instrument at the time the passenger in question attempts to board, the public charter operator must accept the instrument as carry-on or checked baggage as appropriate.

This rule requires that carriers must allow a passenger to carry into the cabin and stow a small musical instrument, such a violin or a guitar, in a suitable baggage compartment, such as the overhead bin or under the seats in accordance with FAA safety regulations. The FAA regulations require each carrier holding a Part 121 or Part 135 operating certificate to ensure that carry-on baggage is carried on board in accordance with an FAA-approved carry-on baggage program. See 14 CFR 121.285, 121.589, and 135.87. Further, in Advisory Circular (AC) 121-29B, FAA provides 11 categories of information that a carrier's carry-on baggage program must address, including a description of procedures a carrier will follow for stowage of “unusual or fragile items” (See AC 121-29B Section 4(e)(3)). Although not specifically referring to musical instruments, we believe this section is applicable to the transport of musical instruments as they tend to fall into the category of “unusual or fragile items” due to their size, shape, and nature. Section 4(e)(3) provides that if the crew cannot check or stow an unusual or fragile item in a manner that ensures the safety of the aircraft and its occupants, the passenger will have to ship that item by some other means. In complying with this final rule and accepting a passenger's musical instrument as carry-on baggage for stowage in an approved compartment or other specifically approved area in the cabin ( e.g., the overhead bin or under seats), we expect carriers to continue to follow their FAA-approved carry-on baggage programs to ensure the safety of the flight and the passengers and crew onboard. In addition, carriers should adequately inform passengers and the public about the limitations and restrictions imposed by these programs.

Section 403 of the Act and this final rule provide that carriers are required to allow passengers to stow their musical instruments in an approved stowage area in the cabin only if at the time the passenger boards the aircraft such stowage space is available. With the exception of certain disability assistance devices, overhead bins or under seat stowage space is available to all passengers and crew members for their carry-on baggage on a “first come, first served” basis. Accordingly, carriers are not required to remove other passengers' or crew members' carry-on baggage that is already stowed in order to make space for a musical instrument. However, this also means carriers are not allowed to require a passenger to remove his or her musical instrument that is already safely stowed ( e.g., in the overhead bin) to make room for carry-on baggage of other passengers who boarded the aircraft later than the passenger with the musical instrument. This is true even if the space taken by the musical instrument could accommodate one or more other carry-on items. Because the rule does not require that musical instruments be given priority over other carry-on baggage, we encourage passengers traveling with musical instruments to take steps to board before as many other passengers as possible to ensure that space will be available for them to safely stow their instruments in the cabin. This includes utilizing pre-boarding opportunities that some carriers offer (usually for a fee).

This rule also states that carriers are prohibited from charging passengers with a musical instrument as carry-on baggage an additional fee other than any standard fee carriers impose for carry-on baggage. By including such a requirement in the statute, Congress clearly meant to require carriers to treat musical instruments in the cabin as no different from other carry-on baggage. For example, many carriers' FAA-approved carry-on baggage programs permit one piece of carry-on baggage plus one personal item such as a purse or a briefcase. If the passenger with the musical instrument already has these two standard items and the musical instrument is the third carry-on item, that carrier may not permit the passenger to board the aircraft with a third carry-on item. As per Federal Aviation Regulations, no air carrier may allow a passenger to board the aircraft with more carry-on items than allowed in that carrier's FAA-approved carry-on baggage program. Any fees imposed by a carrier for any piece of carry-on baggage is also applicable to a musical instrument carried onboard. This would include a situation where a carrier's FAA-approved carry-on baggage program allows each passenger two pieces of carry-on baggage but the airline charges a fee for a second piece. If a passenger with a musical instrument already has one piece of (free) carry-on baggage, the airline is permitted to charge its standard fee for a second piece of carry-on baggage even if the second piece is a musical instrument.

For some musical instruments that are too large to fit in the cabin stowage areas described in the carrier's FAA-approved carry-on baggage program ( e.g., an overhead bin or under a seat), it is sometimes possible to secure them to a seat as “seat baggage” or “cargo in passenger cabin” as regulated by 14 CFR 121.285. As FAA Advisory Circular 121-29B: Carry-On Baggage (AC121-29B) and relevant FAA safety regulations do not mandate that a carrier must allow in their carry-on baggage programs the stowage of a large carry-on item on a passenger seat, we do not require in this final rule that those carriers whose programs do not provide such stowage amend their programs to allow it.

We do, however, encourage these carriers to consider modifying their programs to allow the stowage of large musical instruments at passenger seats, provided that all safety requirements are met. Some of the safety requirements have already been incorporated in Section 403 and this final rule, such as the requirement that the instrument must be contained in a case or covered as to avoid injury to other passengers, and the requirement that the instrument including the case or covering cannot exceed 165 pounds or the applicable weight restriction for the aircraft. Other safety requirements contained in FAA regulations that carriers must follow when transporting a musical instrument at a seat include that the item is restrained to the inertia forces in 14 CFR 25.561; it is properly secured by a safety belt or other tie down having enough strength to eliminate the possibility of shifting under all normally anticipated flight and ground conditions; it does not impose any load on seats or the floor structure that exceeds the load limitation for those components; its location does not restrict access to or use of any required emergency or regular exit, or of the aisle in the passenger compartment; and its location does not obscure any passenger's view of the “seat belt” sign, “no smoking” sign, or required exit sign, unless an auxiliary sign or other approved means for proper notification of the passenger is provided. See 14 CFR 121.285(c) and 14 CFR 135.87(c). Also, when assigning a seat that will be used to transport a musical instrument as cargo in the passenger cabin, carriers must not assign a seat where the instrument may obscure other passengers' view of safety signs that are required to remain visible. In the event a passenger purchases a seat for his or her musical instrument and it is later discovered that the location of the assigned seat is such that the musical instrument may obscure other passengers' view of the “seat belt” sign, “no smoking” sign, or required exit signs, carriers should work with the passenger to determine if any other available seat in that class of service can safely accommodate the musical instrument.

Because carriers must comply with a number of safety requirements, we encourage passengers purchasing a seat for a large musical instrument to provide advance notice to the carrier that the seat is being purchased to transport an instrument and to follow that carrier's policies regarding the transportation of the musical instrument in the cabin. Carriers whose carry-on baggage programs allow such stowage should ensure that their reservation agents and airport agents are trained to provide appropriate seat assignments to the passenger and the instrument to ensure compliance with safety requirements, and that their crews are trained and have the appropriate restraining device for securing the instrument to the seat.

With respect to the cost to a passenger to transport a musical instrument on a passenger seat, assuming all of the safety requirements are met, carriers cannot charge the passenger more than the price of a ticket for the additional seat—for example, by adding on a fee specifically for transporting a musical instrument. However, this does not preclude carriers from charging standard ancillary service fees. For example, to the extent carriers charge a fee for an advance seat assignment, and the passenger requests advance seat assignments for him or herself and for the instrument, the carrier may charge the advance seat assignment fee for each seat assignment.

As mandated by the Act, this rule requires carriers to accept musical instruments in the cargo compartment as checked baggage if those instruments comply with the size and weight limitations provided in Section 403 and FAA's safety regulations. As Section 403 is silent on the charges carriers may impose on transporting musical instruments in the cargo compartment, and we recognize that carriers' cost in transporting baggage and cargo is directly related to its size and weight, consistent with the clear intent of the Act, we conclude that carriers may impose the same checked-baggage charges that apply to other checked baggage of that size and weight. If a musical instrument exceeds the size or weight limits in the carrier's free baggage allowance but does not exceed the size or weight limits of Section 403, the carrier may assess the same over-size and over-weight charges that are applicable to other checked baggage that is over-size or over-weight.

Section 553 of the Administrative Procedure Act (5 U.S.C. 553) provides that when an agency, for good cause, finds that notice and public procedure are impractical, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment (5 U.S.C. 553(b)(B)). The Department has determined that there is good cause to issue this final rule without notice and an opportunity for public comment because such notice and comment would be unnecessary. This rule implements Section 403 of the FAA Modernization and Reform Act by incorporating the statutory language virtually verbatim and without interpretation. Since the Department is exercising no discretion in issuing this rule, public comment is unnecessary.

The Department has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866, and within the meaning of the Department of Transportation's regulatory policies and procedures. The Department is issuing a final rule to implement section 403 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95, 49 U.S.C. 41724) regarding the carriage of musical instruments as carry-on baggage or checked baggage on commercial passenger flights operated by air carriers. In this section, we present information on current carrier policies about transporting musical instruments, provide data on various categories of beneficiaries from the rule, and estimate the costs to U.S. carriers to modify or develop instrument policies that comply with rule requirements.

Currently, most large U.S. carriers post specific policies on musical instrument carriage on their Web sites. We reviewed these policies and found that the specific size (length plus width plus height) and weight limitations for instruments carried as checked baggage vary substantially among carriers with published policies. Some carriers have maximum case size limits—typically combined dimensions of 115”, although one carrier allows cases with maximum dimensions of 126”. The threshold size for oversized baggage charges varies from 62” to 90”, depending on the carrier. Maximum weight limits for checked baggage also vary from 70 to 100 pounds among large U.S. carriers with stated weight limits. However, there are several carriers that post policies without specified limits on case size or weight.

Case dimensions and instrument plus case weights were compiled from Amazon.com and other Web sites to assess the extent to which current policies would potentially bar musicians from traveling with certain types of instruments. Hard cases for tubas exceed the 90” combined dimensions, a threshold at which some carriers charge for oversize baggage, but they are typically under the 115” size that some carriers have established as the current maximum allowable size for checked baggage. Cases for (stringed) double basses are larger than the 115” size limit, and these instruments may also be sufficiently large to preclude them from being flown as carry-on baggage in a separately purchased seat. It therefore appears that nearly all large U.S. carriers would need to modify their current instrument transport policies to take into account the Act's and rule's requirements.

While individual musicians and smaller groups are likely to travel most frequently on scheduled flights, larger ensembles and orchestras may find it more efficient to travel together on chartered flights. None of the largest U.S. charter carriers post specific policies about musical instruments or, for the most part, general baggage policies, on their Web sites.

Beneficiaries of the rule would include professional and amateur musicians who travel with instruments, particularly large instruments that may be subject to more restrictive transportation limits under current carrier policies. Increased ability of these musicians to travel with their instruments could also potentially benefit owners and employees of establishments hosting musical events and people who attend events at which these musicians would be more likely to be able to play.

Estimates of the numbers of professional musicians employed by others are available from the May 2013 BLS Occupational Employment Survey (OES), the 2012 Economic Census, and the 2011 Statistics of U.S. Business (SUSB). The May 2013 OES data indicate that there were 39,260 professional musicians and singers with mean hourly wage of $32.10. Wage data from the OES and payroll data from the OES Census and SUSB are consistent with a daily wage of between $211 and $257, assuming that the average musician performs approximately 180 days annually. Aggregate earnings for professional musicians employed by others are estimated at about $1.5 billion annually. It would be reasonable to assume that professional musicians travel by air at the same rate as the general flying public—an average of 1-2 round trips per year—but there are no data on the distribution of instruments that musicians currently transport or would like to be able to transport on these trips. 1

A broader measure of the number of professional musicians is available from the Current Population Survey (CPS), which includes self-employed and part-time workers in its estimate of “musicians, singers, and related workers.” Assuming that the share of related workers (music composers and directors) is the same as in the OES data, there were approximately 127,000 employed musicians in 2013.

The monetary value of the benefit that a professional musician would receive from consistent carrier policies that comply with the rule could not be estimated. This value depends on at least three factors that could not be quantified:

1. The distribution of instrument played by professional musicians.

2. The extent to which musicians currently encounter difficulties in carrying or checking instruments on the carriers and routes he or she wishes to travel on.

3. The extent to which any loss of income from not being able to perform at events that require air travel could be mitigated by additional performances at destinations or facilities for which instrument transportation is not a problem.

Amateur musicians would also benefit from the proposed rule. This group includes a large number of school age children and their music teachers. School age children who play instruments could reasonably be expected to travel with them if possible—both to perform at out-of-town events and on trips to visit family members. The National Center for Education Statistics Schools and Staffing Survey (SASS) estimates that there were nearly 117,000 public school teachers whose primary assignment was music instruction during the 2011-2012 school year. The number of children who play musical instruments was estimated by assuming that half of these teachers are instrumental music teachers and that each of them teaches an average of 100 students each week. Under these assumptions, there are approximately 5.8 million school age children who play musical instruments. 2 However, it is not possible to monetize the value of the additional practice and performance time that school age musicians may be able to have if their ability to transport instruments by air is enhanced under the rule requirements.

The rule would require most covered carriers with specific policies about transportation of musical instruments to modify these policies to comply with the rule requirements; update written, electronic, and phone guidance provided to customers; and ensure that gate agents, flight crews, and baggage handlers are aware of these requirements. Covered carriers that do not currently have policies for the transportation of musical instruments would have to develop policies that comply with the rule requirements; prepare materials on these policies in written and electronic form; and train employees about these requirements.

Carriers routinely update their baggage fees and policies, as well as other aspects of their customer service plans. Costs for developing or revising customer service plans (CSPs) were estimated for a 2011 rule (“Enhancing Airline Passenger Protections II”). The accompanying regulatory evaluation estimated that it would cost large carriers with existing service plans an average of $35,000 to develop compliant CSPs. Per-firm costs for smaller carriers—many of which did not have formal CSPs at the time the rule was promulgated—were estimated at about $4,000 per firm. Based on tabulations from the BTS T-100 data for 2013 and our review of carrier Web site information, there are 12 large carriers that currently have specific musical instrument carriage plans and 86 other U.S. carriers that have less specific or no specific policies about transporting musical instruments. Using the per-carrier cost estimates from the previous regulatory evaluation, modifying or developing musical instrument carriage policies is expected to cost about $732,000.

Counter agents, gate agents, and baggage acceptance personnel will need to be informed of the new requirements, and periodic reminders or audits may need to be conducted to ensure compliance with compliant musical instrument transportation policies. Because only larger carriers are required to file employment information with the BTS on form P-10, data on industry employment was obtained from the 2013 BLS OES. Four categories of employees appear to be most likely to require training on compliant musical instrument transportation policies:

Based on the calculations shown in the table below, we estimate that the annual cost of this training for 98 affected U.S. carriers would be $474,000.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. However, when notice and comment rulemaking is not necessary, the provisions of the Regulatory Flexibility Act do not apply. Nevertheless, the Department has evaluated the effects of this action on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities. The regulatory requirements imposed by this final rule cover some small entities, but the requirements will not have a significant impact on them because the rule does not require any carrier to modify its FAA-approved carry-on baggage program if that program does not already provide for accepting musical instruments as “cargo in passenger compartment” and to be stowed in a passenger seat. Further, the additional requirements of the rule, such as transporting small musical instruments on the same terms as other carry-on bags, and transporting large musical instruments in seats or as checked baggage for the same fees that are charged to other passengers, do not impose significant costs on carriers. There may also be costs associated with training airline personnel to ensure that they understand these requirements and adhere to them but these costs are not significant. For these reasons, I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does not include any provision that: (1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. States are already preempted from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian Tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

The Department has analyzed the environmental impacts of this action pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4. In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 4.c.6.i of DOT Order 5610.1C covers “actions relating to consumer protection, including regulations.”. The purpose of this rulemaking is to implement regulations regarding the carriage of musical instruments as carry-on baggage or checked baggage on commercial passenger flights operated by air carriers. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

This final rule does not contain any new information collection and therefore is not subject to the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 49 U.S.C. 3501 et seq. ).

The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rule.

For the reasons set forth in the preamble, the Department amends 14 CFR Chapter II by adding a new part 251 to read as follows:

The final regulations that are the subject of this document are under sections 367 and 6038B of the Internal Revenue Code.

As published, final regulations (TD 9704) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

The Federal Communications Commission has received OMB approval for the changes to E-rate rules contained in information collection OMB Control No: 3060-0806; Description of Services Requested and Certification; Description of Services Requested and Certification Instructions; Services Ordered and Certification; Services Ordered and Certification Instructions (FCC Form 470 and Instructions; FCC Form 471 and Instructions). The information collection was revised in the Report and Order and Further Notice of Proposed Rulemaking in WC Docket 13-184 which appears at 79 FR 49160, August 19, 2014. The rules adopted in the Report and Order that contain new or modified information collection requirements were not to become effective until approved by the Office of Management and Budget. Through this document, the Commission announces that it has received this approval (OMB Control No: 3060-0806, Expiration Date April 30, 2015) and that § 54.502(b)(2) is effective January 5, 2015.

Pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520, an agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Notwithstanding any other provisions of law, no person shall be subject to any penalty for failing to comply with the collection of information subject to the Paperwork Reduction Act that does not display a valid control number. Questions concerning the OMB control numbers and expiration dates should be directed to Leslie F. Smith, Federal Communications Commission, (202)418-0217 or via the Internet at Leslie.Smith@fcc.gov.

This is a synopsis of the Commission's Report and Order, MB Docket No. 14-159, adopted December 23, 2014, and released December 23, 2014. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS ( http://fjallfoss.fcc.gov/ecfs/ ). This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via the company's Web site, http://www.bcpiweb.com. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113; March 7, 1996) directs Federal agencies to use voluntary consensus standards and design specifications developed by voluntary consensus standard bodies instead of government-developed voluntary technical standards when appropriate. The Office of Management and Budget (OMB) Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” sets the policy for Federal use and development of voluntary consensus standards. As defined in OMB Circular A-119, voluntary consensus standards are technical standards developed or adopted by domestic and international organizations. These organizations use agreed-upon procedures to update and revise their published standards every three to five years to reflect modern technology and best technical practices.

The legal effect of incorporation by reference (IBR) is that the incorporated material is treated as if it were published in full in the Federal Register and the Code of Federal Regulations (CFR). This material, like any other properly issued rule, has the force and effect of law. Congress authorized incorporation by reference to reduce the volume of material published in the Federal Register and the CFR (see 5 U.S.C. 552(a) and 1 CFR part 51). Congress granted authority to the Director of the Federal Register to determine whether a proposed IBR serves the public interest. Unless expressly provided otherwise in a regulation, if a provision of a standard incorporated by reference conflicts with a regulation, the regulation takes precedence.

New or updated standards often further innovation and increase the use of new technologies, materials and management practices that improve the safety and operations of pipelines and pipeline facilities. Because pipeline safety regulation involves a great deal of technical subject matter, there are 64 standards and specifications that have long been incorporated by reference in 49 CFR part 192, Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards; 49 CFR part 193, Liquefied Natural Gas Facilities: Federal Safety Standards; and 49 CFR part 195, Transportation of Hazardous Liquids by Pipeline. PHMSA regularly reviews updates to currently referenced consensus standards as well as new editions of standards to ensure that their content remains consistent with the intent of the pipeline safety regulations. Previous updates to incorporate industry standards by reference were published on August 11, 2010 (75 FR 48593), February 1, 2007 (72 FR 4657), June 9, 2006 (71 FR 33402), June 14, 2004 (69 FR 32886), February 17, 1998 (63 FR 7721), June 6, 1996 (61 FR 2877), and May 24, 1996 (61 FR 26121). The list of publications that PHMSA has incorporated by reference is found in 49 CFR 192.7, 193.2013, and 195.3.

PHMSA employees participate in more than 25 national voluntary consensus standards-setting organizations that address pipeline design, construction, maintenance, inspection and repair. Agency participation in the development of voluntary consensus standards is important to eliminate the necessity for development or maintenance of separate, government-unique standards, to further national goals and objectives such as increased use of environmentally sound and energy-efficient materials, products, systems, services or practices and to improve public safety. As representatives of the agency, these subject matter experts actively participate in discussions and technical debates, register opinions and vote in accordance with the procedures of the standards body at each stage of the standards development process (unless prohibited from doing so by law). However, it is important to note that agency participation does not necessarily constitute agency agreement with, or endorsement of, all decisions reached by such organizations. PHMSA has the responsibility to establish regulations and standards that ensure pipelines are operated safely and will only adopt those portions of industry standards into the Federal regulations that meet the agency's goals and best promote public safety.

PHMSA has worked to make the materials to be incorporated by reference reasonably available to interested parties. Section 24 of the “Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011” (Pub. L.112-90, January 3, 2012), amended 49 U.S.C. 60102 by adding a new public availability requirement for documents incorporated by reference after January 3, 2013. The law states: “Beginning 1 year after the date of enactment of this subsection, the Secretary may not issue guidance or a regulation pursuant to this chapter that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge, on an Internet Web site.” This section was further amended on August 9, 2013. The current law continues to prohibit the Secretary from issuing a regulation that incorporates by reference any document unless that document is available to the public, free of charge, but removes the Internet Web site requirements (Pub. L. 113-30, August 9, 2013). The Department of Transportation has until August 9, 2015, to comply with this provision.

Pursuant to this mandate, PHMSA has negotiated agreements with all but two of the standards-setting organizations with standards already incorporated by reference in the pipeline safety regulations to make viewable copies of those standards available to the public at no cost. The organizations having agreements are: American Petroleum Institute (API), American Gas Association (AGA), American Society for Testing and Materials (ASTM), Gas Technology Institute (GTI), Manufacturers Standardization Society of the Valve and Fittings Industry, Inc. (MSS), NACE International (NACE), and National Fire Protection Association (NFPA). Each organization's mailing address and Web site is listed in Parts 192, 193, and 195. PHMSA understands that the two standards organizations that we do not have agreements with are considering taking steps in addition to sales of the standards to achieve greater availability.

On August 16, 2013, PHMSA published a notice of proposed rulemaking (NPRM) to incorporate into the pipeline safety regulations two new standards: API RP 5LT “Recommended Practice for Truck Transportation of Line Pipe” (First edition March 1, 2012); and ASTM D2513-09a,“Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings” (December 1, 2009 (except section 4.2 pertaining to rework materials) and 21 updated editions of standards currently incorporated by reference. These standards affect gas pipelines, liquefied natural gas facilities and hazardous liquid pipelines (Parts 192, 193, and 195, respectively). The vast majority of the updated standard editions involve incremental changes in design, maintenance and operation provisions as additional knowledge is gained by stakeholders. With certain exceptions (API RP 1162, “Public Awareness Programs for Pipeline Operators” (1st edition, December 2003) discussed below, PHMSA believes that these updates are consistent with the Federal pipeline safety mission. In addition, the adoption of API RP 5LT addresses National Transportation Safety Board's (NTSB) Recommendation P-04-03.

This final rule accepts the following updated editions of technical standards currently incorporated by reference in Parts 192, 193, and 195:

(1) API Recommended Practice 5L1, “Recommended Practice for Railroad Transportation of Line Pipe” (7th edition, September 2009), into 49 CFR 192.7, 192.65(a)(1), 195.3, 195.207(a).

[Replaces IBR: API Recommended Practice 5L1, “Recommended Practice for Railroad Transportation of Line Pipe” (6th edition, 2002).]

(2) API Recommended Practice 5LT, “Recommended Practice for Truck Transportation of Line Pipe” (First edition March 1, 2012), into 49 CFR 192.7, 192.65(c), 195.3, 195.207(c).

(3) API Recommended Practice 5LW, “Transportation of Line Pipe on Barges and Marine Vessels” (3rd edition, September 2009), into 49 CFR 192.7, 192.65(b), 195.3, 195.207(b).

[Replaces IBR: API Recommended Practice 5LW, “Transportation of Line Pipe on Barges and Marine Vessels” (2nd edition, December 1996, effective March 1, 1997).]

(4) ANSI/API Specification 5L, “Specification for Line Pipe” (45th edition, December 1, 2012, effective July 1, 2013), into 49 CFR 192.7; 192.55(e); 192.112(a)(4); 192.112(b)(1)(i); 192.112(b)(1)(iii); 192.112(b)(2)(iv); 192.112(d)(1); 192.112(e)(1); 192.113; Item I, Appendix B to Part 192; 195.3; 195.106(b)(1)(i); 195.106(e).

[Replaces IBR: ANSI/API Specification 5L/ISO 3183, “Specification for Line Pipe” (44th edition, 2007), includes errata (January 2009) and addendum (February 2009).] (5) ANSI/API Specification 6D, “Specification for Pipeline Valves” (23rd edition, April 1, 2008, effective October 1, 2008), includes Errata 1 (June 2008), Errata 2 (November 2008), Errata 3 (February 2009), Errata 4 (April 2010), Errata 5 (November 2010), Errata 6 (August 2011), Addendum 1 (October 2009), Addendum 2 (August 2011), and Addendum 3 (October 2012) into 49 CFR 192.7; 192.145(a); 195.3, 195.116(d).

[Replaces IBR: ANSI/API Specification 6D, “Specification for Pipeline Valves” (23rd edition (April 2008, effective October 1, 2008)) and Errata 3 (includes 1 and 2, February 2009).]

(6) API Specification 12F, “Specification for Shop Welded Tanks for Storage of Production Liquids” (12th edition, October 2008, effective April 1, 2009) into 49 CFR 195.3, 195.132(b)(1), 195.205(b)(2), 195.264(b)(1), 195.264(e)(1), 195.307(a), 195.565, 195.579(d).

[Replaces IBR: API Specification 12F, “Specification for Shop Welded Tanks for Storage of Production Liquids,” (11th edition, November 1, 1994, reaffirmed 2000, errata, February 2007);]

(7) API Standard 620, “Design and Construction of Large, Welded, Low-pressure Storage Tanks” (11th edition, February 2008), addendum 1, (March 2009), addendum 2 (August 2010), and addendum 3 (March 2012) into 49 CFR 193.2013; 193.2101(b); 193.2321(b)(2); 195.3; 195.132(b)(2); 195.205(b)(2); 195.264(b)(1); 195.264(e)(3); 195.307(b); 195.565; 195.579(d).

[Replaces IBR: API Standard 620, “Design and Construction of Large, Welded, Low-Pressure Storage Tanks” (11th edition, February 2008, addendum 1 March 2009).]

(8) API Standard 650, “Welded Tanks for Oil Storage” (11th edition, June 2007, effective February 1, 2012), includes addendum 1 (November 2008), addendum 2 (November 2009), addendum 3 (August 2011), and errata (October 2011) into 49 CFR 195.3; 195.132(b)(3); 195.205(b)(1); 195.264(b)(1); 195.264(e)(2); 195.307(c); 195.307(d); 195.565; 195.579(d).

[Replaces IBR: API Standard 650, “Welded Steel Tanks for Oil Storage” (11th edition, June 2007), addendum 1 (November 2008).]

(9) ANSI/API Standard 2000, “Venting Atmospheric and Low-pressure Storage Tanks” (6th edition, November 2009) into 49 CFR 195.3, 195.264(e)(2), 195.264(e)(3).

[Replaces IBR: API Standard 2000, “Venting Atmospheric and Low-Pressure Storage Tanks Non-Refrigerated and Refrigerated” (5th edition, April 1998, errata, November 1999).]

(1) ASTM A53/A53M-10, “Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless” (October 1, 2010), into 49 CFR 192.7; 192.113; Item 1, Appendix B to Part 192; 195.3; 195.106(e).

[Replaces IBR: ASTM A53/A53M-07, “Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated Welded and Seamless” (September 1, 2007).]

(2) ASTM A106/A106M-10, “Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service” (October 1, 2010), into 49 CFR 192.7; 192.113; Item 1, Appendix B to Part 192; 195.3; 195.106(e).

[Replaces IBR: ASTM A106/A106M-08, “Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service” (July 15, 2008).]

(3) ASTM A333/A333M-11, “Standard Specification for Seamless and Welded Steel Pipe for Low-Temperature Service” (April 1, 2011), into 49 CFR 192.7; 192.113; Item 1, Appendix B to Part 192; 195.3; 195.106(e).

[Replaces IBR: ASTM A333/A333M-05, “Standard Specification for Seamless and Welded Steel Pipe for Low-Temperature Service” (March 1, 2005).]

(4) ASTM A372/A372M-10, “Standard Specification for Carbon and Alloy Steel Forgings for Thin-Walled Pressure Vessels” (October 1, 2010), into 49 CFR 192.7, 192.177(b)(1).

[Replaces IBR: ASTM A372/A372M-03 (reapproved), “Standard Specification for Carbon and Alloy Steel Forgings for Thin-Walled Pressure Vessels” (March 1, 2008).]

(5) ASTM A671/A671M-10, “Standard Specification for Electric-Fusion-Welded Steel Pipe for Atmospheric and Lower Temperatures” (April 1, 2010), into 49 CFR 192.7; 192.113; Item 1, Appendix B to Part 192; 195.3; 195.106(e).

[Replaces IBR: ASTM A671-06 (2006) “Standard Specification for Electric-Fusion-Welded Steel Pipe for Atmospheric and Lower Temperatures” (May 1, 2006).]

(6) ASTM A672/A672M-09, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures” (October 1, 2009), into 49 CFR 192.7; 192.113; Item 1, Appendix B to Part 192; 195.3; 195.106(e).

[Replaces IBR: ASTM A672-08, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures” (May 1, 2008).]

(7) ASTM A691/A691M-09, “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High-Pressure Service at High Temperatures” (October 1, 2009), into 49 CFR 192.7; 192.113; Item 1, Appendix B to Part 192; 195.3; 195.106(e).

[Replaces IBR: ASTM A691-98 (reapproved 2007), “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High-Pressure Service at High Temperatures” (November 1, 2007).]

(8) ASTM D2513-09a, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings” (December 1, 2009), into 49 CFR 192.7; 192.123(e); 192.191(b); 192.283(a); Item 1, Appendix B to Part 192.

(1) MSS SP-44-2010, Standard Practice, “Steel Pipeline Flanges” (2010 edition, includes Errata, May 20, 2011), into 49 CFR 192.7, 192.147(a). [Replaces IBR: MSS SP-44-2006, Standard Practice, “Steel Pipeline Flanges” (2006 edition).]

(2) MSS SP-75-2008, Standard Practice, “Specification for High-Test, Wrought Butt-Welding Fittings” (2009 edition), into 49 CFR 195.3, 195.118(a). [Replaces IBR: MSS SP-75-2004, “Specification for High Test Wrought Butt Welding Fittings” (2004 edition).]

(1) ANSI/NACE Standard SP0502-2010, Standard Practice, “Pipeline External Corrosion Direct Assessment Methodology” (June 24, 2010), into 49 CFR 192.7; 192.923(b)(1); 192.925(b), (b)(1), (b)(1)(ii), (b)(2), (b)(3), (b)(3)(ii)(A), (b)(3)(ii)(B), (b)(3)(iv), (b)(4), (b)(4)(ii); 192.931(d); 192.935(b)(1)(iv); 192.939(a)(2); 195.3; 195.588(b)(1), (b)(2), (b)(2)(iii), (b)(3), (b)(4), (b)(4)(ii)(A), (b)(4)(ii)(B), (b)(iv), (b)(5), (b)(5)(ii).

[Replaces IBR: NACE SP0502-2008, Standard Practice, “Pipeline External Corrosion Direct Assessment Methodology” (reaffirmed March 20, 2008).]

(1) NFPA-30 (2012), “Flammable and Combustible Liquids Code,” includes Errata 1, Errata 2 (2012 edition, June 20, 2011), into 49 CFR 192.7, 192.735(b), 195.3, 195.264(b)(1).

[Replaces IBR: NFPA-30, “Flammable and Combustible Liquids Code” (2008 edition, approved August 15, 2007).]

(2) NFPA-70 (2011), “National Electrical Code” (2011 edition, approved August 5, 2010), into 49 CFR 192.7, 192.163(e), 192.189(c). [Replaces IBR: NFPA 70 (2008), “National Electrical Code” (NEC 2008, approved August 15, 2007).]

PHMSA did not propose to incorporate by reference API Recommended Practice (RP) 1162 (second edition, December 2010); API Standard (Std) 653 (4th edition) and Addendum (2010); or section 4.2, “Rework Material” of ASTM D2513-09a, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings.” except for PHMSA has not incorporated these three standards because:

• API RP1162-2003 —This rule retains API RP 1162, “Public Awareness Programs for Pipeline Operators” (1st edition, December 2003). PHMSA has decided not to incorporate the second edition at this time because it intends to consult with state pipeline authorities after they report on the results of their 2012 state compliance inspections. These inspections were based on the criteria in the first edition. A public workshop will then be conducted to discuss the inspection data and best practices.

• API Std 653-2001 —This rule retains API Std 653-2001, “Tank Inspection, Repair, Alteration, and Reconstruction” (3rd edition, December 2001), with the exception of section 6.4.3, “Alternative Internal Inspection Interval.” PHMSA has decided to exclude section 6.4.3 because of concerns that the risk-based inspection (RBI) procedures described in section 6.4.3 of the standard do not require adequate or consistent assessment factors for establishing an alternate internal inspection interval. First, the standard states that an operator “should” consider certain factors in making an RBI assessment of a tank, but it does not make such consideration mandatory. Second, the RBI procedures described in section 6.4.3 would allow operators to establish minimum bottom plate thicknesses less than the minimum values referenced in table 6-1, “Bottom Plate Minimum Thickness,” and section 4.4.5.4, “Minimum Thickness for Tank Bottom Plate.” Third, the procedures may also increase or decrease the 20-year inspection interval described in 6.4.2.1, “Internal Intervals.” PHMSA does not agree with allowing such a lengthy interval between inspections.

Under this rule, any operator who previously established an alternate internal inspection interval using the procedures in section 6.4.3 must reestablish such intervals based on section 6.4.2, “Inspection Intervals,” of API Std 653-2001 within 2 years from the date of this final rule.

• ASTM D2513-09a— PHMSA will incorporate ASTM D2513-09a, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings,” except section 4.2, “Rework Material.” Section 4.2 states: “Clean rework material of the same commercial designation, generated from the manufacturer's own pipe and fitting production shall not be used unless the pipe and fitting produced meets all the requirements of this specification. The use of these rework materials shall be governed by the requirements of section 4.3 and Plastic Pipe Institute (PPI) Technical Note TN-30/2006.”

Currently, rework materials are limited to a maximum of 30 percent by weight. One of the main steps of plastic pipe manufacturing includes an extrusion process, where raw or virgin material (usually supplied in the form of pellets) is heated, melted, mixed and conveyed into a die and shaped into a pipe. Rework (also known as regrind) is a process by which plastic pipe that does not fall within acceptable specifications following the extrusion process can be reused if it meets the requirements of Section 4.2, including requirements in PPI TN-30/2006. Requirements in PPI TN-30/2006 include reducing the size of the material through appropriate stages ( i.e. regrinding the material) to an equivalent size to the raw virgin pellet material and avoiding contamination. The ground up material is then mixed back in with a portion of raw pellet material prior to going back through the extrusion process. Despite these requirements, PHMSA believes prohibiting the use of rework material is the only way to ensure the materials used by operators are not contaminated during the manufacturing process. This topic received a number of comments and was discussed in detail at the advisory committee meetings. Information about these comments is provided in Section IV.

During the drafting process of this final rule, the Federal Register advised that PHMSA would not be allowed to include an exception clause to the list of standards in the centralized listing as PHMSA had discussed in the NPRM and at the advisory committee meeting. Instead, revisions are noted in each of the affected sections to accommodate the incorporation of ASTM D2513-09a for PE pipe and the continued incorporation of ASTM D2513-87 and ASTM D2513-99 for non-PE plastic pipe. The revisions are summarized below:

○ In § 192.7, PHMSA is adding ASTM D2513-09a to the listing of documents incorporated by reference.

○ In § 192.59, PHMSA is adding a new paragraph (d) to specify that PHMSA will prohibit rework for all plastic pipe manufactured after the effective date of this final rule and used in pipeline systems subject to Part 192.

○ In § 192.63(a)(1), PHMSA is clarifying that ASTM D2513-87 applies to plastic pipe and fittings made of materials other than polyethylene.

○ In § 192.123(e)(2), PHMSA is including verbiage to indicate that ASTM D2513-09a pertains to PE pipe only.

○ In § 192.191, PHMSA is clarifying that ASTM D2513-99 is applicable to plastic materials other than polyethylene and is adding a reference to ASTM D2513-09a applicable to PE materials only.

○ In § 192.283(a)(1)(i), PHMSA is clarifying that ASTM D2513-99 is applicable to plastic materials other than polyethylene and is adding a reference to ASTM D2513-09a applicable to polyethylene plastic (PE) materials only.

○ In Part 192, Appendix B, Section 1, PHMSA is adding ASTM D2513-09a to the list of pipe specifications.

This final rule is also making several non-substantive editorial amendments to Parts 192, 193, and 195, and 198. The final rule:

• Changes the “Centralized IBR Sections” from a table format to a listing.

• Adds abbreviated titles to the list of standards to be incorporated in §§ 192.7, 193.2013, and 195.3.

• Revises current titles to abbreviated titles.

• Corrects the reference to the Gas Technology Institute (GTI) research document (formerly the Gas Research Institute (GRI)) document number from GRI-89/0242 to GTI-04/0049.

• Removes an incorrect reference to ASME Boiler & Pressure Code, Section VII, Division 2 in § 193.2321.

• Inserts the year of certain standards where more than one edition may be applied.

• Inserts the notation “Incorporated by Reference” in the regulation text if not included previously.

In addition, the following technical corrections and changes are being made to specific sections as follows:

• Section 192.283(a)(1)(i) currently states “or par. 8.9 (Sustained Static Pressure Test)”. This sentence has been deleted because PHMSA believes the reference is an error. Paragraph 8.9 does not exist in current edition of ASTM D2513-99 nor does it appear in several other versions of this referenced standard. PHMSA's staff researched several editions of ASTM D2513, the pipeline safety regulations and Federal Register notices to determine if the paragraph may have been associated with a different standard but found no reference to paragraph 8.9. Furthermore, PHMSA is clarifying that ASTM D2513-09a is for PE pipe only as this section pertains to both PE manufactured to ASTM D2513-09a and non-PE plastic manufactured to ASTM D2513-99. The resulting language will read, “In the case of thermoplastic pipe, paragraph 6.6 (Sustained Pressure Test) or paragraph 6.7 (Minimum Hydrostatic Burst Test) of ASTM D2513-99 for plastic materials other than polyethylene or ASTM D2513-09a for polyethylene plastic materials (incorporated by reference, see § 192.7).”

• Section 195.264(b)(1)(i) and (ii) reference section numbers from an earlier edition of NFPA-30 previously incorporated by reference. The section references are changed to reflect the current edition section numbers from NFPA-30 (2012). The new section numbers are 22.11.1 and 22.11.2.

• Section 195.432(b) states that operators must inspect the physical integrity of in-service atmospheric and low pressure steel aboveground breakout tanks in accordance with API Standard 653. PHMSA is amending this section by disallowing the use of the procedures in section 6.4.3, Alternative Internal Inspection Interval, of API Standard 653. This final rule also provides instruction to operators who previously calculated alternative internal inspection intervals using the guidance in section 6.4.3 of API Std 653.

• Section 195.452(l) states that an operator must maintain certain records for review during an integrity management (IM) inspection. In this rule, PHMSA is establishing that operators must maintain their IM records for the useful life of the pipe.

• Section 198.37(f) states operators of underground pipeline facilities participating in one-call facility notification systems must be required to respond in the manner prescribed in § 192.614(b)(4) through (b)(6). This section is changed to reflect the correct references from § 192.614(b)(4) through (b)(6) to § 192.614(c)(4) through (c)(6).

• Section 199.111 contains conflicting requirements as those stated in 49 CFR part 40 causing confusion for both the covered employee and the operator who must comply with this section and with Part 40. For example, in Part 40, it is the responsibility of the medical review officer (MRO) to select the laboratory to which the split sample should be sent however in § 199.111 the specimen donor ( i.e., the covered employee), and not the MRO, selects the testing laboratory to which his/her split specimen should be sent for corroborating evaluation. Another discrepancy between the regulations deals with whether the same laboratory can retest a split specimen. In order to eliminate these conflicts, PHMSA is removing section § 199.111. Operators are to follow the requirements in Part 40.

On December 17, 2013, and February 25, 2014, PHMSA conducted meetings of the Technical Pipeline Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC) to discuss the NPRM and its regulatory evaluation. These statutorily-mandated committees advise PHMSA on the technical feasibility, reasonableness, and cost-effectiveness of its proposed regulations. At the December meeting, in accordance with 49 U.S.C. 60102(b)(2)(G), each of the committees voted in favor of adopting all of the proposed standards to be incorporated, but there were additional comments and questions about rework and the impact of PHMSA's proposal to incorporate ASTM D2513-09a with the exception of section 4.2, “Rework Material.” Members were particularly interested in learning more about the manufacturing process and potential contamination during the extrusion process, and in soliciting additional information and opinions from industry experts.

On February 25, 2014, the committees met again. PHMSA presented more information on the topic of rework and regrind issues. Additionally, a panel of experts, including representatives from the National Association of Pipeline Safety Representatives (NAPSR), the AGA, the PPI, and an independent consultant heavily involved with ASTM standards development, provided their perspectives on the topic. All representatives, with the exception of the PPI representative, supported the PHMSA proposal. The PPI suggested an alternative that would limit the use of rework to pipe larger than 2 inches in diameter. Additional comments from the panelists are provided in Section IV of this document.

In February, the TPSSC voted unanimously to recommend that the NPRM, excluding rework issues, was technically feasible, reasonable, practicable, and cost-effective. Prohibiting rework does not affect the liquid industry.

Transcripts from the committee meetings are available in the docket for this rulemaking and in the advisory committees' meeting dockets.

PHMSA received comments from nine organizations in response to the NPRM, including: MSS; API; NFPA; Pipeline Plastics, LLC; Southwest Gas Corporation; Chevron Phillips Chemical Company; PPI; and AGA.

At the two advisory committee meetings, comments were also received from the organizations mentioned above, members of the TPSSC and the THLPSSC and from representatives of the Virginia State Corporation Commission and NAPSR. Their comments are summarized below.

MSS recommended that PHMSA incorporate by reference the 2011 errata to MSS SP-44-2010, Standard Practice, “Steel Pipeline Flanges.” PHMSA agrees with this comment and will include the errata, which contains a minor correction to Table C4 of the standard that corrects the number of bolt holes from 28 to 32 for 42-inch-diameter pipe.

The NFPA representative and a PHMSA staff member noted that in existing § 195.264(b)(1)(i) and (ii), the section references to the standard incorporated by reference, ( i.e. , NFPA-30 (2012 edition)), were incorrect. Therefore, the section references will change from section 4.3.2.3.2 to section 22.11.1.

The API provided comments on incorporating standards, some of which had not been finalized until after the NPRM was published, and others that were outside the scope of this notice, including: API Std 653, API RP 1162, API RP 1164, and NFPA-70.

• ASTM D2513-87 and -99—The Southwest Gas Corporation recommended that PHMSA eliminate the incorporation by reference of ASTM D2513-87, “Standard Specification for Thermoplastic Gas Pressure Pipe, Tubing, and Fittings” (for non-polyethylene plastic materials only) in §§ 192.7 and 192.63(a)(1) for marking only, in favor of incorporating the 1999 edition of the standard. Southwest indicated that the reference to the 1987 edition was introduced in an earlier amendment to the code at the same time ASTM D1990c was incorporated as an update to the 1987 version. Southwest Gas believed the 1990c version did not require operators to identify certain temperature ratings for fittings, so the 1987 version was retained. With the release of the 1999 edition, the temperature-marking requirement for fittings was restored, so Southwest Gas believed it would be a more appropriate version to use for marking as well.

PHMSA staff recalled that the 1990c edition did not require fittings that were intended for use at elevated temperatures to be marked to identify certain temperature ratings, a requirement that PHMSA believed was beneficial. Therefore, the 1987 edition continued to be referenced for the purpose of marking thermoplastic fittings. With the release of the 1999 edition, however, the marking intervals were increased from 2 feet to 5 feet. PHMSA has decided to retain the 1987 version of ASTM D2513 for purposes of marking of non-polyethylene plastic materials because it requires operators to mark pipe and tubing at intervals of not more than 2 feet. PHMSA prefers this more stringent requirement because the less spacing there is between markings along a pipe, the easier it is to identify the pipe during excavation. A smaller interval also helps reduce the size of the ditch/hole needed for excavation. The more stringent requirement is also present in the 2009a version of ASTM D2513 for polyethylene pipe and fittings, so ASTM D2513-09a will be IBR for purposes of marking PE materials only.

PHMSA has revised § 192.63(a)(1) to clarify that ASTM D2513-87 would continue to apply to the marking of non-PE materials. A specific reference to ASTM D2513-09a is not needed in 192.63(a)(1) to address marking for PE materials because (1) it is already listed in Appendix B to Part 192, and (2) other language in § 192.63(a)(1) already requires each valve, fitting, length of pipe and other component to be marked as prescribed in the specification or standard to which it was manufactured.

• ASTM D 2513-09a (except section 4.2, “Rework Materials”)—The following entities provided comments on the incorporation of ASTM D2513-09a and the proposal to exclude the use of rework materials: AGA; Pipeline Plastics, LLC; PPI and Chevron Phillips Chemical Company. All of these organizations were in favor of incorporating ASTM D2513-09a for PE pipe, but had varying comments on the exclusion of rework materials.

The AGA provided comments to the docket based on input from its Plastic Materials Committee (PMC), which includes operators and plastic pipe manufacturers. Based on discussions within the PMC, the AGA suggested an alternative based on pipe diameter, whereby no rework material would be allowed for pipe 2 inches Iron Pipe Size (IPS) and below in diameter and the requirements in ASTM D2513-09a, section 4.2 would be acceptable for pipe larger than 2 inches IPS in diameter.

The AGA contended that to the extent there are material issues with rework, it is reasonable to believe that the risks are greater with smaller-diameter, thinner-wall pipe, specifically, pipe smaller than 2 inches in diameter. According to AGA, many operators have used the 2-inch diameter as a threshold for prohibiting the use of rework, while others require virgin plastic for all their piping. The AGA suggested that establishing the 2-inch diameter threshold could be a reasonable step as operators and manufacturers continue to seek consensus and discuss the issue within the PMC and with PHMSA.

At the February advisory committee meetings, a member of the TPSSC and a gas operator provided comments on behalf of AGA indicating that, while in previous comments to the docket, the organization had recommended PHMSA adopt an alternative that rework only be allowed for pipe greater than 2 inches in diameter, it now recognized that some of its members now believed there were continued safety concerns with the use of reworked pipe and, in an effort to move forward, the AGA supported the adoption of ASTM D2513-09a without rework. The PPI, a major trade association representing all segments of the plastics pipe industry, and Pipeline Plastics, LLC, a major manufacturer of polyethylene pipe, opposed the exclusion of rework and recommended that ASTM D2513-09a be incorporated in its entirety. These two organizations referred to the Operations Technology Development, NFP  1 (OTD) company's research Project No. 2.ff (summary version) titled “Evaluation for Impact of Rework” which was referenced in the 2009 standard and PPI Technical Note 30 (TN-30), which concluded that the proper handling and use of rework does not have a negative effect on any of the three performance parameters for PE gas pipe. Therefore, these organizations believe adhering to the 2009 standard and PPI TN-30, which provides guidance for manufacturers and end-users on the safe and proper use of rework, would adequately address rework.

The PPI and Pipeline Plastics, LLC also contended there could be environmental and cost impacts associated with prohibiting rework. These organizations stated that if rework were prohibited, additional unused plastic could be put in landfills. They also indicated that the unused plastic could be used for other plastic processing operations, such as blow molding.

The PPI estimated that using PE scrap in blow molding rather than regrind in pipe production could potentially increase PE pipe manufacturer costs by $1 million to $3 million annually. This estimate is based on 2013 PPI resin usage (est. 200,000,000 lbs. used in gas distribution pipe production), current market resin pricing data (price differential of $0.10 to $0.15 per pound between pipe grade and blow mold grade resins), and an estimated 5 to 10 percent scrap generation from extrusion.

At the February joint advisory committee meeting, a manufacturer representing PPI raised similar concerns to those raised during the comment period. The following concerns were presented.

○ Cost of gas distribution pipe. The PPI felt that there is no other market in North America for medium-density polyethylene pipe other than gas distribution, the majority of which uses medium density pipe. The PPI stated that all other polyethylene markets use high-density pipe. Therefore, if reworked pipe is not allowed, the cost of the medium-density pipe would be discounted to a non-pressure pipe or commodity product price. This could cause manufacturers to see an inherent loss in value based on scrap levels. Some manufacturers felt the estimated $1 million to $3 million cost impact was low because there is no true alternative market to sell pipe that can't be used for gas transportation. It would not be worth regrinding pipe, transferring that material to another facility and manufacturing something else. The PPI admitted it couldn't share more detailed costs due to anti-trust concerns and, therefore, was unable to give a true number.

○ Eliminating rework won't result in better-quality pipe. PPI expressed the view that eliminating rework won't necessarily result in better-quality pipe and rework doesn't address other sources of contamination. In the PPI's opinion, rework pressures operators and manufacturers to minimize scrap. The PPI also felt there was no true way to test a pipe later to determine whether or not it was manufactured with rework material. If operators required no rework in their specifications, it would be difficult to trace and audit.

○ Oil and gas gathering lines. The PPI indicated it had several members whose pipelines had previously been unregulated but which had now became regulated due to encroaching development. To protect themselves, midstream users are requiring pipe for oil and gas gathering lines to meet ASTM D2513. If rework is not allowed, midstream users will also have to comply. The industry is concerned if reworked pipe is not allowed for oil and gas gathering lines, which is almost half of the total pressure pipe market, there would be an even larger cost impact. Based on their concerns, the PPI suggested an alternative to only prohibit rework in pipes larger than 2 inches in diameter.

Dura-Line, a pipeline manufacture, stated that their company has been rework-free for a full year and that they instead supported the AGA's position to not allow rework. The statement was made for the record that its position was not unanimous among its membership.

Another member of the public stated that while the vote at the PPI was not unanimous, the PPI has a consensus process to follow, and it was the decision of their Energy Piping Systems Committee to move this issue forward in the manner they did. This individual urged support of the PPI recommendation.

Chevron Phillips preferred incorporating ASTM D2513-09a in its entirety but suggested if additional limitations were to be adopted, it would recommend adopting sizing restrictions, such as limiting the use of rework to pipes with wall thicknesses greater than 0.170 inches. They also suggested there could be additional costs associated with prohibiting rework. According to Chevron Phillips, PE gas pipe resins are specifically tailored through processing and additives to yield the highest quality pipe and fitting products. If the rework materials from these products cannot be used in the manufacture of gas pipes, they will be less valuable in alternate products. According to Chevron Phillips, the cost of the raw material is by far the largest contributor to the overall cost of the pipe or fittings, and an increased cost would have to be passed on to the utilities and consumers, which will affect the competitive position of PE gas pipe.

An independent expert discussed his experience with both operators and the standards developing committees, and the extent to which other countries allow rework. He stated that Canada is considering not allowing rework in the Canadian Standards Association (CSA) B137.4, which is the standard similar to ASTM D2513 for polyethylene gas pipe. He also reported that rework is not allowed in France, the Netherlands, Belgium and Korea. The United Kingdom requires that either no rework material be used, or, if it is used, the pipe must be 100 percent reworked material (not a combination). He also acknowledged the ongoing work in ASTM to develop a standard for the proper use of rework and a recent revision to PPI TN-30, both of which he acknowledged are good documents. However, in his opinion, these documents mainly provide good recommendations for material handling. He believed the only true guaranteed means to prevent contamination from rework is not to allow rework in ASTM D2513-09a. He noted that although he is a member of the PPI, he was not in support of the group's position and recommended the advisory committees support the PHMSA proposal regarding adoption of ASTM D2513-09a, with the exception of rework.

An individual from the Virginia State Corporation Commission (speaking on behalf of himself) stated that he had conducted research on the use of rework in the U.S. and in other parts of the world. He expressed concern that PPI TN-30 provides no guidance on cleaning, the verification process, or testing requirements prior to regrind material use, which does not assure that reground material is free from contamination. He also stated that using magnets to attract certain materials is not reliable, as magnets do not attract particles including non-ferrous materials, brass, aluminum and dust. He stated that some pipe might also sit for periods of time with the manufacturer and become oxidized, which causes harm to pipe material. Such oxidized pipe may then be ground up and introduced into the rework process. He added that rework is not allowed for pipe built to American Association of State of Highway Transportation Officials' standards, and that ASTM is currently working on a standard, ASTM WK-37322, where they are looking to the possibility of eliminating the use of rework entirely.

A member from the Iowa Utilities Board asked why some operators require virgin plastic materials while others use the 2-inch measure as explained by AGA. PHMSA explained that the use of virgin plastic or the 2-inch measure is determined on an operator-by-operator basis. A member of the gas committee, representing industry, stated that National Grid uses only virgin material plastic. The selection and use of the material is decided by their materials engineering manager who bases his decision on experience, examination of pipe tested in their lab, and field work. Ultimately, the materials engineering manager was more comfortable with using virgin material.

A member of the liquid committee, representing the Virginia State Corporation Commission, stated that from his experience, companies in Virginia recognize that using virgin materials may not be the real issue at all. Instead, there is more of a concern that there is opportunity for pipe material to be contaminated during the manufacturing process. The plastic pipe manufacturing process is an area where there are few standards.

A member of the gas committee, representing the public from Hartford Steam Boiler, asked how PHMSA would control the implementation of a standard that banned the use of rework but where the pipe was marked as meeting specifications and the industry specification permitted rework material. PHMSA replied that, from a regulatory standpoint, the IBR of ASTM D2513-09a would have a caveat stating the exception to section 4.2 (addressing rework). In addition, a documentation system to trace raw material is required under section 4.3. Therefore, both manufacturers and operators would need to keep adequate records. The ultimate responsibility for verifying the type of pipe actually used would rest with the operator.

A member of the liquid committee provided comments on behalf of NAPSR, stating that the PHMSA presentation adequately described NAPSR's concerns. The member stated that NAPSR feels the ratepayers pay for good pipe that's made of virgin material and should last not just a few years, but, if constructed properly, for the next 100 years. With that, NAPSR was opposed to any use of rework for construction of plastic pipe for gas.

At the February advisory committee meetings, a PHMSA staff member provided more background information on rework and described the differences in the three versions of the standards proposed. He also presented additional technical and field perspective on issues surrounding rework itself, as well as applicable requirements or guidance found in ASTM D2513-09a and PPI TN-30. Among the new technical information presented, the PHMSA staff member provided information from several other reports: “Analysis of Microscopic Leaks in Polyethylene Gas Distribution Piping” by Electric Power Research Institute (EPRI); “Electrochemical Treeing in Cable” by Phelps Dodge Cable and Wire Company (January 1978); and “Deterioration of Water Immersed Polyethylene-Coated Wire by Treeing” by Takao Miyashita (IEEE Member) (March 1971).

These reports indicated that rework could potentially be an issue of concern, particularly through breakdown of dielectric properties, the development of pinhole leaks, and static discharge. The PHMSA staff member restated several of the technical issues referenced in the OTD report, “Evaluation of Impact of Rework,” mentioned by several commenters and indicating that rework was not an issue. The PHMSA staff member did acknowledge that none of the reports mentioned thus far was definitive, one way or another. The PHMSA staff member presented information on the extent to which other countries and industries allow rework. Previous comments from manufacturers indicated no other country or industry prohibits rework, and the U.S. (through PHMSA) would be the first to do so. In the United States, the nuclear industry does not allow scrap or regrind material per Code Case N-755. While the Code Case is not directly incorporated under Title 10, in part because plastic is newer to the nuclear industry and there may be some other issues with the Code Case, anyone who wants to use plastic instead of steel in the nuclear industry needs to present technical information to justify the use of plastic. It is typically expected that anyone who wants to use plastic pipe must comply with N-755, including not allowing the use of regrind material.

The electric industry has also experienced poor performance on insulation materials and effects from contamination and has developed better standards and quality-control procedures. A listing of references to additional reports was provided and is available on the meeting Web site and on the docket. For other countries, the PHMSA staff member noted that Canada is considering prohibiting rework through a standard being developed by the CSA. The PHMSA staff member also understood many foreign operators do not allow rework.

After reviewing the comments and materials provided, PHMSA is not convinced there is adequate justification to allow rework materials (section 4.2 of ASTM D2513-09a) for PE pipe at this time. PHMSA believes commenters did not make it clear how incorporating the standard in its entirety for all PE piping would provide an equivalent level of safety or better. It appears there is more evidence indicating that the exclusion of rework would provide increased safety for operators due to the concern of contamination of the materials during the manufacturing process and, therefore, contaminating the new pipe.

Comments received concerning potential costs associated with prohibiting rework entirely may not have taken all relevant factors into account ( e.g., how many operators are actually allowing rework materials). PHMSA believes the commenters may have also overestimated the cost impact on manufacturers because the results appear to be based on the assumptions that rework is currently allowed by all pipeline operators. PHMSA has learned however, from comments made by the AGA, NAPSR, and an advisory committee industry member that some operators currently prohibit rework for piping under a certain diameter, with many operators already requiring the use of virgin plastic pipe only. The available data based on industry-wide practices and action costs does not appear to indicate a significant increase in costs to manufacturers or operators.

If some additional costs are incurred to improve quality control and assurance processes, PHMSA believes any improvements in manufacturing quality assurance/quality control are likely to be outweighed by the benefits for pipeline safety.

Some commenters stated reworked material is sometimes used for alternative purposes such as blow molding. The PPI suggested there is no other market for medium-density PE pipe other than gas distribution.

PHMSA believes additional guidance on manufacturing procedures could possibly reduce the amount of scrap used for rework material. The ASTM is currently developing a standard for the proper use of rework, and a recent revision to PPI TN-30 provides good recommendations for materials handling.

While PPI's concerns related to oil and gas gathering lines may have some validity, and there may be a time when more oil and gas gathering lines could become regulated, any such discussions are outside the scope of this rulemaking. PHMSA does, however, commit to engage with the manufacturers and other relevant stakeholders when discussing the use of plastic materials in oil and gas gathering lines.

PHMSA stands by its original proposal to incorporate ASTM D2513-09a for PE pipe and continue to reference ASTM D2513-99 for non-PE plastic pipe but prohibit the use of rework material. PHMSA will also continue to reference ASTM D2513-87 for marking only of non-PE plastic pipe.

All incorporated by reference documents addressed in this rule are available for visual inspection, as required by Section 24 of Public Law 112-90, January 3, 2012, and amended 49 U.S.C. 60102 on January 3, 2013 at the following locations:

This final rule is published under the authority of the Federal pipeline safety law (49 U.S.C. 60101 et seq. ). Section 60102 authorizes the Secretary of Transportation to issue regulations governing the design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. Further, Section 60102(l) of the Federal pipeline safety law states that the Secretary shall, to the extent appropriate and practicable, update incorporated industry standards that have been adopted as a part of the Federal pipeline safety regulations. This final rule incorporates by reference two new editions (one partially incorporated) and 21 updated standards of those currently-referenced standards (wholly or in part). In addition, this final rule makes several other miscellaneous and editorial changes to the pipeline safety regulations.

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and, therefore, was not subject to review by the Office of Management and Budget (OMB). This final rule is considered non-significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).

In accordance with the National Technology and Advancement Act of 1995 (“the Act”) and OMB Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” PHMSA constantly reviews new editions and revisions to relevant standards and publishes a proposed rule every 2 years to incorporate by reference new or updated consensus standards. This practice is consistent with the intent of the Act and OMB directives to avoid the need for developing government-written standards that could potentially result in regulatory conflicts with updated standards and an increased compliance burden on industry. In this final rule, PHMSA also incorporates by reference two new standards, API RP 5LT and ASTM D2513-09a (excluding section 4.2— Rework Material ), and updates 21 currently referenced standards and specifications in 49 CFR parts 192, 193, and 195.

According to the annual reports pipeline operators submit to PHMSA, there are over 2,370 entities operating hazardous liquid, natural gas transmission, gathering, distribution systems, and liquefied natural gas facilities as of December 31, 2011. The amendments in this rule should enhance safety and reduce the compliance burden on the regulated industry.

PHMSA estimates the costs of incorporating these standards to be negligible and the net benefits to be high. In fact, industry standards developed and adopted by consensus are largely accepted and followed by the pipeline industry, which assures that the industry is not forced to comply with a number of different standards to accomplish the same safety goal. The majority of pipeline operators already purchase and apply industry standards as part of common business practice.

In addition to incorporating new and updating existing voluntary consensus standards, PHMSA is making non-substantive edits and clarifying regulatory language in certain provisions. Since these editorial changes are relatively minor, this rule would not require pipeline operators to undertake significant new pipeline safety initiatives and would have negligible cost implications. The non-substantive changes will increase the clarity of the pipeline safety regulations, and help improve compliance, and improve the safety of the nation's pipeline systems.

Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866, Regulatory Planning and Review, of September 30, 1993. Additionally, Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; and (5) consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome.

When developing this rule, PHMSA involved the public in the regulatory process in a variety of ways. Specifically, PHMSA addressed issues and errors that were identified and tagged for future rulemaking consideration in letters from the regulated community and through meetings and correspondence with stakeholders. PHMSA considered public comments based on the proposals in the NPRM, addressed those comments in the docket, and discussed the proposals with the members of its two advisory committees and public representatives in attendance.

These standards are expected to produce a safety benefit derived from new requirements with minimal additional costs.

PHMSA analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). The final rule does not have a substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. The final rule does not impose substantial direct compliance costs on state and local governments nor will it preempt state law for intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

PHMSA analyzed the final rule according to Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Because the final rule does not significantly or uniquely affect the communities of the Indian Tribal Governments or impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), requires an agency to review regulations to assess their impact on small entities, unless the agency determines the rule is not expected to have a significant impact on a substantial number of small entities. An example of a small business may include technical experts from a publicly owned natural gas local distribution company.

Technical committees that develop codes and standards are, for the most part, comprised of experts representing the various facets of a given industry, such as manufacturers, installers, insurers, inspectors, end users, distributors and regulatory agencies. Participants represent both large and small businesses and others. An example of the make-up of a typical standards committee may include representatives (engineers, researchers, or risk management officers) from large and small operating companies, government members (Federal/state), risk management consultants, insurance administrators, academics and individuals. Meetings are open to the public. The committees involved in developing, revising, and approving consensus standards created by organizations such as the API or AGA include technical experts, operating companies, vendors, consultants, academics, and regulators.

The impact of this final rule will not have a significant impact on compliance cost regardless of the size of the firm. The changes update current editions of industry standards to allow for the use of newer or updated safety procedures to promote uniformity among industry practices. Changes in standards employing performance-based approaches have resulted in fewer costly changes to an organization's manufacturing processes.

Consideration of alternative proposals for small businesses: The Regulatory Flexibility Act directs agencies to establish expectations and differing compliance standards for small businesses, where it is possible to do so, while still meeting the objectives of applicable regulatory statutes. In the case of hazardous liquid, natural gas and other types of materials transported by pipeline, any exceptions are considered during the rulemaking process. For the most part, differing standards are not possible due to the type of technical requirements covered by these standards. The impact of this final rule will be minimal. The changes are intended to provide industry guidance through adoption of newer editions of consensus standards and recommended practices.

Based on the facts available about the anticipated impact of this rulemaking, I certify, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605), that this final rule will not have a significant economic impact on a substantial number of small entities.

This final rule does not impose any new information collection requirements.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

This final rule will not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It will not result in costs of $100 million (adjusted for inflation currently estimated to be $132 million) or more in any one year to either state, local or tribal governments, in the aggregate, or to the private sector, and would be the least burdensome alternative that achieves the objective of this final rule.

Anyone may search the electronic form of comments received in response to any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://docketsinfo.dot.gov/ .

The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375, requires Federal agencies to analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality regulations require Federal agencies to conduct an environmental review considering: (1) The need for the proposed action; (2) alternatives to the proposed action; (3) probable environmental impacts of the proposed action and alternatives; and (4) the agencies and persons consulted during the consideration process (40 CFR 1508.9(b)). In this final rule, PHMSA incorporates two new standards (one partially) and incorporates 21 updated standards of those currently referenced. This final rule also makes miscellaneous and editorial changes to the pipeline safety regulations.

Description of Action: The National Technology Transfer and Advancement Act of 1995 directs Federal agencies to use voluntary consensus standards and design specifications developed by voluntary consensus standard bodies instead of government-developed voluntary technical standards, when applicable. There are currently 64 standards incorporated by reference in Parts 192, 193 and 195 of the pipeline safety regulations.

PHMSA engineers and subject matter experts participate on approximately 25 standards development committees to keep current on committee actions. PHMSA will only propose to adopt standards into the Federal regulations that meet the agency's directive(s) to ensure the best interests of public and environmental safety are served.

Purpose and Need: Many of the industry standards currently incorporated by reference in the pipeline safety regulations have been revised and updated to incorporate and promote new technologies and methodologies. This final rule will allow operators to use new technologies by incorporating new editions of the standards into the pipeline safety regulations.

PHMSA's technical experts continually review the actions of pipeline standards developing committees and study industry safety practices to ensure that their endorsement of any new editions or revised standards incorporated into the Federal safety regulations will improve public safety, as well as provide protection for the environment. If PHMSA does not amend the Federal safety standards to keep up with industry practices, it could potentially have an adverse effect on the transportation of energy resources.

These amendments will make the regulatory provisions more consistent with current technology and will therefore promote the safe transportation of hazardous liquids, natural and other gases and liquefied natural gas by pipeline.

Alternatives Considered: In developing this final rule, PHMSA considered two alternatives:

Alternative (1): Take no action and continue to incorporate the existing standards currently referenced in the pipeline safety regulations.

Because PHMSA's goal is to facilitate pipeline safety, PHMSA rejected the alternative to take no action.

Alternative (2): Go forward with the proposed amendments and incorporate updated editions of voluntary consensus standards to allow pipeline operators to use current technologies. This is the selected alternative.

PHMSA's goal is to incorporate by reference all or parts of updated editions of voluntary consensus standards into the pipeline safety regulations to allow pipeline operators to use current technology, new materials, and other industry and management practices. Another goal is to update and clarify certain provisions in the regulations.

Environmental Consequences: The Nation's pipelines are located throughout the United States, both onshore and offshore, and traverse a variety of environments—from highly populated urban sites to remote, unpopulated rural areas. The Federal pipeline regulatory system is a risk management system that is prevention-oriented and focused on identifying safety hazards and reducing the probability and quantity of a natural gas or hazardous liquid release. Pipeline operators are required to develop and implement IM programs to enhance safety by identifying and reducing pipeline integrity risks.

Pipelines subject to this final rule transport hazardous liquids and natural gas, and therefore a spill or leak of the product could affect the physical environment as well as the health and safety of the public. The release of hazardous liquids or natural gas can cause the loss of cultural and historical resources ( e.g., properties listed on the National Register of Historic Places), biological and ecological resources ( e.g., coastal zones, wetlands, plant and animal species and their habitats, forests, grasslands, offshore marine ecosystems), special ecological resources ( e.g., threatened and endangered plant and animal species and their habitats, national and state parklands, biological reserves, wild and scenic rivers), and the contamination of air, water resources ( e.g., oceans, streams, lakes), and soil that exist directly adjacent to and within the vicinity of pipelines. Incidents involving pipelines can result in fires and explosions, causing damage to the local environment. Depending on the size of a spill or gas leak and the nature of the failure zone, the potential impacts could vary from property damage or environmental damage, injuries or, on rare occasions, fatalities.

Compliance with the pipeline safety regulations substantially reduces the possibility of an accidental release of product. Updating new industry standards or those already incorporated into the pipeline safety regulations provides operators with the advantage and added safety of applying newer technologies. These standards are based on the accumulated knowledge and experience of owners, operators, manufacturers, risk management experts and others involved in the pipeline industry or government agencies who write the regulations to ensure the products are moved safely throughout the country. PHMSA staff actively participates in the standards development process to ensure each standard incorporated will enhance safety and environmental protection. Newer editions are not automatically incorporated but reviewed in detail. PHMSA reviewed each of the standards described in this rule and have determined that the majority of the updates include nearly minor changes such as editorial changes, inclusion of a best practices, or similar changes.

The discussion of the standards PHMSA has chosen not to incorporate at this time or that are to be partial incorporated is included under section II of this rule.

Conclusion—Degree of Environmental Impact: PHMSA incorporates consensus standards that will allow the pipeline industry to use improved technologies, new materials, performance-based approaches, manufacturing processes, or other practices to enhance public health, safety and welfare. PHMSA's goal is to ensure hazardous liquids, natural and other gases and liquefied natural gas transported by pipeline will arrive safely to its destination.

PHMSA has determined that the selected alternative will not have a significant impact on the environment.

Transporting gas and petroleum affects the Nation's available energy supply. However, this final rule would not be a significant energy action under Executive Order 13211. It also would not be a significant regulatory action under Executive Order 12866 and would not likely have a significant adverse effect on the supply, distribution, or use of energy. Further, the Administrator of the Office of Information and Regulatory Affairs would not be likely to identify this final rule as a significant energy action.

In consideration of the foregoing, PHMSA amends 49 CFR parts 192, 193, 195, 198, and 199 as follows:

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014) set the 2015 BSAI pollock TAC at 1,277,075 metric tons (mt), the 2015 BSAI Atka mackerel TAC at 32,491 mt, the 2015 Bering Sea Pacific cod TAC at 251,712 mt, and the Aleutian Islands Pacific cod TAC at 6,487 mt. In December 2014, the North Pacific Fishery Management Council (Council) recommended a 2015 BSAI pollock TAC of 1,310,000 mt, which is more than the 1,277,075 mt TAC established by the final 2014 and 2015 harvest specifications for groundfish in the BSAI. The Council also recommended a 2015 BSAI Atka mackerel TAC of 54,500 mt, which is more than the 32,491 mt TAC established by the final 2014 and 2015 harvest specifications for groundfish in the BSAI. Furthermore, the Council recommended a 2015 Bering Sea Pacific cod TAC of 240,000 mt, and an Aleutian Islands Pacific cod TAC of 9,422 mt, which is less than the Bering Sea Pacific cod TAC of 251,712 mt, and more than the Aleutian Islands Pacific cod TAC of 6,487 mt established by the final 2014 and 2015 harvest specifications for groundfish in the BSAI. The Council's recommended 2015 TACs, and the area and seasonal apportionments, are based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2014, which NMFS has determined is the best available scientific information for these fisheries.

Steller sea lions occur in the same location as the pollock, Atka mackerel, and Pacific cod fisheries and are listed as endangered under the Endangered Species Act (ESA). Pollock, Atka mackerel, and Pacific cod are a principal prey species for Steller sea lions in the BSAI. The seasonal apportionment of pollock, Atka mackerel, and Pacific cod harvest is necessary to ensure the groundfish fisheries are not likely to cause jeopardy of extinction or adverse modification of critical habitat for Steller sea lions. NMFS published regulations and the revised harvest limit amounts for Atka mackerel, Pacific cod, and pollock fisheries to implement Steller sea lion protection measures to insure that groundfish fisheries of the BSAI are not likely to jeopardize the continued existence of the western distinct population segment of Steller sea lions or destroy or adversely modify their designated critical habitat (79 FR 70286, November 25, 2014). The regulations at § 679.20(a)(5) specify how the Bering Sea pollock TAC will be apportioned. The regulations at § 679.20(a)(7) specify how the BSAI Pacific cod TAC will be apportioned. The regulations at § 679.20(a)(8) specify how the BSAI Atka mackerel TAC will be apportioned.

In accordance with § 679.25(a)(1)(iii), (a)(2)(i)(B), and (a)(2)(iv), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the November 2014 SAFE report for this fishery, the current BSAI pollock, Atka mackerel, and Pacific cod TACs are incorrectly specified. Pursuant to § 679.25(a)(1)(iii), the Regional Administrator is adjusting the 2015 BSAI pollock TAC to 1,310,000 mt, the 2015 BSAI Atka mackerel TAC to 54,500, the 2015 Bering Sea Pacific cod TAC to 240,000 mt, and the Aleutian Islands Pacific cod TAC to 9,422 mt. Therefore, Table 1 of the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014) is revised consistent with this adjustment.

Pursuant to § 679.20(a)(5)(i), Table 3 of the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014) is revised for the 2015 BSAI allocations of pollock TAC to the directed pollock fisheries and to the Community Development Quota (CDQ) directed fishing allowances consistent with this adjustment. The Steller sea lion protection measure final rule (79 FR 70286, November 25, 2014), sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541, see § 679.20(a)(5)(iii)(B)( 6 ). In Area 541, the 2015 A season pollock harvest limit is no more than 30 percent, or 8,898 mt, of the Aleutian Islands ABC of 29,659 mt. In Area 542, the 2015 A season pollock harvest limit is no more than 15 percent, or 4,449 mt, of the Aleutian Islands ABC of 29,659 mt. In Area 543, the 2015 A season pollock harvest limit is no more than 5 percent, or 1,483 mt, of the Aleutian Islands pollock ABC of 29,659 mt.

Pursuant to § 679.20(a)(8), Table 4 of the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014) is revised for the 2015 seasonal and spatial allowances, gear shares, CDQ reserve, incidental catch allowance, and Amendment 80 allocation of the BSAI Atka mackerel TAC consistent with this adjustment.

Pursuant to § 679.20(a)(7), Table 6 of the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014) is revised for the 2015 gear shares and seasonal allowances of the BSAI Pacific cod TAC consistent with this adjustment.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would allow for harvests that exceed the appropriate allocations for pollock, Atka mackerel, and Pacific cod in the BSAI based on the best scientific information available. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 26, 2014, and additional time for prior public comment would result in conservation concerns for the ESA-listed Steller sea lions.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until January 16, 2015.

This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The final 2014 and 2015 harvest specifications for groundfish in the GOA (79 FR 12890, March 6, 2014) set the 2015 pollock TAC at 193,809 metric tons (mt) and the 2015 Pacific cod TAC at 61,519 mt in the GOA. In December 2014, the North Pacific Fishery Management Council (Council) recommended a 2015 pollock TAC of 199,151 mt for the GOA, which is more than the 193,809 mt established by the final 2014 and 2015 harvest specifications for groundfish in the GOA. The Council also recommended a 2015 Pacific cod TAC of 75,202 mt for the GOA, which is more than the 61,519 mt established by the final 2014 and 2015 harvest specifications for groundfish in the GOA. The Council's recommended 2015 TACs, and the area and seasonal apportionments, are based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2014, which NMFS has determined is the best available scientific information for these fisheries.

Steller sea lions occur in the same location as the pollock and Pacific cod fisheries and are listed as endangered under the Endangered Species Act (ESA). Pollock and Pacific cod are a principal prey species for Steller sea lions in the GOA. The seasonal apportionment of pollock and Pacific cod harvest is necessary to ensure the groundfish fisheries are not likely to cause jeopardy of extinction or adverse modification of critical habitat for Steller sea lions. The regulations at § 679.20(a)(5)(iv) specify how the pollock TAC will be apportioned. The regulations at § 679.20(a)(6)(ii) and § 679.20(a)(12)(i) specify how the Pacific cod TAC will be apportioned.

In accordance with § 679.25(a)(1)(iii), (a)(2)(i)(B), and (a)(2)(iv) the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the November 2014 SAFE report for this fishery, the current GOA pollock and Pacific cod TACs are incorrectly specified. Consequently, pursuant to § 679.25(a)(1)(iii), the Regional Administrator is adjusting the 2015 GOA pollock TAC to 199,151 mt and the 2015 GOA Pacific cod TAC to 75,202 mt. Therefore, Table 2 of the final 2014 and 2015 harvest specifications for groundfish in the GOA (79 FR 12890, March 6, 2014) is revised consistent with this adjustment.

Pursuant to § 679.20(a)(5)(iv), Table 4 of the final 2014 and 2015 harvest specifications for groundfish in the GOA (79 FR 12890, March 6, 2014) is revised for the 2015 TACs of pollock in the Central and Western Regulatory Area of the GOA.

Pursuant to § 679.20(a)(6)(ii) and § 679.20(a)(12)(i), Table 6 of the final 2014 and 2015 harvest specifications for groundfish in the GOA (79 FR 12890, March 6, 2014) is revised for the 2015 seasonal apportionments and allocation of Pacific cod TAC in the GOA consistent with this adjustment.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would allow for harvests that exceed the appropriate allocations for Pacific cod based on the best scientific information available. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 24, 2014, and additional time for prior public comment would result in conservation concerns for the ESA-listed Steller sea lions.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until January 16, 2015.

This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fisheries in the EEZ off Alaska under the GOA FMP and the BSAI FMP. The Council prepared these FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679.

This final rule implements management measures contained in Amendment 107 to the BSAI FMP. This final rule allows vessels designated on FFPs to transit through Walrus Protection Areas in the EEZ near Round Island and Cape Peirce from April 1 through August 15, annually.

NMFS published the Notice of Availability (NOA) of Amendment 107 to the BSAI FMP in the Federal Register on September 24, 2014, with a 60-day comment period that ended November 24, 2014 (79 FR 57041). The Secretary of Commerce approved Amendment 107 to the BSAI FMP on December 19, 2004. NMFS published a proposed rule to implement management measures contained in Amendment 107 to the BSAI FMP on October 3, 2014 (79 FR 59733). The 30-day comment period on the proposed rule ended November 3, 2014. NMFS received four comment letters on Amendment 107 to the BSAI FMP during the NOA and proposed rule comment periods. Two comment letters were duplicates. The comment letters contained two unique comments. A summary of these comments and NMFS' responses are provided in the “Comments and Responses” section of this preamble. NMFS did not make any changes in this final rule to the regulatory text contained in the proposed rule.

The proposed rule (79 FR 59733, October 3, 2014) preamble provides additional information on the development of the action, the impacts and effects of the action, and the Council's and NMFS' rationale for the action. The proposed rule is available from the NMFS Alaska Region Web site (see ADDRESSES ).

This final rule allows vessels designated on FFPs to enter and transit through specific areas of the Walrus Protection Areas near Round Island and Cape Peirce. This final rule applies to Federal waters in northern Bristol Bay, specifically in statistical area 514 of the BSAI, as shown in Figure 1 to 50 CFR part 679. This action does not apply in State of Alaska (State) waters. The State restricts vessel transit in State waters around Round Island but not in State waters elsewhere in the area. All vessels, including vessels designated on an FFP, can transit through State waters around Cape Peirce and The Twins. This action only affects vessels designated on an FFP. Vessels that are not designated on an FFP are not regulated in the Walrus Protection Areas and can enter and transit through Walrus Protection Areas. The transit areas implemented by this final rule are shown in Figure 1 below.

This final rule adds regulations at § 679.22(a)(4)(ii) to establish a transit area through the Walrus Protection Area near Round Island. This final rule establishes a transit area in the EEZ near Round Island from April 1 through August 15, annually, north of a line from 58°47.90′ N, 160°21.91′ W to 58°32.94′ N, 159°35.45′ W. (See Figure 1 of this preamble.)

This transit area is at least 3 nm from Round Island at its closest point and is more than 9 nm from the haulouts on The Twins at its closest point. As noted in Section 3.2.7.2.1 of the Analysis, there has been no recorded visible disturbance to walruses from vessel traffic more than 3 nm from Round Island, but disturbance from vessel traffic has been documented within 3 nm from Round Island. This final rule does not allow vessels designated on an FFP to transit within 3 nm of Round Island or The Twins.

This transit area is established to maintain suitable protection for walruses on Round Island and to allow vessels designated on an FFP access to a transit route north of Round Island. NMFS expects this transit area to reduce the potential for vessels to transit near Hagemeister Island, a known walrus haulout, because vessels will be allowed to transit north of Round Island and to avoid the route near Hagemeister Island. This final rule also allows vessels to transit through Federal waters farther from shore and thereby reduces transit through shallower State waters that are more difficult to navigate.

The transit area near Round Island opens April 1 to relieve the existing regulations that prohibit entry and transit to vessels designated on an FFP in Walrus Protection Areas on April 1, the start of peak walrus use in the area. This transit area closes on August 16 because of the following: (1) The herring and most salmon fisheries are completed by August 15, and tender vessels that are designated on FFPs ( i.e., vessels used to carry unprocessed fish to processing facilities) are no longer active and do not require transit through Walrus Protection Areas after that date; (2) vessels transiting to deliver groundfish in northern Bristol Bay typically have completed their deliveries by August 15 and do not require transit through Walrus Protection Areas after that date; and (3) limiting vessel transit by August 15 will reduce vessel traffic near walrus haulouts that could interfere with vessels used for the subsistence harvest of walruses on Round Island that begins in September of each year. Vessels designated on FFPs are still prohibited from entering and transiting through the Walrus Protection Areas near Round Island from August 16 through September 30. NMFS expects that this prohibition will not adversely affect vessels designated on FFPs because tendering operations and groundfish deliveries in northern Bristol Bay do not occur between August 16 and September 30.

This rule adds regulations at § 679.22(a)(4)(ii) to establish a transit areas through the Walrus Protection Areas at Cape Peirce. This rule establishes a transit area in the EEZ near Cape Peirce from April 1 through August 15, annually, east of a line from 58°30.00′ N, 161°46.20′ W to 58°21.00′ N, 161°46.20′ W. (See Figure 1 of this preamble.) This transit area is at least 3 nm from Cape Peirce at its closest point.

The transit area through the Walrus Protection Areas near Cape Peirce will provide an opportunity for vessels with FFPs to travel farther from shore while tendering herring or salmon and avoid transit through State waters near walrus haulouts at Cape Peirce. NMFS expects, based on the analyses, that the transit area will reduce the likelihood of disturbance to walruses at the Cape Peirce Walrus Protection Areas.

The transit area will be open from April 1 through August 15, annually, consistent with the opening and closing dates established for the Round Island transit area. As noted in the previous section of this preamble, these dates facilitate vessel transits for tendering and groundfish deliveries. Vessels designated on FFPs are still prohibited from entering and transiting through the Walrus Protection Areas near Cape Peirce from August 16 through September 30. NMFS expects this prohibition will not adversely affect vessels designated on FFPs because tendering operations and groundfish deliveries in northern Bristol Bay do not occur between August 16 and September 30.

This final rule adds regulations at § 679.22(a)(4)(i) (incorrectly identified in the preamble of the proposed rule as § 679.22(a)(4)(ii)) to prohibit vessels designated on an FFP from deploying fishing gear in Walrus Protection Areas from April 1 through September 30, annually. As noted throughout this preamble, this rule removes a prohibition that limits vessels from entering and transiting through Walrus Protection Areas. This final rule does not allow vessels designated on FFPs to fish in Walrus Protection Areas from April 1 through September 30, annually. Section 3.1 of the Analysis explains that this final rule will not affect the timing, duration, effort, or harvest levels in the fisheries in northern Bristol Bay because this final rule does not open Walrus Protection Areas to fishing by vessels designated on an FFP. Because vessels designated on FFPs are already prohibited from deploying fishing gear in Walrus Protection Areas, this prohibition maintains the status quo prohibition on deploying fishing gear in Walrus Protection Areas. Therefore, this final rule does not affect any existing fishing operations.

No changes were made from proposed to final rule.

NMFS received four comment letters during the NOA and proposed rule comment periods. Two comment letters were duplicates. The comment letters contained two unique comments. A summary of the comments and NMFS' response follows.

Comment 1: Commercial fishing vessels, tourist boats, and transit boats should not be allowed to transit through the walrus protected area. This area should be nominated for a marine protected area.

Response: As noted in the preamble to the proposed rule and this preamble, the purpose of this action is to allow vessels designated on FFPs to enter and transit through specific areas of the Walrus Protection Areas near Round Island and Cape Peirce. Therefore, not allowing transit through these areas is inconsistent with the purpose of this action. Also, the commenter's recommendation to nominate these areas as marine protected areas is outside of the scope of this action.

NMFS notes that the Council has recommended and NMFS has implemented a series of closure areas, known as Walrus Protection Areas, around important walrus haulout sites in Bristol Bay to reduce potential disturbances to walruses from fishing activities.

As noted in Section 3.2.7 of the Analysis and in the preamble of the proposed rule (79 FR 59733, October 3, 2014) for this action, all of the alternative management approaches considered, and this action specifically, were determined to be consistent with the best practices in the guidelines established by the U.S. Fish and Wildlife Service (USFWS), the agency responsible for the protection of walruses.

Comment 2: Two commenters provided support for Amendment 107 and its associated implementing proposed rule for the following reasons: (1) Fuel use and operating costs would decrease significantly for vessels designated on FFPs with the implementation of this rule by reducing transit time, (2) vessels designated on FFPs would be less exposed to weather by being allowed to transit through the Walrus Protection Areas, (3) walrus traveling from Round Island to feeding grounds in central Bristol Bay are less likely to encounter vessel traffic if vessels designated on FFPs can use alternate transit routes, and (4) vessel traffic will decrease near the walrus haulout on the south end of Hagemeister Island because vessels designated on FFPs would be less likely to transit through this area.

Response: NMFS acknowledges this comment and agrees with the commenters' support of this action. Additional detail on the effects of this action on vessel fuel use, exposure to weather, and vessel traffic are provided in preamble to the proposed rule and in Section 3.2 of the Analysis and are not described further here.

The Administrator, Alaska Region, NMFS, determined that this final rule is necessary for the conservation and management of the BSAI groundfish fishery and that it is consistent with the BSAI FMP, including Amendment 107, the Magnuson-Stevens Act, and other applicable laws.

The final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preamble to the proposed rule and the preamble to this final rule serve as the small entity compliance guide. This rule does not require any additional compliance from small entities that is not described in the preamble to the proposed rule. Copies of the proposed rule and this final rule are available from NMFS at the following Web site: http://alaskafisheries.noaa.gov.

Section 604 of the Regulatory Flexibility Act requires an agency to prepare a FRFA after being required by that section or any other law to publish a general notice of proposed rulemaking and when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code.

Section 604 describes the required contents of a FRFA: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

A statement of the need for, and objectives of, the rule is contained in the preamble to this final rule and is not repeated here. This FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA) and the summary of the IRFA in the proposed rule (79 FR 59733, October 3, 2014).

NMFS published the proposed rule on October 3, 2014 (79 FR 59733). The 30-day comment period on the proposed rule closed on November 3, 2014. An IRFA was prepared for the “Classification” section of the preamble to the proposed rule.

NMFS received four letters of public comment on the proposed rule, containing a total of two comments. No comments were received on the IRFA, or on the small entity impacts of this action. The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file any comments on the proposed rule.

The determination of the number and description of small entities regulated by this action is based on small business size standards established by the SBA. On June 12, 2014, the SBA issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33647, June 12, 2014). The rule increased the size standard for Finfish Fishing from $19.0 million to $20.5 million, Shellfish Fishing from $5.0 million to $5.5 million, and Other Marine Fishing from $7.0 million to $7.5 million.

The entities that will be directly regulated by this action are those businesses that tender herring or salmon from fisheries to delivery locations in northern Bristol Bay, and those businesses that deliver processed groundfish from the Bering Sea to locations in northern Bristol Bay. Vessels tendering herring or salmon are transporting harvested fish. Because tender vessel operators enter into private contracts with herring and salmon fishing vessel operators to transport their catch, revenue information from tenders is not available. Based on information from 2012, the most recent year of complete data, a maximum of 64 vessels were estimated to have operated as tenders in the herring and salmon fisheries in northern Bristol Bay. These vessels could have been designated on an FFP and could be affected by this action. Because no revenue information is available on these vessels, each of these vessels was assumed to be a small entity.

Based on information from 2012, the most recent year of complete data, a maximum of 6 vessels were estimated to have delivered processed groundfish to locations in northern Bristol Bay. These vessels could have been designated on an FFP and could be affected by this action. All of these vessels were affiliated through common management under cooperative fishing arrangements. These affiliated vessels had ex-vessel annual revenues in 2012 that exceeded the annual revenue limit of $20.5 million used by the SBA to define a small entity harvesting or processing groundfish (79 FR 33647, June 12, 2014). Therefore, these vessels are considered to be large entities.

This action will not change existing reporting, recordkeeping, or other compliance requirements.

A FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected. The FRFA considered three alternatives.

Alternative 1, the no action (status quo) alternative, would maintain the existing closures between 3 and 12 nm around Round Island and Cape Peirce, and would not allow vessels designated on an FFP to transit these areas. Therefore, Alternative 1 represents the most restrictive alternative considered and the alternative with the highest potential cost to regulated small entities.

Alternative 2 would establish a transit area through the existing Walrus Protection Areas near Round Island. Alternative 2 also included three options, Options 1, 2, and 3 to allow the closest point of the transit area to be within 3 nm, 4.5 nm, and 6 nm from Round Island, respectively.

Alternative 3 would establish a transit area through Walrus Protection Areas near Cape Peirce.

The alternatives analyzed but not selected are Alternative 1 (status quo, do not allow transit through the protection areas) and Alternative 2, Options 2 and 3. All of these alternatives and options are more restrictive than the Council's preferred alternatives, which are implemented by this final rule. The Council's preferred alternatives and the actions implemented by this final rule are Alternative 2, Option 1 and Alternative 3. Alternative 2, Option 1 allows vessels to transit closer to Round Island than Alternative 2, Option 2 and Alternative 2, Option 3. Therefore, Alternative 2, Option 1 is the least restrictive of the three options under Alternative 2. Alternative 3 provides a seasonal transit area around Cape Peirce. This final rule represents the alternatives that minimize the potential cost to directly regulated small entities. The boundaries farther from Round Island (Options 2 and 3) may incrementally reduce the potential for disturbance to walruses on Round Island (see Section 3.2.7 of the Analysis), but are not likely to significantly affect the distances traveled as vessels with FFPs transit the protected area. The differences in transit time or fuel costs are not likely to be significantly different between these options. As noted in Section 3.2.7.2.1 of the Analysis, there has been no recorded visible disturbance to walruses from vessel traffic more than 3 nm from Round Island.

The Council also considered rescinding the protection areas around Round Island and Cape Peirce for all or a portion of the year, eliminating the barriers to transiting the Walrus Protection Areas. Rescission of the protection areas would reduce costs to regulated small entities more than this action. However, these alternatives were not analyzed because they do not meet the purpose and need of the action to maintain protection of walruses in these important haulout sites.

E.O. 13175 of November 6, 2000 (25 U.S.C. 450 note), the Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), the American Indian and Alaska Native Policy of the U.S. Department of Commerce (March 30, 1995), and the Department of Commerce Tribal Consultation and Coordination policy (78 FR 33331, June 4, 2013) outline the responsibilities of NMFS for Federal policies that have tribal implications. Section 161 of Public Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 109-447 (118 Stat. 3267), extends the consultation requirements of E.O. 13175 to Alaska Native corporations. Under the E.O. and agency policies, NMFS must ensure meaningful and timely input by tribal officials and representatives of Alaska Native corporations in the development of regulatory policies that have tribal implications. NMFS provided a copy of the proposed rule to the federally recognized tribes and Alaska Native corporations in the Bristol Bay area to notify them of the opportunity to comment or request a consultation on this action.

Section 5(b)(2)(B) of E.O. 13175 requires NMFS to prepare a “tribal summary impact statement” for any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and is not required by statute. The tribal summary impact statement must contain (1) a description of the extent of the agency's prior consultation with tribal officials, (2) a summary of the nature of their concerns, (3) the agency's position supporting the need to issue the regulation, and (4) a statement of the extent to which the concerns of tribal officials have been met.

Pursuant to E.O. 13175, NMFS mailed letters to approximately 162 federally recognized tribes and Alaska Native corporations in the Bristol Bay area providing information about Amendment 107 and the proposed rule. The letter invited comments and requests for consultation on this action. NMFS received no requests for consultation. This final rule is needed to restore the access of federally permitted vessels to transit through Walrus Protection Areas that was limited by regulations implementing Amendment 83 to the GOA FMP and to maintain suitable protection for walruses on Round Island and Cape Peirce. During the development of this action, the Council communicated with the USFWS and the Qayassiq Walrus Commission to avoid adverse impacts to walruses from this action. As noted in Section 3.2.7 of the Analysis and discussed in the preamble of the proposed rule for this action, all of the alternative management approaches considered, and this action specifically, were determined to be consistent with the best practices in the guidelines established by USFWS, the agency responsible for the protection of walruses.

For reasons set out in the preamble, 50 CFR part 679 is amended as follows: