This final rule affecting 7 CFR part 1210 is authorized under the Watermelon Research and Promotion Act (Act) (7 U.S.C. 4901-4916). The Watermelon Research and Promotion Plan is codified at 7 CFR part 1210.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This final rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this rule will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.

Under section 1650 of the Act (7 U.S.C. 4909), a person subject to an order may file a written petition with USDA stating that the plan, any provision of the plan, or any obligation imposed in connection with the plan, is not established in accordance with the law, and request a modification thereof or an exemption therefrom. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. If the petitioner disagrees with USDA's ruling, the petitioner may file, within 20 days, an appeal in the U.S. District Court for the district where the petitioner is an inhabitant or in which the person's principal place of business is located.

This rule realigns the Board's representation and procedures under the Plan. The realignment reduces the number of production districts under the Plan for producer and handler representation on the Board, and proportionally reduces the number of importer seats from twelve to nine. The Board administers the Plan with oversight by USDA. Under the Plan, assessments are collected from watermelon producers, handlers and importers. The assessments are used to strengthen watermelon's position in the marketplace and to establish, maintain, and expand markets for watermelons.

Currently, § 1210.320(a) specifies that the Board shall be comprised of producers, handlers, importers and one public representative appointed by the Secretary. Pursuant to § 1210.320(b), the Plan originally divided the United States into seven districts of comparable production volumes of watermelons, and each district is allocated two producer members and two handler members. Section 1210.320(d) specifies that importer representation on the Board shall be proportionate to the percentage of assessments paid by importers to the Board, except that at least one representative of importers shall serve on the Board.

The current Board is comprised of 41 members—14 producers (two from each district), 14 handlers (two from each district), 12 importers, and one public member.

Section 1210.320(c) requires the Board, at least every five years, to review the districts to determine whether realignment is necessary. In conducting the review, the Board must consider: (1) The most recent three years of USDA production reports or Board assessment reports if USDA production reports are unavailable; (2) shifts and trends in quantities of watermelon produced, and (3) other relevant factors. As a result of the review, the Board may recommend to USDA that the districts be realigned.

Pursuant to section 1210.501, the seven current districts are as follows:

District 1 —The State of Florida;

District 2 —The States of Kentucky, North Carolina, South Carolina, Tennessee, Virginia and West Virginia;

District 3 —The State of Georgia;

District 4 —The States of Connecticut, Delaware, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Wisconsin, and Washington, DC;

District 5 —The State of California;

District 6 —The State of Texas;

District 7 —The States of Alabama, Alaska, Arizona, Arkansas, Colorado, Hawaii, Idaho, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming.

The districts listed above were recommended by the Board in 2016 and established through rulemaking by USDA in 2017 (82 FR 44966).

In 2019, the Board's Executive Committee conducted a review of the U.S. watermelon production districts to determine whether realignment was necessary. The committee held teleconferences on August 14 and September 11, 2019, and reviewed production data for 2016, 2017 and 2018 from USDA's National Agricultural Statistics Service's (NASS) Vegetables Annual Summary for 2018 and Market News Reports. Due to changes in the geographical coverage of USDA's data collection on watermelon production, Board assessment data was used for the states for which USDA data was not available. To protect personally identifiable information (PII) of watermelon producers and handlers, the average of 2016-2018 assessment data was converted to a percentage of production. The combined data is shown in Table 1 below.

Upon review, the Board, at its October 26, 2019 meeting, recommended a reduction in the number of U.S. production districts from seven to five, resulting in a total of ten producer members and ten handler members. The proposed action recommended eliminating two districts, retaining two districts as drawn, and creating three new production districts as follows:

District 1 —The State of Florida (no change);

District 2 —The State of Georgia (formerly District 3).

District 3 —The States of Alabama, Arkansas, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas.

District 4 —The States of Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Maine, Michigan, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia, Wisconsin, and Washington, DC.

District 5 —The States of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.

As shown in Table 2, each district will represent close to 20 percent of the total U.S. production, with a range of approximately 18 to 24.5 percent. USDA has reviewed NASS, Market News, and Board assessment data, and as shown in Table 2, determined that the production estimates are consistent with the Board's recommendation.

Section 1210.501 will be revised accordingly.

Section 1210.320(e) requires USDA to evaluate the average annual percentage of assessments paid by importers during the three-year period preceding the date of the evaluation and adjust, to the extent practicable, the number of importer representatives on the Board.

Table 4 below shows domestic and import assessment data for watermelons for the years 2016, 2017 and 2018. The data is from the Board's financial audits for 2016, 2017  2 and 2018.

DOE maintains previously approved incorporation by references and incorporates by reference the following industry standards into 10 CFR part 430:

ANSI C78.81, (“ANSI C78.81-2016”), American National Standard for Electric Lamps—Double-Capped Fluorescent Lamps—Dimensional and Electrical Characteristics, approved June 29, 2016.

ANSI C78.375A-2014, (“ANSI C78.375A”), American National Standard for Electric Lamps—Fluorescent Lamps—Guide for Electrical Measures, approved August 28, 2014.

ANSI/NEMA C78.901-2016, (“ANSI C78.901-2016”), American National Standard for Electric Lamps—Single-Based Fluorescent Lamps—Dimensional and Electrical Characteristics, ANSI approved August 23, 2016.

ANSI C82.1-2004 (R2008, R2015), (“ANSI C82.1”), American National Standard for Lamp Ballasts—Line Frequency Fluorescent Lamp Ballast, approved November, 20, 2015.

ANSI C82.2-2002 (R2007, R2016), (“ANSI C82.2”), American National Standard for Lamp Ballasts—Method of Measurement of Fluorescent Lamp Ballasts, approved July 12, 2016.

ANSI C82.3-2016, (“ANSI C82.3”), American National Standard for Lamp Ballasts—Reference Ballasts for Fluorescent Lamps, approved April 8, 2016.

ANSI/NEMA C82.11-2017, (“ANSI C82.11”), American National Standard for Lamp Ballasts—High-frequency Fluorescent Lamp Ballasts, approved January 23, 2017.

ANSI C82.13-2002, (“ANSI C82.13”), American National Standard for Lamp Ballasts—Definitions for Fluorescent Lamps and Ballasts, approved July 23, 2002.

ANSI C82.77-2002, (“ANSI C82.77”), Harmonic Emission Limits—Related Power Quality Requirements for Lighting Equipment, approved January 17, 2002.

Copies of ANSI C78.81-2016, ANSI C78.375A, ANSI C78.901-2016, ANSI C82.1, ANSI C82.2, ANSI C82.3, ANSI C82.11, ANSI C82.13, and ANSI C82.77, are available at http://www.ansi.org or http://www.nema.org.

International Electrotechnical Commission (“IEC”) Standard 60081, (“IEC 60081”), Double-capped fluorescent lamps—Performance specifications (Amendment 6, Edition 5.0, August 2017).

IEC 62301:2011, (“IEC 62301”), Household electrical appliances—Measurement of standby power, (Edition 2.0, 2011-01).

Copies of IEC 60081 and IEC 62301 are available on IEC's website at https://webstore.iec.ch/home.

For a further discussion of these standards, see section IV.O.

Fluorescent lamp ballasts are included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(13)) DOE's energy conservation standards and test procedures for fluorescent lamp ballasts are currently prescribed in the Code of Federal Regulations (“CFR”) at 10 CFR 430.32(m) and 10 CFR 430.23(q), respectively. The following sections discuss DOE's authority to establish test procedures for fluorescent lamp ballasts and relevant background information regarding DOE's consideration of test procedures for these products.

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency. These consumer products include fluorescent lamp ballasts, the subject of this document. (42 U.S.C. 6292(a)(13))

The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers. (42 U.S.C. 6296)

The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))

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

In addition, EPCA requires that DOE amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor, unless the current test procedure already incorporates the standby mode and off mode energy consumption, or if such integration is technically infeasible. (42 U.S.C. 6295(gg)(2)(A)) If an integrated test procedure is technically infeasible, DOE must prescribe separate standby mode and off mode energy use test procedures for the covered product, if a separate test is technically feasible. ( Id. ) Any such amendment must consider the most current versions of the International Electrotechnical Commission (“IEC”) Standard 62301 (“IEC 62301”)  3 and IEC Standard 62087  4 as applicable. (42 U.S.C. 6295(gg)(2)(A))

If DOE determines that a test procedure amendment is warranted, it must publish a proposed test procedure and offer the public an opportunity to present oral and written comments on it. (42 U.S.C. 6293(b)(2))

EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including fluorescent lamp ballasts, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(1)(A)) If the Secretary determines, on his own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. In prescribing or amending a test procedure, the Secretary shall take into account such information as the Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of the type (or class) of covered products involved. (42 U.S.C. 6293(b)(2)) If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this final rule in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A))

DOE's test procedure for fluorescent lamp ballasts appears at 10 CFR part 430, subpart B, appendix Q (“appendix Q”). DOE's energy conservation standards for fluorescent lamp ballasts can be found at 10 CFR 430.32(m) and require a minimum power factor and minimum ballast luminous efficiency (“BLE”). In this final rule, DOE updates references to industry standards; clarifies the selection of reference lamps; provides a second stabilization option for measuring ballast luminous efficiency; and revises the test procedure for measuring standby mode energy consumption.

DOE published a final rule establishing an active mode test procedure for fluorescent lamp ballasts on April 24, 1991. 56 FR 18677. DOE last completed a full review of the active mode test procedure for fluorescent lamp ballasts on May 4, 2011. 76 FR 25211. Some of the key amendments in that test procedure final rule included updates to industry standards, adopting BLE as the metric for measuring energy efficiency of fluorescent lamp ballasts, and expanding the test procedure to apply to additional products.

DOE published a final rule establishing a standby mode energy consumption test procedure for fluorescent lamp ballasts on October 22, 2009. 74 FR 54445. DOE determined that, according to EPCA's definition of standby mode, 5 fluorescent lamp ballasts capable of standby mode operation are designed to operate in, or function as, a lighting control system where auxiliary control devices send signals to the ballast; and at zero light output, the ballast is standing by, connected to a main power source without being disconnected by an on-off switch or other type of relay. Further, DOE determined that it is not possible for fluorescent lamp ballasts to meet EPCA's definition of “off mode,”  6 because there is no condition in which the ballast is connected to the main power source and is not in a mode already accounted for in either active mode or standby mode. 74 FR 54445, 54448.

DOE published final rules establishing and amending energy conservation standards for fluorescent lamp ballasts on September 19, 2000, and November 14, 2011, respectively. 65 FR 56740; 76 FR 70547. DOE also published final rules on February 4, 2015, June 5, 2015, and April 29, 2016, to correct and clarify certain requirements and specifications in the CFR relating to energy conservation standards and test procedures. 80 FR 5896; 80 FR 31971; 81 FR 25595. On June 23, 2015, DOE initiated a rulemaking to review energy conservation standards for fluorescent lamp ballasts by publishing a Federal Register notice announcing a public meeting and availability of the framework document (“June 2015 framework document”). 80 FR 35886. On October 22, 2019, DOE published a notice of proposed determination (“NOPD”) initially determining that energy conservation standards for fluorescent lamp ballasts do not need to be amended. 84 FR 56540 (“October 2019 NOPD”). DOE held a webinar open to the public on October 30, 2019, during which it described the analyses and results from the October 2019 NOPD and requested comments. 7

On March 18, 2019, DOE published in the Federal Register a NOPR proposing amendments to the fluorescent lamp ballast (“FLB”) test procedure. 84 FR 9910 (“March 2019 NOPR”). This document addresses information and comments received in response to the March 2019 NOPR and details the amendments to the test procedure adopted in this final rule.

DOE received six written comments in response to the March 2019 NOPR from the interested parties listed in Table I.1 of this document.

In this final rule, DOE amends 10 CFR 430.3, 10 CFR 430.23(q), and appendix Q as follows: (1) Updates references to industry standards; (2) clarifies the selection of reference lamps; (3) removes extraneous requirements in the stabilization procedure; (4) provides a second stabilization option for measuring BLE; and (5) revises the test procedure for measuring standby mode energy consumption.

The amendments adopted for appendix Q are summarized in Table II.1 compared to the current test procedure as well as the reason for the adopted change.

DOE is also amending the reporting requirements under 10 CFR 429.26 to require reporting average total lamp arc power, a value that is already determined in appendix Q; specify rounding requirements for average total lamp arc power; and remove references to values no longer required.

DOE has determined that the amendments described in section III of this document and adopted in this final rule will not alter the measured efficiency of fluorescent lamp ballasts, and that the test procedure will not be unduly burdensome to conduct. Discussion of DOE's actions are addressed in detail in section III of this document.

The effective date for the amended test procedure adopted in this final rule is October 14, 2020. Representations of energy use or energy efficiency must be based on testing in accordance with the amended test procedures beginning March 15, 2021.

This rulemaking applies to fluorescent lamp ballasts, which are devices that can start and operate fluorescent lamps by providing a starting voltage and current and limiting the current during normal operation. 10 CFR 430.2. DOE defines a fluorescent lamp as a lamp of certain shapes, lengths, bases, and wattages  8 that is a low pressure mercury electric-discharge source in which a fluorescing coating transforms some of the ultraviolet energy generated by the mercury discharge into light. 10 CFR 430.2.

DOE received comments regarding potential amendments to FLB energy conservation standards. NEMA commented that the market for fluorescent lamps and fluorescent lamp ballasts (particularly, dimming ballasts) is decreasing substantially due to the transition to solid-state lighting (“SSL”). (NEMA, No. 3 at p. 2)  9 NEMA stated that manufacturers are not currently investing, nor are expected to invest, material resources in fluorescent lamp ballasts. Id. NEMA added there have been no technological changes since the adoption of the current FLB standards and amending these standards will not result in new investment but rather discontinuance of products. Id. ASAP/ACEEE stated it could take many years for existing fluorescent systems to transition to SSL, and fluorescent lighting is still competitive on a lifecycle cost basis. (ASAP/ACEEE, No. 8 at p. 1)

Lutron asserted that amended FLB standards are not technologically feasible due to lack of any technological breakthrough in FLB technology and are not economically justified due to the FLB market decline. (Lutron, No. 6 at p. 2) Lutron added that amended FLB standards are unlikely to meet the energy savings threshold envisioned in the Process Rule. Id.

As discussed, DOE issued the October 2019 NOPD in which it initially determined that energy conservation standards for fluorescent lamp ballasts do not need to be amended. 84 FR 56540. DOE will address potential amendments to the energy conservation standards under that separate review.

Lutron stated DOE should adopt a “No-Rule Rule” and not amend FLB test procedures for the following reasons: (1) No technological breakthroughs or investments in fluorescent lamp ballasts since the last rulemaking, (2) decline in FLB sales due to adoption of light emitting diode (“LED”) technology, (3) ballasts are highly efficient, and dimming ballasts already save significant energy over standard non-dimming ballasts, and (4) updating test procedures may result in a significant regulatory burden for manufacturers without achieving energy savings. (Lutron, No. 6 at p. 2)

NEMA stated that, while it was appropriate to update the FLB test procedure as proposed, compliance to the changes should not be effective until amendments to FLB standards are justified in accordance with EPCA. NEMA asserted that some manufacturers may incur higher test cost burdens which should only be imposed if amended FLB standards are justified. (NEMA, No. 3 at pp. 2-3) Lutron stated that, if a “No-Rule-Rule” is not possible, it agreed with NEMA's suggestion of aligning the compliance date of amended FLB test procedures and amended FLB standards. (Lutron, No. 6 at pp. 2-3)

In the March 2019 NOPR, DOE preliminarily determined that the proposed amendments to its FLB test procedure would not change measured values; and therefore, would not require manufacturers to retest fluorescent lamp ballasts previously tested and certified under the previous test procedure. The amendments being adopted in this final rule further align the DOE test procedure with industry standards and best practices and clarify existing test methods. As described, DOE has determined that the amendments adopted in this final rule will not alter the measured efficiency of fluorescent lamp ballasts; hence, there is no need to delay the compliance date of the amendments. Additionally, DOE has determined the amendments being adopted in this final rule do not add regulatory burden (see section III.I of this document).

ASAP/ACEEE commented that DOE should address the issue resulting from the statutory exclusion from the definition of general service fluorescent lamps (“GSFLs”) those lamps with a color rendering index (“CRI”) of 87 or greater (“high CRI”). They stated that the exclusion has allowed large numbers of inexpensive T12  10 linear fluorescent lamps with high CRI to be sold and that these lamps are significantly less efficient than standards-compliant GSFLs. ASAP/ACEEE stated that the sale of high CRI T12 lamps has allowed a continued market for T12 ballasts, and thereby inefficient T12 fluorescent lighting systems. 11 (ASAP/ACEEE, No. 8 at p. 3)

As noted, this rulemaking addresses the test procedure for fluorescent lamp ballasts and does not address GSFLs. The amendments to the test procedure adopted in this final rule are updates to industry standard references and clarifications to the test methods and do not impact the sale of fluorescent lamp ballasts or associated products such as fluorescent lamps.

The FLB test procedure references several industry standards. Industry periodically updates its testing standards to account for changes in technology and/or developments in test methodology and/or test instruments. In the March 2019 NOPR, DOE identified updated versions of the referenced industry standards incorporated by reference for appendix Q as shown in Table III.1 of this document. 84 FR 9910, 9913.

In the March 2019 NOPR, DOE compared updated and current versions to determine, as directed by EPCA, whether incorporating by reference the latest industry standards would alter measured energy efficiency. (42 U.S.C. 6293(e)(1)) For ANSI C82.2, DOE identified no substantial changes in the 2016 version compared to the 2002 version. For ANSI C82.1, DOE identified no substantial changes in the 2015 version compared to the 2004 version. For ANSI C78.375A, DOE identified no changes in the 2014 version compared to the 1997 version in the ambient conditions or electrical instruments instructions, for which the industry standard is referenced. 84 FR 9910, 9914-9916.

For ANSI C82.11, DOE identified several key changes in the 2017 version compared to the 2002 version. For ANSI C82.3, DOE identified several key changes in the 2016 version compared to the 2002 version. In the March 2019 NOPR DOE tentatively determined these changes would not result in changes to measured values of BLE because the differences do not result in substantive changes to test setup or methodology. 84 FR 9910, 9916.

ANSI C78.81, ANSI C78.901, and IEC 60081 consist of lamp datasheets referenced by Table A of the DOE FLB test procedure to specify the appropriate reference lamp to use when testing a particular ballast. In the March 2019 NOPR, DOE tentatively determined changes to the values of reference lamp characteristics in the latest 2016 versions of ANSI C78.81 and ANSI C 78.901 and IEC 60081 Amendment 6 are within testing tolerances and therefore, will have minimal impact on current requirements. However, the 2016 versions of ANSI C78.81 and ANSI C78.901 remove the low frequency specifications from lamp datasheets for the 32 W 4-foot medium bipin T8 lamp, 59 W 8-foot single pin T8 lamp, and 32 W 2-foot U-shaped medium bipin T8 lamp. Low frequency lamp characteristics and reference ballast characteristics are necessary to determine the appropriate reference lamp for testing low frequency ballasts. In the March 2019 NOPR, DOE proposed adding the low frequency specifications absent in the latest versions of the industry standards directly in appendix Q to ensure measured values are not impacted. 84 FR 9910, 9916-9917.

NEMA supported DOE's proposal to incorporate up-to-date industry standards. (NEMA, No. 3 at p. 3) ASAP/ACEEE also supported the updates if they improve the accuracy of the test procedures, avoid biasing the results, and provide representative results. (ASAP/ACEEE, No. 8 at p. 2) ASAP/ACEEE added that they were not aware of any such problems with the updates proposed. Id.

Consistent with its assessment in the March 2019 NOPR, DOE has determined that, because updates to industry standard references do not involve substantive changes to the test setup and methodology, they would not affect measured values. DOE has not identified any potential for bias or non-representative results under these updates as proposed. DOE has determined that incorporation by reference of the latest versions of industry standards will better align DOE's test procedure with updates to test methods that industry considers to be improvements to previous methods and also increase the clarity of DOE test methods. Hence, in this final rule DOE incorporates by reference for appendix Q the industry standards ANSI C78.81-2016, ANSI C78.375A-2014, ANSI C78.901-2016, ANSI C82.1-2004 (R2008, R2015), ANSI C82.2-2002 (R2007, R2016) (referred to as ANSI C82.2-2016 in this rulemaking), ANSI C82.3-2016, ANSI C82.11-2017, ANSI C82.77 and IEC 60081 Amendment 6 (see Table III.1).

Additionally, DOE is ensuring that the necessary low frequency specifications no longer in ANSI C78.81-2016 or ANSI C78.901-2016 remain available in appendix Q. Hence, in this final rule, for the 32 W 4-foot medium bipin T8 lamp, 59 W 8-foot single pin T8 lamp, and 32 W 2-foot U-shaped medium bipin T8 lamp, DOE is specifying directly in new section 2.3.3 of appendix Q the following low frequency specifications: (1) The low frequency lamp characteristics ( i.e., arc wattage, approximate cathode wattage, total wattage, voltage, and current), (2) reference ballast characteristics ( i.e., rated input voltage, reference current, impedance) and (3) cathode heating requirements for rapid start circuits. These specifications are the same as those in the earlier versions of the standards, ANSI C78.81-2010 and ANSI C78.901-2005.

In the March 2019 NOPR, DOE also proposed to incorporate by reference for appendix Q the following industry standards not already incorporated: (1) ANSI C82.77-2002  28 because this standard is explicitly referenced by ANSI C82.11-2017, which DOE proposed to incorporate by reference; and (2) IEC 62301  29 because it provides specific instructions for standby mode measurements. 84 FR 9910, 9914-9917.

Signify suggested that DOE reference the 2014 version of ANSI C82.77 rather than the 2002 version and noted that ANSI is currently working on an update, with expected publication in 2019. Signify specified that the two major changes in the 2014 version were to describe harmonic current limits for LED lighting and the displacement and harmonic factor optional power quality metric. (Signify, No. 7 at p. 1)

For testing high frequency ballasts, DOE's test procedure references the 2002 version of ANSI C82.11, which DOE is updating to the 2017 version in this final rule. While ANSI C82.11-2002 provides the limits for harmonic distortion of input currents, ANSI C82.11-2017 references ANSI C82.77-2002 for these limit specifications. The harmonic distortion input current limits in ANSI C82.77-2002 are the same as those specified in ANSI C82.11-2002. Because the update to ANSI C82.11 references the 2002 version of ANSI C82.77, DOE proposed to incorporate by reference ANSI C82.77-2002 into appendix Q. 84 FR 9910, 9915. Additionally, in its normative references section, ANSI C82.11-2017 states that at the time of publication the editions indicated are valid and lists the 2002 version of ANSI C82.77. While the section also encourages the possibility of applying the most recent editions, at the time of publication of ANSI C82.11-2017, the 2014 version of ANSI C82.77 was available but not referenced by the standard. The harmonic distortion input current limits for modular office furniture, which includes fluorescent lamp sources, is 155 percent in the 2014 version compared to 32 percent in the 2002 version. DOE notes that the key changes in the 2014 version of ANSI C82.77 noted by stakeholders are not relevant ( i.e., LED lighting harmonic current limits and optional power quality metric) to DOE's FLB test procedure. Therefore, in this final rule DOE is adopting the 2002 version of ANSI C82.77 for incorporation by reference.

DOE also received comments on IEC 62301, which it proposed for incorporation by reference for measurements of standby mode power of fluorescent lamp ballasts. These comments are discussed in section III.E of this document, which specifically addresses standby mode and addresses the related comments.

In the March 2019 NOPR, DOE proposed several updates to definitions related to the FLB test procedure. Currently, “designed and marketed” means that the intended application of the lamp is clearly stated in all publicly available documents ( e.g., product literature, catalogs, and packaging labels). 30 In the March 2019 NOPR, DOE proposed to specify explicitly that the term also includes the intended application of ballast consistent with the application of the definition of “designed and marketed” to fluorescent lamp ballasts. 84 FR 9910, 9917.

DOE also proposed to update definitions for the instant-start, programmed-start, and rapid-start starting methods in appendix Q. Specifically, DOE proposed to add language to these definitions stating that these starting methods are typically indicated on publicly available documents of a fluorescent lamp ballast. DOE finds that this language will provide further guidance in identifying the starting method of the ballast.

Additionally, DOE proposed to remove the following terms in appendix Q that are currently defined but will no longer be used in the revised test procedure: “AC control signal,” “cathode heating,” “DC control signal,” “F34T12 lamp,” “F96T12/ES lamp,” “F96T12HO/ES lamp,” “PLC control signal,” and “wireless control signal.” “AC control signal” and “DC control signal” are not reflective of the products currently available on the market, and the rest of the terms are not used in the FLB test procedure.

NEMA and Signify agreed with DOE's proposed removal of unused definitions. (NEMA, No. 3 at p. 3; Signify, No. 7 at p. 3) DOE has determined that the removal of definitions described in this section will improve the clarity of FLB test procedure and will not affect measured values.

Hence, in this final rule DOE is (1) updating the term “designed and marketed” in 10 CFR 430.2 to include the intended application of ballasts, (2) updating language in definitions of “instant-start,” “programmed-start,” and “rapid-start,” and (3) removing the following terms in the Definitions section of appendix Q: “AC control signal,” “cathode heating,” “DC control signal,” “F34T12 lamp,” “F96T12/ES lamp,” “F96T12HO/ES lamp,” “PLC control signal,” and “wireless control signal.”

In the March 2019 NOPR, DOE proposed several updates to appendix Q regarding instrumentation, test setup, test conditions, and measurements. DOE also proposed a general instruction in section 2.1 (“Active Mode Procedure”) that specifications in referenced industry standards that are recommended, stated as “shall” or “should” be met, or that are not clearly mandatory are, for purposes of the DOE test procedure, mandatory (unless they conflict with language in appendix Q) to ensure testing is conducted in a uniform manner by different entities to yield consistent results. 84 FR 9910, 9918. DOE received no comments on this proposed change. DOE has determined this is not a substantive change to the test procedure, and will not change measured values. DOE is adopting section 2.1 as proposed.

In the March 2019 NOPR, DOE proposed to reference section 9 (“Electrical Instruments”) of ANSI C78.375A-2014 in section 2.2 (“Instruments”) of the active mode test procedure instead of referencing ANSI C82.2 generally. The reference to ANSI C82.2 is being updated from the 2002 version to the 2016 version in this final rule. Both versions of ANSI C82.2 reference ANSI C78.375A-1997 but also specify that the latest version of ANSI C78.375 applies. The latest version of ANSI C78.375 (the 2014 version) makes no updates to its electrical instruments section compared to the 1997 version (see section III.B). 84 FR 9910, 9919.

DOE did not receive any comments on these proposed amendments. DOE has determined that directly referencing ANSI C78.375A-2014 improves the readability of the DOE test procedure by identifying subsequently referenced industry standards, that this change does not make substantive changes to the test procedure, and that this amendment will not change measured values. In this final rule, DOE adopts the clarifications regarding references to industry standards in the “Instrumentation” section as described in this section.

In the March 2019 NOPR, DOE proposed several amendments to section 2.3 (“Test Setup”) of the active mode test procedure in appendix Q. These included: (1) More precisely referencing industry standards, (2) renaming the “Power Analyzer” subsection to “Test Circuits” and clarifying the specified power analyzer capabilities, (3) clarifying selection of reference lamps, and (4) clarifying instructions for identifying the reference lamp.

Section 2.3.1 of the active mode test procedure in appendix Q references ANSI C82.1 and ANSI C78.81 without specific instruction regarding applicability to low- or high-frequency ballasts. In the March 2019 NOPR, DOE proposed to specify use of ANSI C82.1 to test low-frequency ballasts and use of ANSI C82.11 to test high-frequency ballasts. 84 FR 9910, 9918. DOE also proposed to remove the reference to ANSI C78.81, which contains no wiring instructions. Id. In conjunction with referencing ANSI C82.1, DOE proposed to add an instruction to disregard section 5.3 (“Ballast Output”) of the standard. Id. Section 5.3 of ANSI C82.1 specifies minimum power factor requirements, which may be confused with the minimum power factor requirements set forth in DOE's energy conservation standards for fluorescent lamp ballasts (see 10 CFR 430.32(m)). In referencing ANSI C82.11, DOE proposed to disregard section 5.3.1 (“Ballast Factor”) in the standard because the DOE test procedure does not specify determination of ballast factor. 84 FR 9910, 9918. DOE also proposed to disregard Annex D (“Dimming Ballast Energy Efficiency Test Method”) and section 5.13 (“Ballast Efficiency”) in ANSI C82.11 for the active mode test procedure of measuring BLE at full light output, a metric that is different from ballast efficiency described in these sections. 84 FR 9910, 9918-9919.

DOE did not receive any comments on the proposed amendments. DOE has determined that these updates provide clearer instructions on using referenced industry standards and do not make substantive changes to the test procedure or change measured values. In this final rule, DOE adopts the clarifications regarding references to industry standards in the “Test Setup” section as described in this section.

In the March 2019 NOPR, DOE also proposed to rename the “Power Analyzer” section (section 2.3.2 of appendix Q) to “Test Circuits” because it provides instructions regarding not only the power analyzer but also for connecting the power supply, ballast, and lamp in the appropriate circuit. Section 2.3.2.1 of appendix Q requires that the power analyzer must have “n + 1” channels where “n” is the number of lamps the ballast can operate. In the March 2019 NOPR, DOE also proposed to specify that “n” is the maximum number of lamps the ballast is designed and marketed to operate, to ensure that the power analyzer has enough channels. 84 FR 9910, 9918.

DOE did not receive any comments on the proposed amendments. DOE has determined these updates provide clearer instructions regarding the power analyzer setup and do not make substantive changes to the test procedure or change measured values. In this final rule, DOE adopts the clarifications regarding the power analyzer setup as described in this section.

As compared to when DOE initially established a test procedure for fluorescent lamp ballasts, the market now offers certain ballasts that each can operate lamps of more than one lamp base type and diameter—for example, ballasts that can operate T5 (miniature bipin), T8 (medium bipin), and T12 lamps (both recessed double contact and slimline). Because appendix Q currently does not specify which reference lamp to select for these types of ballasts, in the March 2019 NOPR, DOE proposed to provide additional direction in appendix Q. First, DOE proposed in newly added section 2.3.3.3 that a ballast designed and marketed to operate lamps of multiple base types, except for sign ballasts, must be tested with one base type in the following order of decreasing preference: Medium bipin, miniature bipin, single pin, and recessed double contact. 84 FR 9910, 9918. Second, DOE proposed in newly added section 2.3.3.4 to require, after selecting the base type, a ballast designed and marketed to operate lamps of multiple diameters must be tested with one diameter in the following order of decreasing preference: T8, T5, or T12. Id.

NEMA stated that base type has less influence on efficiency measurements than the number and type of lamps being operated, emphasizing that the number of lamps is more relevant. (NEMA, No. 3 at p. 3) Signify commented that, while DOE's proposed criteria may work, because DOE's efficiency standard for fluorescent lamp ballasts is a function of the ballast circuit and output power, it would be simpler to specify choosing the maximum lamp power for multi-lamp type ballasts. Signify stated that testing for the highest lamp power results in testing for the highest efficiency requirement. Signify added that the ballast will operate at its maximum power with the maximum load regardless of lamp base type. (Signify, No. 7 at pp. 2-4)

DOE based the proposed selection of the base type and diameter of the reference lamp for ballasts that can operate multiple lamp types on the most common products on the market. As noted by commentators, base type does not impact lamp power. However, lamp diameters may impact lamp power. Hence, the order of preference dictated by most common diameter may not always result in selecting the lamp diameter with the maximum lamp power. Testing ballasts that can operate multiple lamp types with the most common lamp type provides test results more appropriately representative of an average period of use. (See, 42 U.S.C. 6293(b)(3)) DOE also notes that, regardless of the selection of base type or diameter, section 2.3.1.4 of appendix Q already requires that the ballast be tested connected to the maximum number of lamps the ballast is designed and marketed to operate.

DOE has determined the updates to the selection of reference lamps for ballasts that can operate more than one lamp type adds consistency and repeatability to the test procedure and do not make substantive changes to the test procedure or change measured values. In this final rule, DOE adopts the selection criteria for reference lamps for ballasts that can operate more than one lamp type as described in this section.

Section 2.3.1.3 of appendix Q, which pertains to testing in active mode, specifies that the fluorescent lamp used for testing must be a reference lamp as defined in ANSI C82.13 and be seasoned for at least 12 hours. ANSI C82.13 states that reference lamps are “seasoned lamps which under stable operating conditions and in conjunction with the specified reference ballast operate at” certain voltage, wattage, and current. In the March 2019 NOPR, DOE proposed further clarification in newly added section 2.3.3.1 that the reference lamp be tested with a reference ballast that meets the criteria of the 2016 version of ANSI C82.3, the industry standard for reference ballasts of fluorescent lamps. ANSI C82.13 also states that reference lamps must meet certain voltage, wattage, and current criteria under stable operating conditions. Hence, DOE also proposed to include the stabilization criteria for reference lamps as specified in newly added section 2.5.2.1 of appendix Q. 84 FR 9910, 9918.

In the March 2019 NOPR, DOE also proposed to remove references to “rapid-start lamps” and “instant-start lamps” in the “Ballast Type” column in Table A. The starting method ( e.g. rapid start, instant start) is dictated by the type of ballast, and the lamp datasheet referenced by Table A for each lamp type provides the appropriate reference lamp specifications for the applicable starting method. As such, including the lamps' associated starting method in the Ballast Type column of this table is unnecessary and potentially confusing. DOE also proposed changing the title of the table from Table A to Table 1. 84 FR 9910, 9916, 9932.

DOE did not receive any comments on the proposed amendments related to the reference lamps. DOE has determined these updates provide explicit instructions to ensure correct procedures and requirements are followed when identifying a reference lamp that meets the definition in ANSI C82.13. DOE has further determined that these amendments do not make substantive changes to the test procedure or change measured values. In this final rule, DOE adopts the changes relating to identifying reference lamps described in this section.

Section 2.4 of appendix Q, which pertains to the active mode test procedure, generally references ANSI C82.2 for all test conditions. In the March 2019 NOPR, DOE proposed to specifically reference ANSI C82.2-2016 sections 3 “Pertinent measurements” and 4 “Electrical supply characteristics—test ballast measurement circuits.” DOE also proposed to remove instructions in section 2.4.1 of appendix Q regarding normative references in ANSI C82.2, since DOE proposed directly referencing industry standards when necessary rather than relying generally on the normative references in ANSI C82.2.

Similarly, section 2.4.2 of appendix Q generally references ANSI C78.375 to specify requirements for room temperature and air circulation in the test facility. In the March 2019 NOPR, DOE proposed to specifically reference ANSI C78.375A-2014 section 4, “Ambient Conditions for Lamp Measurements,” which contains the appropriate information for temperature and air movement requirements.

DOE did not receive any comments on these proposed amendments. DOE determined that these updates provide more direct references to industry standards, and do not make substantive changes to the test procedure or change measured values. In this final rule, DOE is revising general references to ANSI C82.2 and ANSI C78.375A in section 2.4 of appendix Q to provide more precise references to sections 3 and 4 of ANSI C82.2-2016 and section 4 of ANSI C78.375A-2014, as described in this section.

In the March 2019 NOPR, DOE proposed the following amendments to section 2.5 (“Test Method”) of appendix Q, which pertains to the active mode test procedure: (1) Revising the stabilization procedure, including adding a second stabilization option, and (2) requiring measuring lamp arc current and voltage as root mean square (“RMS”) values.

In response to the June 2015 framework document, Signify (as Philips Lighting) recommended DOE adopt a second stabilization option to use when measuring BLE that was developed by industry stakeholders. (Philips Lighting, Docket EERE-2015-BT-STD-0006, No. 8 at pp. 2-5) This stabilization option was also supported by comments from NEMA and Universal Lighting Technologies (“ULT”). (NEMA, Docket EERE-2015-BT-STD-0006, No. 12 at p. 2; ULT, Docket EERE-2015-BT-STD-0006, No. 6 at p. 2) DOE evaluated the second stabilization option as recommended by Signify and proposed its adoption in the March 2019 TP NOPR (“Option 2”). 84 FR 9910, 9919. The Option 2 stabilization method proposed would incorporate by reference the method in Annex D of ANSI C82.11. Specifically, DOE proposed that stable operating conditions under this option be determined according to steps 1 through 6 of section D.2.1 in Annex D of ANSI C82.11.

NEMA and Signify supported DOE's proposal to allow the Option 2 stabilization method for measuring the BLE of ballasts at full light output, stating it reduces testing burden and data management complexity without affecting the accuracy of energy efficiency measurements. (NEMA, No. 3 at p. 4; Signify, No. 7 at p. 6) NEMA suggested DOE offer both Option 1 and Option 2 stabilization methods because some manufacturers will choose to continue with the Option 1 method. (NEMA, No. 3 at p. 4) ASAP/ACEEE supported use of the optional Option 2 stabilization method so long as it is statistically comparable to the current method. ASAP/ACEEE asked DOE to demonstrate that the two options provide statistically identical results before allowing the Option 2 stabilization method. (ASAP/ACEEE, No. 8 at p. 2)

DOE has determined that the second stabilization method will save overall testing time, particularly when testing large batches of ballasts. In response to the June 2015 framework document, Signify (as Philips Lighting) provided BLE test data using both methods for T5 and T8 rapid start and T8 instant start ballasts. For each type of ballast, Philips tested five units of four different models and provided an average BLE for each model at 120 V and 277 V. (Philips Lighting, Docket EERE-2015-BT-STD-0006, No. 8, pp. 2-5)  31 Because the data did not include total lamp arc power for the ballast models, DOE could not conduct an analysis of how these reported values would comply with FLB standards. DOE did again review and compare the methodologies of the two options. Option 2 is different from Option 1 as follows: (1) Option 2 involves pre-heating the ballast in an oven and pre-burning the lamp with a similar ballast while Option 1 does not; and (2) Option 2 requires reaching stable conditions over a five-minute window while Option 1 requires a four-minute window. DOE has determined the difference between the two methods is not substantive enough to yield different final represented values. Pre-heating the ballast will mainly allow the ballasts to be stabilized more quickly and the difference between a five-minute and four-minute window is minimal. Therefore, DOE has determined that Option 2 only impacts the time it takes to achieve stabilization and does not impact final represented values. In this final rule DOE adopts the second stabilization option (“Option 2”) as described in the March 2019 NOPR.

Currently, section 2.5.1.2.1 of appendix Q requires that lamp arc voltage, current, and power be measured once per second while determining stability. In the March 2019 NOPR, DOE proposed to modify the requirement that lamp arc voltage, current, and power be measured once per second, to require instead that those factors be measured once per minute in the Option 1 stabilization method. The once-per-minute requirement is already incorporated in the Option 2 stabilization method. 84 FR 9910, 9919-9920.

NEMA and Signify supported DOE's proposal to change the sampling frequency from one second to one minute in the Option 1 stabilization method, asserting the change will reduce the data storage needs and associated costs. (NEMA, No. 3 at p. 3; Signify, No. 7 at pp. 4-5) NEMA added that lamp-and-ballast systems have high thermal mass and that temperature does not change quickly, thereby generating redundant data at a per-second sampling frequency. (NEMA, No. 3 at p. 3)

As stated in the March 2019 NOPR, DOE reviewed the stabilization criteria in IES LM-9 (proposed in the Option 2 stabilization method) and tentatively determined that taking measurements once per minute to determine if a fluorescent lamp has stabilized is sufficient to determine if a fluorescent lamp ballast has stabilized. 84 FR 9910, 9919. Therefore, DOE has determined that a per-second sampling frequency is unnecessary and its removal would not impact final steady-state conditions reached. In this final rule, DOE is changing the sampling frequency from one second to one minute in the Option 1 stabilization method.

Section 2.5.1.2 of appendix Q currently requires operating the ballast at full output for at least 15 minutes but no longer than 1 hour until stable operating conditions are reached. In the March 2019 NOPR, DOE stated that it does not find a need to restrict the maximum time required to achieve stable operating conditions and therefore proposed to remove the maximum time of one hour required to achieve stable operating conditions in the Option 1 stabilization method. 84 FR 9910, 9919-9920.

NEMA and Signify supported changing the requirement that fluorescent lamp ballasts cannot be operated for longer than one hour to determine stable operating conditions. NEMA stated that in some cases, especially with ballasts that are potted, 32 it may take some time for ballast components to reach optimal operating temperature. Signify stated that, for a ballast tested with an amalgam lamp or any other energy saving lamp type, the proposed change may reduce test costs by preventing repeat testing if the system has not stabilized in an hour. (NEMA, No. 3 at pp. 3-4; Signify, No. 7 at p. 5) ASAP/ACEEE expressed concern that lifting the one hour restriction may result in test data being collected before ballasts achieve stable operating conditions. (ASAP/ACEEE, No. 8 at p. 2)

Per both Option 1 and Option 2 stabilization methods, a lamp-ballast system is determined to be stable when the differences in measured values of each lamp arc voltage, current, and power do not exceed one percent over a four-minute moving window. To achieve stabilization, this criterion must be met even if the stabilization period exceeds one hour. Hence, in this final rule DOE is removing the maximum stabilization time requirement, as it is irrelevant in determining whether final steady-state conditions have been reached.

Based on general industry practice of electrical circuit measurements, DOE has interpreted the measurements for lamp arc current and lamp arc voltage to be RMS values. In the March 2019 NOPR, DOE proposed to make explicit this industry practice. 84 FR 9910, 9920.

DOE did not receive any comments on this proposed amendment. DOE has determined that these updates provide clearer instructions on taking measurements consistent with industry practice and do not make substantive changes to the test procedure or change measured values. In this final rule, DOE adopts the explicit direction that measurements of lamp arc current and lamp arc voltage must be RMS values.

In the March 2019 NOPR, DOE also proposed to amend references to sections of ANSI C82.2 as they pertain to taking measurements. 84 FR 9910, 9920. Specifically, DOE proposed to remove references to sections 3.2.1 and 4 of ANSI C82.2 for measuring input current and voltage. DOE initially determined that 3.2.1 of ANSI C82.2 lists parameters to measure for ballast input operating conditions and provides no measurement specifications and that section 4 of ANSI C82.2 provides electrical supply specifications relevant to test conditions but not measurements. Id. DOE also proposed to retain the reference to section 7 of ANSI C82.2, but add instruction to disregard references to Figure 1 and Figure 3, as Figure 1 is not relevant for input power measurements and Figure 3 is unnecessary as it specifies a circuit to measure current in rapid start ballasts, which is already provided in the DOE test procedure. Id.

NEMA supported DOE's proposal to replace the existing ANSI C82.2 references stating: Section 3.2.1 referenced the ballast efficiency factor metric and not BLE; and the referenced figures showed separate wattage, voltage and current meters, whereas modern testing facilities would be using power analyzers to take measurements. (NEMA, No. 3 at p. 4) Signify suggested DOE retain section 4, stating that several technical requirements in section 4 affect electrical and energy efficiency measurements. (Signify, No. 7 at p. 7)

DOE agrees that section 4 of ANSI C82.2 is a pertinent section to reference. Because it provides electrical supply specifications, DOE references it in the “Test Conditions” section rather than in the “Test Method” section of the active mode test procedure. DOE has determined that section 3.2.1 of ANSI C82.2 is unnecessary, as it only lists parameters to measure for ballast input operating conditions but provides no measurement specifications. Regarding the referenced figures, only Figure 2 in ANSI C82.2, which involves measuring a ballast's input voltage and current, is relevant to taking input measurements. Hence, in this final rule, in the “Test Method” section of the active mode test procedure, DOE removes references to sections 3.2.1 and 4 for measuring input voltage and input current, and instead specifies section 7 with the exclusion of Figure 1 and Figure 3 for measuring input power, input voltage, and input current.

In the March 2019 NOPR, DOE assessed comments received in response to the June 2015 framework document regarding measuring the performance of fluorescent lamp ballasts at dimmed light output levels and proposed a method to measure ballast efficiency (“BE”) at reduced light output levels for representations in the marketplace. 84 FR 9910, 9920-9921. The proposed BE measurement was the ballast output power divided by the ballast input power, where the ballast output power includes not only the lamp arc power but also the filament power ( i.e., “cathode power”) and power provided for other features such as networking and sensors. Thus, the proposed BE measurement was different than BLE, which does not include filament power in the ballast output power measurement. The proposal did not require manufacturers to test for and measure BE; but, if a manufacturer were to choose to make representations of BE at reduced light output levels, it would have been required to use the test procedure for the BE metric provided in Annex D of ANSI C82.11-2017. Consistent with Annex D, DOE's proposed test method would have applied only to measurements at light output levels at or greater than 50 percent of full light output and require use of the Option 2 stabilization method (see section III.D.5.a of this document). 84 FR 9910, 9921.

DOE received several comments on the proposed test method for measuring BE at reduced light output levels. NEMA stated that, when dimming a fluorescent lamp ballast, cathode heat must be applied  33 to ensure that the reduction in the arc discharge current does not result in shortened lamp lifetime. NEMA asserted that power required to maintain cathode heat ( i.e., cathode power, filament power) must be included in the ballast output power measurement. NEMA added that, because the arc discharge and cathode heating currents flow through the same wire and low levels of power are being measured, it is not possible to make reliable measurements below 50 percent light output. (NEMA, No. 3 at p. 4) Signify supported DOE's proposed test method for BE, stating that the test procedures in ANSI C82.11-2014 provide a high level of accuracy and repeatability for measurements at 50 percent and full light output. (Signify, No. 7 at p. 6)

NEMA described a multi-channel measurement approach for BE testing that relies on 13 time-synchronized channels for a 4-lamp fluorescent lamp ballast to capture the input and output power in the same time interval. NEMA stated this approach would require (1) three power analyzers, each costing about $20,000, as most power analyzers have a maximum of six channels, and (2) a test management computer system and software costing about $5,000 to control and synchronize the analyzers. NEMA stated that, while some labs may have this equipment, others may not and may choose not to make the expenditure; resulting in some manufacturers not making BE representations of some or all of their products that may require it. (NEMA, No. 3 at p. 5) Signify stated that the test method for measuring BE at reduced light outputs does not necessarily require purchasing new equipment, as power analyzers are also used to measure BLE. Signify explained that the test method can be implemented utilizing (1) a dedicated multi-channel power analyzer, (2) two or more power analyzers used simultaneously, or (3) one power analyzer measuring one lamp port at a time. Signify noted that a multi-channel power analyzer can cost between $2,200 to $20,000, which is comparable to a power analyzer. Signify also stated that the test method for measuring BE would already be adopted by any lab that is accredited to National Voluntary Laboratory Accreditation Program and that tests ballasts at reduced light output levels per ANSI standards. (Signify, No. 7 at pp. 9, 13-14)

Lutron asserted that the efficiency measurement of ballasts at reduced light outputs specified in ANSI C82.11-2014 is slightly different than that required to meet CEC's Title 20 energy efficiency regulations for deep-dimming  34 fluorescent lamp ballasts, and therefore may require significant re-testing without resulting in any energy savings. Lutron added that testing efficiency at reduced light output will be very expensive, as it requires highly specialized equipment and third-party labs will be able to test only a few samples per day. Lutron also noted that the test method for measuring BE at reduced light outputs had been available in ANSI C82.11 since 2014, giving manufacturers ample opportunity to begin publishing such efficiencies. Lutron stated it did not foresee an equivalent DOE test method to increase the use of this metric, as manufacturers are no longer investing in fluorescent technology. (Lutron, No. 6 at pp. 2-3)

CEC and CA IOUs stated that DOE's proposed BE metric is an inappropriate measurement of efficiency at reduced light outputs, as it does not count cathode power used at lower light outputs as a loss. (CA IOUs, No. 5 at p. 1; CEC, No. 4 at p. 1) CEC stated that, while certain dimming levels require cathode heating to protect against lamp failure, this is not necessary at all dimming levels. (CEC, No. 4 at p. 2) CA IOUs stated that the BE metric would result in falsely high efficiency ratings, and CEC asserted that the BE metric would allow any amount of cathode power to be used, whether necessary or not. (CA IOUs, No. 5 at p. 1; CEC, No. 4 at p. 2)

ASAP/ACEEE stated that energy efficiency ratings for dimmable ballasts should reflect both the light level output at which a ballast must provide cathode power to sustain lamp ignition and the efficiency of the ballast to illuminate the lamp. They recommended DOE review comments submitted by CEC to revise the proposed BE test method. (ASAP/ACEEE, No. 8 at pp. 1-2) CA IOUs stated that, while cathode power is required at lower lamp currents, it is not necessary at typical lamp currents nearer to full output, and multiple manufacturers employ cathode “cut out”, 35 which removes cathode power when it is not required. CA IOUs stated that cathode cut out can result in significant energy savings and should be considered a key metric for determining ballast efficiency. CA IOUs added this can only be done using the BLE metric at low light output levels. CA IOUs stated DOE should include testing for both BE and BLE regardless of light output level. (CA IOUs, No. 5 at pp. 3-4)

CEC also suggested alternative options including (1) requiring measurement of both ballast BLE and BE for any performance measurements at light levels less than 100 percent, (2) requiring the BLE measurement at the light level output just above the threshold where cathode heating would be necessary as well as at light levels above this threshold, and measurement of BE at light outputs below this level, 36 or (3) an alternative method that allows for the amount of, and cut-in light level output point of, cathode power to be measured. (CEC, No. 4 at pp. 1-3)

ASAP/ACEEE expressed concern that DOE's proposed test method does not specifically measure cathode power at any light output less than 100 percent. (ASAP/ACEEE, No. 8 at pp. 1-2) CEC added that the technical challenges to measuring the BLE at light output levels less than 50 percent should not be a reason for DOE to not develop appropriate efficiency metrics and standards for dimming ballasts. (CEC, No. 4 at pp. 3-4)

DOE is maintaining the metric of BLE at full light output for representations and for determining compliance with the current energy conservation standards. The BLE metric accounts for cathode power as a loss because DOE's test procedure isolates lamp arc voltage by capturing cathode power in the input power measurement, but not in the output power measurement (which is quantified as total lamp arc power). 76 FR 25216 (May 4, 2011). Therefore, all else being equal, ballasts that use cathode power are measured as less efficient at full light output than those that do not because cathode power increases the measured input power but not the measured total lamp arc power.

Based on further consideration, including the comments received, DOE is not adopting a BE test method. DOE proposed the BE measurement to include cathode power in ballast output power to account for its necessary use at reduced light output levels. Regarding determining at what light output level cathode power is necessary, manufacturers can apply different cathode cut out designs. DOE does not have data on the light output levels at which cathode power is applied and current product marketing material does not specify the cathode cut out light output level. The industry standard, NEMA Standard LL9-2011, specifies minimum and maximum voltages across cathodes in dimmed operation. However, incorporating such parameters in a metric may influence manufacturer choice as to cathode cut designs that can be employed in fluorescent lamp ballasts. A lamp and ballast manufacturer may be able to employ only the minimum amount of cathode power necessary because the lamp can be designed to only require the minimum amount of cathode power, while a manufacturer that produces only ballasts may have to provide more cathode power to ensure that its ballasts can operate all lamps since the minimum amount of cathode power required can vary by lamp. DOE finds that it is important to allow for flexibility in designing ballasts, and a metric should not favor one approach over another.

Given these issues the proposed BE test method may not provide an accurate representation of efficiency for all dimmable ballasts at all reduced light outputs. DOE is not aware of an industry standard at this time that provides a test method to accurately capture the efficiency of a ballast at reduced light output levels. Additionally, current energy conservation standards for fluorescent lamp ballasts do not require efficiency measurements at lower light outputs. Because the proposed BE test method may not provide the most accurate representations, and such a test method is not necessary for compliance, DOE is not adopting a test method for measuring ballast efficiency at reduced light outputs in this final rule.

Currently, the measurement of standby mode power is not required to determine compliance with energy conservation standards for fluorescent lamp ballasts. However, if a manufacturer chooses to make any representations with respect to the standby mode power use of fluorescent lamp ballasts, section 3 of appendix Q requires standby mode power testing to be performed in accordance with ANSI C82.2.

EPCA directs DOE to establish test procedures to include standby mode energy consumption, “taking into consideration the most current versions of Standards 62301 and 62087 of the International Electrotechnical Commission[.]” (42 U.S.C. 6295(gg)(2)(A)) IEC Standard 62087 applies only to audio, video, and related equipment, and therefore is not relevant to lighting products. The current standby mode test procedure is consistent with procedures outlined in IEC Standard 62301, which applies generally to household electrical appliances. 74 FR 54445, 54449 (Oct. 22, 2009). To provide a test method that would be familiar to FLB manufacturers at the time the standby mode test procedure was initially established, DOE referenced language and methodologies presented in 2002 edition of ANSI C82.2. Id.

In the March 2019 NOPR, DOE proposed requiring stabilization and subsequent measurement of standby mode energy consumption according to the measurements in section 5 of IEC 62301 (edition 2.0), instead of ANSI C82.2. IEC 62301, which applies generally to household electrical appliances, provides requirements specifically for measuring standby mode energy consumption, whereas ANSI C82.2 does not. For consistency within the test procedure and to reduce the test burden, DOE also proposed that the appendix Q requirements for instruments, test setup and test conditions for the active mode test procedure be followed for standby power measurements. (This includes direction regarding the input voltage at which to test when the ballast can operate at multiple input voltages, which is not currently specified by the current test conditions referenced in ANSI C82.2.) Furthermore, unlike the active mode test procedure, DOE proposed not to require use of reference lamps because lamps are not turned on during the measurement of standby mode power consumption. Additionally, DOE proposed that whatever lamp to which the ballast is connected be turned on initially at full light output for the purpose of ensuring the ballast is not defective. 84 FR 9910, 9921-9922.

NEMA stated that DOE should not incorporate IEC 62301 at this time, as the IEC is currently working on lighting-specific standards and adoption of a less-appropriate method of measurement could negatively impact the product sector. (NEMA, No. 3 at p. 5) Similarly, Signify suggested DOE should wait for either ANSI or IEC to publish a standby power test method for fluorescent lamp ballasts, and noted that IEC is currently considering developing a standby power test method for lighting devices based on IEC 62301, but that the committee found it necessary to make some changes, explanations, and adaptations to the appliances standby power test method provided in IEC 62301. (Signify, No. 7 at p. 8) Lutron agreed with NEMA's comments that, if DOE needs to reference a standard for standby power, it should wait to reference the lighting-specific IEC standard under development. Lutron further stated in its written comments that during the public meeting for the Process Rule, 37 stakeholder discussion had included the possibility that test procedures may need to be updated quickly with the consensus of all stakeholders. Lutron stated that such a consensus could be achievable for adopting a lighting-specific IEC standard for FLB standby mode power measurements. (Lutron, No. 6 at p. 3)

Fluorescent lamp ballasts are included in the scope of the IEC 63201, which applies to electrical products with a rated input voltage between 100 V a.c. to 250 V a.c. for single phase products and 130 V a.c. to 480 V a.c. for other products. DOE has determined that the instructions and criteria specified in IEC 62301 for stabilization and subsequent measurement of standby mode power consumption are appropriate for fluorescent lamp ballasts. DOE has not received any comments specifying technical reasons as to why the use of IEC 62301 would not result in representative FLB standby mode power measurements. Moreover, IEC 62301 provides specific instruction regarding the measurement of standby power, whereas the currently referenced industry test procedure, ANSI C82.2, does not. DOE is largely maintaining the same instruments, test setup, and test conditions to measure standby mode power as are used to measure active mode power; these requirements are largely contained in ANSI C82.2. IEC 62301 is only referenced regarding stabilization and when taking the actual power measurement as the stabilization and power measurement of a ballast that is not operating a lamp is not included in ANSI C82.2.

DOE acknowledges that industry is in the process of developing a lighting-specific standby mode power test method, but at the present, no such industry standard has been issued. DOE will review any such industry standby mode power test method once it becomes available. At this time, DOE has determined that IEC 62301 is more appropriate for measuring standby mode power than the currently referenced ANSI C82.2, which makes no mention of standby mode power. As such DOE is amending appendix Q to reference IEC 62301 in place of ANSI C82.2 for the measurement of standby mode power consumption.

CEC supported DOE's proposed standby mode test method if it explicitly captures ballast features not associated with light output such as networking and sensors. (CEC, No. 4 at p. 4) ASAP/ACEEE also supported the recommendation of the CA IOUs provided in response to the June 2015 framework document  38 that ballasts with communication and control capabilities be tested with the ballasts connected to a network and with communication and control capabilities enabled. (ASAP/ACEEE, No. 8 at pp. 2-3)

Section 3.2.1 of appendix Q specifies that, if standby mode power is measured, fluorescent lamp ballasts that are designed and marketed for connection to control devices must be tested with all commercially available compatible control devices connected in all possible configurations. DOE is maintaining this instruction in this final rule as it sufficiently addresses connection of all features necessary for the operation of the fluorescent lamp ballast designed and marketed to connect to control devices.

ASAP/ACEEE requested DOE provide the technical basis for DOE's initial determination in the March 2019 NOPR that specific lamps to which the ballast is connected do not affect standby mode energy, as well as the applicability to all fluorescent lamp ballasts. (ASAP/ACEEE, No. 8 at pp. 2-3)

Regarding connection of lamps, DOE tested the standby mode power consumption of certain digital ballasts with 1 to 3 different types of controllers with and without lamps connected to the ballast. Table III.2 shows standby mode power consumption measurements for a ballast and controller combination with and without lamps connected and differences in power consumption.

DOE found that the difference in standby mode power consumption with lamps versus without lamps ranged from 0 milliwatts (“mW”) to 5 mW. These differences are within general tolerances of measurements. Per IEC 62301 section 5, for products that have power measurements equal to or less than 1 W, stability is achieved when the power difference is at or less than 10 mW/h across a certain time period. Using the stability criteria of 10 mW/h as a general guideline for expected fluctuations in measurements, DOE finds differences in observed power measurements with lamps versus without lamps to be de minimis. Hence, DOE has determined that testing with or without a lamp does not impact measured values and therefore, the lamp connected to the ballast does not impact measured values. Further, standby power consumption is measured after lamps at full light output are turned off. In this state, the power being consumed by the ballast cannot be applicable to the lamp, as fluorescent lamps do not have any features that consume standby power, nor is there any residual power consumption from the lamp having been turned on.

ASAP/ACEEE also suggested the standby mode test procedure reference the active mode test procedure sections pertaining to instrumentation and connection of lamps. (ASAP/ACEEE, No. 8 at pp. 2-3) As stated previously, DOE is applying the requirements in the active mode test procedure for instrumentation and test setup to the standby power measurements.

DOE has determined that the proposed amendments to the standby mode energy consumption test procedure provide further clarity to the test steps by referencing a more appropriate industry standard for the actual measurement of power and that the proposed amendments do not affect measured values. Therefore, in this final rule, DOE adopts the amendments to the standby mode test procedure for fluorescent lamp ballasts as described in this section.

In the March 2019 NOPR, DOE proposed to remove paragraphs specifying the calculation of estimated annual energy consumption and estimated annual operating cost for fluorescent lamp ballasts in 10 CFR 430.23(q), as these calculations are not required by DOE or the Federal Trade Commission. DOE also proposed to add a paragraph in 10 CFR 430.23(q) to calculate power factor using appendix Q. 84 FR 9910, 9922. Signify supported DOE's proposal to include a description of power factor calculation and remove calculations for estimated annual energy consumption and annual operating cost. (Signify, No. 7 at p. 8)

DOE has determined that these proposed updates to 10 CFR 430.23(q) provide further clarification and would not impact current requirements of the DOE test procedure or measured values. In this final rule DOE adopts the changes to 10 CFR 430.23(q) described in this section.

In the March 2019 NOPR, DOE proposed explicitly requiring reporting average total lamp arc power in certification reports for fluorescent lamp ballasts. Average total lamp arc power, a value that is already determined in appendix Q, is necessary to determine the required minimum BLE for an FLB model. Manufacturers are already reporting average total lamp arc power when certifying basic models, thus, DOE does not expect any changes in burden. DOE also proposed to require that average total lamp arc power be rounded to the nearest tenth of a watt. Additionally, DOE proposed to specify that the represented value of average total lamp arc power must be equal to the mean of the sample. Finally, DOE proposed to remove “annual energy operating costs” in 10 CFR 429.26(a)(2)(i), as this value is not required by DOE or the Federal Trade Commission. 84 FR 9910, 9922.

DOE did not receive any comments on the proposed amendments to the reporting requirements. DOE has determined that these proposed updates to 10 CFR 429.26 provide further clarification and would not impact current requirements of the DOE test procedure, change measured values, or change the current reporting burden. In this final rule, DOE adopts the changes to 10 CFR 429.26 described in this section.

The effective date for the adopted test procedure amendment is October 14, 2020. EPCA prescribes that all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with an amended test procedure, beginning 180 days after publication of the final rule in the Federal Register . (42 U.S.C. 6293(c)(2)) EPCA provides an allowance for individual manufacturers to petition DOE for an extension of the 180-day period if the manufacturer may experience undue hardship in meeting the deadline. (42 U.S.C. 6293(c)(3)) To receive such an extension, petitions must be filed with DOE no later than 60 days before the end of the 180-day period and must detail how the manufacturer will experience undue hardship. ( Id. )

EPCA requires that test procedures adopted by DOE not be unduly burdensome to conduct. In this final rule, DOE amends the existing test procedure for fluorescent lamp ballasts by providing a second stabilization option for measuring BLE. The amendments also: (1) Update references to industry standards; (2) clarify the selection of reference lamps; (3) remove extraneous requirements in the stabilization procedure; and (4) revise the test procedure for measuring standby mode energy consumption. DOE has determined that the test procedure as amended by this final rule will not be unduly burdensome for manufacturers to conduct and instead will decrease the test burden for manufacturers.

This final rule will result in a net cost savings to manufacturers, as presented in Table III.3 and Table III.4 of this document.

Further discussion of the cost impacts of the test procedure amendments are presented in the following paragraphs.

In this final rule, DOE is allowing manufacturers to use a second stabilization option ( i.e., “Option 2”) when measuring BLE. As described in section III.D.5.a, the Option 2 stabilization method would minimize the time the test lamps are off, thereby reducing the stabilization time and, consequently, the overall testing time. DOE estimates the cost savings of the Option 2 stabilization method to be $2,519 annually. This estimate is based on a savings of 15 minutes per ballast test (due to reduced stabilization time). Inputs to the calculation were updated in this notice to reflect the most recent known values. Based on a median hourly labor rate of $40.96  39 per electrical engineering technician (this includes an inflation factor of 31 percent to account for the cost of providing benefits), DOE estimates the savings to be $10.24 per ballast test, or $40.96 per basic model, assuming four ballast tests per basic model. DOE does not expect all manufacturers to choose to use the Option 2 stabilization method. Based on the manufacturers that already possess the equipment necessary for Option 2 ( i.e., an oven for ballasts), DOE estimates that only four manufacturers (comprising about 18 percent of FLB manufacturers) will choose to utilize the Option 2 stabilization method. DOE estimates that these manufacturers combined offer about 246 basic models of fluorescent lamp ballasts, comprising about 54 percent of all basic models certified in DOE's Compliance Certification Database. 40 New basic models of fluorescent lamp ballasts are introduced and certified to DOE about once every four years. Thus, DOE estimates overall annualized industry savings due to proposing the Option 2 stabilization method to be $2,222 at a 3 percent discount rate and $1,982 at a 7 percent discount rate. In summary, DOE's analysis indicates that allowing the Option 2 stabilization method would result in a reduction of future testing (see Table III.3 and Table III.4).

DOE has determined that the amendment to allow manufacturers to use the Option 2 stabilization method will not require changes to the designs of fluorescent lamp ballasts, and that the amendments will not impact the utility of such product or impact the availability of available FLB options. The amendments will not impact the representations of FLB energy efficiency. Manufacturers will be able to rely on data generated under the test procedure in effect prior to the adoption of this amendment. As such, retesting of fluorescent lamp ballasts will not be required solely as a result of DOE's adoption of this amendment to the test procedure.

The remainder of the amendments adopted in this final rule will not impact test costs: (1) Updating references to industry standards; (2) clarifying the selection of reference lamps; (3) removing extraneous requirements in the stabilization procedure; and (4) revising the test procedure for measuring standby mode energy consumption.

First, in this final rule, DOE is incorporating by reference newer versions of already referenced industry standards in DOE's FLB test procedure (see section III.B). Regarding the adoption of the latest versions of industry standards, Signify stated that there would hardly be any additional burden to a testing facility that has been accredited to the current edition of ANSI standards, and further the use of the latest versions would keep testing facilities up-to-date on current technologies and provide access to more modern test methods. (Signify, No.7, p. 14)

Second, in this final rule, DOE is providing additional clarifications on how to select reference lamps to address, in particular, new products on the market ( i.e., ballasts that can operate multiple lamp types) (see section III.D.3.c). The additional direction on selecting reference lamps reflects the current FLB market.

Third, this final rule removes a maximum operating time for stabilization and changes the requirement to take measurements from once per second to once per minute during the stabilization process (see section III.D.5.a). DOE finds that these changes to the stabilization process will have no impact on costs or test burden. Removing the maximum operating time may prevent the restart of the stabilization procedure in certain cases, but due to the unpredictable nature, DOE is unable to quantify how many products may experience an increase or decrease in stabilization time. The reduction in the frequency ( i.e., seconds to minute) of measuring data during stabilization will reduce the amount of data required to determine stabilization. However, because this data is collected electronically, changing the measurement frequency results in no cost savings based on time and labor.

Finally, for taking standby mode measurements in this final rule, DOE changes the industry standard reference from ANSI C82.2 to IEC 62301 Section 5; specifies that use of reference lamps is not required; and aligns instrumentation, test setup, and test conditions for taking active mode measurements with standby mode measurements (see section III.E). IEC 62301 Section 5 provides detailed instructions but does not change the overall method of obtaining power measurements and does not require new or additional instrumentation. Currently manufacturers are not making representations of standby power mode.

DOE has determined that the amendments described above do not require additional measurements, steps, or instruments, and therefore will have no impact on cost. Manufacturers will be able to rely on data generated under the test procedure in effect prior to the adoption of this amendment.

The Office of Management and Budget (“OMB”) has determined that this test procedure rulemaking does not constitute a “significant regulatory action” 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 OMB.

On January 30, 2017, the President issued Executive Order (E.O.) 13771, “Reducing Regulation and Controlling Regulatory Costs.” E.O. 13771 stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. E.O. 13771 stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.

Additionally, on February 24, 2017, the President issued E.O. 13777, “Enforcing the Regulatory Reform Agenda.” E.O. 13777 required the head of each agency designate an agency official as its Regulatory Reform Officer (“RRO”). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:

DOE concludes that this rulemaking is consistent with the directives set forth in these executive orders. This final rule is estimated to result in a cost savings. The final rule yields annualized cost savings of approximately $1,982 using a perpetual time horizon discounted to 2016 at a 7 percent discount rate. Therefore, this final rule is an E.O. 13771 deregulatory action.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of a final regulatory flexibility analysis (“FRFA”) for any final rule where the agency was first required by law to publish a proposed rule 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 website: http://energy.gov/gc/office-general-counsel. DOE certified in the March 2019 NOPR that the adopted amendments will not have a significant economic impact on a substantial number of small entities. The factual basis of this certification is set forth in the following paragraphs.

The Small Business Administration (“SBA”) considers a business entity to be a small business, if, together, with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes established by the North American Industry Classification System (“NAICS”) and are available at https://www.sba.gov/document/support--table-size-standards. FLB manufacturing is classified under NAICS 335311, “Power, Distribution, and Specialty Transformer Manufacturing.” The SBA sets a threshold of 750 employees or fewer for an entity to be considered as a small business for this category.

To estimate the number of companies that could be small businesses that manufacture these ballasts, DOE conducted a market survey using publicly available information. DOE's research involved reviewing information provided by trade associations ( e.g., NEMA), information from individual company websites, market research tools ( i.e., Hoover's reports) and DOE's Certification Compliance Database. DOE screened out companies that do not meet the definition of a “small business” or are completely foreign owned and operated. DOE identified no small businesses that manufacture fluorescent lamp ballasts in the United States. DOE requested comment on its tentative determination that there are no small businesses that manufacture fluorescent lamp ballasts in the United States. NEMA was not aware of any small businesses that manufacture fluorescent lamp ballasts in the United States. (NEMA, No. 3 at pp. 5-6) Signify stated that it did not have sufficient data to comment on this topic. (Signify, No. 7 at p. 16)

Based on the criteria outlined earlier and the reasons discussed in this section, DOE previously certified in the March 2019 TP NOPR that the amendments adopted in this final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification has not changed. Therefore, DOE concludes that the cost effects accruing from the final rule would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

Manufacturers of fluorescent lamp ballasts must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including fluorescent lamp ballasts. (See generally 10 CFR part 429.) The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 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.

DOE is adopting slight modifications to the reporting requirements for fluorescent lamp ballasts. DOE received no comments on its proposal and has determined that these updates to 10 CFR 429.26 do not impact current reporting burden.

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.

In this final rule, DOE establishes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for fluorescent lamp ballasts. 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, DOE has determined that adopting test procedures for measuring energy efficiency of consumer products and industrial equipment is consistent with activities identified in 10 CFR part 1021, appendix A to subpart D, A5 and A6. 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 examined this final rule and determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) 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. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting 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 final rule 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, so 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 will 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 will 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 this 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 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 significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This regulatory action 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, it is not a significant energy action, and, accordingly, 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 proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.

The modifications to the test procedure for fluorescent lamp ballasts adopted in this final rule incorporates testing methods contained in the following commercial standards:

DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA ( i.e., whether they were developed in a manner that fully provides for public participation, comment, and review.) DOE has consulted with both the Attorney General and the Chairman of the FTC about the impact on competition of using the methods contained in these standards and has received no comments objecting to their use.

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 this rule is not a “major rule” as defined by 5 U.S.C. 804(2).

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Electric Lamps—Single-Based Fluorescent Lamps—Dimensional and Electrical Characteristics,” ANSI/NEMA C78.901-2016. ANSI C78.901-2016 is an industry accepted test standard that describes physical and electrical characteristics of single-based fluorescent lamps. The test procedure adopted in this final rule references sections of ANSI C78.901-2016 for characteristics of reference lamps that must be used when testing fluorescent lamp ballasts. ANSI C78.901-2016 is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Electric Lamps—Double-Capped Fluorescent Lamps—Dimensional and Electrical Characteristics,” ANSI C78.81-2016. ANSI C78.81-2016 is an industry accepted test standard that describes the physical and electrical characteristics of double-capped fluorescent lamps. The test procedure adopted in this final rule references sections of ANSI C78.81-2016 for characteristics of reference lamps that must be used when testing fluorescent lamp ballasts. ANSI C78.81-2016 is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Electric Lamps—Fluorescent Lamps—Guide for Electrical Measures,” ANSI C78.375A-2014. ANSI C78.375A-2014 is an industry accepted test standard that describes procedures for measuring the electrical characteristics of fluorescent lamps. The test procedure adopted in this final rule references sections of ANSI C78.375A-2014 for testing performance of fluorescent lamp ballasts. ANSI C78.375A-2014 is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Lamp Ballasts—High Frequency Fluorescent Lamp Ballasts—Supplements,” ANSI/NEMA C82.11-2017. ANSI/NEMA C82.11-2017 is an industry accepted test standard that describes characteristics and measurements of high frequency fluorescent lamp ballasts. The test procedure adopted in this final rule references sections of ANSI/NEMA C82.11-2017 for testing performance of fluorescent lamp ballasts. ANSI/NEMA C82.11-2017 is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE maintains the incorporation by reference of the test standard published by ANSI, titled “American National Standard for Lamp Ballasts—Definitions for Fluorescent Lamps and Ballasts,” ANSI C82.13-2002. ANSI C82.13-2002 is an industry accepted standard that that provides definitions for terms used in ANSI C78 and ANSI C82 series standards for fluorescent lamps and ballasts. ANSI C82.13-2002, incorporated by reference provides definitions for terms used in the DOE test procedure for fluorescent lamp ballasts. ANSI C82.13-2002 is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference sections of the test standard published by ANSI, titled “American National Standard Harmonic Emission Limits—Related Power Quality Requirements for Lighting Equipment,” ANSI C82.77-2002. ANSI C82.77-2002 is an industry accepted standard that describes maximum harmonic emission limits for lighting equipment. ANSI/NEMA C82.11-2017, incorporated by reference in this final rule for testing high frequency fluorescent lamp ballasts, references ANSI C82.77-2002 to determine the maximum harmonic emission limits of the input current to the ballast. ANSI C82.77-2002 is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Lamp Ballasts—Line Frequency Fluorescent Lamp Ballast,” ANSI C82.1-2004 (R2008, R2015). ANSI C82.1-2004 (R2008, R2015) (also referred to in this rulemaking as “ANSI C82.1-2015”) is an industry accepted test standard that describes characteristics and measurements of line frequency fluorescent lamp ballasts. The test procedure adopted in this final rule references ANSI C82.1-2004 (R2008, R2015) for testing performance of fluorescent lamp ballasts. ANSI C82.1-2004 (R2008, R2015) is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Lamp Ballasts—Method of Measurement of Fluorescent Lamp Ballasts,” ANSI C82.2-2002 (R2007, R2016). ANSI C82.2-2002 (R2007, R2016) (also referred to in this rulemaking as ANSI C82.2-2016) is an industry accepted standard for testing line frequency fluorescent lamp ballasts. The 2016 version is a reaffirmation of the 2002 version. ANSI C82.2-2002 (R2007, R2016) is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference the test standard published by ANSI, titled “American National Standard for Lamp Ballasts—Reference Ballasts for Fluorescent Lamps,” ANSI C82.3-2016. ANSI C82.3-2016 (also referred to in this rulemaking as ANSI C82.3) is an industry accepted standard that describes characteristics and requirements of fluorescent lamp reference ballasts. The test procedure adopted in this final rule references ANSI C82.3-2016 for determining a reference fluorescent lamp to use when testing the performance of fluorescent lamp ballasts. ANSI C82.3-2016 is readily available on ANSI's website at http://webstore.ansi.org/.

In this final rule, DOE incorporates by reference the test standard published by IEC, titled, “Double Capped Fluorescent Lamps—Performance specifications (IEC 60081:1997/AMD6, Amendment 6, Edition 5.0, August 2017),” IEC 60081 Amendment 6. IEC 60081 Amendment 6 is an industry accepted test standard that describes physical and electrical characteristics of double-capped fluorescent lamps. The test procedure adopted in this final rule reference sections of IEC 60081 Amendment 6 for characteristics of reference lamps that must be used when testing fluorescent lamp ballasts. IEC 60081 Amendment 6 is readily available on IEC's website at https://webstore.iec.ch/home.

In this final rule, DOE incorporates by reference the test standard published by IEC, titled “Household electrical appliances—Measurement of standby power (Edition 2.0, January 2011),” IEC 62301 (Edition 2.0). IEC 62301 (Edition 2.0) is an industry accepted test standard that describes measurements of electrical power consumption in standby mode, off mode, and network mode. The test procedure adopted in this final rule reference sections of IEC 62301 (Edition 2.0) for testing standby mode power consumption of fluorescent lamp ballasts. IEC 62301 (Edition 2.0) is readily available on IEC's website at https://webstore.iec.ch/home.

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

This document of the Department of Energy was signed on July 1, 2020, by Alexander N. Fitzsimmons, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE amends parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

In a notice of proposed rulemaking and supplemental statement published on November 7, 2019, 1 the Board: (1) Proposed to re-adopt the presumptive WDLC option consisting of a CSA or an individual, contiguous portion of a CSA, provided that the chosen area, whether it is an entire CSA or a portion of one, is no more than 2.5 million;  2 (2) explained further, with additional reasoning and factual support, the basis for eliminating the core area service requirement for FCUs that choose a CBSA as a WDLC; and (3) proposed to amend the NCUA's regulations regarding community FOM applications, amendments, and expansions for CSAs and CBSAs to require the applicant to explain why it selected its FOM and to demonstrate that its selection will serve low- and moderate-income segments of a community. The proposed rule also included express authority for the NCUA to review and evaluate the foregoing explanation and submission regarding low- and moderate-income individuals, and to reject an application if the agency determines that the FCU's selection reflects discrimination. The Board proposed to apply this provision to CSAs and CBSAs. As detailed further below, the Board is adopting and finalizing all aspects of the proposed rule without change. The following sections provide background on this rulemaking.

Under the Federal Credit Union Act (Act), seven or more individuals may create an FCU by presenting a proposed charter (referred to in the Act as the organization certificate) to the Board. 3 These individuals, referred to as “subscribers,” must pledge to deposit funds for shares in the FCU and describe the FCU's proposed FOM. 4 An FOM consists of those persons and entities eligible for membership based on an FCU's type of charter. Before granting an FCU charter, the Board must complete an appropriate investigation and determine the character and fitness of the subscribers, the economic advisability of establishing the FCU, and the conformity of the proposed charter with the Act. 5 Under the Act, FCUs may choose from two general categories of FOM: Common-bond and community. 6

The NCUA's Chartering and Field of Membership Manual, incorporated as Appendix B to Part 701 of the NCUA regulations (Chartering Manual), 7 implements the chartering and FOM requirements that the Act establishes for FCUs. The Chartering Manual provides that the NCUA will grant a charter if the FOM requirements are met, the subscribers are of good character and fit to represent the proposed FCU, and the establishment of the FCU is economically advisable. 8 In addition, “[i]n unusual circumstances . . . [the] NCUA may examine other factors, such as other federal law or public policy, in deciding if a charter should be approved.”  9

In adopting the Credit Union Membership Access Act of 1998 (CUMAA), which amended the Act, Congress reiterated its longstanding support for credit unions, noting their “specific mission of meeting the credit and savings needs of consumers, especially persons of modest means.”  10 As amended by CUMAA, the Act provides a choice among three charter types: A single group sharing a single occupational or associational common bond;  11 a multiple common bond consisting of groups each of which have a distinct occupational or associational common bond among members of the group;  12 and a community consisting of “persons or organizations within a well-defined local community, neighborhood, or rural district.”  13

Congress expressly delegated to the Board substantial authority in the Act to define what constitutes a WDLC, neighborhood, or rural district for purposes of “making any determination” regarding a community FCU, 14 and to establish applicable criteria for any such determination. 15 To qualify as a WDLC, neighborhood, or rural district, the Board requires the proposed area to have “specific geographic boundaries,” such as those of “a city, township, county (single or multiple portions of a county) or a political equivalent, school districts or a clearly identifiable neighborhood.”  16 The boundaries themselves may consist of political borders, streets, rivers, railroad tracks, or other static geographical features. 17 The Board continues to emphasize that common interests or interaction among residents within those boundaries are essential features of a local community.

Until 2010, the Chartering Manual required FCUs seeking to establish an area as a WDLC to submit for NCUA approval a narrative, supported by documentation, that demonstrated indicia of common interests or interaction among residents of a proposed community (the “narrative model”) if the community extended beyond a single political jurisdiction (SPJ). 18 A WDLC was (and still is) required to consist of a contiguous area, as reflected in the current text of the Chartering Manual. 19 In 2010, the Board replaced the narrative model in favor of an objective model that provided FCUs a choice between two statistically based “presumptive communities” that each by definition qualifies as a WDLC (the “presumptive community model”). 20 Further, the Board carefully considered the expertise and reasoning of the agencies that devised the statistical areas in deciding to designate these areas as WDLCs. In particular, the Board noted its agreement with the Office of Management and Budget (OMB) that commuting patterns within statistical areas demonstrate a high degree of social and economic integration with the central county. 21 Under the presumptive community model, approval is not automatic; rather, there is a multiple-step process. Once a presumptive WDLC is established, an FCU is still required to demonstrate its ability to serve its entire proposed community, as demonstrated by the required business and marketing plans. Then, the NCUA's staff, including the Office of Credit Union Resources and Expansion (CURE), the Office of General Counsel (OGC), and Regional Offices, review the application to ensure the applicant has established that it can serve its entire proposed community.

One kind of presumptive community is an “[SPJ] . . . or any contiguous portion thereof,” regardless of population. 22 The second is a single CBSA  23 (as defined above) as designated by the U.S. Census Bureau, or a well-defined portion thereof, which under the 2010 final rule was subject to a 2.5 million population limit. 24

On November 19, 2015, the Board approved a proposed rule to amend various provisions of the Chartering Manual, including the WDLC and rural district options for community FOMs (2015 Proposed Rule). 25 As relevant here, in the 2015 Proposed Rule, the Board proposed to amend the community FOM options by: (1) Eliminating the requirement for an FCU serving a CBSA to serve its core area; (2) permitting FCUs to serve a portion of a CBSA up to a 2.5 million population limit, even if the CBSA's total population is greater than 2.5 million;  26 (3) permitting FCUs to serve CSAs, 27 which combine contiguous CBSAs, or a portion of a CSA, provided that the chosen area has a population no greater than 2.5 million; (4) permitting FCUs to apply to the NCUA to add adjacent areas to existing WDLCs consisting of SPJs, CBSAs, or CSAs, based on a showing of interaction by residents on both sides of the adjacent areas; and (5) increasing the population limit for rural district FOMs from the greater of 250,000 or 3 percent of the relevant state's population to 1 million, subject to a requirement that the rural district not expand beyond the states immediately contiguous to the state in which the FCU has its headquarters.

On October 27, 2016, the Board approved two rulemakings relating to the Chartering Manual. One was a final rule and the other a proposed rule. In the final rule, 28 the Board adopted the five provisions of the 2015 Proposed Rule that are set forth above (2016 Final Rule, which is also known as FOM1). In the proposed rule, the Board proposed additional changes to the community charter provisions (2016 Proposed Rule). 29 Specifically, the Board proposed permitting an applicant for a community charter to submit a narrative to establish the existence of a WDLC as an alternative to stand alongside the SPJ and presumptive statistical community options. According to the proposed rule, the proposed narrative model would serve the same purpose as in years prior to 2010, when the narrative model was used exclusively. Further, the Board proposed permitting an FCU to designate a portion of a statistical area as its community without regard to metropolitan division boundaries.

The American Bankers Association (ABA) challenged several community FOM provisions adopted in the 2016 Final Rule under the Administrative Procedure Act (APA). 30 On March 29, 2018, the U.S. District Court for the District of Columbia (District Court) upheld, or left in place, three provisions and vacated two provisions of the 2016 Final Rule). 31 The court held that Congress had delegated sufficient statutory authority to the Board to issue such regulations under Chevron v. Natural Resource Defense Council. 32 Specifically, the court upheld the provision allowing an FCU to serve areas within a CBSA that do not include the CBSA's core, holding that the definition was a reasonable interpretation of “local community” and that the elimination of the core area service requirement was supported by the administrative record. The court also upheld the provision allowing an FCU to add an adjacent area to a presumptive community, similarly holding that this provision was reasonable under the Act, and that the Board chose reasonable factors to evaluate whether adjacent areas are part of the same local community. Also, the court upheld the elimination of the requirement that a CBSA as a whole have a population of no more than 2.5 million in order for even a portion of the CBSA to qualify as a WDLC, holding that the plaintiff had waived this challenge by failing to raise it in the rulemaking.

The District Court vacated the provision defining any individual portion of a CSA, up to a population limit of 2.5 million, as a WDLC, holding that it was contrary to the Act. Finally, the District Court vacated the provision to increase the population limit to 1 million people for rural districts, also finding it contrary to the Act.

Both parties appealed this decision. The NCUA appealed the court's rulings on CSAs and rural districts. The ABA appealed only the ruling on the core area service requirement. The CSA and rural district provisions remained vacated while the appeal was pending. Accordingly, the NCUA rescinded approvals granted under those provisions and ceased approving new applications. The NCUA filed a notice with the court on April 19, 2018, stating that it did not interpret the court's March 29, 2018, order as mandating de-listing of members who joined FCUs under the vacated provisions. The notice also stated that the ABA did not intend to seek an order de-listing such members.

On June 21, 2018, while the appeal was pending, the Board adopted certain limited aspects of the 2016 Proposed Rule in a final rule (2018 Final Rule). 33 Specifically, the 2018 Final Rule amended the Chartering Manual to: (1) Allow an FCU seeking to serve a community FOM to submit a narrative to support its chosen area, as an alternative to the presumptive community options; and (2) eliminate the requirement that a WDLC based on a CBSA must be confined to a single metropolitan division within a CBSA. For the narrative model for establishing a WDLC for a community FOM, the Board established a public hearing process for any such proposed community with a population greater than 2.5 million. Further, with regard to the change to CBSA limitations based on metropolitan division boundaries, no commenters objected to this technical change. In addition, in light of the March 2018 District Court Decision vacating the CSA option, the Board removed the CSA option from the Chartering Manual while it amended the portions of the Chartering Manual that contained this option. The 2018 Final Rule contained no statement on the validity of the CSAs or any other indication that the Board had decided to abandon or re-visit this definition. Because the 2016 Proposed Rule did not propose any changes to the rural district definition, the Board did not amend or remove the rural district provision in the 2018 Final Rule.

On August 20, 2019, a three-judge panel of the D.C. Circuit Court of Appeals (Circuit Court) issued a decision on the appeal. 34 The Circuit Court, in a unanimous decision, found that the Board acted within its statutory authority and thus reversed the District Court's rulings on CSAs and rural districts and directed the District Court to enter summary judgment for the NCUA on both issues. The Circuit Court also reversed the ruling on the core area service requirement for CBSAs, remanding the issue to the agency for further explanation without vacating the provision.

With respect to CSAs and rural districts up to 1 million people, the Circuit Court held that both provisions are consistent with the Act and were reasonably explained. First, the court found the CSA provision consistent with the “local community” provision of the Act. 35 Further, the Circuit Court found that the CSA definition, which is based on commuting relationships, rationally advances the statutory purpose of ensuring an affinity or common bond among members. 36 The court also found that the definition rationally advances the Act's safety and soundness purposes. 37 On this point, the court found that allowing for larger communities could promote the economic viability of community FCUs. 38 The court also held that the 2018 Final Rule's removal of the CSA option from the Chartering Manual did not render that issue moot, citing evidence of the Board's intention to re-promulgate this provision if the court upheld it. 39

Second, the court held that the expansion of the rural district definition to areas including 1 million people is consistent with the Act. 40 The court found that the term “rural district” does not connote specific population or geographic constraints. 41 The court also found that the Board reasonably explained the expansion, including the 2016 Final Rule's discussion of the agency's experience with several larger rural districts under the pre-2016 rule. 42

On one limited issue, the Circuit Court asked for additional explanation in reversing the District Court's ruling on the core area service requirement and directed the District Court to enter summary judgment for the plaintiff on this provision and remand, without vacating, this provision to the agency for further explanation. 43 The Circuit Court held that this provision is consistent with the Act, but that the 2016 Final Rule did not adequately explain it in light of the concern that commenters raised about the potential for FCUs to engage in redlining or gerrymandering of CBSAs to avoid serving minority or low-income individuals. 44 Accordingly, the Circuit Court directed the District Court to remand this provision without vacating it, and noted that it expected the Board to act “expeditiously.”  45 The Circuit Court did not prescribe a specific deadline or procedure for the Board to follow. Therefore, this provision and approvals that the agency has granted under it remain in effect.

Currently, the Chartering Manual does not contain CSAs or portions thereof as an option for a WDLC. As a result of the Circuit Court finding the Board acted within its authority, the Board proposed to re-adopt the provision allowing a CSA or an individual, contiguous portion of a CSA, to be a presumptive statistical-based WDLC, provided that the chosen area has a population of no more than 2.5 million. The 2016 Final Rule's expanded definition of rural districts remained in the Chartering Manual and was upheld by the court's decision. Accordingly, the Board did not address rural districts in the proposed rule. 46 Finally, the Board provided further explanation and support, and proposed to add a provision to the Chartering Manual with respect to potential discrimination to address the Circuit Court decision. The Board issued the proposed rule promptly after the decision in light of the Circuit Court's expectation that the agency act expeditiously to provide further explanation on the CBSA core area service requirement.

On November 7, 2019, the Board published a notice proposing to amend its FOM rules with respect to applicants for a community charter approval, expansion, or conversion, in response to the Circuit Court's August 2019 opinion and order. First, the Board proposed re-adopting a provision to allow an applicant to designate a CSA, or an individual, contiguous portion thereof, as a WDLC, provided that the chosen area has a population of 2.5 million or less. Second, with respect to communities based on a CBSA or a portion thereof, the Board provided additional explanation for its decision to eliminate the core service requirement in the 2016 Final Rule. Third, the Board clarified existing requirements and proposed to add an explicit provision to its rules regarding potential discrimination in the FOM selection for CSAs and CBSAs.

The Board received approximately 128 comments, including from bank and credit union trade associations, state leagues and associations, credit unions, and banks. A number of banks submitted a form letter opposing the proposal, particularly with respect to the elimination of the core area service provision.

Credit union-affiliated commenters generally supported the proposal to reinstate the CSA provision and eliminate the CBSA core area service requirement for community charters. Several credit union-affiliated commenters opposed additional requirements for the marketing and business plan to establish service to core areas or low- and moderate-income individuals, viewing such requirements as unnecessary and burdensome.

Banks and bank trade associations provided comments largely opposing the proposed rule and the Board's objectives. These comments focused on eliminating the core area service requirement. Approximately 113 banks submitted various form letters opposing the proposal to eliminate the core requirement. The form letters criticized the proposal, emphasizing their belief that “urban core areas deserve access to financial services” and that the proposal would result in redlining. These commenters advocated that the Board adopt provisions similar to those issued by bank regulatory agencies that implement the Community Reinvestment Act (CRA). Specifically, they requested community-chartered credit unions account for low-, moderate-, and middle-income census tracts being excluded from the FOM and whether financial services are adequately being provided to those areas. Further, these commenters requested that an FCU be required to explain how people in the excluded core can access credit facilities if the FCU does not include the core.

The ABA  47 stated that the CSA and CBSA core provisions were “seriously flawed” and should be withdrawn unless the Board made significant modifications. The ABA relied extensively on the District Court decision that was unanimously reversed by the Circuit Court. Details of the comments are provided below in the discussion of the final rule.

The Board has determined that it is appropriate and consistent with the Act to adopt the FOM chartering provisions described above, as proposed. Accordingly, the Board is amending its FOM rules with respect to applicants for a community charter approval, expansion, or conversion, in response to the 2019 opinion and order issued by the Circuit Court. First, the Board is re-adopting the provision to allow an applicant to designate a CSA, or an individual, contiguous portion thereof, as a WDLC, provided that the chosen area has a population of 2.5 million or less. Second, with respect to communities based on a CBSA or a portion thereof, the Board is providing additional explanation and support for its decision to eliminate the requirement to serve the CBSA's core area, as provided for in the 2016 Final Rule. In light of comments and consistent with the Circuit Court decision, the Board is clarifying existing requirements and adding an explicit provision to its rules regarding potential discrimination in the FOM selection for CSAs and CBSAs. Each of these three topics is discussed below.

Before responding to specific comments, the Board believes it is appropriate to explain the overall statutory basis for its FOM regulations applicable to chartering FCUs. In Section 2 of CUMAA, Congress set forth its “Findings” as follows:

The Congress finds the following:

(1) The American credit union movement began as a cooperative effort to serve the productive and provident credit needs of individuals of modest means.

(2) Credit unions continue to fulfill this public purpose, and current members and membership groups should not face divestiture from the financial services institutions of their choice as a result of recent court action.

(3) To promote thrift and credit extension, a meaningful affinity and bond among members, manifested by a commonality of routine interaction, shared and related work experiences, interests, or activities, or the maintenance of an otherwise well understood sense of cohesion or identity is essential to fulfillment of credit unions' public mission.

(4) Credit unions, unlike many other participants in the financial services market, are exempt from Federal and most State taxes because they are member-owned, democratically operated, not-for-profit organizations generally managed by volunteer boards of directors and because they have the specific mission of meeting the credit and savings needs of consumers, especially persons of modest means.

(5) Improved credit union safety and soundness provisions will enhance the public benefit that citizens receive from these cooperative financial service institutions.

These congressional findings—to encourage and improve financial access to credit to people of modest means, to enhance consumer choice, community affinity and common bonds, and to promote the safety and soundness of credit unions—are bolstered by specific provisions of CUMAA. For instance, Title 1 of that law addresses “credit union membership,” including the express provision in section 109 for the Board to establish regulations to encourage the chartering of community and multiple common bond FCUs. This section includes provisions encouraging formation of FCUs to encourage providing financial services to underserved communities and people of modest means. Title II of CUMAA mandates that the Board protect the National Credit Union Share Insurance Fund (NCUSIF) by issuing stricter safety and soundness provisions, including enhanced accounting standards in section 201. Title III of CUMAA includes capitalization and net worth requirements to “resolve the problems of the insured credit unions at the least possible long-term loss to the [NCUSIF].” Title III also sets forth specific mandates, including issuing regulations for prompt corrective action; capitalization requirements (including the submission of net worth restoration plans; earnings retention requirements; and prior written approval requirements for credit unions that are not adequately capitalized); certification of NCUSIF equity ratios; increased share insurance premiums; and periodic evaluation of access to liquidity. Title IV of CUMAA includes assurances for independent decision making in connection with certain charter conversions. Congress patterned these safety and soundness provisions after provisions applicable to the Federal Deposit Insurance Corporation (FDIC) and other banking regulatory agencies to ensure the safety and soundness of banks and protect the FDIC's insurance fund.

As CUMAA indicates, Congress directed the Board to consider multiple responsibilities, including encouraging access for financial services to people of modest means, encouraging competition among providers of financial services, and protecting taxpayers by enhancing the safety and soundness of the credit union system and protecting the NCUSIF. In contrast, banks have a more limited focus, including the interests of shareholders. This is illustrated in the ABA's comment letter, which states that the organization “represents banks of all sizes and charters and is the voice of the nation's $18 trillion banking industry, which is composed of small, regional, and large banks that together employ more than 2 million people, safeguard more than $414 trillion in deposits, and extend $10.4 trillion in loans.”  48

The FAA's authority to issue rule regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Guntersville Municipal Airport-Joe Starnes Field, Guntersville, AL, to support IFR operations in the area.

The FAA published a notice of prosed rulemaking in the Federal Register (85 FR 34148, June 3, 2020) for Docket No. FAA-2020-0491 to amend Class E airspace extending upward from 700 feet above the surface at Guntersville Municipal Airport-Joe Starnes Field, Guntersville, AL, from a 6.3-mile radius to a 7-mile radius. In addition, the FAA proposed to update the airport's name and geographic coordinates to coincide with the FAA's aeronautical database.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraph 6005, of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface at Guntersville Municipal Airport-Joe Starnes Field, Guntersville, AL, from a 6.3-mile radius to a 7-mile radius. In addition, the FAA updates the airport's name and geographic coordinates to coincide with the FAA's aeronautical database. These changes are necessary for continued safety and management of IFR operations in the area.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register LADOTD Louisiana Department of Transportation and Development OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking (Advance, Supplemental) SR State Route § Section U.S.C. United States Code II. Background Information and Regulatory History

On April 16, 2019 the Coast Guard published a notice of temporary deviation from regulations entitled Drawbridge Operation Regulations, Belle River, LA in the Federal Register (84 FR 15581), to collect and analyze information on vehicle and vessel traffic congestion on SR 70 created when the drawbridge opens to vessel traffic during periods of high vehicle traffic. We received five comments. All were in favor of the regulation change.

On May 13, 2020 the Coast Guard published a notice of proposed rulemaking entitled Drawbridge Operation Regulations, Belle River, LA in the Federal Register (85 FR 28542), to seek public comments on whether the Coast Guard should consider modifying the current operating schedule to the SR70 drawbridge. We received 0 comments.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499.

LADOTD requested to change the drawbridge operating schedule for the SR70 pontoon bridge across the Belle River, mile 23.8, at Pierre Part, Assumption, LA. This bridge currently opens on signal except that from 10 p.m. to 6 a.m., the draw opens on signal if at least four hours' notice is given. LADOTD requested to open the bridge on signal on the hour during June, July and August from 6 a.m. to 10 p.m. each day.

This waterway is heavily used by recreational vessels during the summer months. The bridge has a vertical clearance of zero feet in the closed to vessel traffic position and unlimited vertical clearance in the open to vessel traffic position.

During a 105 day period LADOTD measured the vehicle and vessel queues created when the bridge opened on the hour. LADOTDs analysis of this data demonstrated that opening the bridge on the hour (vice on signal) reduced the average vehicle queue from 105 vehicles to 25 vehicles. There were no vessel queues created by this change.

This change reduces vehicle congestion during summer months and provides for the reasonable needs of navigation.

There were 5 comments during the temporary regulation change and no comments during the NPRM. The Coast Guard provided a comment period of 60 days during each of these changes. Based on the LADOTD data this rule decreases vehicle congestion and provides vessels with the reasonable ability to use the waterway. We identified no impacts on marine navigation with this rule.

The Coast Guard has developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protesters.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget (OMB) and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the lack of commercial vessel traffic on this waterway, and the recreational boats that routinely transit the bridge under the proposed schedule. Those vessels with a vertical clearance requirement of less than 9.7 feet above mean high water may transit the bridge at any time, and the bridge will open in case of emergency at any time. This regulatory action takes into account the reasonable needs of vessel and vehicular traffic.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 0 comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule promulgates the operating regulations or procedures for drawbridges and s categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the salvage of Dredge WAYMON BOYD.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with the salvage of Dredge WAYMON BOYD. The purpose of this rule is to ensure safety of vessels and persons on these navigable waters in the safety zone.

This rule establishes a temporary safety zone from August 23, 2020 through 12 noon September 15, 2020, and will be enforced during dredge salvage operations. Entry of vessels into this zone is permitted with restrictions: Vessels shall not over take or pass other vessels within the zone, and vessels must operate at a slowbell only.

Persons or vessels transiting the safety zone should check-in with the Harbormaster's Office 30 minutes prior to transit on VHF Channel 12 or 361-882-1773 to allow diving operations to safely secure if needed.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone covers the navigable waters of the Corpus Christi Ship Channel within the Inner Harbor from position 27°49′7.80″ N, 097°28′28.69″ W to position 27°49′0.12″ N, 097°27′54.09″ W for the purposes of protecting personnel and the environment from dangers created by the salvage of Dredge WAYMON BOYD. Moreover, the Coast Guard will issue Local Notices to Mariners, Safety Marine Information Broadcasts, and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishment of a temporary safety zone for the navigable waters of the Corpus Christi Ship Channel within the Inner Harbor from position 27°49′7.80″ N, 097°28′28.69″ W to position 27°49′0.12″ N, 097°27′54.09″ W. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by salvage Dredge WAYMON BOYD. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

Throughout this document, “we,” “us” and “our” refer to the EPA.

On May 29, 2020 (85 FR 32327), the EPA proposed to approve the following documents listed in Table 1 into the California SIP.

We proposed to approve SJVUAPCD Rule 2250 and amended Rule 4692, and FRAQMD's negative declaration for the Control Techniques Guidelines for the Oil and Natural Gas Industry (EPA-453/B-16-001), because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the documents and our evaluation.

The EPA's proposed action provided a 30-day public comment period. The public comment period closed on June 29, 2020. During this period, we received one anonymous comment that supported our proposed approval.

No comments were submitted that change our assessment of the rules and negative declaration as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving the documents listed in Table 1 into the California SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SJVUAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 13, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends Part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

1. Background

NEH is adopting this final rule pursuant to E.O. 13891, 1 which requires federal agencies to finalize regulations, or amend existing regulations as necessary, that set forth processes and procedures for issuing guidance documents. In compliance with E.O. 13891, this final rule establishes NEH's policy, procedures, and responsibilities for issuing guidance documents in order to ensure that the agency performs the required review and clearance before issuance and follows all stages of the rulemaking process.

Under the Administrative Procedure Act, an agency may waive the normal notice and comment procedures if the action is a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(b)(A). This final rule merely incorporates the requirements set forth in E.O. 13891 into NEH's internal policy and procedures for issuing guidance documents. Accordingly, NEH has concluded that there is good cause to publish this rule without prior public notice and comment.

This action is not significant under E.O. 12866.

This action is not expected to be an E.O. 13771 regulatory action because this action is not significant under E.O. 12866.

This rulemaking does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This rulemaking meets the applicable standards set forth in section 3(a) and 3(b)(2) of E.O. 12988. Specifically, this final rule is written in clear language designed to help reduce litigation.

Under the criteria in E.O. 13175, NEH evaluated this final rule and determined that it will not have any potential effects on Federally recognized Indian Tribes.

Under the criteria in E.O. 12630, this rulemaking does not have significant takings implications. Therefore, a takings implication assessment is not required.

This rulemaking will not have a significant adverse impact on a substantial number of small entities, including small businesses, small governmental jurisdictions, or certain small not-for-profit organizations.

This rulemaking does not impose an information collection burden under the Paperwork Reduction Act. This action contains no provisions constituting a collection of information pursuant to the Paperwork Reduction Act.

This rulemaking does not contain a Federal mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year.

This final rule will not have a significant effect on the human environment.

This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of nonagency parties. Accordingly, it is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996), and the reporting requirement of 5 U.S.C. 801 does not apply.

All information about NEH required to be published in the Federal Register may be accessed at www.neh.gov. The website https://www.regulations.gov contains electronic dockets for NEH's rulemakings under the Administrative Procedure Act of 1946.

To ensure this final rule was written in plain and clear language so that it can be used and understood by the public, NEH modeled the language of this final rule on the Federal Plain Language Guidelines.

The Commission submitted revised information collection requirements for review and approval by OMB, as required by the Paperwork Reduction Act (PRA) of 1995, on June 22, 2020. OMB approved the new information collection requirements on August 4, 2020. The information collection requirements are contained in the Commission's Rural Digital Opportunity Fund Order, FCC 20-5, published at 85 FR 13773, March 10, 2020. The OMB Control Number is 3060-1256. The Commission publishes this document as an announcement of the effective date of the rules published on March 10, 2020. If you have any comments on the burden estimates listed in the following, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW, Washington, DC 20554. Please include the OMB Control Number, 3060-1256, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov. 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 and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on August 4, 2020, for the information collection requirements contained in 47 CFR 54.804(b) and (c) published at 85 FR 13773, March 10, 2020. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1256. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1256.

OMB Approval Date: August 4, 2020.

OMB Expiration Date: August 31, 2023.

Title: Application for Connect America Fund Phase II and Rural Digital Opportunity Fund Auction Support.

Form Number: FCC Form 683.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities, Not-for-profit institutions, and State, Local or Tribal Governments.

Number of Respondents and Responses: 530 respondents; 1,060 responses.

Estimated Time per Response: 2-12 hours (on average).

Frequency of Response: Annual reporting requirements, on occasion reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection 47 U.S.C. 154, 214, 254 and 303(r) of the Communications Act of 1934, as amended.

Total Annual Burden: 7,420 hours.

Total Annual Cost(s): No cost.

Nature and Extent of Confidentiality: Although most information collected in FCC Form 683 will be made available for public inspection, the Commission will withhold certain information collected in FCC Form 683 from routine public inspection. Specifically, the Commission will treat certain financial and technical information submitted in FCC Form 683 as confidential. In addition, an applicant may use the abbreviated process under 47 CFR 0.459(a)(4) to request confidential treatment of the audited financial statements that are submitted during the post-selection review process. However, if a request for public inspection for this technical or financial information is made under 47 CFR 0.461, and the applicant has any objections to disclosure, the applicant will be notified and will be required to justify continued confidential treatment. To the extent that an applicant seeks to have other information collected in FCC Form 683 or during the post-selection review process withheld from public inspection, the applicant may request confidential treatment pursuant to 47 CFR 0.459.

Privacy Act Impact Assessment: No impact(s).

On November 18, 2011, the Commission released the USF/ICC Transformation Order and Further Notice of Proposed Rulemaking, WC Docket No. 10-90 et al., FCC 11-161 ( USF/ICC Transformation Order and/or FNPRM ), which comprehensively reformed and modernized the high-cost program within the universal service fund to focus support on networks capable of providing voice and broadband services. Among other things, the Commission created the Connect America Fund (CAF) and concluded that support in price cap areas would be provided through a combination of “a new forward-looking model of the cost of constructing modern multi-purpose networks” and a competitive bidding process (CAF Phase II auction or Auction 903). The Commission also sought comment in the accompanying USF/ICC Transformation FNPRM on proposed rules governing the CAF Phase II auction, including basic auction design and the application process.

In the CAF Phase II auction, service providers competed to receive support of up to $1.98 billion over 10 years to offer voice and broadband service in unserved high-cost areas. The information collection requirements reported under this collection are the result of several Commission decisions to implement the reform adopted in the USF/ICC Transformation Order and move forward with conducting the CAF Phase II auction. In the April 2014 Connect America Order, WC Docket No. 10-90 et al., FCC 14-54, the Commission adopted various rules regarding participation in the CAF Phase II auction, the term of support, and the eligible telecommunications carrier (ETC) designation process. In the Phase II Auction Order, WC Docket No. 10-90 et al., FCC 16-64, the Commission adopted rules to govern the CAF Phase II auction, including the adoption of a two-stage application process, which includes a pre-auction short-form application to be submitted by parties interested in bidding in the CAF Phase II auction and a post-auction long-form application that must be submitted by winning bidders seeking to become authorized to receive CAF Phase II auction support. The Commission concluded, based on its experience with auctions and consistent with the record, that this two-stage application process balances the need to collect information essential to conducting a successful auction and authorizing CAF Phase II support with administrative efficiency.

On January 30, 2018, the Commission adopted a public notice that established the final procedures for the CAF Phase II auction, including the long-form application disclosure and certification requirements for winning bidders seeking to become authorized to receive CAF Phase II auction support. See Phase II Auction Procedures Public Notice, WC Docket No. 17-182 et al., FCC 18-6. The Commission also adopted the Phase II Auction Order on Reconsideration, WC Docket No. 10-90 et al., FCC 18-5, which modified the Commission's letter of credit rules to provide some additional relief for CAF Phase II auction support recipients by reducing the costs of maintaining a letter of credit.

The Commission reduces the number of respondents that are subject to this collection now that the CAF Phase II auction winning bidders have been announced.

On February 7, 2020 the Commission released the Rural Digital Opportunity Fund Order, WC Docket Nos. 19-126, 10-90, FCC 20-5 which will commit up to $20.4 billion over the next decade to support up to gigabit speed broadband networks in rural America. The funding will be allocated through a multi-round, reverse, descending clock auction that favors faster services with lower latency and encourages intermodal competition in order to ensure that the greatest possible number of Americans will be connected to the best possible networks, all at a competitive cost.

To implement the Rural Digital Opportunity Fund auction, the Commission adopted new rules for the Rural Digital Opportunity Fund auction, including the adoption of a two-stage application process. Like with the CAF Phase II auction, this process includes a pre-auction short-form application to be submitted by parties interested in bidding in the Rural Digital Opportunity Fund auction (FCC Form 183) and a post-auction long-form application that must be submitted by winning bidders (or their designees) seeking to become authorized to receive Rural Digital Opportunity Fund support (FCC Form 683). The Commission received approval for the short-form application (FCC Form 183) in a separate collection under the OMB control number 3060-1252.

The Commission plans to submit at a later date additional revisions or new collections for OMB review to address other reforms adopted in the above-referenced Order.

The Commission therefore revises this information collection to reflect these requirements to determine the recipients of Connect America Phase II auction and Rural Digital Opportunity Fund auction support.

This is a summary of the Commission's Report and Order, in CG Docket No. 17-59, FCC 20-96, adopted on July 16, 2020, and released on July 17, 2020. The Further Notice of Proposed Rulemaking that was adopted concurrently with the Report and Order published July 31, 2020 at 85 FR 46063. The full text of document FCC 20-96 is available for public inspection and copying via the Commission's Electronic Comment Filing System (ECFS). The full text of document FCC 20-96 and any subsequently filed documents in this matter may also be found by searching ECFS at: http://apps.fcc.gov/ecfs/ (insert CG Docket No. 17-59 into the Proceeding block). 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 and Governmental Affairs Bureau at (202) 418-0530 (voice).

The Report and Order does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. It, therefore, does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

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

1. With the Report and Order, the Commission takes specific and concrete steps to further protect consumers against unwanted calls. The Commission adopts a safe harbor from liability under the Communications Act and its rules for terminating voice service providers that block calls based on reasonable analytics designed to identify unwanted calls, so long as those take into account information provided by STIR/SHAKEN (or, for non-IP based calls, any other effective call authentication framework that satisfies the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement And Deterrence (TRACED) Act) when such information is available for a particular call. And the Commission establishes a second safe harbor enabling voice service providers to block traffic from bad-actor upstream voice service providers that continue to allow unwanted calls to traverse their networks. Finally, the Commission requires that blocking providers furnish a single point of contact to resolve unintended or inadvertent blocking, and emphasizes that, when blocking, they should make all reasonable efforts to ensure that critical calls, such as those from PSAPs, are not blocked and that they should never block calls to 911.

2. Consistent with the TRACED Act and in light of the record garnered in response to the Commission's Call Blocking Declaratory Ruling and Further Notice, the Commission adopts two safe harbors from liability under the Communications Act and the Commission's rules for certain call blocking by voice service providers. The first is a call-by-call safe harbor based on reasonable analytics including caller ID authentication information. The second safe harbor targets bad-actor upstream voice service providers who do not police their networks to minimize bad traffic after being notified of such traffic.

3. Scope of Safe Harbor Protection. The safe harbors the Commission establishes here will protect blocking providers from liability arising from any obligations related to completing the call under the Communications Act and the Commission's rules.

4. First, the Commission adopts a safe harbor from liability under the Communications Act and the Commission's rules for the unintended or inadvertent blocking of wanted calls where terminating voice service providers block based on reasonable analytics that include caller ID authentication information and the consumer is given the opportunity to opt out. Consistent with the Commission's statement in the Call Blocking Declaratory Ruling, published at 84 FR 29387, June 24, 2019, and Further Notice (NPRM), published at 84 FR 29478, June 24, 2019; and Congress' guidance in the TRACED Act, the Commission requires terminating voice service providers that take advantage of this safe harbor to offer these services without a line-item charge to consumers.

5. Caller ID Authentication Requirement. To avail themselves of the safe harbor, terminating voice service providers must incorporate caller ID authentication information into their reasonable analytics programs. At this time, only the STIR/SHAKEN caller ID authentication framework satisfies this requirement. As the Commission explains, however, should it later identify other effective caller ID authentication methods that would satisfy the TRACED Act, including non-IP methods, those methods would also satisfy its requirements here.

6. At a minimum, a terminating voice service provider seeking safe harbor protection must have deployed an effective caller ID authentication framework within their own network, accept caller ID authentication information transmitted by an upstream voice service provider, and incorporate that information into its analytics where that information is available. The terminating voice service provider may also rely on this safe harbor even when blocking calls where caller ID authentication information is not available, so long as it incorporates caller ID authentication information into its analytics wherever possible.

7. In recognition of commenter concerns, and of the need to adapt to evolving threats, the Commission gives terminating voice service providers flexibility in how to incorporate authentication into their analytics. They may, for example, take into account the level of attestation, including looking at what level of attestation has historically been present where such data is available. The Commission reiterates that voice service providers must apply analytics reasonably in a non-discriminatory, competitively neutral manner.

8. The TRACED Act acknowledges that voice service providers' ability to deploy STIR/SHAKEN varies because, in part, it is not designed to work on non-IP networks. As a result, this requirement means that terminating voice service providers with exclusively non-IP based networks will not be able to avail themselves of the safe harbor immediately. Should industry develop alternative caller ID authentication technologies that it later determines satisfy this requirement under the TRACED Act, those technologies would also be sufficient to claim the safe harbor. Further, the Commission recognizes that all terminating voice service providers are likely to receive calls from upstream voice service providers with non-IP networks. If a portion of the calls received by the terminating voice service provider are authenticated and the terminating voice service provider is verifying those calls and incorporating that information into a program of reasonable analytics, the safe harbor would still be available for the blocking of calls from non-IP networks. Limiting the safe harbor to authenticated calls could encourage bad actors to ensure that their calls originate or transit on non-IP networks, undermining the value of the safe harbor.

9. The Commission clarifies that voice service providers may block calls from certain bad-actor upstream voice service providers and establishes a safe harbor from liability related to call completion obligations arising under the Communications Act and the Commission's rules for this blocking. Unlike the reasonable analytics safe harbor, the Commission focuses here on criteria that clearly indicate a particular upstream voice service provider is facilitating, or at a minimum shielding, parties originating illegal calls.

10. Permitting Provider-Based Blocking. Until very recently, the Commission has only authorized call blocking for particular calls, not based on the provider. Here, the Commission clarifies that voice service providers are permitted to block calls from “bad-actor” upstream voice service providers. Specifically, the Commission makes clear that a voice service provider may block calls from an upstream voice service provider that, when notified that it is carrying bad traffic by the Commission, fails to effectively mitigate such traffic or fails to implement effective measures to prevent new and renewing customers from using its network to originate illegal calls. The notification from the Commission will be based on information obtained through traceback, likely in coordination with the Traceback Consortium. Failure of the bad-actor provider to sign calls may be an additional factor in this notification.

11. Notification and Effective Mitigation Measures. If the Commission identifies illegal traffic on the network, it may notify the voice service provider that it is passing identified bad traffic and that specific calls are illegal. Upon receipt of this notification, the voice service provider should promptly investigate and, if necessary, prevent the illegal caller from continuing to use the network to place illegal calls. If the upstream voice service provider fails to take effective mitigation measures within 48 hours, a voice service provider may then, after notifying the Commission as discussed below, block calls from this bad-actor provider. Similarly, if the upstream voice service provider fails to implement effective measures to prevent new and renewing customers from using its network to originate illegal calls, a voice service provider may also block calls from this bad-actor provider.

12. A notified voice service provider should inform the Commission and the Traceback Consortium within 48 hours of steps it has taken to mitigate the illegal traffic. A voice service provider that is aware of the notice provided to an upstream voice service provider must consider whether the steps taken were sufficient to effectively mitigate the identified bad traffic. The Commission declines to mandate specific metrics to make this determination, but expects that they will generally involve a significant reduction in the traffic stemming from a particular illegal calling campaign or regarding calls from the particular upstream voice service provider. The voice service provider may meet this criterion if it determines, in good faith and upon a rational basis, that the upstream voice service provider has failed to effectively mitigate the illegal traffic. The Commission expects the voice service provider to inform the upstream voice service provider of that determination in order to give the upstream voice service provider another opportunity to take further mitigation steps. In addition, before taking any action to block calls of the upstream voice service provider, a voice service provider must provide the Commission with notice and a brief summary of its basis for making such a determination. By obtaining such information from both parties, the Commission will be in a position to monitor the actions of both parties prior to commencement of any blocking.

13. A notified voice service provider should also inform the Commission and the Traceback Consortium within a reasonable period of time of the steps it takes to prevent new and renewing customers from originating illegal calls. Failure to provide this information within a reasonable time shall be equivalent to having failed to have effective measures in place for purposes of the safe harbor. Where upstream voice service providers disclose their measures, a voice service provider may in good faith assess whether the measures are effective based on objective criteria, such as whether customers can show a legitimate business need for those services. Again, before taking any action to block calls of the upstream voice service provider, a voice service provider must provide the Commission with notice and a brief summary of its basis for making such a determination.

14. Risk of Legal Calls Being Blocked. The Commission finds that the benefits of this safe harbor outweigh the potential costs of blocking some legal calls in the process. Voice service providers are in the best position to detect and combat this problem. Accordingly, the Commission believes that enabling voice service providers to use all available technologies and methodologies at their disposal without fear of liability is crucial to combat illegal calls. This safe harbor encourages voice service providers to both mitigate bad traffic once they have actual notice of that traffic, and to take proactive steps to prevent their networks from being used to transmit illegal calls.

15. Protections for Critical Calls. The Commission requires that all voice service providers must make all reasonable efforts to ensure that calls from PSAPs and government outbound emergency numbers are not blocked.

16. Calls to PSAPs via 911 are also extremely important and the Commission makes clear that they should never be blocked unless the voice service provider knows without a doubt that the calls are unlawful. Though some unwanted and illegal calls may reach 911 call centers, the Commission believes that 911 call centers themselves are best equipped to determine how to handle the calls they receive.

17. Point of Contact for Blocking Disputes. The Commission requires that any voice service provider that blocks calls must designate a single point of contact for callers, as well as other voice service providers, to report blocking errors at no charge to callers or other voice service providers.

18. Blocking providers must investigate and resolve these blocking disputes in a reasonable amount of time and at no cost to the caller, so long as the complaint is made in good faith. What amount of time is “reasonable” may vary depending on the specific circumstances of the blocking and the resolution of the blocking dispute, and pending further developments in the record Blocking providers must also publish contact information clearly and conspicuously on their public-facing websites. The Commission further requires that when a caller makes a credible claim of erroneous blocking and the voice service provider determines that the calls should not have been blocked, a voice service provider must promptly cease blocking calls from that number unless circumstances change. Finally, because the TRACED Act requires that the establishment of a safe harbor be consistent with the Act's requirement of “transparency and effective redress options,” the Commission confirms that implementation of these redress mechanisms is a condition of obtaining the protections of the safe harbors it establishes in the Report and Order.

19. Consistent with what the Commission permitted in June 2019, consumers may choose, either via opt in or opt out consent, to have their terminating voice service provider block categories of calls that may include legal calls. In these cases, terminating voice service providers are not obliged to cease blocking such calls merely because the caller claims they are legal. Rather, a terminating voice service provider's analysis should hinge on whether the disputed calls fit within the blocking categories to which their customers have consented.

20. No Critical Calls List at this Time. The Commission declines to adopt a Critical Calls List at this time, in light of a record largely in opposition and in recognition that such a list would likely to do more harm than good. The Commission does not, however, foreclose the possibility of adopting such a list at a future point in time should circumstances change.

21. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Declaratory Ruling and Further Notice. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The comments received are discussed below. The Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

22. The Report and Order takes important steps in the fight against illegal robocalls by enabling terminating voice service providers to block certain calls before they reach consumers' phones while also requiring certain protections for lawful calls. The rules the Commission adopts today outline two safe harbors for terminating voice service providers that block calls in these circumstances. First, the Report and Order establishes a safe harbor for terminating voice service providers that block calls on a default, opt-out, basis based on reasonable analytics so long as those analytics include caller ID authentication information and the customer is given sufficient information to make an informed choice. Second, it establishes a safe harbor for voice service providers that block and then cease accepting all traffic from an upstream voice service provider that, when notified that it is carrying bad traffic by the Commission, fails to effectively mitigate such traffic or fails to implement effective measures to prevent new and renewing customers from using its network to originate illegal calls. The Report and Order also adopts rules to ensure that callers and other voice service providers can resolve potential erroneous blocking and to require all voice service providers to make all reasonable efforts to ensure that critical calls complete.

23. Reasonable Analytics. The Report and Order provides a safe harbor from liability under the Communication Act and the Commission's rules for voice service providers that block calls based on reasonable analytics that must include Caller ID authentication information, so long as consumers are given a meaningful opportunity to opt out. This safe harbor builds on the blocking the Commission made clear was permitted under the Declaratory Ruling and Further Notice and adds the requirement that voice service provides incorporate Caller ID authentication information into their analytics programs.

24. Bad Actor Providers. Additionally, the Report and Order establishes a safe harbor for terminating voice service providers that block calls from upstream voice service providers that, when notified that it is carrying bad traffic by the Commission, fails to effectively mitigate such traffic or fails to implement effective measures to prevent new and renewing customers from using its network to originate illegal calls. This safe harbor incentivizes bad-actor providers to better police their networks by raising the cost of passing bad traffic.

25. Other Issues. The Report and Order clarifies that any terminating voice service provider that blocks calls must designate a single point of contact for callers to report blocking errors at no charge. It further makes clear that blocking providers must investigate and resolve these blocking disputes in a reasonable amount of time that is consistent with industry best practices. To avoid abuse, the Report and Order declines to mandate a Critical Calls List at this time. It does, however, make clear that the Commission expects all voice service providers will take all possible steps to ensure that calls from PSAPs and government outbound emergency numbers are not blocked. Finally, it makes clear that calls to 911 should never be blocked unless the voice service provider knows without a doubt that the calls are unlawful.

26. In the Declaratory Ruling and Further Notice, the Commission solicited comments on how to minimize the economic impact of the new rules on small business. The Commission received four comments either directly referencing the IRFA or addressing small business concerns. Two of these comments focused on concerns about the ability of small businesses to implement STIR/SHAKEN and how this would impact the safe harbors proposed in the Further Notice. The remaining two comments focused on small business challenge mechanism issues.

27. SHAKEN/STIR. Both ITTA and Spoofcard raised concerns about safe harbors contingent on SHAKEN/STIR, noting that many small voice service providers have TDM networks and therefore will not be able to implement SHAKEN/STIR quickly. ITTA instead argues for a safe harbor for blocking based on reasonable analytics, while Spoofcard simply argues against blocking based solely on SHAKEN/STIR. The Commission recognizes that some small voice service providers will not be able to implement SHAKEN/STIR quickly. The first safe harbor the Commission adopts in the Report and Order does not prevent these voice service providers from blocking pursuant to the Declaratory Ruling. Additionally, as other effective Caller ID authentication technologies are developed, they may also satisfy the requirements of the first safe harbor. Finally, neither safe harbor the Commission adopts permits blocking solely on SHAKEN/STIR.

28. Challenge Mechanisms. Capio highlighted the importance of a robust challenge mechanism for small businesses. Both Capio and CUNA called for this mechanism to be offered free of charge, with CUNA noting that this is particularly important for small businesses such as credit unions. In the Report and Order, the Commission requires terminating voice service providers to designate a single point of contact for resolving blocking disputes and make contact information clear and conspicuous on their public-facing websites. The Commission further requires terminating voice service providers to resolve disputes in a reasonable amount of time, noting that what is reasonable may vary on a case-by-case basis. Finally, the Commission requires that this be offered at no charge to callers.

29. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

30. The Report and Order makes clear that voice service providers may block calls in certain circumstances and provides safe harbors for that blocking. The Report and Order also adopts certain protections for lawful callers. These changes affect small and large companies equally and apply equally to all the classes of regulated entities identified above.

31. Reporting and Recordkeeping Requirements. The Report and Order establishes blocking safe harbors that will require terminating providers that choose to block to maintain certain records to ensure that their blocking is in compliance with the safe harbor. The specific records that a terminating provider would need to retain will depend on the particular safe harbor the terminating provider is relying on as well as their specific blocking program. Terminating providers that choose to block calls based on reasonable analytics including caller ID authentication information will need to maintain records on calls blocked, as well as opt-out decisions made by consumers. These records are necessary to ensure that opt-out requests are honored and to aid in resolving blocking disputes. Terminating providers that choose to block all calls from a bad-actor upstream provider will need to retain information relevant to that decision to ensure that all requirements were met prior to blocking and to help respond to blocking disputes. Originating, intermediate, and terminating providers will also need to communicate with other providers regarding traceback, illegal traffic, and measures to prevent new customers from originating illegal traffic.

32. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

33. The Commission considered feedback from the Declaratory Ruling and Further Notice in crafting the final order. The Commission evaluated the comments with the goal of removing regulatory roadblocks and giving industry the flexibility to block calls while still protecting the interests of lawful callers. For example, the rules the Commission adopts are permissive rather than mandatory, allowing small businesses to determine whether, and what type of, blocking is the correct approach for their network. A terminating provider may choose to block based on reasonable analytics, including caller ID authentication information, and benefit from that safe harbor. Should a terminating provider do so, they have flexibility to design their own reasonable analytics program and make that program either opt out or opt in. Alternatively, or in addition to that blocking, a terminating provider may choose to block all calls from an originating or intermediate provider that fails to meet the criteria the Commission lays out in the bad-actor provider safe harbor. The Commission recognizes small business concerns regarding the difficulty of deploying SHAKEN/STIR. Small businesses that cannot rapidly deploy SHAKEN/STIR have alternative blocking options, such as those from the Declaratory Ruling and Further Notice to ensure that they are not left behind. The Commission further took the concerns of small business into consideration in establishing the requirements to make challenging erroneous blocking simpler and at no cost to the caller.

34. The Commission does not see a need to establish a special timetable for small entities to reach compliance with the modification to the rules. No small business has asked for a delay in implementing the rules. Small businesses may avoid compliance costs entirely by declining to block robocalls, or may delay implementation of call blocking indefinitely to allow for more time to come into compliance with the rules. Similarly, there are no design standards or performance standards to consider in this rulemaking.

The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

35. Pursuant to sections 4(i), 201, 202, 227, 227b, 251(e), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 202, 227, 227b, 251(e), 303(r), and 403, the Report and Order is adopted and that part 64 of the Commission's rules, 47 CFR 64.1200, is amended.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 part 64 as follows:

NMFS published a final rule for Framework Adjustment 3 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan in the Federal Register on November 3, 2003 (68 FR 62250), implementing a process to roll over unused Winter I commercial scup quota (January 1 through April 30) to be added to the Winter II period quota (October 1 through December 31) (50 CFR 648.122(d)). The framework also allows adjustment of the commercial possession limit for the Winter II period dependent on the amount of quota rolled over from the Winter I period. The Winter II period start date was changed from November 1 to October 1 as a part of Framework Adjustment 12 (83 FR 17314; April 19, 2018).

For 2020, the initial Winter II quota is 3,543,336 pounds (lb) (1,607 metric tons (mt)). The best available landings information indicates that 4,850,963 lb (2,200 mt) remain of the 10,027,597 lb (4,548 mt) Winter I quota. Consistent with Framework 3, the full amount of unused 2020 Winter I quota is being transferred to Winter II, resulting in a revised 2020 Winter II quota of 8,394,299 lb (3,808 mt). Because the amount transferred is between 4.5 and 5.0 million lb (2,041 mt and 2,268 mt), the Federal per trip possession limit will increase from 12,000 lb (5.4 mt) to 24,000 lb (10.9 mt), as outlined in the final rule that established the possession limit and quota rollover procedures for this year, published on May 15, 2020 (85 FR 29345).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.122(d), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be contrary to the public interest. This action transfers unused quota from the Winter I Period to the Winter II Period to make it accessible to the commercial scup fishery. If implementation of this inseason action is delayed to solicit prior public comment, the objective of the fishery management plan to achieve the optimum yield from the fishery could be compromised. Deteriorating weather conditions during the latter part of the fishing year may reduce fishing effort, and could also prevent the annual quota from being fully harvested. This would conflict with the agency's legal obligation under the Magnuson-Stevens Fishery Conservation and Management Act to achieve the optimum yield from a fishery on a continuing basis, resulting in a negative economic impact on vessels permitted to fish in this fishery. Moreover, the rollover process being applied here was the subject of notice and comment rulemaking, and the range of potential trip limit changes were outlined in the final 2018 scup specifications that were published December 22, 2017; which were developed through public notice and comment. Based on these considerations, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness period for the reasons stated above.