The following section briefly discusses the statutory authority underlying this final rule, as well as some of the relevant historical background related to the statutory backstop requirement.

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. (42 U.S.C. 6291-6309) These products include GSLs, the subject of this document. (42 U.S.C. 6295(i)(6))

EPCA directs DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSLs. 3 (42 U.S.C. 6295(i)(6)(A)-(B)) For the first rulemaking cycle, EPCA directs DOE to initiate a rulemaking process prior to January 1, 2014, to determine whether: (1) To amend energy conservation standards for GSLs and (2) the exemptions for certain incandescent lamps should be maintained or discontinued. (42 U.S.C. 6295(i)(6)(A)(i)) The rulemaking is not limited to incandescent lamp technologies and must include a consideration of a minimum standard of 45 lm/W for GSLs. (42 U.S.C. 6295(i)(6)(A)(ii)) EPCA provides that if the Secretary determines that the standards in effect for general service incandescent lamps (“GSIL”) should be amended, a final rule must be published by January 1, 2017, with a compliance date at least 3 years after the date on which the final rule is published. (42 U.S.C. 6295(i)(6)(A)(iii)) The Secretary must also consider phased-in effective dates after considering certain manufacturer and retailer impacts. (42 U.S.C. 6295(i)(6)(A)(iv)) If DOE fails to complete a rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), or if a final rule from the first rulemaking cycle does not produce savings greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, the statute provides a “backstop” under which DOE must prohibit sales of GSLs that do not meet a minimum 45 lm/W standard. (42 U.S.C. 6295(i)(6)(A)(v))

EPCA further directs DOE to initiate a second rulemaking cycle by January 1, 2020, to determine whether standards in effect for GSILs (which are a subset of GSLs)) should be amended with more stringent maximum wattage requirements than EPCA specifies, and whether the exemptions for certain incandescent lamps should be maintained or discontinued. (42 U.S.C. 6295(i)(6)(B)(i)) As in the first rulemaking cycle, the scope of the second rulemaking is not limited to incandescent lamp technologies. (42 U.S.C. 6295(i)(6)(B)(ii))

Pursuant to its statutory authority, DOE published a notice of proposed rulemaking (“NOPR”) on March 17, 2016, that addressed the first question that Congress directed it to consider—whether to amend energy conservation standards for GSLs (“March 2016 NOPR”). 81 FR 14528, 14629-14630 (Mar. 17, 2016). In the March 2016 NOPR, DOE stated that it would be unable to undertake any analysis regarding GSILs and other incandescent lamps because of a then-applicable congressional restriction (“the Appropriations Rider”). See 81 FR 14528, 14540-14541. The Appropriations Rider prohibited expenditure of funds appropriated by that law to implement or enforce: (1) 10 Code of Federal Regulations (“CFR”) 430.32(x), which includes maximum wattage and minimum rated lifetime requirements for GSILs; and (2) standards set forth in section 325(i)(1)(B) of EPCA (42 U.S.C. 6295(i)(1)(B)), which sets minimum lamp efficiency ratings for incandescent reflector lamps (“IRLs”). Under the Appropriations Rider, DOE was restricted from undertaking the analysis required to address the first question presented by Congress, but was not so limited in addressing the second question—that is, DOE was not prevented from determining whether the exemptions for certain incandescent lamps should be maintained or discontinued. To address that second question, DOE published a Notice of Proposed Definition and Data Availability (“NOPDDA”), which proposed to amend the definitions of GSIL, GSL, and related terms (“October 2016 NOPDDA”). 81 FR 71794, 71815 (Oct. 18, 2016). Notably, the Appropriations Rider, which was originally adopted in 2011 and readopted and extended continuously in multiple subsequent legislative actions, expired on May 5, 2017, when the Consolidated Appropriations Act, 2017 was enacted. 4

On January 19, 2017, DOE published two final rules concerning the definitions of GSL, GSIL, and related terms (“January 2017 Definition Final Rules”). 82 FR 7276; 82 FR 7322. The January 2017 Definition Final Rules amended the definitions of GSIL and GSL by bringing certain categories of lamps that had been excluded by statute from the definition of GSIL within the definitions of GSIL and GSL. DOE determined to use two final rules in 2017 to amend the definitions of GSIL and GSLs in order to address the majority of the definition changes in one final rule and the exemption for IRLs in the second final rule. These two rules were issued simultaneously, with the first rule eschewing a determination regarding the existing exemption for IRLs in the definition of GSL and the second rulemaking discontinuing that exemption from the GSL definition. 82 FR 7276, 7312; 82 FR 7322, 7323. As in the October 2016 NOPDDA, DOE stated that the January 2017 Definition Final Rules related only to the second question that Congress directed DOE to consider, regarding whether to maintain or discontinue “exemptions” for certain incandescent lamps. 82 FR 7276, 7277; 82 FR 7322, 7324 ( See also 42 U.S.C. 6295(i)(6)(A)(i)(II)). That is, neither of the two final rules issued on January 19, 2017, established energy conservation standards applicable to GSLs. DOE explained that the Appropriations Rider prevented it from establishing, or even analyzing, standards for GSILs. 82 FR 7276, 7278. Instead, DOE explained that it would either impose standards for GSLs in the future pursuant to its authority to develop GSL standards, or apply the backstop standard prohibiting the sale of lamps not meeting a 45 lm/W efficacy standard. 82 FR 7276, 7277-7278. The two final rules were to become effective as of January 1, 2020.

On March 17, 2017, the National Electrical Manufacturer's Association (“NEMA”) filed a petition for review of the January 2017 Definition Final Rules in the U.S. Court of Appeals for the Fourth Circuit. National Electrical Manufacturers Association v. United States Department of Energy, No. 17-1341. NEMA claimed that DOE “amend[ed] the statutory definition of `general service lamp' to include lamps that Congress expressly stated were `not include[d]' in the definition” and adopted an “unreasonable and unlawful interpretation of the statutory definition.” Pet. 2. Prior to merits briefing, the parties reached a settlement agreement under which DOE agreed, in part, to issue a notice of data availability requesting data for GSILs and other incandescent lamps to assist DOE in determining whether standards for GSILs should be amended (the first question of the rulemaking required by 42 U.S.C. 6295(i)(6)(A)(i)).

With the removal of the Appropriations Rider in the Consolidated Appropriations Act, 2017, DOE was no longer restricted from undertaking the analysis and decision-making required to address the first question presented by Congress, i.e., whether to amend energy conservation standards for general service lamps, including GSILs. Thus, on August 15, 2017, DOE published a notice of data availability and request for information (“NODA”) seeking data for GSILs and other incandescent lamps (“August 2017 NODA”). 82 FR 38613.

The purpose of the August 2017 NODA was to assist DOE in determining whether standards for GSILs should be amended. (42 U.S.C. 6295(i)(6)(A)(i)(I)) Comments submitted in response to the August 2017 NODA also led DOE to re- consider the decisions it had already made with respect to the second question presented to DOE—whether the exemptions for certain incandescent lamps should be maintained or discontinued. 84 FR 3120, 3122 ( See also 42 U.S.C. 6295(i)(6)(A)(i)(II)) As a result of the comments received in response to the August 2017 NODA, DOE also re-assessed the legal interpretations underlying certain decisions made in the January 2017 Definition Final Rules. Id.

On February 11, 2019, DOE published a NOPR proposing to withdraw the revised definitions of GSL, GSIL, and the new and revised definitions of related terms that were to go into effect on January 1, 2020 (“February 2019 Definition NOPR”). 84 FR 3120. In a final rule published September 5, 2019, DOE finalized the withdrawal of the definitions in the January 2017 Definition Final Rules and maintained the existing regulatory definitions of GSL and GSIL, which are the same as the statutory definitions of those terms (“September 2019 Withdrawal Rule”). 84 FR 46661. The September 2019 Withdrawal Rule revisited the same primary question addressed in the January 2017 Definition Final Rules, namely, the statutory requirement for DOE to determine whether “the exemptions for certain incandescent lamps should be maintained or discontinued.” 42 U.S.C. 6295(i)(6)(A)(i)(II) ( See also 84 FR 46661, 46667). In the rule, DOE also addressed its interpretation of the statutory backstop at 42 U.S.C. 6295(i)(6)(A)(v) and concluded the backstop had not been triggered. 84 FR 46661, 46663-46664. DOE reasoned that 42 U.S.C. 6295(i)(6)(A)(iii) “does not establish an absolute obligation on the Secretary to publish a rule by a date certain.” 84 FR 46661, 46663. “Rather, the obligation to issue a final rule prescribing standards by a date certain applies if, and only if, the Secretary makes a determination that standards in effect for GSILs need to be amended.” Id. DOE further stated that, since it had not yet made the predicate determination on whether to amend standards for GSILs, the obligation to issue a final rule by a date certain did not yet exist and, as a result, the condition precedent to the potential imposition of the backstop requirement did not yet exist and no backstop requirement had yet been triggered. Id. at 84 FR 46664.

Similar to the January 2017 Definition Final Rules, the September 2019 Withdrawal Rule clarified that DOE was not determining whether standards for GSLs, including GSILs, should be amended. DOE stated it would make that determination in a separate rulemaking. Id. at 84 FR 46662. DOE initiated that separate rulemaking by publishing a notice of proposed determination (“NOPD”) on September 5, 2019, regarding whether standards for GSILs should be amended (“September 2019 NOPD”). 84 FR 46830. In conducting its analysis for that notice, DOE used the data and comments received in response to the August 2017 NODA and relevant data and comments received in response to the February 2019 Definition NOPR, and DOE tentatively determined that the current standards for GSILS do not need to be amended because more stringent standards are not economically justified. Id. at 84 FR 46831. DOE finalized that tentative determination on December 27, 2019 (“December 2019 Final Determination”). 84 FR 71626. DOE also concluded in the December 2019 Final Determination that, because it had made the predicate determination not to amend standards for GSILs, there was no obligation to issue a final rule by January 1, 2017, and, as a result, the backstop requirement had not been triggered. Id. at 84 FR 71636.

Two petitions for review were filed in the U.S. Court of Appeals for the Second Circuit challenging the September 2019 Withdrawal Rule. The first petition was filed by 15 States, 5 New York City, and the District of Columbia. See New York v. U.S. Department of Energy, No. 19-3652 (2d Cir., filed Nov. 4, 2019). The second petition was filed by six organizations  6 that included environmental, consumer, and public housing tenant groups. See Natural Resources Defense Council v. U.S. Department of Energy, No. 19-3658 (2d Cir., filed Nov. 4, 2019). The petitions were subsequently consolidated. Merits briefing has been concluded, but the case has not been argued or submitted to the Circuit panel for decision. The case has been in abeyance since March 2021, pending further rulemaking by DOE.

Additionally, in two separate petitions also filed in the Second Circuit, groups of petitioners that were essentially identical to those that filed the lawsuit challenging the September 2019 Withdrawal Rule challenged the December 2019 Final Determination. See Natural Resources Defense Council v. U.S. Department of Energy, No. 20-699 (2d Cir., filed Feb, 25, 2020); New York v. U.S. Department of Energy, No. 20-743 (2d Cir., filed Feb. 28, 2020). On April 2, 2020, those cases were put into abeyance pending the outcome of the September 2019 Withdrawal Rule petitions.

On January 20, 2021, President Biden issued Executive Order (“E.O.”) 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037 (Jan. 25, 2021). Section 1 of that Order lists a number of policies related to the protection of public health and the environment, including reducing greenhouse gas emissions and bolstering the Nation's resilience to climate change. Id. at 7041. Section 2 of the Order instructs all agencies to review “existing regulations, orders, guidance documents, policies, and any other similar agency actions promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, [these policies].” Id. Agencies are then directed, as appropriate and consistent with applicable law, to consider suspending, revising, or rescinding these agency actions and to immediately commence work to confront the climate crisis. Id.

In accordance with E.O. 13990, on May 25, 2021, DOE published a request for information (“RFI”) initiating a re-evaluation of its prior determination that the Secretary was not required to implement the statutory backstop requirement for GSLs (“May 2021 RFI”). 86 FR 28001. DOE solicited information regarding the availability of lamps that would satisfy a minimum efficacy standard of 45 lm/W, as well other information that may be relevant to a possible implementation of the statutory backstop. Id. On December 13, 2021, DOE published a NOPR proposing to codify in the CFR the 45 lm/W backstop requirement for GSLs and welcomed comments on the proposal (“December 2021 NOPR”). 86 FR 70755.

DOE received comments in response to the December 2021 NOPR from the interested parties listed in Table I.1.

The comments received on the December 2021 NOPR are summarized and addressed in the following section. A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 7

In this final rule, DOE has determined that the 45 lm/W backstop requirement for GSLs at 42 U.S.C. 6295(i)(6)(A)(v) has been triggered because of DOE's failure to complete the first phase of rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), and because the final rules that DOE published did not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W. As a result of this failure to complete certain rulemakings, EPCA dictates that DOE prohibit sales of GSLs that do not meet a minimum 45 lm/W standard. (42 U.S.C. 6295(i)(6)(A)(v))

As described in section I.A of this document, EPCA specifies several criteria that DOE must adhere to in its first rulemaking cycle for GSLs. ( See 42 U.S.C. 6295(i)(6)(A)(i)-(iv)) If DOE fails to complete a rulemaking in accordance with clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A) or if the final rule does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, clause (v) requires DOE to prohibit sales of lamps with an efficacy below 45 lm/W “effective beginning January 1, 2020.”

In the March 2016 NOPR proposing energy conservation standards for GSLs, DOE explicitly addressed the backstop provision at 42 U.S.C. 6295(i)(6)(A)(v). 81 FR 14528 (March 17, 2016). Specifically, DOE stated that due to the Appropriations Rider, DOE was unable to perform the analysis required in clause (i) of 42 U.S.C. 6295(i)(6)(A) and as a result, the backstop in 42 U.S.C. 6295(i)(6)(A)(v) is automatically triggered. 81 FR 14528, 14540. DOE reiterated that it was not considering GSILs, including exclusions or exemptions, in the rulemaking due to the Appropriations Rider. 81 FR 14528, 14582. DOE further explained that under 42 U.S.C. 6295(i)(6)(A)(v), if it failed to (1) complete a rulemaking in accordance with clauses (i) through (iv), which included determining whether the exemptions for certain incandescent lamps should be maintained or discontinued, or (2) publish a final rule that would meet or exceed the energy savings associated with the statutory 45 lm/W requirement, then the backstop would be triggered beginning January 1, 2020. Id. Thus, in the March 2016 NOPR, DOE assumed that the backstop would be triggered beginning January 1, 2020. Id. Further, DOE stated that lamps that meet the proposed GSL definition would be subject to the 45 lm/W efficacy level and estimated an associated energy savings of approximately 3 quadrillion Btu (“quads”) for lamps sold in 2020-2049 and a carbon reduction of approximately 200 million metric tons by 2030. 81 FR 14528, 14534.

In the January 2017 Definition Final Rules, DOE did not interpret paragraph (6)(A) as requiring DOE to establish amended standards for GSLs. 82 FR 7276, 7283. DOE stated that clause (v) expressly contemplates the possibility that DOE would not finalize a rule that develops alternative standards for GSLs. Id. In these rules, DOE did not make any determination regarding standards for GSLs. 82 FR 7278, 7316. DOE acknowledged that the backstop would go into effect if DOE failed to complete the rulemaking as prescribed by EPCA by January 1, 2017, or the final rule did not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W. Id. While not explicitly stating its assumption that the backstop requirement would be triggered, DOE set a January 1, 2020, effective date for the definitions rule, which coincided with the effective date of the statutory backstop requirement. DOE also noted its commitment to working with manufacturers to ensure a successful transition if the backstop standard went into effect. To that end, on January 18, 2017, DOE issued a “Statement Regarding Enforcement of 45 LPW General Service Lamp Standard” (“January 2017 Enforcement Statement”) stating that EPCA requires that, effective beginning January 1, 2020, DOE shall prohibit the sale of any GSL that does not meet a minimum efficacy standard of 45 lm/W. 8 In the enforcement statement, DOE advised that it could issue a policy that provides additional time allowing for the necessary flexibility for manufacturers to comply with the 45 lm/W standard. Id.

In the September 2019 Withdrawal Rule, DOE concluded that the backstop requirement had not been triggered. 84 FR 46661, 46664. DOE stated that it initiated the first GSL standards rulemaking process by publishing a notice of availability of a framework document in December 2013, satisfying the requirements in 42 U.S.C. 6295(i)(6)(A)(i) to initiate a rulemaking by January 1, 2014. 84 46661, 46663. DOE further stated its belief that Congress intended for the Secretary to make a predicate determination about GSILs, and that the obligation to issue a final rule prescribing standards by a date certain applies if, and only if, the Secretary makes a determination that standards in effect for GSILs need to be amended. 84 FR 46661, 46663-46664. Since DOE had not yet made the predicate determination on whether to amend standards for GSILs, DOE found the obligation to issue a final rule by a date certain did not yet exist and, as a result, the condition precedent to the potential imposition of the backstop requirement did not yet exist and no backstop requirement had yet been triggered. Id.

In the December 2019 Final Determination, DOE reiterated its interpretation that the statutory deadline for the Secretary to complete a rulemaking for GSILs in 42 U.S.C. 6295(i)(6)(A)(iii) does not establish an absolute obligation on the Secretary to publish a rule by a date certain. 84 FR 71626, 71635. Instead, DOE stated that this deadline applies only if the Secretary makes a determination that standards for GSILs should be amended. Id. at 84 FR 71636. Otherwise, DOE again stated, it could result in a situation where a prohibition is automatically triggered for a category of lamps for which no new standards, much less prohibition, are necessary. Id. In the December 2019 Final Determination, since DOE made what it characterized as the predicate determination that standards for GSILs do not need to be amended, DOE found that the obligation to issue a final rule by a date certain did not exist and, as a result, the condition precedent to the potential imposition of the backstop requirement did not exist and no backstop requirement had been triggered. Id.

As presented in the December 2021 NOPR, Congress identified two circumstances that would trigger application of the backstop requirement: (1) If DOE “fails to complete a rulemaking in accordance with clauses (i) through (iv)” of section 6295(i)(6)(A); or (2) “if the final rule” promulgated under this rulemaking “does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lumens per watt.” 86 FR 70755, 70760; 42 U.S.C. 6295(i)(6)(A)(v). In the December 2021 NOPR, DOE tentatively determined that the backstop requirement has been triggered because both of the foregoing circumstances have occurred. Id.

DOE explained in the December 2021 NOPR that it failed to complete the first cycle of rulemaking in accordance with clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A) for at least two reasons. Id. The first reason is that DOE failed to complete this first GSL rulemaking in a timely manner. The structure of section 6295(i)(6)(A) reflects an expectation by Congress that by January 1, 2017, the outcome of DOE's GSL rulemaking would have been known, and, if either amended standards or the backstop were to be applicable, those would be in place no later than January 1, 2020. Id.

DOE also stated in the December 2021 NOPR, that the position it advanced in the September 2019 Withdrawal Rule and the December 2019 Final Determination—namely, that the backstop provision is premised on the Secretary first making a determination that standards for GSILs should be amended and that the statute does not impose a deadline for the GSIL determination—fails to give meaning to all of the surrounding statutory text, as DOE is obligated to do. See 84 FR 46661, 46663-46664; 84 FR 71626, 71635; see also 42 U.S.C. 6295(i)(6)(A)(iii). DOE stated that in looking at the surrounding context of sections 6295(i)(6)(A) and 6295(i)(6)(B), it is clear that Congress intended DOE's first GSL rulemaking to be completed by January 1, 2017—primarily due to Congress providing interested parties a gap of time between the conclusion of this rulemaking and the deadline for compliance, thus giving interested parties time to adjust to any changes. Id.

DOE explained in the December 2021 NOPR that in section 6295(i)(6)(A), Congress explicitly contemplated two possible outcomes: (1) A final rule amending standards for GSLs, or (2) imposition of the backstop of 45 lm/W. Under the first scenario, DOE would have been obligated to publish a final rule by January 1, 2017, with an effective date no earlier than three years after publication—thereby giving manufacturers a three-year lead time to prepare for the changed standards. See 42 U.S.C. 6295(i)(6)(A)(iii). Under the second scenario, the backstop would come into effect, but not until January 1, 2020—giving manufacturers the same three-year lead time to adjust to the forthcoming efficacy standard of 45 lm/W. See Id. at 42 U.S.C. 6295(i)(6)(A)(v). 86 FR 70755, 70760-61.

DOE further stated in the December 2021 NOPR that even if the statute contemplated a third possible scenario—a determination by DOE that standards for GSLs need not be amended under which the backstop was not triggered—it is clear from section 6295(i)(6)(A) that Congress expected this determination would be made no later than January 1, 2017. 86 FR 70755, 70761.

DOE also made the case in the December 2021 NOPR that this allowance for lead time is reflected in the preemption exception provision in section 6295(i)(6)(A)(vi), which gives California and Nevada the authority to adopt, with an effective date beginning January 1, 2018 or after, either:

(1) A final rule adopted by the Secretary in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv);

(2) If a final rule has not been adopted in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), the backstop requirement under 42 U.S.C. 6295(i)(6)(A)(v); or

(3) In the case of California, if a final rule has not been adopted in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), any California regulations related to “these covered products” adopted pursuant to state statute in effect as of the date of enactment of the Energy Independence and Security Act of 2007.

This provision allows California and Nevada to implement either a final DOE rule amending standards for GSLs or the 45 lm/W backstop standard on January 1, 2018, two years earlier than the rest of the country. This provision thus assumes that California and Nevada would have to have known whether DOE had completed a final rule amending standards for GSLs by January 1, 2017, so that manufacturers subject to standards in those states would have a practicable one-year lead time to comply. Id.

Lastly, DOE stated in the December 2021 NOPR that Congress' mandate in 42 U.S.C. 6295(i)(6)(B) that DOE initiate the second cycle of rulemaking by January 1, 2020, coincides with a schedule in which standards are adopted (or the backstop is implicated by January 1, 2017, with a minimum three-year lead time. Id.

DOE also tentatively determined in the December 2021 NOPR that in addition to failing to complete the first cycle of rulemaking timely, the second reason why DOE's rulemaking was not “in accordance with clauses (i) through (iv)” of section 6295(i)(6)(A) is because DOE's rulemaking did not “consider[ ] a minimum standard of 45 lumens per watt for general service lamps” as required under 42 U.S.C. 6295(i)(6)(A)(ii)(II). 86 FR 70761. DOE considered GSILs only in the scope of the December 2019 Final Determination analysis, with lamps having a maximum efficacy less than 45 lumens per watt. Id. While DOE did not analyze lamps other than GSILs in the scope of the December 2019 Final Determination analysis, DOE did look at the impact on GSIL shipments as a result of consumers choosing to purchase other lamps, such as compact fluorescent lamps (“CFLs”) and light-emitting diode (“LED”) lamps, if standards for GSILs were amended as discussed in section VI.A of the December 2019 Final Determination. Therefore, DOE preliminarily concluded in the December 2021 NOPR that it could not have considered a 45 lumens per watt standard level as part of that rulemaking determination because of the GSIL limited scope. Id.

DOE explained in the December 2021 NOPR that although DOE's failure to “complete a rulemaking in accordance with clauses (i) through (iv)” is itself sufficient to trigger application of the backstop, DOE also did not determine whether its final rule (or rules) in this first cycle of rulemaking produced savings that are “greater than or equal to the savings from a minimum efficacy standard of 45 lm/W[.]” 42 U.S.C. 6295(i)(6)(A)(v). That is an independent basis for application of the backstop under section 6295(i)(6)(v). Congress provided that the backstop would be triggered “if the final rule does not produce energy savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W.” Id. Since DOE did not compare whether any energy savings resulting from either the September 2019 Withdrawal Rule or the December 2019 Final Determination would produce energy savings that are greater than or equal to a minimum efficacy standard of 45 lm/W, DOE preliminary determined in the December 2021 NOPR that the backstop requirement in section 6295(1)(6)(A)(v) was triggered. 9 Id.

For the foregoing reasons, DOE determines that the backstop requirement in 42 U.S.C. 6295(i)(6)(A)(v) was triggered and should have been effective as of January 1, 2020 because DOE failed to complete a GSL rulemaking in accordance with certain statutory criteria.

In response to the December 2021 NOPR, NEMA encouraged DOE to review its past comments regarding implementation of the backstop. (NEMA, No. 51 at p. 2) DOE notes that in the September 2019 Withdrawal Rule proceeding, NEMA commented that the backstop standard had not be triggered because the Secretary had not determined whether to amend GSIL standards under 42 U.S.C. 6295(i)(6)(A)(iii). In that proceeding, NEMA also commented that the backstop standard is not self-executing and requires the Secretary to issue a prohibitory order. NEMA asserted that the Secretary had not issued such an order because the Secretary had not failed to complete a rulemaking in accordance with clauses (i) through (iv) or that such final rule does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W because the obligation to issue such a rule did not yet exist. 84 FR 46661, 46663.

Further, in response to the December 2021 NOPR, the Free Market Organizations stated opposition to DOE's proposed implementation of the 45 lm/W backstop because it bypasses consumer protections in EPCA and adversely impacts product cost, choice, and features. (Free Market Organizations, No. 65 at p. 2) They asserted that if Congress wanted the 45 lm/W backstop to be applicable to all GSILs as of January 1, 2020, it could have stated so clearly and succinctly, as EPCA is replete with such statutorily-imposed minimum efficiency standards for home appliances that automatically take effect on the date specified. The Free Market Organizations asserted that in the case of GSLs, the statute delineates agency actions that are preconditions to any triggering of the 45 lm/W backstop requirement, namely that DOE determine that existing standards need to be amended and then either fails to amend the standards or sets a standard weaker than would have been achieved by the backstop. The Free Market Organizations asserted that DOE never made the threshold determination and thus the 45 lm/W backstop does not apply. (Free Market Organizations, No. 65 at p. 3)

DOE received comments from the Attorneys General, NPC Council, ASAP et al., and SC, NRDC, and EJ in support of DOE's tentative conclusion in the December 2021 NOPR that the backstop had been triggered. (Attorneys General, No. 60 at p. 2; NPC Council, No. 46 at p. 2; ASAP et al., No. 63 at p. 2; SC, NRDC, and EJ, No. 58 at pp. 1-2) In particular, SC, NRDC, and EJ commented that the defects pointed out by DOE in the December 2021 NOPR are not the only bases for concluding that DOE has failed to complete a rulemaking in accordance with clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A). Rather, SC, NRDC, and EJ commented that DOE has failed to meet not just two, but all four of the rulemaking criteria prescribed in 42 U.S.C. 6295(i)(6)(A). Moreover, these commenters asserted that DOE triggered the backstop more than eight years ago when it failed to meet the January 1, 2014 statutory deadline to initiate the required rulemaking procedure. (SC, NRDC, and EJ, No. 58 at pp. 1-2) Additionally, IPI et al. commented that the statutory backstop provision in 42 U.S.C. 6295(i)(6)(A)(v) is absolute and unambiguous, suggesting that it applies even if it did not meet EPCA's typical mandate that standards be “economically justified,” or that “the benefits of the standards exceed its burdens.” These commenters stated that federal law demands that DOE promulgate the backstop standard regardless of the magnitude of climate benefits or the results of its cost-benefit analysis more broadly. (IPI et al., No. 54 at pp. 4-5)

DOE concludes that the 45 lm/W backstop requirement has been triggered for the reasons put forth in the December 2021 NOPR. That is, DOE failed to complete the first cycle of rulemaking in accordance with clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A), and DOE's final rules that were published did not produce savings that are “greater than or equal to the savings from a minimum efficacy standard of 45 lm/W[.]” 42 U.S.C. 6295(i)(6)(A)(v).

First as explained above and in the December 2021 NOPR, DOE did not complete the first cycle rulemaking in accordance with the criteria established by EPCA because it did not complete the rulemaking in a timely manner. (42 U.S.C. 6295(i)(a)(6)(i)-(iv)) As discussed, the structure of section 6295(i)(6)(A) reflects an expectation by Congress that by January 1, 2017, the outcome of DOE's GSL rulemaking would have been known, and, if either amended standards or the backstop were to be applicable, those would be in place no later than January 1, 2020. Even if the statute contemplated a third possible scenario as previously suggested by commenters— i.e., a determination by DOE that standards for GSLs need not be amended, in which circumstance the backstop would not be triggered (see e.g., NEMA, Docket No. EERE-2018-BT-STD-0010, 10 No. 329 at p. 40) —it is clear from section 6295(i)(6)(A) that Congress expected this determination would be made no later than January 1, 2017. This lack of a timely concluded rulemaking by itself constitutes a failure to complete a rulemaking in accordance with the enumerated clauses, thereby triggering the backstop.

While failure to satisfy any one of the specified criterion alone triggers the backstop, DOE agrees with those commenters stating that DOE also failed to conduct the evaluation required by 42 U.S.C. 6295(i)(6)(A)(ii)(II)— i.e., an evaluation of a 45 lm/W standard for GSLs. As explained, the December 2019 Final Determination only evaluated standards in relation to a 45 lm/W requirement for GSILs. By providing only a limited evaluation of a 45 lm/W requirement and by excluding other GSLs from this evaluation ( e.g., CFLs, LEDs), DOE failed to consider a minimum standard of 45 lm/W for GSLs as required by 42 U.S.C. 6295(i)(6)(A)(ii)(II).

In addition, Congress provided that the backstop requirement is triggered if the rulemaking completed under 42 U.S.C. 6295(i)(6)(A) “does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 [l/w].” 42 U.S.C. 6295(i)(6)(A)(v). That is an independent basis for application of the backstop under section 6295(i)(6)(v). As discussed, neither the September 2019 Withdrawal Rule nor the December 2019 Final Determination considered whether any energy savings resulting from either rule would produce energy savings that are greater than or equal to a minimum efficacy standard of 45 lm/W.

For the foregoing reasons, DOE has determined the backstop requirement in 42 U.S.C. 6295(i)(6)(A)(v) was triggered and should have been effective as of January 1, 2020.

DOE received extensive comments from IPI et al. regarding consideration of greenhouse gas emission and the estimated value of emission reductions as a result of the backstop requirement. ( See generally IPI et al., No. 54) DOE agrees with IPI et al. that once triggered, application of the backstop requirement does not necessitate a determination of economic justification. ( See IPI et al., No. 54 at pp. 4-5) Importantly, the 45 lm/W backstop standard is explicitly commanded by Congress in 42 U.S.C. 6295(i)(6)(A)(v). This is not a discretionary rulemaking standard subject to evaluation of the factors at 42 U.S.C. 6295(o). However, consistent with Executive Order 12866, DOE notes that it has provided a cost-benefit analysis of implementing the 45 lm/W backstop for GSLs, which is discussed in greater detail for the public in section IV.A of this document.

DOE received a number of comments that objected to the 45 lm/W requirement generally. DOE received comments stating that regulation was not necessary as market forces were shifting lighting technology to LED lamps. DOE also received comments stating that the backstop standard would be costly to consumers and remove consumer choice in product and product features. Commentators also stated potential health and safety concerns resulting from the implementation of the backstop requirement. These comments are discussed in detail in section II.D of this document.

DOE also received comments in general support of the 45 lm/W requirement. NPC Council stated that having a consistent federal standard in place will enable better energy efficiency planning and a more equitable distribution of the benefits to consumers. (NPC Council, No. 46 at p. 2) NYSERDA, CFA and NCLC, NRF and RILA, ALA, Lutron, NEEA, CEC, CA IOUs, SC, NRDC, and EJ, ASAP et al., the Attorneys General, and IPI et al. stated that the nation would experience benefits such as reduced electricity bills and reduced climate emissions from the implementation of the 45 lm/W backstop requirement. (NYSERDA, No. 48 at pp. 1-2; CFA and NCLC, No. 52 at p. 2; NRF and RILA, No. 55 at p. 2; ALA, No. 57 at p. 1; Lutron, No. 62 at p. 2; NEEA, No. 64 at pp. 1-2; CEC, No. 53 at p. 1; SC, NRDC, and EJ, No. 58 at p. 1; ASAP et al., No. 63 at p. 1; Attorneys General, No. 60 at p. 1; IPI et al., No. 54 at p. 4) ALA stated its support for the adoption of the 45 lm/W backstop requirement with the caveat that it opposed a 60-day effective date for the backstop. ALA also noted that its comments are submitted in support of the NEMA positions. (ALA, No. 57 at p. 2)

As stated, DOE has determined that it failed to conduct a rulemaking (or rulemakings) in accordance with the criteria specified by EPCA at 42 U.S.C. 6295(i)(6)(A)(i)-(iv) and the final rules that were published did not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W. (42 U.S.C. 6295(i)(6)(A)(v)) Accordingly, the statute requires the Secretary to prohibit the sale of any GSL that does not meet a minimum efficacy standard of 45 lm/W.

Once triggered, the backstop requirement as specified in 42 U.S.C. 6295(i)(6)(A)(v) directs DOE to prohibit the sale of GSLs that do not meet a minimum efficacy standard of 45 lm/W. DOE's previous regulatory definition of GSL did not include any of the 22 lighting applications or bulb shapes explicitly not included in the definition of GSIL, 11 or any general service fluorescent lamp or IRL. ( See, 42 U.S.C. 6291(30)(BB)(ii))

On August 21, 2021, DOE published a notice of proposed rulemaking proposing to amend the then-current definitions of GSL and GSIL to be defined as previously set forth in the January 2017 Final Rules. 86 FR 46611 (“August 2021 Definition NOPR”). DOE issued a final rule published elsewhere in this issue of the Federal Register responding to comments received on the August 2021 Definition NOPR and adopting the definitions of GSL and GSIL as set forth in that NOPR. These definitions of GSL and GSIL adopted by DOE in the 2022 Definition Final Rule are as follows:

General service lamp means a lamp that has an ANSI base; is able to operate at a voltage of 12 volts or 24 volts, at or between 100 to 130 volts, at or between 220 to 240 volts, or at 277 volts for integrated lamps, or is able to operate at any voltage for non-integrated lamps; has an initial lumen output of greater than or equal to 310 lumens (or 232 lumens for modified spectrum general service incandescent lamps) and less than or equal to 3,300 lumens; is not a light fixture; is not an LED downlight retrofit kit; and is used in general lighting applications. General service lamps do not include:

(1) Appliance lamps;

(2) Black light lamps;

(3) Bug lamps;

(4) Colored lamps;

(5) G shape lamps with a diameter of 5 inches or more as defined in ANSI C79.1-2002;

(6) General service fluorescent lamps;

(7) High intensity discharge lamps;

(8) Infrared lamps;

(9) J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do not have Edison screw bases;

(10) Lamps that have a wedge base or prefocus base;

(11) Left-hand thread lamps;

(12) Marine lamps;

(13) Marine signal service lamps;

(14) Mine service lamps;

(15) MR shape lamps that have a first number symbol equal to 16 (diameter equal to 2 inches) as defined in ANSI C79.1-2002, operate at 12 volts, and have a lumen output greater than or equal to 800;

(16) Other fluorescent lamps;

(17) Plant light lamps;

(18) R20 short lamps;

(19) Reflector lamps that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1-2002 and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases;

(20) S shape or G shape lamps that have a first number symbol less than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as defined in ANSI C79.1-2002;

(21) Sign service lamps;

(22) Silver bowl lamps;

(23) Showcase lamps;

(24) Specialty MR lamps;

(25) T shape lamps that have a first number symbol less than or equal to 8 (diameter less than or equal to 1 inch) as defined in ANSI C79.1-2002, nominal overall length less than 12 inches, and that are not compact fluorescent lamps;

(26) Traffic signal lamps.

General service incandescent lamp means a standard incandescent or halogen type lamp that is intended for general service applications; has a medium screw base; has a lumen range of not less than 310 lumens and not more than 2,600 lumens or, in the case of a modified spectrum lamp, not less than 232 lumens and not more than 1,950 lumens; and is capable of being operated at a voltage range at least partially within 110 and 130 volts; however, this definition does not apply to the following incandescent lamps—

(1) An appliance lamp;

(2) A black light lamp;

(3) A bug lamp;

(4) A colored lamp;

(5) A G shape lamp with a diameter of 5 inches or more as defined in ANSI C79.1-2002;

(6) An infrared lamp;

(7) A left-hand thread lamp;

(8) A marine lamp;

(9) A marine signal service lamp;

(10) A mine service lamp;

(11) A plant light lamp;

(12) An R20 short lamp;

(13) A sign service lamp;

(14) A silver bowl lamp;

(15) A showcase lamp; and

(16) A traffic signal lamp.

NYSERDA submitted comments encouraging DOE to publish final rules for both the 45 lm/W backstop and expanded scope definitions as these rules will provide overdue savings. (NYSERDA, No. 48 at p. 3) CEC, CA IOUs, SC, NRDC, and EJ, CFA, NCLC, the Attorneys General, and NYSERDA stated that DOE should promptly reinstate the January 2017 Definition Final Rules expanding the definitions of GSL and GSIL to take effect no later than the effective date of the GSL backstop, thus enforcing the backstop sales prohibition on the expanded scope of GSLs. (CA IOUs, No. 56 at pp. 2-3; SC, NRDC, and EJ, No. 58 at p. 3; CFA, NCLC, No. 52 at p. 1; Attorneys General, No. 60 at p. 1) CEC stated that reinstatement of the expanded definition of GSLs finalized in the January 2017 Definition Final Rules would achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (CEC, No. 53 at pp. 4-5) The CA IOUs and NYSERDA commented that reinstatement of the January 2017 Definition Final Rules was identified for review in President Biden's Executive Order 13990 and slated for completion by December 31, 2021, and that additional delay to finalize both rules prevents realizing the full energy savings potential of the GSL backstop standard. (CA IOUs, No. 56 at p. 2; NYSERDA, No. 48 at p. 2) The CA IOUs stated that California and several other states have adopted and implemented the 45 lm/W backstop standard including DOE's expanded GSL definition. The CA IOUs further stated that in California the CEC have reported no consumer complaints about product availability. (CA IOUs, No. 56 at p. 3) The Attorneys General stated that together, prompt enforcement of the backstop standard and the expanded definition of GSLs will significantly increase GSL efficiency and ensure that consumers, businesses, and governments enjoy the full economic and environmental benefits of strong national energy efficiency standards. (Attorneys General, No. 60 at p. 3) Minimise USA stated that it supports setting a minimum efficacy standard of 45 lm/W for GSLs and GSILs, such as those used in decorative, recessed, and track lighting fixtures. (Minimise USA, No. 38 at p.1)

As noted, the 2022 Definition Final Rule amended the definitions of GSL and GSIL as they were specified in the January 2017 Definition Final Rules. For the current definition of GSL adopted in the 2022 Definition Final Rule, DOE adopted additional detail to the statutory definition by specifying the base type, lumens, and voltages of GSLs. DOE also removed the GSIL exemptions for certain incandescent lamps that are used in general lighting applications and included those lamps in the definition of GSIL and GSL. The adopted definitions of GSL and GSIL explicitly include not only A-shaped or pear-shaped light bulbs but also the smaller, decorative shaped light bulbs resembling a candle, bullet or globe and often used in chandeliers, desk lamps, ornamental wall lights, etc. Additionally, the definitions include reflector shaped light bulbs that have a cone-like shape with an inner reflective coating that directs light and are often used in recessed light fixtures ( e.g., lights within the ceiling wall). Based on estimates from DOE's 2015 Lighting Market Characterization Report, the GSL definition adopted in the 2022 Definitions Final Rule comprise 5.8 billion lamps. The sales prohibition under the backstop requirement would affect any lamp type that is defined as a GSL.

In the December 2021 NOPR, DOE stated that once triggered, the backstop requirement provides that DOE “shall prohibit” sales of any GSL below the 45 lm/W backstop standard “effective beginning January 1, 2020.” 86 FR 70755, 70766. DOE noted in its prior explanation that if it is determined that the backstop is triggered, DOE would not have discretion regarding the effective date of the backstop standard. Id. DOE also recognized the unique circumstances created by the delay in correctly addressing the applicability of the backstop. Id. DOE stated that were it to issue a final determination that the backstop has been triggered, DOE proposes to use its enforcement discretion to provide the necessary flexibility to avoid undue market disruption. Id. DOE presented an example of a discretionary enforcement approach, in which DOE would consider a staggered implementation that weighs factors such as the point of manufacture, the point of sale, and the anticipated inventory of different lamp categories. Id. DOE stated that this flexible enforcement approach takes into account the disruptive supply chain effects of stranded inventory and the significant consumer and environmental benefits of full compliance, and would best balance Congress's intent to facilitate a smooth transition with Congress's intent that the different efficacy standards were to be in place as of January 1, 2020. Id. DOE requested input of this consideration and on additional considerations for enforcement. Id.

Several commenters addressed whether DOE has discretion in enforcing the 45 lm/W backstop standard. NEMA asserted that DOE acknowledged in the December 2021 NOPR that it has the discretion to set an effective date that recognizes the need for an appropriate transition period to discontinue sales. (NEMA, No. 51 at pp. 3-4) GE Lighting stated that following a new energy efficiency standard, Congress has generally provided three years for manufacturers to prepare for a transition of products followed by an unlimited amount of time to sell through existing inventory. (GE Lighting, No. 59 at p. 2) NEMA also commented that the statutory scheme reflects Congressional intent that manufacturers and retailers have at least three years to plan for and adjust to any sales restrictions. (NEMA, No. 51 at p. 4) NEMA stated that Congress makes laws with due regard to market forces and therefore Congressional intent is that DOE act with global market forces and consumer demand in mind when exercising agency authority. (NEMA, No. 51 at p. 2) NEMA stated that while supply and demand for incandescent lamps is declining, demand persists and in a free market economy manufacturers and retailers respond by supplying products. (NEMA, No. 51 at p. 2) NEMA stated that a 60-day transition period is inconsistent with that Congressional intent and a transition period of 365 days, though two years sooner than Congress intended, would give manufacturers necessary time to adjust to the sales ban. NEMA also commented that while the Administrative Procedure Act requires a minimum of 30 days before a rule may become effective, it does not set a maximum period for an effective date. (NEMA, No. 51 at p. 4)

GE Lighting commented on its understanding that DOE recognizes the practicalities of the transition to new standards and that this challenge can be mitigated through DOE's enforcement discretion. GE Lighting further supported NEMA's proposal to phase in the regulation in three steps. (GE Lighting, No. 59 at p. 2) NEMA and GE Lighting requested that DOE clearly state specific enforcement timelines to avoid negative outcomes for businesses and ensure availability of lighting for consumers. (NEMA, No. 51 at p. 4; GE Lighting, No. 59 at p. 2) NEMA stated that the proposed regulatory text in the December 2021 NOPR (see 86 FR 70755, 70770) would impose an immediate ban on sales of covered lamps and is inconsistent with DOE's statements in the December 2021 NOPR regarding enforcement discretion. (NEMA, No. 51 at p. 5)

NRF and RILA stated they want to ensure changes resulting from the 45 lm/W backstop implementation do not cause adverse environmental and economic impacts and are widely accepted by consumers. (NRF and RILA, No. 55 at p. 2)

CEC stated that, while it agrees with the DOE's stated concerns regarding the potential immediate imposition of a sales prohibition, DOE's proposal to exercise its enforcement discretion is inconsistent with EPCA and Congressional intent. (CEC, No. 53 at p. 3) CEC stated that Congress provided manufacturers with notice that if DOE did not meet its statutory obligations by January 1, 2017, there would be a mandatory sales prohibition on any GSL, as defined, that could not meet a minimum efficacy of 45 lm/W. CEC stated that DOE indicated the backstop would be automatically triggered as early as March 17, 2016. CEC asserted that on January 1, 2017, manufacturers knew that DOE had not met the statutory requirements. CEC argued that stakeholders knew or should have known, three years in advance, that EPCA's backstop sales prohibition would be in effect on January 1, 2020. CEC further argued that Congressional intent is for DOE to enforce the backstop for all noncompliant GSLs, as defined by EPCA, immediately, without exercising its enforcement discretion. (CEC, No. 53 at pp. 3-4) Additionally, CEC asserted that because Congress provides state Attorneys General with the authority to enforce the “applicable standard established under section 6295(i)” against any GSIL that doesn't meet the standard, state Attorneys General could enforce the backstop to ensure consumer protection in their states regardless of DOE's enforcement discretion. (CEC, No. 53 at p. 4; citing 42 U.S.C. 6304)

In this document, DOE has determined that the backstop provision in 42 U.S.C. 6295(i)(6)(A)(v) has been triggered and the Secretary must prohibit the sale of any GSL that does not meet a minimum efficacy standard of 45 lm/W. DOE recognizes that implementation of the backstop, which is a sales prohibition, presents different challenges than most DOE standards, which are based on the date of manufacture. DOE recognizes that a transition period is often necessary for the market to adjust to the implementation of a standard.

Congress structured 42 U.S.C. 6295(i)(6)(A)(i)-(v) so as to provide manufacturers with a lead time (with a possible shorter lead time for California and Nevada) to adjust to different efficacy standards—either standards adopted by DOE through rulemaking or the imposition of the statutory backstop. In addition, Congress expressly required DOE to consider phased-in effective dates by considering “the impact . . . on manufacturers, retiring and repurposing existing equipment, stranded investments, labor contracts, workers, [ ] raw materials,” and “the time needed to work with retailers and lighting designers to revise sales and marketing strategies.” 42 U.S.C. 6295(i)(6)(A)(iv). Therefore, Congress did not intend for there to be an instantaneous imposition of a new 45 lm/W efficacy standard for GSLs. Such a possible outcome exists now only because of DOE's delay in correctly addressing the applicability of the backstop. DOE must balance Congress's intent to facilitate a smooth transition to different efficacy standards through the provision of lead time with the clear intent of Congress that these different efficacy standards were to be in place as of January 1, 2020. 42 U.S.C. 6295(i)(6)(A)(jjj),(v). Hence, in order to provide for a smooth transition, DOE will account for the practicalities of this transition to Congress's backstop efficacy standard through use of its enforcement discretion.

As previously stated, once DOE determines that the backstop has been triggered, Congress provides a specific date on which the prohibition begins—January 1, 2020. (42 U.S.C. 6295(i)(6)(A)(v)). However, as noted, DOE understands the practicalities associated with an immediate implementation of the 45 lm/W backstop standard for GSLs and therefore, will issue guidance regarding enforcement of the standard. DOE's enforcement guidance will be applicable to all states (except for California and Nevada, see section II.A.3).

The enforcement guidance will be informed, in part, by the comments received to the May 2021 RFI and December 2021 NOPR. In the December 2021 NOPR, DOE discussed the comments received on enforcement in the May 2021 RFI. DOE also received several comments on the December 2021 NOPR regarding enforcement including the date of enforcement, phased-in enforcement approach, and consumer education. These comments are discussed in the following sections.

DOE received comments recommending DOE begin enforcing the 45 lm/W backstop requirement as soon as possible. SC, NRDC, and EJ stated that in light of delays, DOE should act swiftly to finalize the proposed rule and begin enforcing EPCA's backstop. (SC, NRDC, and EJ, No. 58 at p. 1) CEC, SC, NRDC, and EJ, ASAP et al., and NASEO stated that DOE missed the December 31, 2021 deadline set by President Biden in Executive Order 13990 to complete the review of the backstop rule. (CEC, No. 53 at p. 3; SC, NRDC, and EJ, No. 58 at p. 2; ASAP et al., No. 63 at pp. 1-3; NASEO, No. 45 at p. 1) SC, NRDC, and EJ stated that the White House's Office of Information and Regulatory Affairs (“OIRA”) took approximately two and a half months to review the December 2021 NOPR pursuant to E.O. 12886, and that this pace fails to reflect that the December 2021 NOPR is simply corrections of unlawful legal interpretations from the prior administration. SC, NRDC, and EJ urged DOE to cease what they characterized as its ongoing, unlawful efforts to avoid implementing the transformative advance in lighting efficiency that Congress enacted in 2007. (SC, NRDC, and EJ, No. 58 at p. 2)

SC, NRDC, and EJ, CFA and NCLC, CEC, CA IOUs, ASAP et al., NASEO, the Attorneys General, and IPI et al. stated that DOE should implement prompt enforcement of the backstop standard. (CEC, No. 53 at p. 5; CA IOUs, No. 56 at pp. 2, 4; SC, NRDC, and EJ, No. 58 at p. 2; ASAP et al., No. 63 at p. 3; NASEO, No. 45 at p. 1; CFA and NCLC, No. 52 at p. 3; Attorneys General, No. 60 at pp. 2, 3, 4; IPI et al., No. 54 at p. 3) CEC stated that DOE should not exercise its proposed enforcement discretion, as it would allow manufacturers to shift the costs of inefficient and unlawful lighting onto the environment and consumers. (CEC, No. 53 at p. 3) CEC added that exercising enforcement discretion would undermine President Biden's commitment to addressing the climate crisis. (CEC, No. 53 at pp. 1-2) CEC asserted that the law regarding the statutorily required implementation of the backstop is clear, and stakeholders were on notice of the sales prohibition since January 1, 2017, and that DOE should carry out enforcement immediately. (CEC, No. 53 at p. 2) CEC further stated that DOE is required to implement the backstop immediately, and that no environmental or economic analysis is required to implement the backstop. (CEC, No. 53 at pp. 2-3)

CEC, CFA, and NCLC asserted that each month of additional delay in backstop implementation costs consumers nearly $300 million in lost bill savings and results in 800,000 tons of carbon emissions. (CEC, No. 53 at p. 2; CFA and NCLC, No. 52 at pp. 1-2) ASAP et al. stated that inefficient GSLs sold during a six-month period add nearly 5 million metric tons (“MMT”) of carbon emissions to the atmosphere and cost consumers $1.8 billion in higher utility bills. ASAP et al. further stated that allowing lamp manufacturers to continue the manufacture and sale of inefficient lamps would benefit manufacturers at the expense of consumers and the planet. (ASAP et al., No. 63 at p. 3) CEC argued that although manufacturers and distributors may experience losses from stranded inventory, if inefficient GSLs are permitted to remain in the market consumers will experience higher energy bills and the grid will have unnecessary load. CEC further stated that DOE's proposed enforcement discretion is inconsistent with Executive Order 13990 and places unreasonable weight on stranded costs without accounting for economic and environmental costs to consumers and the environment. (CEC, No. 53 at pp. 4)

The Attorneys General cited DOE's estimates of savings from the backstop and stated that prompt implementation of the backstop will facilitate manufacturers' deployment of more efficient technologies, increase consumer choice, significantly reduce energy costs, and ensure equitable distribution of lighting efficiency benefits. (Attorneys General, No. 60 at pp. 1, 2-3) The Attorneys General stated that, in a recent GSL market survey of New York state commissioned by the NYSERDA, retailers and distributors reported that they rely on manufacturers to provide products that comply with regulatory requirements, and manufacturers revealed that they anticipate efficiency standards to increase in stringency but will not initiate product changes without a high level of certainty that the requirements will go into effect. The Attorneys General also stated the survey showed that LED lamps across product types are now widely available in New York. (Attorneys General, No. 60 at pp. 2-3) IPI et al. asserted that the backstop's net benefits are likely considerably higher than DOE's estimates due to perceived discrepancies in social cost estimates and discount rates. (IPI et al., No. 54 at p. 36) IPI et al. stated that DOE should implement the backstop as soon as possible to ensure the backstop's net benefits to the public are maximized and available earlier. (IPI et al., No. 54 at p. 36)

SC, NRDC, and EJ, CFA and NCLC, ASAP et al., NYSERDA, NASEO, and the Attorneys General stated that prompt implementation of the backstop standard will benefit low-income consumers. (SC, NRDC, and EJ, No. 58 at p. 2; NYSERDA, No. 48 at p. 2; Attorneys General, No. 60 at p. 3; CFA and NCLC, No. 52 at pp. 2, 3) ASAP et al. and NASEO stated that low- and moderate-income households spend a disproportionate share of their incomes on higher electric bills. (ASAP et al., No. 63 at pp. 1-2; NASEO, No. 45 at p. 1) ASAP et al. further stated that low-income households spend nearly ten times as much of their income on energy bills as other households, 10.4 percent compared to 1.2 percent. (ASAP et al., No. 63 at p. 2) The CFA and NCLC commented that most low-income households are typically renters who often have older preinstalled and less efficient incandescent lamps or CFLs. (CFA and NCLC, No. 52 at p. 2) SC, NRDC, and EJ, ASAP et al., NYSERDA, and the Attorneys General stated that low-income consumers often lack access to retailers that stock affordable, lasting, energy efficient lamps. (SC, NRDC, and EJ, No. 58 at p. 2; ASAP et al., No. 63 at p. 2) NYSERDA, CFA, and NCLC cited a 2018 study conducted by the University of Michigan which they stated found that retailers serving disadvantaged communities had higher availability of less efficient lamps or set prices higher than retailers in other communities. (CFA, NCLC, No. 52 at p. 2) NYSERDA further stated that while LED lamps made up 73 percent of all 2020 GSL sales in New York, over half the lamps in certain locations and through some sales channels were less efficient lamps. NYSERDA stated that DOE should limit enforcement discretion as it will deny savings from consumers most in need. (NYSERDA, No. 48 at p. 2) The Attorneys General stated that mandating the backstop standard would ensure that low-income consumers, who have fewer options for energy efficient lamps, do not unnecessarily purchase lamps that ultimately cost more to own and operate. (Attorneys General, No. 60 at p. 3)

NYSERDA encouraged DOE to implement the backstop immediately after the proposed 60 days for as many lamp types as possible, especially for popular A-lamps. NYSERDA also stated that DOE should consider the associated risks and rewards and provide thorough justification for any enforcement discretion decisions. (NYSERDA, No. 48 at pp. 2-3)

The NPC Council stated that it supported the proposed 60-day effective date if the backstop is implemented to allow manufacturers and retailers to transition existing inventory. The NPC Council supported DOE's exercise of its enforcement discretion, especially for small towns and rural areas where inventory turnover is slower, and consumers have less access to large retailers. The NPC Council, also commented that the delays to date in implementing the backstop have likely resulted in higher costs for consumers in those rural areas due to lack of access to low-cost LED lamps. (NPC Council, No. 46 at p. 2)

NEMA stated that commentators have overstated the energy savings from the backstop. (NEMA, No. 51 at p. 5) ALA opposed the proposed 60-day effective date arguing that it would not allow for a smooth transition and would cause economic damage to manufacturers and retailers. ALA recommended that DOE provide manufacturers and retailers a reasonable amount of time to fulfill existing supply contracts and sell through inventory without causing harmful financial losses. (ALA, No. 57 at p. 2) NEMA asserted that logistical, contractual, and other immutable challenges make 60 days insufficient for businesses to respond and for retailers to change their inventory to avoid empty shelves. (NEMA, No. 51 at p. 2) NEMA further stated that a 60-day effective date would potentially cause irrecoverable financial losses for U.S. businesses throughout the supply chain. (NEMA, No. 51 at p. 3) GE Lighting stated the backstop requirement eliminates all halogen and incandescent lamps manufactured at this time and that a 60-day effective date would adversely impact the availability of GSILs and substitute products, leading to significant market disruption and harm to manufacturers, component suppliers, and retailers. (GE Lighting, No. 59 at p. 2) Lutron stated that while LED lamps are expected to meet the 45 lm/W standard, compliance has additional burden and DOE should use its enforcement discretion to prevent unintended market disruption. (Lutron, No. 62 at p. 2)

NRF and RILA stated that the 60-day effective date is a significant challenge for the retail industry since retailers maintain a 6 to 12 months inventory of incandescent lamps for consumers who have not transitioned to LEDs. (NRF and RILA, No. 55 at p. 2) Specifically, NRF and RILA stated that lower-income households have not transitioned to LED lamps at the same rates as higher-income households due to higher initial purchase costs. (NRF and RILA, No. 55 at p. 2) VALU Home Centers stated that while it supports the 45 lm/W backstop and mostly sells LED lamps, it would like to sell through the lamps that will not meet the backstop standard to avoid extra costs to vendors and retailers. (VALU Home Centers, No. 43 at p. 1)

DOE appreciates these comments relating to timing for enforcement of the 45 lm/W backstop standard. As previously noted in this rule, once DOE determines that the backstop has been triggered, Congress provides a specific date on which enforcement of the prohibition begins—January 1, 2020. (42 U.S.C. 6295(i)(6)(A)(v)). Since this date has already passed, DOE will use enforcement guidance to provide stakeholders with more certainty as to how they must comply with the new standard. This guidance will be released simultaneously with this rulemaking. DOE also notes that because this rule is a “major rule” under Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the Congressional Review Act, the rule cannot be effective prior to 60 days after publication in the Federal Register as required by 5 U.S.C. 801. To ensure the effective date for the 2022 Definition Final Rule occurs before the effective date of this final rule so that the amended definitions of GSL, GSIL and the other supplemental definitions are final before the standards in this rule are effective, the 2022 Definition Final Rule has a 60-day effective date and this rule will be effective within 75 days of publication instead of the 60-day effective date as proposed. This will ensure that the full scope of GSLs subject to the backstop requirement is established before the sales prohibition for GSLs that do not meet the 45 lm/W backstop requirement goes into effect. Regarding comments related to the estimated energy savings, DOE address these comments in section II.D.1. of this document.

NEMA and GE Lighting stated that the effective date of the backstop should be 12 months after the publication of the final rule. (NEMA, No. 51 at p. 4; GE Lighting, No. 59 at pp. 2-3) NEMA stated manufacturers need at least 12 months following the publication of the final rule to cease the production of incandescent/halogen lamps and adjust supply chains. (NEMA, No. 51 at p. 3) NEMA further stated that these timeline estimates are based on normal market conditions, independent of current supply and logistics challenges, and are optimistically short. (NEMA, No. 51 at p. 3) GE Lighting supported NEMA's proposal and added that the supply chain for incandescent lamps is both long and complicated, involving transportation to points of manufacture outside of the U.S., shipping all finished products to exporting foreign ports, and importation into the U.S. (GE Lighting, No. 59 at pp. 2-3)

NRF and RILA stated that some retailers will need at least a 12-month sell-through period beyond a manufacture-by date to fully deplete existing inventories, reduce unnecessary waste, and give consumers time to adjust to the new product mix. (NRF and RILA, No. 55 at p. 2) ALA further stated that separate sales ban dates for retailers and manufacturers are necessary to allow retailers to clear their inventory and avoid negative effects on the small businesses that make up the residential lighting industry. (ALA, No. 57 at p. 2) NEMA and GE Lighting stated that after the 12-month manufacture-by (import) date, two separate phases of sell-through for high-volume and lower-volume lamps should be included as part of DOE's enforcement discretion. NEMA stated that retailers would need a minimum of 12 months to sell through high-volume A-line GSIL and R30/BR30 IRL inventory, with additional time potentially necessary to sell through all other slow-moving GSLs and those newly added to the expanded definition of GSL. (NEMA, No. 51 at pp. 3-5) GE Lighting stated support for a 12-month sell-through of halogen A-line lamps and added that additional time, up to a second year, will be needed to clear inventory of slower moving products added per the expanded definition of GSL. (GE Lighting, No. 59 at p. 3)

NEMA stated that the COVID-19 pandemic has greatly complicated supply chain forces and has produced transportation and timing challenges outside the control of manufacturers or retailers. (NEMA, No. 51 at p. 2) NEMA stated that supply chain delays have persisted from 2020 through 2022 and include COVID protocols and lack of employees, logistics and shipping delays doubling lead times from 5-6 weeks to up to 10-12 weeks for imported products which are also greatly increasing shipping costs, and electronic chip shortages that are affecting LED lamp production. NEMA further stated that the pandemic's impacts have caused delays for everything from component sourcing to delivery of goods from the factory to the store shelf, and are persisting into 2022 with no immediate end in sight. (NEMA, No. 51 at p. 3) NEMA recommended that any definition of manufacturing considered in DOE's enforcement policy should allow for departure from foreign ports in recognition of the unprecedented and unpredictable supply chain activities. (NEMA, No. 51 at p. 4) GE Lighting stated that previously weeks-long processes now take months and that the three most pressing issues for increasing production and inventory of new LED lamps are electronic chip component shortages, shipping and port delays for imported products, and COVID-related production delays. (GE Lighting, No. 59 at p. 3) NEMA asserted that DOE has an obligation to protect U.S. businesses, manufacturers, and retailers from unnecessary negative financial impacts and encouraged DOE to review all past NEMA comments on the backstop rule and its implementation. (NEMA, No. 51 at pp. 2, 5)

DOE is aware of the near-term supply chain issues resulting from the on-going COVID-19 pandemic. In June 2021, the Short-Term Supply Chain Disruptions Task Force (“Task Force”) was created and is led by the U.S. Department of Transportation, the U.S. Department of Commerce, and the U.S. Department of Agriculture, and the Task Force focuses on the mismatch of supply and demand in semiconductors, among other issues. 12 The Task Force has moved ports toward 24/7 operations and reduced long-dwelling containers sitting on the docks. 13 Moreover, on February 23, 2022, the U.S. Department of Transportation announced $450 million of funding available for ports across the country to make infrastructure upgrades. 14 While these and other efforts have been undertaken to address supply-chain issues, DOE acknowledges that issues remain on-going.

Further, DOE recognizes the sell-through issue that arises because the backstop requirement is a sales prohibition, and that manufacturers and retailers may have been disadvantaged by DOE's position changes regarding whether the backstop requirement has been triggered. In using its enforcement discretion, DOE will consider the near-term market and supply chain environment to provide the necessary flexibility to avoid undue market disruption.

The CA IOUs commented that although DOE's use of enforcement discretion will decrease energy savings, they support DOE's application of short-term enforcement discretion that is based on transparent market data, to protect consumers from market disruptions outside of California following implementation of the backstop. The CA IOUs stated that enforcement discretion can prevent temporary shortages of low-volume GSLs that are currently less common in LED versions but should not be applied to GSILs, IRLs, or other popular, widely available GSLs. The CA IOUs recommended that industry demonstrate which GSL types necessitate enforcement discretion by making available their supply of LED GSL inventory and showing that the supply chain is insufficient to meet demand. The CA IOUs stated that any DOE enforcement discretion applied should end no later than 12 months following the effective date of the GSL backstop. (CA IOUs, No. 56 at p. 3)

DOE acknowledges the importance of avoiding market disruptions for manufacturers, retailers, and consumers, which DOE will consider in using its enforcement discretion. DOE also agrees that use of its enforcement discretion should be transparent, which is why DOE will issue an enforcement policy prescribing how its enforcement discretion will be applied.

Minimise USA stated that while the backstop requirement may cost manufacturers billions of dollars in potential profits, any transition period for compliance should only be afforded to U.S. companies that manufacture products completely in the United States, and only a one-year transition period be given for the sale of existing inventory that has been manufactured on or before the date of the final rule. Minimise USA stated that DOE should not consider China's request for a transition period of at least three years. Minimise USA stated that the debate regarding the 45 lm/W requirement has been ongoing for five years, which was sufficient time for manufacturers to be positioned for implementation of the standard. (Minimise USA, No. 38 at p.1) As stated, Congress has provided the specific date on which the backstop sales prohibition begins, and DOE seeks to give meaning to that mandate even though the date has passed. In exercising its enforcement discretion to avoid market disruption, the enforcement policy is being made public to foster transparency and equal application to all manufacturers.

Lutron stated that having to re-test LED lamps to meet the DOE requirement of testing in a National Voluntary Laboratory Accreditation Program (“NVLAP”) accredited lab will be burdensome, particularly for small and medium sized lamp companies that have only made LED lamps. Lutron also stated that GSLs such as LED lamps with 50,000-hour lifetimes may require a full year of testing to certify compliance and the option of de-rating lamp lifetimes would confuse consumers. Lutron stated that given retesting time, DOE should consider an 18-24 month phase-in period, thereby preventing the risk of lower adoption of LEDs resulting from marketplace confusion. (Lutron, No. 62 at p. 2) Once the backstop is triggered, Congress directs DOE to prohibit the sale of any GSL that does not meet a minimum efficacy standard of 45 lm/W. (42 U.S.C. 6295(i)(6)(A)(v)). Regarding testing by an accredited laboratory, DOE requires testing of GSLs be conducted by test laboratories accredited by an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA). A manufacturer's or importer's in-house laboratory, if accredited, may conduct the applicable testing. 10 CFR 430.25. NVLAP is a signatory of ILAC MRA. Manufacturers must make representations with respect to the energy use or efficiency of integrated LED lamps per DOE's test procedure in appendix BB to subpart B of 10 CFR part 430 (appendix BB). Thus, manufacturers selling integrated LED lamps should already be testing their products at an accredited laboratory as specified in 10 CFR 430.25. Regarding the LED lamp lifetime, the statutory requirement implemented in this rule does not establish a standard on lifetime.

NEMA commented that the December 2021 NOPR did not address education and communication to manage potential negative consumer reactions. NEMA provided examples of such communication, including manufacturers and retailers creating point of purchase material and signage, identifying and coding cross-referencing options, developing and posting web page content, and planning and implementing employee training to reliably assist consumers. NEMA stated that considerable time was put into such efforts leading into the 2012-2014 incandescent phaseout to ensure that consumers were not surprised when certain lamp types were not on shelves. NEMA encouraged DOE to acknowledge the lead times necessary to ensure a smooth transition by allowing time for education and communication. (NEMA, No. 51 at p. 4)

EEI stated that increasing consumer education as part of implementation of the backstop requirement would ensure a smooth and flexible market transition for consumers, including electric companies operating significant demand side management programs. (EEI, No. 61 at p. 2) GE Lighting stated that time is needed for retailers to educate those consumers that buy halogen and incandescent lamps on the issues and benefits of converting to LED technology, as well as to change and plan new LED store sets during the retailer reset period in the spring or fall. (GE Lighting, No. 59 at p. 3)

DOE agrees that consumer education can facilitate market transition and consumer acceptance of new technologies and notes the availability of existing consumer education resources. LED technology is not a new technology and, as indicated by commenters, occupies a substantial share of the lighting market. A number of big box retailers have moved to selling only LED lighting. 15 Retail locations also have provided displays to educate consumers on lamp selection, including on the selection of LED lamps to meet consumer needs. Moreover, DOE and ENERGY STAR have developed and made available educational materials to assist consumers in replacing incandescent lamps with LED lamps. See e.g., “LED Bulbs Made Easy” (available at www.energystar.gov/sites/default/files/asset/document/purchasing_checklist_revised.pdf; DOE's Energy Saver (available at www.energy.gov/energysaver/led-lighting ). In addition, the Federal Trade Commission maintains a website that contains significant consumer- and manufacturer-focused content on lighting products available to all consumers and manufacturers at www.ftc.gov/tips-advice/business-center/guidance/ftc-lighting-facts-label-questions-answers-manufacturers.

DOE appreciates the comments received regarding the enforcement of the implementation of the backstop. DOE understands the challenges associated with inventory transition as well as the importance of ensuring lamps are available to consumers. As explained in the NOPR, DOE will issue an enforcement policy separately from this rulemaking, which will be informed by all of these comments. The policy will reflect DOE's balancing of the consumer benefits associated with energy bill savings, along with the need for a practical transition time for lamps to be sold through the distribution chain. In order to avoid negative outcomes for businesses and ensure availability of lighting for consumers, the enforcement policy will provide a clear timeline for implementation of the backstop at the point of manufacturer and at the point of sale for all general service lamps subject to the backstop.

Although DOE is not using this rulemaking to set an enforcement policy, DOE appreciates the input it received to help inform its policy, which DOE anticipates will evolve with experience. DOE's final enforcement policy to support the implementation of the Congressional backstop will be posted at www.energy.gov/enforcement/.

DOE received several comments on the potential impacts of implementing the 45 lm/W backstop requirement including market trends and energy savings; benefits and costs to the consumer; features of LED lamps; and potential health and safety impacts of LED lighting. These comments are discussed in the following sections.

NEMA commented that other commenters have overstated the energy savings potential resulting from the backstop requirement as the lighting market has already undergone a dramatic shift to LED lamps since the time this rulemaking began in 2014. NEMA stated that a small part of the market continues to choose halogen lamps due to personal preferences for dimming, color appearance, or simply first cost and that very few halogen lamps will be sold in half a decade due to market forces alone. NEMA further stated that additional savings potential from a DOE regulation is low compared to data reflecting savings already achieved from the market transition to LED lamps. (NEMA, No. 51 at p. 5) The Free Market Organizations asserted DOE failed to consider non-regulatory approaches and market forces have already resulted in the average lamp being 70 lm/W. They added that DOE has forecasted LED lamps will be 84 percent of the market by 2035 and industry data indicates that GSILs are no more than 18 percent of current sales. The Free Market Organizations further stated that overall energy savings resulting from the backstop standard will be minimal due to growth of LEDs and therefore, will not meet EPCA's requirement that an amended standard result in significant energy savings. (Free Market Organizations, No. 65 at pp. 5-6)

The CA IOUs commented that although market data show decreased savings potential from a national GSL standard, due to the market transition to LED lamps since 2017, the data also show that the size of the U.S. lighting market and the high energy efficiency of LED technology provide significant remaining savings potential. (CA IOUs, No. 56 at p. 2) The CA IOUs stated that they are not aware of technical barriers preventing market entry for LED alternatives of any GSL type. The CA IOUs asserted that LED lights of all types are available to U.S. consumers and the lighting industry has ample capacity to meet demand following the effective date of the GSL backstop, as LED products now dominate the most popular GSL shapes. (CA IOUs, No. 56 at p. 3)

The CA IOUs also commented that incandescent/halogen lamps continue to account for a significant market share for A-type lamps despite their higher life-cycle costs and the wide availability of LED alternatives. The CA IOUs stated that in 2020, incandescent/halogen lamps held a 33 percent share of the national A-type lamp market, which the lighting industry projected to decrease to 23 percent by the third quarter of 2021. The CA IOUs further stated that decorative and specialty incandescent/halogen GSLs also have a higher market share. (CA IOUs, No. 56 at p. 2) NEEA commented that in 2020, 82 percent of GSLs in stores met the 45 lm/W standard, and estimated that in the Northwest, LED and CFL products made up approximately 74 percent of all GSL sales. NEEA stated that this indicates that implementing the backstop will not adversely affect the market. (NEEA, No. 64 at p. 2) The Attorneys General commented that while the LED share of the overall lighting market in New York is over 70 percent, over half of the GSLs for sale in some locales are incandescent/halogen lamps. (Attorneys General, No. 60 at p. 1) CFA and NCLC stated that LED market share is about 60 percent and that the remaining 40 percent of sales are incandescent products that increase consumer costs. (CFA and NCLC, No. 52 at p. 2)

DOE is appreciative of information regarding market trends and energy savings. This is not a discretionary standards rulemaking subject to evaluation of the factors at 42 U.S.C. 6295(o). As noted in section II.A.3, this final rule determines that the backstop standard has been triggered because DOE failed to complete the first cycle of rulemaking as prescribed by EPCA in 42 U.S.C. 6295(i)(6)(A). However, consistent with Executive Order 12866, DOE notes that it has provided a cost-benefit analysis of implementing the 45 lm/W backstop for GSLs, which is discussed in greater detail for the public in section IV.A.

The SC, NRDC, and EJ, ASAP et al., EEI, and NASEO supported implementation of the 45 lm/W backstop, citing reductions in air pollutants, carbon dioxide (“CO 2 ”) emissions, and electricity consumption. (SC, NRDC, and EJ, No. 58 at p. 2; ASAP et al., No. 63 at p. 1; EEI, No. 61 at p. 3) SC, NRDC, and EJ commented that applying the 45 lm/W backstop requirement to GSLs as proposed by DOE will result in more than $3 billion in net consumer benefits over 30 years. (SC, NRDC, and EJ, No. 58 at pp. 2-3) ASAP et al. and NASEO stated that per analysis performed for DOE, consumers will save an estimated $2.7 billion on an annualized basis and 222 MMT of cumulative avoided carbon dioxide-equivalent over the next 30 years from implementing the backstop standard. (ASAP et al., No. 63 at p. 2; NASEO, No. 45 at p. 1) Minimise USA commented that, according to ASAP, a phaseout of incandescent light lamps would reduce energy use for lighting and eliminate 9.5 MMT of CO 2 emissions per year. (Minimise USA, No. 38 at p.1) CEC stated that the LED alternative of a typical A-type 60 W incandescent lamp results in 80 percent energy savings. (CEC, No. 53 at p. 2) ASAP et al. commented that an average household with about 20 sockets will save more than $100 per year and an average household with more than 50 sockets will save more than $200 per year. (ASAP et al., No. 63 at p. 2) CFA and NCLC stated that switching one lamp from incandescent to LED saves $40-$90 over ten years which, using the midpoint of $65 and estimating 45 sockets in a household, translates to $3,000 net savings per household over ten years. (CFA and NCLC, No. 52 at p. 2) CEC stated that for a typical A-type 60 W incandescent lamp, any higher initial cost of the LED version is recovered in less than a year. (CEC, No. 53 at p. 2)

CFA and NCLC commented that LEDs are no longer a new, expensive lighting technology, and manufacturers can now produce LED lamps in almost every type of lamp that consumers purchase for their homes. CFA and NCLC further stated that consumers who have switched to LED lamps have saved on energy costs and gained the convenience of not having to replace them as often due to their long life. (CFA and NCLC, No. 52 at p. 3) NEEA commented that based on its lighting market study, which includes point of sale data and in-person shelf surveys, LED products have grown since 2012 and their price has trended downwards. (NEEA, No. 64 at pp. 1-2) CFA and NCLC stated that a 2019 CFA survey found two-thirds of respondents support federal efficiency standards for lamps, compared to fewer than one-third who oppose standards. CFA and NCLC further stated that consumers that have had experience with LEDs are more likely to support efficiency standards compared to those who have no experience. CFA and NCLC stated that implementing the backstop standard will result in broader economic benefits, as cost savings in the commercial and industrial sectors are passed on to consumers through lower costs for goods and services, allowing money to be spent in other areas of the economy with greater multiplier effects. (CFA and NCLC, No. 52 at p. 2)

NASEO commented that the backstop requirement is important to the states, which rely on cost-effective federal appliance and equipment energy efficiency standards to help them meet their energy affordability, air quality, climate, electric reliability, and energy resilience goals. (NASEO, No. 45 at p. 1)

Project 21 stated that adopting the 45 lm/W backstop standard for GSLs will benefit LED manufacturers at the expense of companies that provide Edison lamps and consumers that will no longer have the choice of cost and features provided by Edison lamps. Project 21 stated that in the December 2019 Final Determination, DOE had determined not to implement the 45 lm/W backstop because it would harm consumers and would increase the cost of Edison lamps by 300 percent, resulting in a lamp costing approximately $8.10. Project 21 stated this DOE's prior determination recognized the trend towards LEDs and continued research in new technologies while making existing options affordable. Further, Project 21 commented that the cost of LEDs and incandescent lamps is not comparable and low-income consumers will be forced to pay more. (Project 21, No. 44 at pp. 1-2) Project 21 stated that EPCA allows DOE to revise standards for lamps and other appliances but does not intend for the executive branch to wield arbitrary power over the kinds of appliances consumers can use. (Project 21, No. 44 at p. 1) Hough opposed the backstop requirement, commenting that 36 percent of the American lamp market, i.e., incandescent lamps used in approximately 2 billion sockets, would become illegal. Hough stated that the requirement needlessly micromanages the economy and sides with green special interests that deny choice and affordable options. Hough stated the backstop requirement will make Edison lamps including candelabra base, globe shape, and colored lamps prohibitively expensive to produce ( i.e., as much as 300 percent over current costs). (Hough, No. 39 at p. 1) One anonymous commenter stated that claims that switching to LED lighting will save consumers up to $300 per year do not seem possible as their lighting costs were $96 per year prior to moving to LED lamps. This commenter expressed hope that DOE uses realistic estimates. (Anonymous, No. 50 at p. 1)

The Free Market Organizations stated their support for DOE's determination not to set more stringent standards in the December 2019 Final Determination as such standards would have eliminated incandescent lamps by making them prohibitively expensive, costing consumers more than could be earned back in energy savings. They stated DOE has the authority to reassess the existing standard for GSILs, not by imposing a 45 lm/W standard but by considering an amended standard. They added that the review process for an amended standard under EPCA cannot prioritize efficiency above all else and must also ensure products remain available and product features, performance and reliability are preserved for consumers. (Free Market Organizations, No. 65 at p. 2)

As noted in section II.A.3 of this document, this is a non-discretionary rulemaking, not a routine standards rulemaking that considers all the factors under 42 U.S.C. 6295(o). Instead, Congress mandated the 45 lm/W backstop requirement if the Secretary fails to complete a rulemaking in accordance with clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A) or if the final rule does not produce savings that are greater than or equal to the savings from a minimum efficacy standard of 45 lm/W. As explained, DOE has determined that it failed to satisfy these statutory criteria. As such, the backstop requirement has been triggered.

While analysis is not statutorily required to implement the backstop requirement once triggered, consistent with E.O. 12866 DOE did conduct a cost-benefit analysis of implementing the 45 lm/W backstop for GSLs. DOE estimated the annualized national economic costs and benefits associated with the implementation of the 45 lm/W backstop relative to a no-new standard case. DOE first considered the product price and energy use of commercially available lamp options in the GSL definition, including those that would be prohibited under implementation of the 45 lm/W backstop and more efficacious GSLs that would continue to be available. DOE then developed a shipments model to project GSL shipments for a thirty-year period between 2022-2051 in the no-new-standard case and for the 45 lm/W backstop case. Shipments were estimated using a consumer-choice model sensitive to first cost, energy savings, lamp lifetime, and the presence of mercury. The shipments analysis also considered the impact of price learning on product price. Based on the shipments projections, DOE calculated the national consumer economic impacts of the 45 lm/W backstop by comparing the total installed product costs and operating costs in the 45 lm/W backstop case to the no-new-standards case.

DOE also analyzed the reduction in several greenhouse gases that would result from the expanded GSL definition and the 45 lm/W backstop using emissions intensity factors intended to represent the marginal impacts of the change in electricity consumption associated with amended or new standards. 16 As part of the development of this final rule, for the purpose of complying with the requirements of Executive Order 12866, DOE considered the estimated monetary benefits from the reduced emissions of CO 2 , nitrous oxide (“N 2 O”), and methane (“CH 4 ”).

On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the federal government's emergency motion for stay pending appeal of the February 11, 2022, preliminary injunction issued in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the preliminary injunction is no longer in effect, pending resolution of the federal government's appeal of that injunction or a further court order. Among other things, the preliminary injunction enjoined the defendants in that case from “adopting, employing, treating as binding, or relying upon” the interim estimates of the social cost of greenhouse gases—which were issued by the Interagency Working Group on the Social Cost of Greenhouse Gases on February 26, 2021—to monetize the benefits of reducing greenhouse gas emissions. In the absence of further intervening court orders, DOE will revert to its approach prior to the injunction and present monetized benefits where appropriate and permissible under law.

For the purpose of complying with the requirements of Executive Order 12866, DOE estimates the monetized benefits of the reductions in emissions of CO 2 , CH 4 , and N 2 O by using a measure of the social cost (“SC”) of each pollutant ( i.e., SC-GHGs). These estimates represent the monetary value of the net harm to society associated with a marginal increase in emissions of these pollutants in a given year, or the benefit of avoiding that increase. These estimates are intended to include (but are not limited to) climate-change-related changes in net agricultural productivity, human health, property damages from increased flood risk, disruption of energy systems, risk of conflict, environmental migration, and the value of ecosystem services. DOE exercises its own judgment in presenting monetized climate benefits as recommended by applicable Executive Orders and guidance, and DOE would reach the same conclusion presented in this notice in the absence of the social cost of greenhouse gases, including the February 2021 Interim Estimates presented by the Interagency Working Group on the Social Cost of Greenhouse Gases.

DOE estimated the global social benefits of CO 2 , CH 4 , and N 2 O reductions ( i.e., SC-GHGs) using the estimates presented in the Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive Order 13990 published in February 2021 by the Interagency Working Group on the Social Cost of Greenhouse Gases (IWG) (IWG, 2021). 17 The SC-GHGs is the monetary value of the net harm to society associated with a marginal increase in emissions in a given year, or the benefit of avoiding that increase. In principle, SC-GHGs includes the value of all climate change impacts, including (but not limited to) changes in net agricultural productivity, human health effects, property damage from increased flood risk and natural disasters, disruption of energy systems, risk of conflict, environmental migration, and the value of ecosystem services. The SC-GHGs therefore, reflects the societal value of reducing emissions of the gas in question by one metric ton. The SC-GHGs is the theoretically appropriate value to use in conducting benefit-cost analyses of policies that affect CO 2 , N 2 O and CH 4 emissions. As a member of the IWG involved in the development of the February 2021 SC-GHG TSD), the DOE agrees that the interim SC-GHG estimates represent the most appropriate estimate of the SC-GHG until revised estimates have been developed reflecting the latest, peer-reviewed science.

The SC-GHGs estimates are presented in DOE's technical support document (“TSD”)  18 and were developed over many years, using transparent process, peer-reviewed methodologies, the best science available at the time of that process, and with input from the public. Specifically, in 2009, an interagency working group (IWG) that included the DOE and other executive branch agencies and offices was established to ensure that agencies were using the best available science and to promote consistency in the social cost of carbon (SC-CO 2 ) values used across agencies. The IWG published SC-CO 2 estimates in 2010 that were developed from an ensemble of three widely cited integrated assessment models (IAMs) that estimate global climate damages using highly aggregated representations of climate processes and the global economy combined into a single modeling framework. The three IAMs were run using a common set of input assumptions in each model for future population, economic, and CO 2 emissions growth, as well as equilibrium climate sensitivity (ECS)—a measure of the globally averaged temperature response to increased atmospheric CO 2 concentrations. These estimates were updated in 2013 based on new versions of each IAM. In August 2016 the IWG published estimates of the social cost of methane (SC-CH 4 ) and nitrous oxide (SC-N 2 O) using methodologies that are consistent with the methodology underlying the SC-CO 2 estimates. The modeling approach that extends the IWG SC-CO 2 methodology to non-CO 2 GHGs has undergone multiple stages of peer review. The SC-CH 4 and SC-N 2 O estimates were developed by Marten et al. (2015) and underwent a standard double-blind peer review process prior to journal publication. In 2015, as part of the response to public comments received to a 2013 solicitation for comments on the SC-CO 2 estimates, the IWG announced a National Academies of Sciences, Engineering, and Medicine review of the SC-CO 2 estimates to offer advice on how to approach future updates to ensure that the estimates continue to reflect the best available science and methodologies. In January 2017, the National Academies released their final report, Valuing Climate Damages: Updating Estimation of the Social Cost of Carbon Dioxide, and recommended specific criteria for future updates to the SC-CO 2 estimates, a modeling framework to satisfy the specified criteria, and both near-term updates and longer-term research needs pertaining to various components of the estimation process (National Academies, 2017). Shortly thereafter, in March 2017, President Trump issued Executive Order 13783, which disbanded the IWG, withdrew the previous TSDs, and directed agencies to ensure SC-CO 2 estimates used in regulatory analyses are consistent with the guidance contained in OMB's Circular A-4, “including with respect to the consideration of domestic versus international impacts and the consideration of appropriate discount rates” (E.O. 13783, Section 5(c)).

On January 20, 2021, President Biden issued Executive Order 13990, which re-established the IWG and directed it to ensure that the U.S. Government's estimates of the social cost of carbon and other greenhouse gases reflect the best available science and the recommendations of the National Academies (2017). The IWG was tasked with first reviewing the SC-GHG estimates currently used in Federal analyses and publishing interim estimates within 30 days of the E.O. that reflect the full impact of GHG emissions, including by taking global damages into account. The interim SC-GHG estimates published in February 2021, specifically the SC-CH 4 estimates, are used here to estimate the climate benefits for this rulemaking. The E.O. instructs the IWG to undertake a fuller update of the SC-GHG estimates by January 2022 that takes into consideration the advice of the National Academies (2017) and other recent scientific literature.

The February 2021 SC-GHG TSD provides a complete discussion of the IWG's initial review conducted under E.O. 13990. In particular, the IWG found that the SC-GHG estimates used under E.O. 13783 fail to reflect the full impact of GHG emissions in multiple ways. First, the IWG found that a global perspective is essential for SC-GHG estimates because it fully captures climate impacts that affect the United States and which have been omitted from prior U.S.-specific estimates due to methodological constraints. Examples of omitted effects include direct effects on U.S. citizens, assets, and investments located abroad, supply chains, and tourism, and spillover pathways such as economic and political destabilization and global migration. In addition, assessing the benefits of U.S. GHG mitigation activities requires consideration of how those actions may affect mitigation activities by other countries, as those international mitigation actions will provide a benefit to U.S. citizens and residents by mitigating climate impacts that affect U.S. citizens and residents. If the United States does not consider impacts on other countries, it is difficult to convince other countries to consider the impacts of their emissions on the United States. As a member of the IWG involved in the development of the February 2021 SC-GHG TSD, DOE agrees with this assessment and, therefore, in this final rule DOE centers attention on a global measure of SC-GHG. This approach is the same as that taken in DOE regulatory analyses from 2012 through 2016. Prior to that, in 2008 DOE presented Social Cost of Carbon (SCC) estimates based on values the Intergovernmental Panel on Climate Change (IPCC) identified in literature at that time. As noted in the February 2021 SC-GHG TSD, the IWG will continue to review developments in the literature, including more robust methodologies for estimating a U.S.-specific SC-GHG value, and explore ways to better inform the public of the full range of carbon impacts. As a member of the IWG, DOE will continue to follow developments in the literature pertaining to this issue.

While the IWG works to assess how best to incorporate the latest, peer reviewed science to develop an updated set of SC-GHG estimates, it set the interim estimates to be the most recent estimates developed by the IWG prior to the group being disbanded in 2017. The estimates rely on the same models and harmonized inputs and are calculated using a range of discount rates. As explained in the February 2021 SC-GHG TSD, the IWG has recommended that agencies revert to the same set of four values drawn from the SC-GHG distributions based on three discount rates as were used in regulatory analyses between 2010 and 2016 and subject to public comment. For each discount rate, the IWG combined the distributions across models and socioeconomic emissions scenarios (applying equal weight to each) and then selected a set of four values recommended for use in benefit-cost analyses: An average value resulting from the model runs for each of three discount rates (2.5 percent, 3 percent, and 5 percent), plus a fourth value, selected as the 95th percentile of estimates based on a 3 percent discount rate. The fourth value was included to provide information on potentially higher-than-expected economic impacts from climate change. As explained in the February 2021 SC-GHG TSD, and DOE agrees, this update reflects the immediate need to have an operational SC-GHG for use in regulatory benefit-cost analyses and other applications that was developed using a transparent process, peer-reviewed methodologies, and the science available at the time of that process. Those estimates were subject to public comment in the context of dozens of proposed rulemakings as well as in a dedicated public comment period in 2013.

The SC-CO 2 values used for this final rule were generated using the values presented in the 2021 update from the IWG's February 2021 TSD. The SC-CO 2 estimates from the latest interagency update are presented in DOE's TSD. For purposes of capturing the uncertainties involved in regulatory impact analysis, DOE has determined it is appropriate to include all four sets of SC-CO 2 values, as recommended by the IWG. 19 DOE multiplied the CO 2 emissions reduction estimated for each year by the SC-CO 2 value for that year in each of the four cases. To calculate a present value of the stream of monetary values, DOE discounted the values in each of the four cases using the specific discount rate that had been used to obtain the SC-CO 2 values in each case.

The SC-CH 4 and SC-N 2 O values used for this final rule were generated using the values presented in the 2021 update from the IWG. 20 The SC-CH 4 and SC-N 2 O estimates from the latest interagency update are presented in DOE's TSD. To capture the uncertainties involved in regulatory impact analysis, DOE has determined it is appropriate to include all four sets of SC-CH 4 and SC-N 2 O values, as recommended by the IWG. DOE multiplied the CH 4 and N 2 O emissions reduction estimated for each year by the SC-CH 4 and SC-N 2 O estimates for that year in each of the cases. To calculate a present value of the stream of monetary values, DOE discounted the values in each of the cases using the specific discount rate that had been used to obtain the SC-CH 4 and SC-N 2 O estimates in each case.

The estimated monetary health benefits from the reduced emissions of sulfur dioxides (“SO 2 ”) and nitrogen oxides (“NO X ”) emissions was estimated based on the latest benefit per ton estimates for the relevant sector from the EPA's Benefits Mapping and Analysis Program. 21

DOE converted the time-series of costs and benefits into annualized values based on the present value in 2022, as shown in Table IV.1, and cumulative economic costs and benefits in Table IV.2. DOE calculated the present value using discount rates of 3 and 7 percent for consumer costs and health benefits from the reduction of SO 2 and NO X emissions and case-specific discount rates for the value of the other greenhouse gas (“GHG”) (CO 2 , N 2 O, and CH 4 ) reduction benefits. For presentational purposes, the climate benefits associated with the average SC-GHG at a 3 percent discount rate are shown in Table IV.1 and Table IV.2, but the Department does not have a single central SC-GHG point estimate, and it emphasizes the importance and value of considering the benefits calculated using all four SC-GHG estimates.

EEI commented that DOE should utilize metrics in its cost and benefit calculations for the backstop regulations that reflect the ongoing efforts by the electric sector on reducing emissions and deploying clean energy. EEI suggested specifically that the site to power plant conversion factor utilized in the previous modeling was outdated. (EEI, No. 61 at p. 3)

DOE notes that in both the LBNL report cited in the December 2021 NOPR and in DOE's analysis for the final rule, the latest projections for the electric power sector from Energy Information Administration's Annual Energy Outlook 2021 were used, which reflect the ongoing and expected changes in U.S. electricity generation. In addition to addressing EEI's comment regarding the analytical baseline, this approach is conceptually consistent with DOE's approach in the March 2016 NOPR, but with updated site to power plant conversion factors.

IPI et al. submitted comments on the application of the social cost of greenhouse gases in analysis associated with the December 2021 NOPR. (IPI et al., No. 54 at pp. 1-37). They stated that DOE should expand upon its rationale for adopting a global damages valuation and for the range of discount rates it applies to climate effects. Their key comments were as follows: (1) DOE should affirm that, in its expert judgment, the working group's social cost estimates are appropriate but conservative lower bounds that omit significant categories of climate damages; (2) DOE should provide additional justification for its reliance on global climate damage valuations, while considering additional analysis of domestic effects; (3) DOE should provide additional explanation for its discount rate choices and conduct sensitivity analysis using lower rates; (4) DOE should defend against common criticisms of the working group's methodology; (5) DOE should reconsider its timeframe for costs and benefits and disclose the social cost of greenhouse gas estimates it applies to year 2051; (6) The December 2021 NOPR's high net benefits suggest that DOE should favor early implementation of the backstop standard.

Comments (1) through (4) previously mentioned relate to the social cost of greenhouse gas emission estimates recommended by the IWG in its February 2021 TSD.

DOE used the estimates for the SC-GHG from the most recent update of the IWG in its February 2021 TSD. DOE has determined that the estimates from the February 2021 TSD (as described more below), are based upon sound analysis and provide well founded estimates for DOE's analysis of the impacts of the reductions of emissions anticipated from the final rule.

The SC-GHG estimates in the February 2021 TSD are interim values developed under E.O. 13990, for use until revised estimates of the impacts of climate change can be developed through a more comprehensive review based on the most recent science and economics. 86 FR 7037, 7040 (Jan. 25, 2021). The SC-GHG estimates used in this analysis were developed over many years, using a transparent process, peer-reviewed methodologies, the best science available at the time of that process, and with input from the public. Specifically, an IWG that included DOE, the EPA and other executive branch agencies and offices used three integrated assessment models (IAMs) to develop the SC-CO 2 estimates and recommended four global values for use in regulatory analyses. Those estimates were subject to public comment in the context of dozens of proposed rulemakings as well as in a dedicated public comment period in 2013. While DOE recognizes the potential for consumer and environmental benefits from the prohibition on the sale of GSLs with an efficacy of less than 45 lm/W, these monetized values for the estimated emissions reductions are presented for informational purposes. DOE reiterates that because the backstop requirement in 42 U.S.C. 6295(i)(6)(A)(v) has been triggered, the statute requires DOE to prohibit sales of GSLs that do not meet the minimum efficacy of 45 lm/W. This backstop requirement is statutorily prescribed by Congress and no further analysis is required for its implementation.

Regarding comment (5) mentioned previously, DOE clarifies that it estimates costs and benefits over the lifetime of GSLs shipped between 2022 and 2051. The final year of the analysis period is 2084. The SC-GHG values applied between 2051-2070 are the same as those used by the EPA in a recent regulation strengthening greenhouse gas emission standards for automobiles. 22 DOE derived values after 2070 based on the trend in 2060-2070 in each of the four cases. DOE's technical report provides the time-series of annual SC-GHG values.

Regarding comment (6) favoring early implementation, as discussed in section II.C of this document, Congress prescribed a specific date for the backstop sales prohibition once triggered. Recognizing the practicalities associated with the immediate implementation of the 45 lm/W backstop standard for GSLs, DOE will issue guidance regarding enforcement of the standard.

DOE received several comments regarding features of LED lamps. One anonymous commenter asked if DOE accounted for the lower power factors of LED lighting, which is at 70 percent for Energy Star lamps compared to incandescent lighting which have a 100 percent power factor). (Anonymous, No. 41 at p. 1) A separate anonymous commenter asked if DOE is considering the loss of energy savings due to the “rebound effect” of less dimming of LED lighting compared to incandescent due to some LED lamps not being dimmable, others not dimming as far as incandescent lamps, or some consumers replacing dimmers with toggle switches to lower the cost of switching from incandescent lamps to non-dimmable LED lamps. (Anonymous, No. 42 at p. 1) A third anonymous commenter stated that if 10 percent of lighting in a home is on a dimmer DOE should account for the cost of replacing incandescent dimmers with LED-compatible dimmers, and further stated that such dimmers cost anywhere from $20-50 and the cost of the electrician labor is at least $100 per visit. (Anonymous, No. 40 at p. 1) Project 21 stated LED lamps cannot dim the same way Edison lamps do and result in loss of aesthetics as they cannot function in older fixtures such as antique chandeliers. (Project 21, No. 44 at pp. 1-2) The Free Market Organizations stated that LED lamps are more efficient and longer-lasting but cost more than incandescent bulbs and have inferior dimming. (Free Market Organizations, No. 65 at p. 4)

As DOE has previously noted, this is not a discretionary standards rulemaking subject to evaluation of the factors at 42 U.S.C. 6295(o). However, consistent with E.O. 12866, DOE notes that it has provided a cost-benefit analysis of implementing the 45 lm/W backstop for GSLs, which is discussed in greater detail for the public in section IV.A. Power factor is the ratio of the real power (wattage used by the lamp) to the apparent power (voltage multiplied by current drawn by the lamp circuit and what the electrical grid must withstand). A low power factor indicates that the lamp circuit is drawing more current than is being utilized. DOE's review of the market indicates that there are a substantial number of LED lamps with a power factor of 0.9 or greater. It also indicates that dimmable versions of LED lamps are readily available as well as a wide range of LED lamps with decorative shapes such as bullet, candle, flare and globe. Additionally, in response to the August 2021 Definition NOPR, NEMA commented that the rapid shift of decorative lamps ( i.e., T-Shape, B, BA, F, G16-1/2, G25, G30, S and M-14 shapes) to LED technology has been occurring for over 9 years and is nearing completion by market forces alone. NEMA also estimated the total market volume of decorative lamps at 950 million; and 520 million out of 665 million on mostly switch-controlled sockets have already been converted to LED technology, with 285 million incandescent decorative lamps on dimmers that would need to switch to LED technology. (NEMA, EERE-2021- BT-STD-001, No. 20  23 at pp. 3-4) NEMA's estimations indicate that a substantive conversion to LED dimmer technology has been taking place for decorative lamps and therefore, is economically feasible for consumers. Additionally, dimming of solid-state lighting is the subject of continual research and development such as dim-to-warm LED products which can mimic the dimming of incandescent lamps. 24 DOE notes that while the costs of replacing dimmers is not quantified here, the cost is not significant with respect to the operating costs savings of LED lamps relative to incandescent lamps. Regarding the rebound effect, DOE clarifies that it assumed no rebound in its estimate of the annualized national economic costs and benefits as a result of the implementation of the backstop (see section IV.A), consistent with the analysis in the March 2016 NOPR and in the December 2019 Final Determination.

Sherman commented that they are unable to see clearly or spend more than a few minutes under LED or fluorescent lighting without severe problems such as headaches. (Sherman, No. 35 at p. 1) Maier asserted that the backstop requirement violates the Americans with Disabilities Act (“ADA”) and requested that incandescent lamps continue to be available. Maier referenced a comment on the DOE website, in which the commenter stated they have a disability and cannot tolerate LED lamps and states that such an individual is protected under the ADA to use incandescent lamps. Maier further stated that Title 2 of ADA requires that individuals be consulted before implementation of such standards and that Title 1 of ADA requires reasonable accommodation for those with disabilities. (Maier, No. 47 at p. 1)

As discussed, DOE is codifying the backstop requirement as mandated by EPCA. DOE notes that the backstop requirement does not mandate the use of a particular technology and instead prohibits the sale of lamps below a specified efficiency ( i.e., 45 lm/W). (42 U.S.C. 6295(i)(6)(A)(v)) Though the public comments do not include quantitative evidence of specific lighting technology characteristics relevant to health, DOE has considered these public comments. DOE researched studies and other publications to ascertain any known impacts of LED lamps on human health and has not found any evidence concluding that LED lighting used for general lighting applications directly results in adverse health effects. 25 Additionally, DOE notes that the ADA does not apply to DOE for purposes of this rule, as the ADA only applies to private employers and not Federal agencies. Individuals wishing to file complaints under the ADA can visit www.ada.gov.

Glass and Walton commented regarding their concerns with the detrimental effects of LED technology in transportation applications ( e.g., motor vehicle lamps, street lamps, construction equipment). (Glass, No. 36 at p. 1; Walton, No. 37 at pp. 1-2)

GSLs and GSILs are covered under Part B of EPCA, which authorizes the regulation of certain consumer products. For the purpose of Part B, the definition of “consumer product” excludes products used in automobiles. ( See 42 U.S.C. 6291(1)) Further, covered GSILs do not include those consumer products designed solely for use in recreational vehicles and other mobile equipment. ( See 42 U.S.C. 6292(a)) Additionally, the GSL definition adopted in the 2022 Definitions Final Rule excludes lamps with lumens greater than 3,300 lumens (see section II.B of this document). Streetlamps and lighting for construction applications are generally 5,000 lumens or greater. Further, the definition of GSL excludes street signal lamps. As such, the lamps relevant to the concerns raised by Glass and Walton are generally not covered as GSLs and are not subject to the backstop requirement.

Sherman commented that incandescent lamps provide additional warming which can offset heating costs and can be used to keep water pipes from freezing where otherwise a space heater is used, which can be a fire hazard. (Sherman, No. 35 at p. 1) Glass stated that LED lamps are uncomfortable and also disruptive to animal and plant life. (Glass, No. 36 at p. 1)

Regarding the ability of incandescent lamps to provide heat in certain circumstances ( e.g., to keep pipes from freezing), DOE notes that the statutory backstop requirement applies to GSLs, which as defined exempts infrared lamps which have the primary purpose of providing heat (see section II.B of this document).

DOE researched this issue and did not identify any studies indicating that LED lamps have an adverse impact on animal and plant life.

A private citizen commented that incandescent/halogen lamps are being banned while less-efficient gas lights are still allowed to be sold in the U.S. They stated that a gas light uses 2500 British thermal units (“Btu”) or 732 W to produce the same amount of light as a 60 W incandescent or a 42-43 W halogen lamp and has a continuously burning pilot light that uses energy. (Anonymous, No. 49 at p. 1)

The 45 lm/W backstop requirement is applicable to all GSLs, and is not specific to any one lighting technology such as incandescent or halogen lighting. Therefore, the sale of any lamp that meets the definition of a GSL and has an efficacy less than 45 lm/W will be prohibited.

DOE has determined that the statutory 45 lm/W backstop requirement that applies to GSLs in 42 U.S.C. 6295(i)(6)(A)(v) has been triggered. This final rule codifies the backstop requirement at 10 CFR 430.32.

This final rule is an economically significant regulatory action under E.O. 12866, “Regulatory Planning and Review.” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review by OIRA in the Office of Management and Budget (“OMB”). Pursuant to section 6(a)(3)(C) of the Order, DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the regulatory action, together with, to the extent feasible, a quantification of those costs. This assessment can be found in DOE's technical report that accompanies this rulemaking and the methodology is summarized in section II.D.2 of this document.

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

DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. DOE is revising the Code of Federal Regulations to incorporate and implement the backstop requirement for general service lamps that Congress prescribed in EPCA. Because DOE is not imposing additional costs beyond those required by statute, DOE concludes and certifies that this final rule has no significant economic impact on a substantial number of small entities and the preparation of a FRFA is not warranted.

This final rule imposes no new information or record keeping requirements. Accordingly, Office of Management and Budget clearance is not required under the Paperwork Reduction Act. 44 U.S.C. 3501 et seq.

DOE has analyzed this regulation in accordance with the National Environmental Policy Act (NEPA) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. 10 CFR part 1021, subpart D, appendix A5. DOE has completed the necessary review under NEPA and has determined that this rulemaking qualifies for categorical exclusion A5 because it is amending a rule that does not change the environmental effect of the rule and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this final rule. DOE's CX determination for this final rule is available at energy.gov/nepa/categorical-exclusioncx-determinations-cx.

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

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” 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. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 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 section 3(a) and section 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 E.O. 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 likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

This final rule codifies the sales prohibition of GSLs with an efficacy of less than 45 lm/W prescribed in 42 U.S.C. 6295(i)(6)(A)(v). As this final rule would incorporate requirements specifically set forth in law, an assessment under UMRA is not required and has not been conducted.

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

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

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. 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.

E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

DOE has concluded that this regulatory action is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this final rule.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is a “major rule” as defined by 5 U.S.C. 804(2).

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

This document of the Department of Energy was signed on April 26, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for 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 set forth in the preamble, DOE amends part 430 of chapter II of title 10 of the Code of Federal Regulations, as set forth below:

In this final rule, DOE adopts its proposal in the NOPR to amend the current definitions of GSL and GSIL to be defined as previously set forth in the January 2017 Final Rules. See 82 FR 7276; 82 FR 7322. DOE has determined that the definitions are consistent with the congressional direction provided in the Energy Policy and Conservation Act (“EPCA”) and further the purposes set forth in EPCA, as well as in Executive Order (“E.O.”) 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037 (Jan. 25, 2021). Additionally, as proposed in the NOPR, DOE adopts the supplemental definitions established in the January 2017 Final Rules, which relate to the definitions of GSL and GSIL. DOE is not determining whether standards for GSLs, including GSILs, should be amended in this rule. Rather, DOE is establishing the scope of lamps to be considered in such a determination.

Amendments to EPCA in the Energy Independence and Security Act of 2007, Public Law 110-140 (“EISA”) directed DOE to conduct a number of rulemakings regarding coverage of lamps as GSLs and GSILs, and to evaluate energy conservation standards for such lamps. 42 U.S.C. 6295(i)(6)(A)-(B). Pursuant to this authority, DOE conducted a rulemaking to establish revised regulatory definitions for GSLs and GSILs. See 82 FR 7276 (Jan. 19, 2017); 82 FR 7322 (Jan. 19, 2017). Subsequently, DOE conducted a rulemaking in which it withdrew these revised definitions before they took effect. 84 FR 46661 (Sept. 5, 2019). The following paragraphs provide an overview of the authorities and final rules issued by DOE relevant to the definitions for GSL, GSIL, and related terms, as adopted in this final rule.

EPCA, as amended, 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. 42 U.S.C. 6291-6309. These products include GSLs, the subject of this rulemaking.

EPCA directs DOE to conduct two rulemaking cycles to evaluate energy conservation standards for GSLs. 42 U.S.C. 6295(i)(6)(A)-(B). GSLs are defined in EPCA to include GSILs, compact fluorescent lamps (“CFLs”), general service light-emitting diode (“LED”) lamps and organic light emitting diode (“OLED”) lamps, and any other lamps that the Secretary of Energy (“Secretary”) determines are used to satisfy lighting applications traditionally served by general service incandescent lamps. 42 U.S.C. 6291(30)(BB)(i), (CC)(i), (DD). The EPCA provision setting forth relevant definitions indicates that the term “general service lamp” in EPCA does not include any of the twenty-two lighting applications or bulb shapes explicitly not included in the definition of “general service incandescent lamp,”  3 or any general service fluorescent lamp or incandescent reflector lamp. 42 U.S.C. 6291(30)(BB)(ii).

For the first rulemaking cycle, EPCA directs DOE to initiate a rulemaking process prior to January 1, 2014, to consider two questions: (1) Whether to amend energy conservation standards for general service lamps to establish more stringent standards than EPCA specifies, and (2) whether “the exemptions for certain incandescent lamps should be maintained or discontinued.” 42 U.S.C. 6295(i)(6)(A)(i). In developing such a rule, DOE must consider a minimum efficacy standard of 45 lumens per watt (“lm/W”). 42 U.S.C. 6295(i)(6)(A)(ii). Further, if the Secretary determines that the standards in effect for GSILs should be amended, EPCA provides that a final rule must be published by January 1, 2017, with an effective date at least three years after the date on which the final rule is published. 42 U.S.C. 6295(i)(6)(A)(iii). Additionally, EPCA directs that the Secretary shall consider phased-in effective dates after considering certain economic factors. 42 U.S.C. 6295(i)(6)(A)(iv). If DOE fails to complete a rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), or if a final rule from the first rulemaking cycle does not produce savings greater than or equal to the savings from a minimum efficacy standard of 45 lm/W, the statute provides a “backstop” under which DOE must prohibit sales of GSLs that do not meet a minimum 45 lm/W standard. 42 U.S.C. 6295(i)(6)(A)(v).

EPCA further directs DOE to initiate a second rulemaking cycle by January 1, 2020, to determine whether standards in effect for GSILs (which are a subset of GSLs) should be amended with more stringent maximum wattage requirements than EPCA specifies, and whether the exemptions for certain incandescent lamps should be maintained or discontinued. 42 U.S.C. 6295(i)(6)(B)(i). As in the first rulemaking cycle, the scope of the second rulemaking is not limited to incandescent lamp technologies. 42 U.S.C. 6295(i)(6)(B)(ii).

In addition to the two mandated rulemaking cycles, under the statutory definition of GSL, DOE has authority to include lamps as GSLs upon determining that they are “used to satisfy lighting applications traditionally served by general service incandescent lamps.” 42 U.S.C. 6291(30)(BB)(i)(IV).

Pursuant to its statutory authority, DOE published a notice of proposed rulemaking (“NOPR”) on March 17, 2016, that addressed the first question that Congress directed it to consider—whether to amend energy conservation standards for GSLs (“March 2016 NOPR”). 81 FR 14528, 14629-14630 (Mar. 17, 2016). In that NOPR, DOE stated that it would be unable to undertake any analysis regarding GSILs and other incandescent lamps because of a then-applicable congressional restriction (“the Appropriations Rider”). See Id. at 81 FR 14528, 14540-14541. The Appropriations Rider prohibited expenditure of funds appropriated by that law to implement or enforce: (1) 10 CFR 430.32(x), which includes maximum wattage and minimum rated lifetime requirements for GSILs; and (2) standards set forth in section 325(i)(1)(B) of EPCA (42 U.S.C. 6295(i)(1)(B)), which sets minimum lamp efficiency ratings for incandescent reflector lamps (“IRLs”). Under the Appropriations Rider, DOE was restricted from undertaking the analysis required to address the first question presented by Congress but was not so limited in addressing the second question—that is, DOE was not prevented from determining whether the exemptions for certain incandescent lamps should be maintained or discontinued. To address that second question, DOE published a Notice of Proposed Definition and Data Availability (“NOPDDA”), which proposed to amend the definitions of GSIL, GSL, and related terms (“October 2016 NOPDDA”). 81 FR 71794, 71815 (Oct. 18, 2016). Notably, the Appropriations Rider originally was adopted in 2011 and was readopted and extended continuously in multiple subsequent legislative actions. It expired on May 5, 2017, when the Consolidated Appropriations Act, 2017 was enacted. 4

On January 19, 2017, DOE published the January 2017 Final Rules concerning the definitions of GSL, GSIL, and related terms. 82 FR 7276; 82 FR 7322. The January 2017 Final Rules amended the definitions of GSIL and GSL by bringing certain categories of lamps within the definitions of GSIL and GSL that EPCA had exempted, including IRLs. See 82 FR 7312; 82 FR 7323. The January 2017 Final Rules related to the second question that Congress directed DOE to consider, regarding whether to maintain or discontinue “exemptions” for certain incandescent lamps. 42 U.S.C. 6295(i)(6)(A)(i)(II). The discontinuation of the exemption would render the lamp a GSIL (and therefore also a GSL), to the extent it would otherwise qualify as a GSIL. 82 FR 7277. DOE also considered whether other lamps should be included in the definition of GSL. 82 FR 7277. DOE stated that it would then either impose standards on these lamps pursuant to its authority to develop GSL standards or apply the 45 lm/W backstop standard prohibiting the sale of lamps not meeting a 45 lm/W efficacy standard. 82 FR 7276, 7277. The definitions in the January 2017 Final Rules were to become effective on January 1, 2020. 82 FR 7276, 7276; 82 FR 7322, 7322. The definitions will herein be referred to as the “January 2017 Definitions.”

With the removal of the Appropriations Rider in the Consolidated Appropriations Act, 2017, DOE was no longer restricted from undertaking the analysis and decision-making required to address the first question presented by Congress—that is, whether to amend energy conservation standards for GSLs, including GSILs. Thus, on August 15, 2017, DOE published a Notice of Data Availability and request for information (“NODA”) seeking data for GSILs and other incandescent lamps (“August 2017 NODA”). 82 FR 38613.

The purpose of the August 2017 NODA was to assist DOE in determining whether standards for GSILs should be amended. 42 U.S.C. 6295(i)(6)(A)(i)(I). Comments submitted in response to the August 2017 NODA also led DOE to reconsider the decisions it had already made with respect to the second question presented to DOE (whether the exemptions for certain incandescent lamps should be maintained or discontinued). 42 U.S.C. 6295(i)(6)(A)(i)(II). As a result of the comments received in response to the August 2017 NODA, DOE also re-assessed the legal interpretations underlying certain decisions made in the January 2017 Final Rules. On February 11, 2019, DOE published a NOPR proposing to withdraw the revised definitions of GSL and GSIL, and the new and revised definitions of related terms that were to go into effect on January 1, 2020. 84 FR 3120 (“February 2019 Withdrawal NOPR”). In a final rule published September 5, 2019, DOE finalized the withdrawal of the definitions of GSIL, GSL, and related terms established in the January 2017 Final Rules. 84 FR 46661 (“September 2019 Withdrawal Rule”). Informed, in part, by comments received in response to the August 2017 NODA, DOE concluded in the September 2019 Withdrawal Rule that maintaining the definitions for GSL and GSIL as established by EPCA and not discontinuing certain exemptions pursuant to the required review under 42 U.S.C. 6295(i)(6)(A)(i) was the best reading of the statute. 84 FR 46661, 46665-46666. DOE also stated that it identified inaccuracies underlying its determination to revise the definitions of GSL and GSIL. 84 FR 46661, 46665. Based on data received in response to the August 2017 NODA, DOE learned that it had overestimated shipment numbers for candelabra base incandescent lamps by a factor of more than two. Id. In withdrawing the definitions established in the January 2017 Final Rules, DOE specifically addressed its determinations to maintain the exemptions for rough service lamps; shatter-resistant lamps; three-way incandescent lamps; high lumen incandescent lamps (2,601-3,300 lumens); vibration service lamps; T-shape lamps of 40 watts (“W”) or less or length of 10 inches or more; B, BA, CA, F, G16-1/2, G25, G30, S, M-14 lamps of 40 W or less; candelabra base lamps; and IRLs. Id.

The September 2019 Withdrawal Rule also addressed issues and comments regarding the imposition of the 45 lm/W backstop, applicability of EPCA's anti-backsliding provision at 42 U.S.C. 6295(o), and preemption of State regulation of lamps. 84 FR 46663-46665, 46669. Although these additional issues concern DOE's regulation of lamps, they are not the subject of this NOPR. DOE has requested comments and data to inform further consideration of the 45 lm/W backstop provision. See 86 FR 28001 (May 25, 2021).

As a result of the September 2019 Withdrawal Rule, the amended definitions of GSL and GSIL and the new and revised definitions of related terms established in the January 2017 Final Rules were withdrawn prior to going into effect. The current regulatory definitions of GSL and GSIL are those set forth in EPCA. See 10 CFR 430.2; see also 42 U.S.C. 6291(30)(D); 42 U.S.C. 6291(30)(BB).

Subsequent to the September 2019 Withdrawal Rule, on January 20, 2021, President Biden issued E.O. 13990. Section 1 of that Order lists a number of policies related to the protection of public health and the environment, including reducing greenhouse gas emissions and bolstering the Nation's resilience to climate change. 86 FR 7037, 7041. Section 2 of the Order instructs all agencies to review “existing regulations, orders, guidance documents, policies, and any other similar agency actions . . . promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, [these policies].” Id. Agencies are then directed, as appropriate and consistent with applicable law, to consider suspending, revising, or rescinding these agency actions and to immediately commence work to confront the climate crisis. Id. Consistent with E.O. 13990, DOE has undertaken a review of the definitions of GSL and GSIL in the September 2019 Withdrawal Rule and the January 2017 Final Rules. Although E.O. 13990 triggered DOE's review, DOE is relying on its analysis below, based on the language and intent of EPCA, to support its decision to reconsider the September 2019 Withdrawal Rule. As a result of this review, DOE rejects the alternative interpretation of the statutory directives in EPCA set forth in the September 2019 Withdrawal Rule and determines that DOE's interpretation in this final rule is the best reading of the statute.

On August 19, 2021, DOE published a NOPR that proposed to amend the definitions of GSL and GSIL as previously set forth in the January 2017 Final Rules. (“August 2021 NOPR”). 86 FR 46611. DOE received 17 written comments in response to the August 2021 NOPR from the interested parties listed in Table II.1.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 5

EPCA defines the class of GSLs as including GSILs, CFLs, general service LED and OLED lamps, and any other lamps that DOE determines are used to satisfy lighting applications traditionally served by GSILs; however, as specified by EPCA, GSLs do not include any lighting application or bulb shape that under 42 U.S.C. 6291(30)(D)(ii) is not included in the “general service incandescent lamp” definition, or any general service fluorescent lamp or incandescent reflector lamp. 42 U.S.C. 6291(30)(BB).

EPCA defines a GSIL generally as a standard incandescent or halogen type lamp that is intended for general service applications; has a medium screw base; has a lumen range of not less than 310 lumens and not more than 2,600 lumens or, in the case of a modified spectrum lamp, not less than 232 lumens and not more than 1,950 lumens; and is capable of being operated at a voltage range at least partially within 110 and 130 volts. 42 U.S.C. 6291(30)(D)(i). This definition does not apply, however, to 22 lamp types. 6 42 U.S.C. 6291(30)(D)(ii).

In the January 2017 Final Rules, DOE defined GSL to mean a lamp that had an ANSI base; was able to operate at a voltage of 12 volts or 24 volts, at or between 100 to 130 volts, at or between 220 to 240 volts, or of 277 volts for integrated lamps, or was able to operate at any voltage for non-integrated lamps; had an initial lumen output of greater than or equal to 310 lumens (or 232 lumens for modified spectrum general service incandescent lamps) and less than or equal to 3,300 lumens; was not a light fixture; was not an LED downlight retrofit kit; and was used in general lighting applications. 82 FR 7276, 7312. General service lamps included, but were not limited to, general service incandescent lamps, compact fluorescent lamps, general service light-emitting diode lamps, and general service organic light-emitting diode lamps. 82 FR 7276, 7321.

Further in the January 2017 Final Rules, DOE defined GSLs to not include: (1) Appliance lamps; (2) Black light lamps; (3) Bug lamps; (4) Colored lamps; (5) G shape lamps with a diameter of 5 inches or more as defined in ANSI C79.1-2002; (6) General service fluorescent lamps; (7) High intensity discharge lamps; (8) Infrared lamps; (9) J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do not have Edison screw bases; (10) Lamps that have a wedge base or prefocus base; (11) Left-hand thread lamps; (12) Marine lamps; (13) Marine signal service lamps; (14) Mine service lamps; (15) MR shape lamps that have a first number symbol equal to 16 (diameter equal to 2 inches) as defined in ANSI C79.1-2002, operate at 12 volts, and have a lumen output greater than or equal to 800; (16) Other fluorescent lamps; (17) Plant light lamps; (18) R20 short lamps; (19) Reflector lamps that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1-2002 and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases; (20) S shape or G shape lamps that have a first number symbol less than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as defined in ANSI C79.1-2002; (21) Sign service lamps; (22) Silver bowl lamps; (23) Showcase lamps; (24) Specialty MR lamps; (25) T shape lamps that have a first number symbol less than or equal to 8 (diameter less than or equal to 1 inch) as defined in ANSI C79.1-2002, nominal overall length less than 12 inches, and that are not compact fluorescent lamps; and (26) Traffic signal lamps. Id.; 82 FR 7322, 7333.

The January 2017 Final Rules defined GSIL to discontinue the exemptions for rough service lamps; shatter-resistant lamps; three-way incandescent lamps; vibration service lamps; reflector lamps; T-shape lamps of 40 W or less or length of 10 inches or more; and B, BA, CA, F, G16-1/2, G25, G30, S, M-14 lamps of 40 W or less. 82 FR 7276, 7291.

As noted in the September 2019 Withdrawal Rule, these definitions were subsequently withdrawn (see section II.D of this document). In the August 2021 NOPR, DOE proposed to amend the definitions of general service lamp and general service incandescent lamp. DOE proposed to define a general service lamp as a lamp that has an ANSI base; is able to operate at a voltage of 12 volts or 24 volts, at or between 100 to 130 volts, at or between 220 to 240 volts, or of 277 volts for integrated lamps (as defined in this section), or is able to operate at any voltage for non-integrated lamps (as defined in this section); has an initial lumen output of greater than or equal to 310 lumens (or 232 lumens for modified spectrum general service incandescent lamps) and less than or equal to 3,300 lumens; is not a light fixture; is not an LED downlight retrofit kit; and is used in general lighting applications. General service lamps included, but were not limited to, general service incandescent lamps, compact fluorescent lamps, general service light-emitting diode lamps, and general service organic light emitting diode lamps. General service lamps did not include:

(1) Appliance lamps;

(2) Black light lamps;

(3) Bug lamps;

(4) Colored lamps;

(5) G shape lamps with a diameter of 5 inches or more as defined in ANSI C79.1-2002 (incorporated by reference; see 10 CFR 430.3);

(6) General service fluorescent lamps;

(7) High intensity discharge lamps;

(8) Infrared lamps;

(9) J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do not have Edison screw bases;

(10) Lamps that have a wedge base or prefocus base;

(11) Left-hand thread lamps;

(12) Marine lamps;

(13) Marine signal service lamps;

(14) Mine service lamps;

(15) MR shape lamps that have a first number symbol equal to 16 (diameter equal to 2 inches) as defined in ANSI C79.1-2002 (incorporated by reference; see 10 CFR 430.3), operate at 12 volts, and have a lumen output greater than or equal to 800;

(16) Other fluorescent lamps;

(17) Plant light lamps;

(18) R20 short lamps;

(19) Reflector lamps (as defined in this section) that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1-2002 (incorporated by reference; see 10 CFR 430.3) and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases;

(20) S shape or G shape lamps that have a first number symbol less than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as defined in ANSI C79.1-2002 (incorporated by reference; see 10 CFR 430.3);

(21) Sign service lamps;

(22) Silver bowl lamps;

(23) Showcase lamps;

(24) Specialty MR lamps;

(25) T-shape lamps that have a first number symbol less than or equal to 8 (diameter less than or equal to 1 inch) as defined in ANSI C79.1-2002 (incorporated by reference; see 10 CFR 430.3), nominal overall length less than 12 inches, and that are not compact fluorescent lamps (as defined in this section);

(26) Traffic signal lamps.

See 86 FR 46611, 46624-46625.

Similarly, DOE proposed to define a general service incandescent lamp as a standard incandescent or halogen type lamp that is intended for general service applications; has a medium screw base; has a lumen range of not less than 310 lumens and not more than 2,600 lumens or, in the case of a modified spectrum lamp, not less than 232 lumens and not more than 1,950 lumens; and is capable of being operated at a voltage range at least partially within 110 and 130 volts; however, this definition did not apply to the following incandescent lamps—

(1) An appliance lamp;

(2) A black light lamp;

(3) A bug lamp;

(4) A colored lamp;

(5) A G shape lamp with a diameter of 5 inches or more as defined in ANSI C79.1-2002 (incorporated by reference; see 10 CFR 430.3);

(6) An infrared lamp;

(7) A left-hand thread lamp;

(8) A marine lamp;

(9) A marine signal service lamp;

(10) A mine service lamp;

(11) A plant light lamp;

(12) An R20 short lamp;

(13) A sign service lamp;

(14) A silver bowl lamp;

(15) A showcase lamp; and

(16) A traffic signal lamp.

See 86 FR 46611, 46624.

The proposed definitions of GSL and GSIL in the August 2021 NOPR were the same as those specified in the January 2017 Final Rules ( i.e., the January 2017 Definitions). For the definition of GSL, in the August 2021 NOPR, DOE proposed additional detail to the statutory definition by specifying the base type, lumens, and voltages of GSLs. DOE also proposed to remove the exemptions for certain incandescent lamps that are used to satisfy lighting applications traditionally served by GSILs and include those lamps in the definition of GSIL and GSL. DOE preliminarily determined these are lamps that can serve in general lighting applications and provide an interior or exterior area with overall illumination. DOE explained that it considers the term “overall illumination” to be similar in meaning to the term “general lighting” as defined in the industry standard ANSI/IES RP-16-10, which states that “general lighting” means lighting designed to provide a substantially uniform level of illuminance throughout an area, exclusive of any provision for special local requirements. 86 FR 46611, 46616.

As proposed in the August 2021 NOPR, the GSL and GSIL definitions explicitly include not only A-shaped or pear-shaped light bulbs but also the smaller, decorative shaped light bulbs resembling a candle, bullet or globe and often used in chandeliers, desk lamps, ornamental wall lights, etc. Additionally, the proposed definitions include reflector shaped light bulbs that have a cone-like shape with an inner reflective coating that directs light and are often used in recessed light fixtures ( e.g., lights within the ceiling). Based on estimates from DOE's 2015 Lighting Market Characterization Report, the proposed definitions increase the number of lamps defined as GSL from 3.8 billion lamps to 5.8 billion lamps. 7

The following discussion addresses issues raised by commenters on the proposal in the August 2021 NOPR to adopt the aforementioned definitions of GSL and GSIL as set forth in the January 2017 Final Rules. In general, the NPCC, NASEO, NYSERDA, the AGs, State of Washington DOC, CEC, Joint Comment, CA IOUs, ASAP, and SC, NRDC, and EJ all stated support for the proposed GSL definitions; while NEMA, GE Lighting, and Lutron suggested changes to the proposed definitions. (NPCC, No. 5 at p. 2; NASEO, No. 8 at p. 1; NYSERDA, No. 10 at p. 1; AGs, No. 11 at pp. 1-2; State of Washington DOC, No. 13 at pp. 1-2; CEC, No. 15 at pp. 2-3; Joint Comment, No. 16 at p. 1; CA IOUs, No. 17 at p. 1; ASAP, No. 19 at pp. 1-2; SC, NRDC, and EJ, No. 18 at pp. 1-2; NEMA, No. 9 at pp. 7-9; GE Lighting, No. 14 at pp. 3-4; Lutron, No. 12 at pp. 3-5).

DOE received several comments on the August 2021 NOPR regarding the September 2019 Withdrawal Rule. This rule withdrew the GSL and GSIL definitions established by the January 2017 Final Rules. The CEC stated that DOE's purported withdrawal of the January 2017 Final Rules was unlawful and unlawfully amended the minimum standard for many lamp types to their previous less efficient levels. The CEC stated that in its effort to undo the January 2017 Final Rules, DOE failed to provide sufficient reasoning for its changed legal interpretation and failed to give statutory meaning to EPCA's GSL and GSIL provisions. (CEC, No. 15 at pp. 2-3)

The SC, NRDC, and EJ asserted that the fundamental flaw of the September 2019 Withdrawal Rule, which they believe provides grounds for its immediate revocation, is its violation of EPCA's anti-backsliding provision. The SC, NRDC, and EJ stated that had DOE not issued the September 2019 Withdrawal Rule, the standard that would have applied to the lamps exempted in that rule would have been 45 lm/W on January 1, 2020. Because DOE issued the September 2019 Withdrawal Rule, SC, NRDC, and EJ asserted that the standard applicable to those lamps is either (1) no standard at all, or (2) a standard requiring a lower level of energy efficiency. The SC, NRDC, and EJ stated that DOE made a policy judgment in a separate rulemaking, applicable to this scenario, that “nominally characterizing a regulatory change in the energy conservation standards applicable to a covered product as something other than an amendment” is inconsistent with EPCA. 8 The AGs referenced and attached their May 3, 2019 comments written in response to the February 2019 Withdrawal NOPR, in which they stated that DOE's planned action to repeal the January 2017 Definitions would be unlawful; violated EPCA's anti-backsliding provision (see 42 U.S.C. 6295(o)(1)); and lacked any statutory basis for exempting the bulbs at issue from existing efficiency standards. The AGs stated that a petition for review of the September 2019 Withdrawal Rule was filed ( New York v. DOE, No. 19-3652 (2d Cir. 2019)) in 2019, which is now in abeyance pending DOE's current reconsideration of the withdrawal under Executive Order 13990. (AGs, No. 11 at pp. 1-2; CEC, No. 15 at pp. 2-3; SC, NRDC, and EJ, No. 18 at pp. 1-2)

Additionally, the AGs, CEC, and SC, NRDC, and EJ agreed with DOE's tentative conclusion that DOE, in the September 2019 Withdrawal Rule, incorrectly interpreted that it could not exercise its authority to remove exemptions for certain incandescent lamps that are not used in general lighting applications. The AGs stated that neither EPCA's separate regulatory process under 42 U.S.C. 6295(l)(4) nor its exclusions under 42 U.S.C. 6291(30)(D)(ii)(XI) and 42 U.S.C. 6291(30)(BB)(ii)(II) for certain lamps precludes DOE from defining them as GSLs. (AGs, No. 11 at pp. 1-2) The NPCC and CEC added that under EPCA, DOE has the authority to adjust the scope of GSLs and determine whether exemptions for certain incandescent lamps should be discontinued or maintained. (NPCC, No. 5 at p. 2; CEC, No. 15 at pp. 2-3)

EPCA directs DOE to amend the statutory definitions of GSL and GSIL by regulation to achieve the energy savings for general lighting that Congress intended in EPCA generally and EISA specifically. 42 U.S.C. 6295(i)(6)(A)(i)(II) and 42 U.S.C. 6291(30)(BB)(i)(IV). By withdrawing the expanded definitions of GSL and GSIL in the September 2019 Withdrawal Rule, DOE failed to give meaningful effect to this statutory direction. As noted in the August 2021 NOPR, DOE was wrong to conclude in the September 2019 Withdrawal Rule that “maintaining the existing statutory exemptions for the 22 categories of lamps excluded from the definition of GSL is the best reading of the statute.” 84 FR 46666, 86 FR 46617. DOE's authority under 42 U.S.C. 6291(30)(BB)(i)(IV) to include within the definition of GSL “any other lamps that [it] determines are used to satisfy lighting applications traditionally served by general service incandescent lamps” empowers the agency to include categories of lamps that would otherwise be excluded under 42 U.S.C. 6291(30)(BB)(ii). And DOE's authority under 42 U.S.C. 6295(i)(6)(A)(i)(II) empowers the agency to discontinue any of the exemptions from the definition of GSIL set out in 42 U.S.C. 6291(30)(D)(ii). DOE's basis for discontinuing certain of the exemptions as discussed in the August 2021 NOPR and presented in the January 2017 Final Rules is the best implementation of the statute because it properly considers the statute as a whole and considers whether such lamps have the potential for use in general lighting applications traditionally served by GSILs. This final rule adopts the definitions established in the January 2017 Final Rules and as proposed in the August 2021 NOPR because they best align with EPCA's goals for increasing the energy efficiency of covered products through the establishment and amendment of energy conservation standards and promoting conservation measures when feasible. 42 U.S.C. 6291 et seq., as amended.

As discussed, in the August 2021 NOPR, DOE proposed to include IRLs within the definition of general service lamp, except those reflector lamps that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1-2002 (incorporated by reference; see § 430.3) and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases. 86 FR 46611, 46620.

Additionally, in the August 2021 NOPR, DOE reviewed its position in the September 2019 Withdrawal Rule that EPCA precludes consideration of the exemption for IRLs because they were exempted twice from the statute. In the NOPR, DOE proposed to amend the definitions of GSIL and GSL to discontinue the exemptions for these products. 86 FR 46611, 46620. In response, NEMA suggested that DOE modify the proposed GSL definition to exclude IRLs from the GSL definition. NEMA and GE Lighting stated that IRLs are already covered under existing regulations for IRLs and were never intended to be regulated as GSLs according to EISA, where they are addressed in a separate regulatory section. Additionally, NEMA stated separation of IRLs from GSLs would avoid confusion and make a phased-in regulation more understandable. NEMA requested that DOE clarify how IRLs that are included in the proposed GSL definition and are also already regulated separately under existing regulations will be treated from an enforcement standpoint. NEMA stated that in the absence of clarity, manufacturers must assume that such products that meet the existing definition of IRLs and also meet the current standard for those products must be certified to DOE according to existing law and continue to be made and sold. (NEMA, No. 9 at pp. 6-9; NEMA, No. 9 at p. 10; GE Lighting, No. 14 at p. 3)

The September 2019 Withdrawal Rule concluded that because IRLs were twice excluded from the statute, once from the GSIL definition in 42 U.S.C. 6291(30)(D)(ii)(XI) and once from the GSL definition in 42 U.S.C. 6291(30)(BB)(ii)(II), that means Congress did not want the Secretary to include IRLs within the definition of GSL. 84 FR 46661, 46666. DOE acknowledges that the statute exempts “reflector lamp” from the definition of GSIL (42 U.S.C. 6291(30)(D)(ii)(XI)) and “incandescent reflector lamp” from the definition of GSL (42 U.S.C. 6291(30)(BB)(ii)(II)). However, on reconsideration, DOE does not read the two statutory exemption provisions as an indication that such lamps were not to be evaluated for coverage under the GSIL and GSL definitions. With respect to IRLs, the best reading of the statute as a whole is that 42 U.S.C. 6291(30)(BB)(i)(IV) and 42 U.S.C. 6295(i)(6)(A)(i)(II) authorize DOE to determine whether to include IRLs within the definition of GSIL and GSL. Section 6295(i)(6)(A)(i)(II) grants DOE authority to determine whether “the exemptions for certain incandescent lamps should be maintained or discontinued.” As discussed previously, in footnote 3, these “exemptions” are set out in 42 U.S.C. 6291(30)(D)(ii), and include IRLs among other lamps. As such, 42 U.S.C. 6295(i)(6)(A)(i) provides DOE with authority to consider Congress' initial exemption of those lamp types from the definition of GSIL, to determine whether those exemptions should be maintained or rescinded. Moreover, all of the lamp types that Congress initially exempted from being considered GSILs in 42 U.S.C. 6291(30)(D)(ii) were likewise initially exempted from being considered GSLs in 42 U.S.C. 6291(30)(BB)(ii). When DOE discontinues an exemption from the definition of GSIL through 42 U.S.C. 6295(i)(6)(A)(i), the lamps that newly qualify as GSILs also become GSLs—because all GSILs are GSLs under 42 U.S.C. 6291(30)(BB)(i)(I), notwithstanding the exclusion of certain lamp types from the definition of GSL in 42 U.S.C. 6291(30)(BB)(ii). (Lamp types statutorily exempted from the definition of GSIL and GSL under 42 U.S.C. 6291(30)(D)(ii) and 42 U.S.C. 6291(30)(BB)(ii), and for which DOE did not discontinue such exemption, remain exempted.) Similarly, under 42 U.S.C. 6291(30)(BB)(i)(IV), DOE has the power to bring within the definition of GSL “any other lamps that the Secretary determines are used to satisfy lighting applications traditionally served by general service incandescent lamps.” That authority is not limited by the exclusions in 42 U.S.C. 6291(30)(BB)(ii). Rather, DOE has the power to bring within the definition of GSL any lamps excluded by 42 U.S.C. 6291(30)(BB)(ii), if it determines that they are used to satisfy lighting applications traditionally served by general service incandescent lamps. DOE therefore has the power to bring IRLs within the definition of GSIL and GSL, notwithstanding the statutory exclusions in 42 U.S.C. 6291(30)(D)(ii) and 42 U.S.C. 6291(30)(BB)(ii). DOE concludes that the discontinuation of the exemption for IRLs is warranted, for the reasons discussed in the second of the January 2017 Final Rules, published at 82 FR 7322. In that rule, DOE determined that medium screw base reflector lamps that are incandescent and do not meet the definition of IRL as well as lamps that are IRLs, separately, had high annual unit sales indicating they are likely to be used in general lighting applications. Further, because these lamps provide overall illumination, they could be used as direct replacements for GSILs. DOE also indicated there was a high potential for lamp switching to IRLs and medium screw base reflector lamps that are incandescent due to the fact they are used in general lighting applications like others GSILs and GSLs. Lastly, as shown in Table III.1 of the second January 2017 final rule, IRLs have annual sales that are several times the sales of the largest-volume lamp category among those exemptions that DOE is discontinuing, all of which are lamps used in general lighting applications. 82 FR 7276, 7293; 82 FR 7322, 7329-7330. For these reasons, in this final rule, DOE includes IRLs in the definition of GSL and GSIL.

DOE acknowledges that IRLs are currently subject to standards. 10 CFR 430.32(n)(6) and (7). This rule is not specifying standards for GSLs. To the extent that DOE were to establish energy conservation standards for GSLs, DOE would clearly indicate the applicable standard and compliance requirements for the affected lamps. Further, DOE notes that GSILs and medium base CFLs are also already covered under existing regulations and yet are explicitly included as GSLs under EPCA.

NEMA commented that separate regulations for IRLs and GSLs will allow consideration for the unique efficiency and light distribution capabilities of reflector and omnidirectional GSLs. GE Lighting stated that IRLs are not general lighting and are used to highlight specific objects or target areas in a room, and therefore, require a unique technical analysis. (NEMA, No. 9 at pp. 6-7; NEMA, No. 9 at p. 10; GE Lighting, No. 14 at p. 3)

In the January 2017 Final Rules, DOE found that IRLs are widely used for general illumination just as GSILs are used. 82 FR 7322, 7325. In this final rule, DOE finds there has been no change in the market that leads to a different conclusion in this final rule. Further, when determining standards for a product, DOE divides covered products into classes by: (a) The type of energy used; (b) the capacity of the product; or (c) other performance-related features that justify different standard levels, considering the consumer utility of the feature and other relevant factors. (42 U.S.C. 6295(q)) Because DOE considers impact on both efficacy and consumer utility when establishing product classes, reflector and omnidirectional GSLs could be analyzed for standards separately, if warranted.

Some private citizens stated that the GSL definitions proposed in the August 2021 NOPR infringe on consumer choice by regulating incandescent bulbs under GSLs and effectively removing them from the marketplace. (Anonymous, No. 2 at p. 1; Anonymous, No. 3 at p. 1; Anonymous, No. 4 at p. 1)

In the August 2021 NOPR, DOE proposed that if the design characteristics of lamps for a given application are such that non-incandescent lamps cannot be made with the same characteristics ( i.e., form factor and light output), such lamps should not be included as “other lamps” in its definition of GSL. See 86 FR 46616; see also 82 FR 7276, 7301. Hence, in this final rule, incandescent lamps that are included as GSLs have or can have more efficient, non-incandescent replacements with the same form factor and light output. DOE has confirmed that all lamp types included in the GSL definition have the same characteristics in the non-incandescent versions as offered in the incandescent versions.

Regarding T-Shape, B, BA, F, G16-1/2, G25, G30, S and M-14 lamps (“decorative lamps”), NEMA estimates total market volume at 950 million installed lamps; and 520 million out of 665 million on mostly switch-controlled sockets have already been converted to LED technology. NEMA stated that regulations would force homeowners with the remaining 285 million incandescent decorative lamps on dimmers to switch to LED technology that is often incompatible with the installed dimmers. NEMA stated that for a dining room fixture an LED-compatible dimmer could cost approximately $20 to $80, plus $100 to $200 (depending on location) for an electrician to install. NEMA stated that a mid-cost $30 dimmer with a lower cost electrician ($100) would have a payback in 30 years, and a high-cost dimmer ($80) with a high-cost electrician ($200) would have a payback in 65 years. NEMA stated that regulating candelabra base lamps used on LED-incompatible dimmers is not economically feasible for homeowners; rather, the market will convert to LED over time without regulation due to homeowners continuing to replace dimmers by choice. (NEMA, No. 20 at pp. 3-4)

Regarding dimming, not all incandescent/halogen dimmers ( i.e., phase-cut control dimmers) are incompatible with LED technology. NEMA's SSL 7A, which provides basic requirements for phase-cut dimming of LED light sources, includes a list of forward phase-cut dimmers and scenarios in which they can be compatible with LED technology ( e.g., up to 125 W LED load). NEMA's comment indicates that almost 80 percent of the lamps on switch-controlled sockets have already been converted to LED technology without a significant negative market reaction. Thus, the extensive use of dimmer technology needed to support the modified GSL definition in this final rule indicates that it is readily available and economically feasible for consumers.

Further, this final rule defines only the scope of GSLs and does not set energy efficiency standards for GSLs. When DOE evaluates a future energy efficiency standard for GSLs it will determine whether a standard is economically justified based on several factors, including consumer impacts and commenters' concerns relating to any asserted lessening of the utility or the performance of newly covered GSILs likely to result from the imposition of the standard. 42 U.S.C. 6295(o)(2)(B)(i)(II)-(IV).

A private citizen stated that for some people LED lamps may have a negative effect on eyesight and thus wished to continue purchasing incandescent bulbs. (Anonymous, No. 4 at p. 1) A second private citizen stated that LED bulbs may affect those with light sensitivity disabilities and under Title 1 of the American Disabilities Act (“ADA”) reasonable accommodation must be made for those that have disabilities and are light sensitive. The citizen stated that, for example, people with epilepsy need to use incandescent lights. The citizen stated that a government project is required by federal ADA law to ensure that those with light sensitivity disabilities are not harmed by artificial lighting used in the project. The citizen stated that the United Kingdom makes accommodations for those that have a disability to use incandescent bulbs. Finally, the citizen stated that Title II of the ADA states DOE has a responsibility to consult with the disabled community prior to changing lighting standards and that reasonable accommodation be made to purchase incandescent bulbs for medical reasons. (Anonymous, No. 6 at p. 1)

Though these public comments do not include quantitative evidence of specific alleged changes to performance characteristics relevant to consumer choice or health, DOE has considered these public comments. DOE has also considered the potential for health benefits of emissions reductions from reducing energy use by the covered products. DOE maintains that the final rule's definitional changes appropriately promote EPCA's goals for increasing the energy efficiency of covered products through the establishment and amendment of energy conservation standards and promoting conservation measures when feasible. 42 U.S.C. 6291 et seq., as amended. As stated above, DOE assesses possible impacts to consumers, utility, and performance during the separate evaluation of economic justification for setting energy conservation standards. Additionally, DOE notes that the ADA does not apply to DOE for purposes of this rule, as the ADA applies only to private employers and not Federal agencies. Individuals wishing to file complaints under the ADA can visit www.ada.gov.

NYSERDA and the CEC recommended that DOE revise the GSL definition proposed in the August 2021 NOPR to include lower lumen products between 150 and 310 lumens to include lamps offered as 25-watt (“W”) equivalents. ASAP, the CA IOUs, and NYSERDA stated that this would align with California's state-regulated LED lamps which include E12 base lamps greater or equal to 150 lumens and E26, E17, GU24 base lamps greater or equal to 200 lumens. ASAP stated that these low-lumen lamps are often used in multiples in a single light fixture to provide general illumination. As an example, NYSERDA stated a fixture with eight candelabra bulbs consumes 10 times more energy than a single 100 W equivalent LED bulb. The CEC stated that low-lumen lamps are typically used to satisfy lighting applications traditionally served by GSILs ( e.g., night lights) and that one-quarter of California homes have at least one low-lumen lamp. The CEC also stated that there are a sufficient number of low-lumen lamps on the market that would meet the 45 lm/W standard, citing its 2018 analysis which found 571 ENERGY STAR® certified LED lamps with low lumens and efficacy far above 45 lm/W. The CA IOUs added that a cluster of low-lumen incandescent lamps remains in the retail space and there is no technical reason not to cover the products in the GSL definition. The CEC added that low-lumen lamps included in the GSL definition would be limited to the base types specified in the definition, excluding other low-lumen base types and specialty lamps. (NYSERDA, No. 10 at p. 2; CEC, No. 15 at pp. 3-4; ASAP, Public Meeting Transcript, No. 7 at pp. 13-14; CA IOUs, Public Meeting Transcript, No. 7 at pp. 14-15)

Westinghouse commented that many of the low-lumen lamps described by ASAP and the CA IOUs are not used in general service applications, but specialty signs and indicators. Westinghouse expressed concern that inclusion of low-lumen lamps of any American National Standards Institute (“ANSI”) base could also include specialty products. (Westinghouse, Public Meeting Transcript, No. 7 at pp. 15-16) GE Lighting stated that lamps below 310 lumens are not 40 W, but instead between 15 and 25 W, and 40 W lamps are typically in the 350 to 450 lumen range. GE Lighting added that these lamps have very low market share, are used in niche applications, and use little wattage. (GE Lighting, Public meeting Transcript, No. 7 at pp. 16-17)

In the August 2021 NOPR, DOE tentatively determined, based on the reasoning presented in the January 2017 Final Rules, that lamps that satisfy the same applications traditionally served by GSILs are ones that provide overall illumination. 86 FR 46611, 46616. In the January 2017 Final Rules, DOE determined that the minimum lumen output of lamps that provide overall illumination should be 310 lumens. DOE acknowledged that some lamps with lumen outputs less than 310 lumens can be marketed as 25 W equivalents. However, there are no Federal guidelines concerning equivalency claims of lamps and even when such guidelines exist there is a variety in lumens that constitute a 25 W equivalent. 82 FR 7276, 7305-7306. DOE finds there has been no change in the market that would lead DOE to reach a different conclusion in this final rule and therefore is adopting a GSL definition with minimum lumens as 310 lumens.

NEMA and GE Lighting recommended that DOE make modifications to the base type and voltage in the proposed GSL definition to provide clarity and to avoid causing specialty and niche products that have unique performance features to become unavailable in the market. GE Lighting stated that the proposed definition goes beyond the original EISA 2007 definition regulating household A-line incandescent 40, 60, 75 and 100 W lamps, or potential replacements for these lamps. (NEMA, No. 9 at p. 8; GE Lighting, No. 14 at pp. 3-4)

NEMA stated that DOE's proposal that GSLs have an ANSI base is so overly broad so as to create confusion in the market and result in DOE unintentionally making specialty lamp types with unique performance features unavailable. NEMA recommended that DOE modify the definition to specify GSLs have an E26 medium screw base, E17 intermediate base, E12 candelabra base, E11 mini candelabra base, E39 or EX39 mogul base, or G5.3, GU10, or GU24 base. (NEMA, No. 9 at p. 8)

Second, NEMA stated that DOE's proposal that GSLs that are non-integrated lamps that operate at any voltage is unnecessarily broad. NEMA stated that the common residential and commercial building mains voltages are 110/120, 208, and 277 volts (“V”). NEMA recommended that DOE modify the definition to specify that GSLs that are non-integrated lamps be able to operate between 100 to 277 V. (NEMA, No. 9 at p. 8)

GE Lighting recommended two alternative modifications to the base and voltage: (1) Limit the base type to medium screw bases and operation between 120 and 130 V; or (2) limit the base type to medium, candelabra, and intermediate screw bases and operation between 120 and 130 V. GE Lighting stated that medium screw base, candelabra base and intermediate screw base lamps that operate between 120 and 130 V and provide omnidirectional light distribution would cover 99 percent of the GSLs used in a home (excluding reflector lamps) according to the 2015 DOE Lighting Market Characterization Report and, therefore, achieve over 99 percent of the potential energy savings. GE Lighting also stated that using specific base types and voltages used in a home would be easy to understand. (GE Lighting, No. 14 at pp. 3-4)

In the August 2021 NOPR, DOE tentatively determined that lamps that satisfy the same applications traditionally served by GSILs are ones that provide overall illumination. 86 FR 46611, 46616. Based on the findings of the January 2017 Final Rules that lamps with an ANSI base provide overall illumination, DOE proposed in the August 2021 NOPR to define GSLs to include lamps with an ANSI base. 86 FR 46611, 46619. In the January 2017 Final Rules, DOE also identified lamps with ANSI bases that were associated with certain incandescent/halogen lamps without more efficient, equivalent replacements and concluded that those lamps should be exempted. DOE concluded that the unavailability of non-incandescent substitutes for a given lamp suggests that lamp is not being used for traditional GSIL applications. 82 FR 7276, 7301. As such, DOE exempted: (1) J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do not have Edison screw bases; (2) lamps that have a wedge base or prefocus base; and (3) reflector lamps that have a first number symbol less than 16 (diameter less than 2 inches) as defined in ANSI C79.1-2002 and that do not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39, E39d, EP39, or EX39 bases. 82 FR 7276, 7304. Hence, based on these findings of the January 2017 Final Rules, in the August 2021 NOPR, DOE proposed exempting the aforementioned lamps because they may not have more efficient, equivalent replacements available if a future GSL standard is adopted. DOE's findings of the January 2017 Final Rules found that many lamps with medium, candelabra, and intermediate screw bases, operating between 120 V and 130 V could provide overall illumination and therefore, could not use these criteria as suggested by GE. Further, ANSI bases are well defined in the industry standard ANSI C81.61, “Electric Lamp Bases—Specifications for Bases (Caps) For Electric Lamps.” DOE finds that the GSL definition as proposed in the August 2021 NOPR is easy to understand when it specifies that lamps must have ANSI bases and exempts certain lamps using an ANSI base designation. In this final rule, DOE is adopting the GSL definition as proposed, which defines such lamps as having ANSI bases.

In the January 2017 Final Rules, DOE reviewed available product offerings to determine whether lamps of all operating voltages are used in general lighting applications. DOE determined that integrated lamps able to operate at a voltage of 12 volts or 24 volts, at or between 100 to 130 volts, at or between 220 to 240 volts, or of 277 volts provide overall illumination. DOE made this determination by reviewing product offerings and identifying voltages associated with specialty lamps and ensuring those are not included in the ranges of a GSL. DOE found that the operating voltage of non-integrated lamps did not correlate to use in specialty applications. 82 FR 7276, 7306. DOE finds there has been no change in the market regarding lamp voltages that would lead DOE to reach a different conclusion in this final rule. Hence, in this final rule, DOE is adopting, as proposed in the August 2021 NOPR, the GSL definition established in the January 2017 Rules that defines integrated lamps in voltage ranges of 12 volts or 24 volts, at or between 100 to 130 volts, at or between 220 to 240 volts, or of 277 volts.

Lutron stated that when considering the scope of the GSL definition, DOE should take into consideration the impact of including advanced technologies, specifically full color tunable lamps. Lutron stated full color tunable lamps can change between emitting high quality white light typically used in general lighting applications and colored lighting typically used for decorative purposes. Lutron stated luminous flux measures the perceived intensity of light, weighted by the human eye sensitivity curve to differing wavelengths (colors) of light, V(λ). Hence, lamps outputting colors of light to which the human eye is not as sensitive ( i.e., color others than white) will always appear to be less efficacious than a comparable source outputting white light. Lutron stated that full color tunable lamps when operated in colors other than white will therefore be measured as having a lower lumen output. Lutron noted that the current DOE test procedure requires lamps to be tested at the highest input power for efficacy, CRI, and other metrics. Lutron stated that although it is often the case that one or more white light settings are among the set of highest input power settings, this cannot be assumed. Lutron also stated innovation in phosphor-converted LEDs may enable efficacy gains when operating at white light settings but at a lower input power. Lutron asserted that the current DOE test procedure of testing at the highest input power would disincentivize this kind of innovation. (Lutron, No. 12 at p. 3)

Lutron proposed two possible solutions to the problem it identified. The first option Lutron proposed was to exclude “full color tunable lamps” from the definition of GSL. Lutron stated that the reason for the exclusion would align with the reasons for excluding colored lamps. Further, Lutron stated that full color tunable lamps are not yet mainstream products and when operated in deeply saturated colors are often used for short-term events or in decorative applications. Lutron recommended the following definition for the exempt lamp type: “Full color tunable lamp means a lamp capable of emitting highly saturated light of varying hues, as well as white light, for example by varying the relative intensity of individual emitters.” (Lutron, No. 12 at pp. 3-4)

Alternatively, Lutron proposed DOE open a rulemaking to revise the test procedure to appropriately evaluate full color tunable lamps. Instead of testing at maximum input power, Lutron recommended testing tunable products in their default mode of operation, which is consistent with other design standards. 9 Lutron added that DOE would then need to open a rulemaking to revise the standards for GSLs to accommodate for multiple emitters, each operating at a different efficacy, in full color tunable lamps. Lutron stated that full color tunable lamps should ultimately be considered by DOE as a separate product class with a separate standard. Lutron stated this option should still include defining the term “full color tunable lamp.” (Lutron, No. 12 at pp. 3-4)

Lutron commented that, of the two solutions, it would be easier to exempt full color tunable lamps and allow the focus of the rulemaking to return to traditional lighting technology. (Lutron, No. 12 at pp. 3-4)

EPCA directs DOE to include as GSLs, lamps which are used to satisfy lighting applications traditionally served by GSILs. 42 U.S.C. 6291(30)(BB)(i)(IV). In the January 2017 Final Rules, DOE determined that lamps that satisfy the same applications traditionally served by GSILs are ones that provide an interior or exterior area with overall illumination. 82 FR 7276, 7306. Because colored lamps do not provide overall illumination, in the January 2017 Final Rules, DOE maintained the exemption of colored lamps specified in the GSIL definition and applied it to the GSL definition. 82 FR 7276, 7302, 7312. Colored lamps have correlated color temperatures (CCTs) or color rendering indexes (CRIs) that do not result in white light, and therefore do not satisfy lighting applications traditionally served by GSILs ( i.e., colored lamps do not provide overall illumination). DOE reaffirmed this position in the August 2021 NOPR by proposing to exclude colored lamps from the definition of GSIL and GSL. 86 FR 4611, 46616, 46625. DOE understands that full color tunable lamps can be operated to provide overall illumination as well as colored light. At the setting where the full color tunable lamp is producing colored light, the CCT or CRI will be such that it does not result in white light. Accordingly, at a setting where the full color tunable lamp is not producing colored light, the CCT or CRI will be such that it does result in white light. Because consumers can choose to use them to provide overall illumination, exempting such lamps could result in manufacturers adding color tunability to avoid standards, i.e., a potential loophole. Hence, DOE is not modifying the GSL definition proposed in the August 2021 NOPR to exempt full color tunable lamps. DOE will review the most appropriate method to test such lamps in its next review of the applicable lamp test procedure.

DOE also received comments on the August 2021 NOPR relating to the market share of GSLs. The Joint Comment stated that while LEDs have gained an overall market share of about 60 percent, 10 the 40 percent of incandescent products are costing consumers. (Joint Comment, No. 16 at p. 2) NASEO and ASAP commented that consumers continue to purchase incandescent bulbs out of habit and because manufacturers promote them. (NASEO, No. 8 at p. 2; ASAP, No. 19 at p. 2) NYSERDA stated that results of a survey it conducted showed that nationally, of the overall lamp market 58 percent of A-lamps, 84 percent of reflector lamps, 50 percent of globe lamps, and 56 percent of candelabra lamps were LED lamps in 2020 and had increased from the previous year. NYSERDA stated LED lamps were widely available even in states that did not have utility energy efficiency lighting incentives. However, the NYSERDA survey indicated that while LED globe lamps grew by 2 percent in 2020 from the previous year, incandescent globe lamps grew by 5 percent. (NYSERDA, No. 10 at pp. 2-3)

The CA IOUs stated that implementation of the 45 lm/W backstop on lamps included in the January 2017 Definitions will significantly increase the number of products impacted and decrease the potential of an increase in sales volume of non-GSL incandescent lamps. (CA IOUs, No. 17 at p. 3) The NPCC stated that “specialty” lamps for which the exemptions are being discontinued ( i.e., reflector bulbs used in recessed and track lighting, candle-shaped bulbs used in wall sconces and decorative light fixtures, globe-shaped bulbs often installed in bathrooms, pear-shaped bulbs, etc.) represent a significant portion of the Pacific Northwest's energy efficiency potential, as there are over 250 million of these bulbs in the region. The NPCC stated that LED lamps provide equal or better service at a much lower energy consumption rate and higher durability. (NPCC, No. 5 at pp. 1-2) The CA IOUs stated that when incandescent light bulbs leave the market, any economic harm to the lighting industry will be far outweighed by the energy and environmental savings. (CA IOUs, No. 17 at p. 2)

DOE received several comments on the benefits of amending the definitions of GSL and GSIL as proposed in the August 2021 NOPR. The State of Washington DOC stated that although Washington already has a 45 lm/W efficacy standard in place, the proposed DOE action will strengthen enforcement and improve compliance in Washington, as well as avoid excess electricity consumption in other Western states, especially those without a state-level standard for GSLs as the Western electricity grid is very interconnected. (State of Washington DOC, No. 13 at pp. 1-2) The SC, NRDC, and EJ stated that the two-year delay in reinstatement of the January 2017 Definitions and application of the 45 lm/W backstop has prevented gains in reducing air pollutant emissions associated with electricity generation and consumer benefits, in particular, for low-income families. (SC, NRDC, and EJ, No. 18 at p. 2) NASEO and the State of Washington DOC stated that adopting the proposed GSL definitions will deliver large cost savings for consumers and reductions in climate emissions and encouraged the two-step process of first, expanding the definition of GSL to include all common bulb types and second, implementing the 45 lm/W backstop standard. (NASEO, No. 8 at p. 1; State of Washington DOC, No. 13 at pp. 1-2)

DOE also received comments that quantified cost savings and emissions reductions from adopting the definitions as proposed in the August 2021 NOPR. The AGs stated that, if adopted, the proposed definitions would save billions of dollars in energy costs and avoidance of millions of metric tons of greenhouse gas emissions annually. (AGs, No. 11 at p. 1) NASEO, the Joint Comment, and ASAP stated that switching a single incandescent bulb to LED saves $40-$90 over 10 years. Therefore, a midpoint of $65 in savings for a typical 45 bulbs per household would result in average estimated savings of $3,000 over 10 years. (NASEO, No. 8 at pp. 1-2; Joint Comment, No. 16 at p. 2; ASAP, No. 19 at p. 2) NASEO added that according to ASAP, updated GSL standards could result in nationwide utility bill savings of $2.6 billion by 2035. (NASEO, No. 8 at p. 2) NYSERDA stated that the additional products included in the expanded GSL definition, with the exclusion of A-lamps, would result in $1-$1.4 billion of net present value. (NYSERDA, No. 10 at p. 2) The CEC added that adopting the expanded definitions plus enforcing the backstop of 45 lm/W would result in $3.4 billion in cost savings each year. (CEC, No. 15 at p. 2) The Joint Comment stated that each month of additional delay in implementing the 45 lm/W standard will result in $300 million in lost savings through higher electricity bills and $1.8 billion has already been spent by consumers on inefficient lighting costs since January 2021. (Joint Comment, No. 16 at pp. 1-2; ASAP, No. 19 at p. 2)

NASEO stated that according to ASAP, the proposed GSL definitions could avoid an annual 2.7 to 6.2 million metric tons (“MMT”) of carbon dioxide (“CO 2 ”) emissions by 2030. (NASEO, No. 8 at p. 2) NYSERDA stated that the additional products included in the expanded GSL definition, with the exclusion of A-lamps, would reduce emissions by 0.25 to 0.5 MMT of CO 2 . (NYSERDA, No. 12 at p. 2) The CEC added that adopting the expanded definitions plus enforcing the backstop of 45 lm/W would result in 9.5 MMT of avoided CO 2 emissions each year. (CEC, No. 15 at p. 2) The Joint Comment and ASAP stated that each month of additional delay in implementing the January 1, 2020, backstop will result in the addition of 800,000 tons of CO 2 emissions. The Joint Comment stated that since the beginning of the new administration 4.8 million tons of CO 2 have been needlessly released. (Joint Comment, No. 16 at pp. 1-2; ASAP, No. 19 at p. 2)

DOE also received several comments regarding low-income consumers and adopting the January 2017 Definitions. NASEO and ASAP stated that lower income consumers lack easy access to retailers that sell affordable LED lamps and expanding the GSL definition would ensure access to a larger consumer base. (NASEO, No. 8 at p. 2; ASAP, No. 19 at p. 2) NYSERDA cited a study it commissioned which assessed the lighting market in New York state. The study showed that LED lamps appear to be less available in dense urban environments, as smaller businesses such as grocery, hardware, and general merchandise stores have the lowest availability of LED lamps, compared to big-box or national operations typically located outside urban city centers. NYSERDA stated that DOE's proposed rule can solve the resulting issue of inequitable access to LED lamps. (NYSERDA, No. 10 at pp. 3-4) Based on research in Michigan and New York, the Joint Comment also found that low-income consumers, particularly in urban areas, have less access to affordable LED lamps than other consumers because the stores they often shop at do not stock them or set prices high. The Joint Comment stated that the proposed GSL definition would ensure that all consumers have access to LED lamps regardless of distribution channel ( i.e., big box suburban stores, grocery stores, hardware stores, dollar stores, corner stores). The Joint Comment added that low-income consumers tend to have disproportionately higher energy bills and are typically renters of housing with inefficient pre-installed lightbulbs ( i.e., incandescent lamps or CFLs). The Joint Comment also stated that when the commercial and industrial sectors save on lighting costs, these energy savings can be passed on to consumers in the form of lower costs for goods and services and can be spent in other areas of our economy with greater multiplier effects. Furthermore, the Joint Comment stated that a 2019 Consumer Federation of America (“CFA”) survey found that two-thirds of respondents support Federal energy efficiency standards for light bulbs, citing energy savings and less frequent light bulb replacements as benefits. (Joint Comment, No. 16 at p. 2)

Although this final rule only defines the scope of GSLs and does not set energy efficiency standards for GSLs, DOE appreciates commenters' information regarding estimated impacts of the adoption of the proposed August 2021 definitions on the market, consumer costs, energy savings, and emissions reductions. DOE has also conducted an analysis of the impacts of expanding the definitions of GSL and GSIL if the statutory backstop requirement for GSLs comes into effect. This analysis shows consumers will save $2.2 billion in annualized reduced operating costs savings at a 7% discount rate, and $2.3 billion at a 3% discount rate, and reduce CO 2 emissions by 174 million metric tons from products shipped between 2022-2051. Please see III.H of this document for a discussion of this analysis.

NEMA requested that the GSL definition final rule specify in clear and unambiguous language that the federal definition of a product class preempts any existing or future State definition. (NEMA, No. 9 at p. 7)

In response, DOE notes that Federal energy conservation requirements generally supersede state laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) Absent limited exceptions, states generally are precluded from adopting energy conservation standards for covered products both before an energy conservation standard becomes effective, and after an energy conservation standard becomes effective. (42 U.S.C. 6297(b) and (c))

For energy conservation standards applicable to GSLs, EISA 2007 established additional preemption provisions specific to California and Nevada. Namely, beginning January 1, 2018, no provision of law can preclude these states from adopting: (1) Standards established in a final DOE rule adopted in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv); (2) the backstop requirement of 45 lm/W if no final rule was adopted in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv); or (3) for the State of California, if a final rule has not been adopted in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), any California regulations related to “these covered products” adopted pursuant to state statute in effect as of the date of enactment of EISA 2007 ( i.e., December 19, 2007). (42 U.S.C. 6295(i)(6)(A)(vi))

In the August 2021 NOPR, DOE proposed an effective date of 60 days from the publication of the final rule for the proposed definitions. 86 FR 46611, 46620. NEMA and GE Lighting stated that the 60-day effective date proposed for the GSL definitions is insufficient time for manufacturers to respond. NEMA and GE Lighting cited as concerns the potential lack of LED lamp substitutes for lamp types impacted by the amended GSIL and GSL definitions and complying with existing regulations for newly impacted lamp types. (NEMA, No. 9 at pp. 2-3; GE Lighting, No. 14 at p. 2)

NEMA and GE Lighting stated that almost all GSLs are made overseas and described the steps of the manufacturing and retail supply chain. NEMA stated that the supply forecasting process, which includes cancelling and selling affected products, as well as identifying, ordering, and shipping alternative LED products, would require at least 9-12 months for the lamps newly impacted by the GSL definition. NEMA stated that manufacturers would need at least 12 months to adjust supply chains and retailers would need an additional 12 months to sell through inventory. (NEMA, No. 9 at pp. 2-3; GE Lighting, No. 14 at p. 2) NEMA and GE Lighting added that global supply chains are currently under stress due to congested ports, coronavirus disease protocols and outbreaks, electronic chip shortages, and rolling blackouts that lead to unpredictable lighting factory shutdowns in China. NEMA stated that logistics and shipping delays are doubling lead times from 5-6 weeks to 10-12 weeks and electronic chip shortages are increasing component lead times from 1 month to 3 months. (NEMA, No. 9 at p. 4) NEMA added that the date Customs and Border Protection (“CBP”) clears a shipment is the date recorded as the date of manufacture for regulatory purposes. Thus, NEMA stated that with a 60-day effective date, it is possible that a cargo ship could depart with legal cargo that becomes illegal by the time of arrival. (NEMA, No. 9 at pp. 2-3) Further, NEMA stated that to convert the remaining 400 million incandescent decorative lamps ( i.e., T-Shape, B, BA, F, G16-1/2, G25, G30, S and M-14 lamps) to LED technology would take approximately 37 months (approximately 3 years) at a current worldwide production and shipping capacity of about 11 million decorative LED lamps per month into the United States. (NEMA, No. 20 at pp. 3-4) NEMA also noted that several LED lamp type options, in particular legacy lamp types, are not available due to technical and financial limitations. NEMA stated that product development and inventory planning take months to years and not all of the DOE proposal is possible or practicable. (NEMA, No. 9 at p. 2)

NEMA stated that medium screw base decorative lamps, 3-way lamps, vibration service lamps, rough service lamps, shatter-resistant lamps, and any other newly regulated lamps would need to be formally tested, certified, and listed in the DOE database under the proposed GSL definitions. NEMA stated that substitute lamps that are not currently regulated products have likely been tested in a manufacturer's laboratory or a less stringent lab for labeling or marketing purposes rather than undergoing the National Voluntary Laboratory Accreditation Program (“NVLAP”) or International Laboratory Accreditation Cooperation (“ILAC”) testing required to meet DOE certification standards. NEMA stated that manufacturers generally have 3 years to prepare newly covered products for legal sale and that testing alone would take several months. (NEMA, No. 9 at pp. 4-5; NEMA, Public Meeting Transcript, No. 7 at pp. 28-30)

Finally, NEMA and GE Lighting stated that a 60-day effective date will result in financial loss to lamp manufacturers due to stranded assets, specifically costs associated with non-cancellable supply contracts, components already purchased based on forecasted production quantities, capital investments already made for labor and production, the value of finished goods that cannot clear customs (import date) within 60 days, and retailer stock resets for all medium screw based decorative lamps, 3-way lamps, vibration service lamps, rough service lamps, and shatter-resistant lamps. NEMA stated that the resulting product shortages and empty store shelves would have a disproportionate impact on smaller manufacturers and smaller retailers. (NEMA, No. 9 at p. 5; GE Lighting, No. 14 at p. 2)

NEMA recommended that DOE align the timing of the definitions with the implementation of new energy conservation standards; however, if DOE moved ahead sooner with the implementation of the definitions, NEMA requested a minimum effective date of 9 to 12 months to account for global supply chain blockages. (NEMA, No. 9 at pp. 5-6) Westinghouse requested clarity on whether products that are newly defined as GSLs will be subject to the existing GSIL standard. (Westinghouse, Public Meeting Transcript, No. 7 at pp. 19-21)

The CEC recommended keeping the 60-day effective date and stated that any stranded lamps should be absorbed by the industry and that allowing the sale of inefficient lamps would merely pass the costs of these products from manufacturers to consumers through higher energy bills and environmental harm. (CEC, No. 15 at pp. 1-2; CEC, No. 15 at p. 4; CA IOUs, No. 17 at p. 2) NYSERDA stated that though the 60-day effective date may seem brief, the expanded GSL definition was initially proposed by DOE over 5 years ago and the market has matured significantly since then. (NYSERDA, No. 12 at p. 2)

The CA IOUs stated that they support the proposed definitions for GSLs and GSILs to become effective 60 days after adoption. The CA IOUs stated that because DOE's existing GSIL standards only prohibit the manufacture or import of non-compliant light bulbs, rather than the sale, retailers may continue to sell non-compliant GSILs already in the U.S. when the definitions become effective. Regarding products en route that may become ineligible for importation, the CA IOUs stated that as the GSL definitions NOPR was published on August 19, 2021, a 60-day effective date is a reasonable gap between adoption and enactment of the expanded GSL definition. The CA IOUs stated that risk-averse planners would have anticipated the GSL backstop and definitions nine months ago with the change of the administration, and thus wholesale market disruption from a short 60-day timeframe should be avoidable. Further, the CA IOUs stated that since January 2020 when California implemented the revised GSL and GSIL definitions and a 45 lm/W minimum energy standard a full range of compliant GSLs have been available in California and there has been no market disruption. The CA IOUs stated that the fact that consumers want to buy incandescent bulbs defines the market failure that the energy efficiency standards were designed to address. The CA IOUs stated that DOE should take steps to minimize any market disruption caused by the transition; however, regulation is necessary to ensure a thorough and quick transition. (CA IOUs, No. 17 at pp. 2-3; CA IOUs, Public Meeting Transcript, No. 7 at pp. 23-24, 32-33)

NEMA responded that the reason manufacturers are still sourcing and supplying incandescent lamps is because customers are buying them. (NEMA, Public Meeting Transcript, No. 7 at p. 28) GE Lighting stated that the market transformation to LED technology has been happening rapidly noting that since 2016-2017, when DOE began its review of GSLs, a big chunk of the market has by itself converted to LED technology and will continue to do so. (GE Lighting, Public Meeting Transcript, No. 7 at pp. 33-35) The Edison Electric Institute (“EEI”) stated that since LED lamps for GSL shipments have increased from around 10 percent several years ago to now 70 to 75 percent of the market, the industry should not be characterized as a “market failure.” (EEI, Public Meeting Transcript, No. 7 at pp. 36-37)

Furthermore, Westinghouse stated that manufacturers cannot choose to stop producing products based off speculations for future regulations, and instead need certainty from DOE through a final rule followed by adequate time to adjust. (Westinghouse, Public Meeting Transcript, No. 7 at pp. 24-25) GE Lighting added that manufacturers must respond to demand and if they discontinue their incandescent product line, another manufacturer would take that market space up. GE Lighting stated that its product line can only be controlled when the regulation goes final. (GE Lighting, Public Meeting Transcript, No. 8 at pp. 25-27)

A lamp covered as a GSL or GSIL under the amended definitions would be subject to any energy conservation standard applicable to that lamp as a GSL or GSIL beginning on the effective date of this final rule, including the 45 lm/W GSL backstop requirement, if applicable. DOE notes that of the lamps newly covered under the amended definitions adopted in this final rule, only certain lamps will be subject to existing standards, i.e., lamp types for which exemption from the GSIL definition is discontinued. See 10 CFR 430.32(x)(1). Generally, the energy conservation standards apply to covered products as manufactured. ( See 42 U.S.C. 6302 and 42 U.S.C. 6303) However, as noted by the CA IOUs, the GSIL energy conservation standards at 10 CFR 430.32(x)(1) apply to GSILs manufactured on or after January 1, 2012, January 1, 2013, and January 1, 2014, depending on the rated lumens of the lamp. As such, in determining whether compliance is required by a lamp newly covered by the amended GSIL definition, the compliance dates in 10 CFR 430.32(x)(1) would be applicable. To determine the appropriateness of a 60-day effective date, DOE examined its impact on these new GSILs subject to GSIL standards.

Specifically, the following lamp types become GSILs under the GSIL definition adopted in this final rule and subject to existing GSIL standards: (1) T shape lamp that uses not more than 40 watts or has a length of more than 10 inches; (2) B, BA, CA, F, G16-1/2, G-25, G30, S, or M-14 lamp of 40 watts or less; (3) reflector lamp; (4) rough service lamp; (5) shatter-resistant lamp; (6) 3-way lamp; and (7) vibration service lamp. Per the GSIL definition established in this rule, these lamp types must have a medium screw base; 310-2,600 lumens (232-1,950 lumens for modified spectrum); and operate within 110 and 130 V. DOE's review of the market indicates that there are LED lamp substitutes available for these lamp types. The incandescent version of rough service and vibration service lamps use filaments strengthened with additional supports. The incandescent version of shatter-resistant lamps has a reinforced outer bulb to contain glass pieces in the event the bulb breaks. LED lamps inherently provide the consumer with these features because they do not have metal filaments and LED lamps are available that do not use glass outer bulbs. DOE has also found that there are product offerings of LED lamps that are medium screw base, 310-2,600 lumens, operate within 110 and 130 volts and are a (1) T shape lamp of 749 lumens  11 or less (equivalent of 40 watts or less) or has a length of more than 10 inches (2) B, BA, CA, F, G16-1/2, G-25, G30, S, or M-14 lamp of 749 lumens or less  12 (equivalent of 40 watts or less); (3) reflector lamp, or (4) 3-way lamp. Therefore, DOE finds that there will be substitutes for lamps newly regulated as GSILs.

As proposed in the August 2021 NOPR, DOE is establishing a 60-day effective date for this rule in recognition of the need to act promptly in connection with the statutory requirements. As indicated by commenters, a substantial part of the lamp market has already transitioned to LED technology. DOE does not find that the impact on certain types of incandescent/halogen lamps will disrupt the market and thereby substantively impact consumers, manufacturers, or retailers. DOE acknowledges that manufacturers will have to comply with the statutory backstop requirement for GSLs when effective. It is DOE's intent that newly regulated GSILs will not be required to comply with multiple standards in a short period of time. DOE intends to do this by using its enforcement discretion in the period after this rule is effective, but before the final rule implementing the backstop becomes effective. Hence, DOE finds that an effective date of 60 days after the publication of this final rule is appropriate.

In addition to the expanded GSL definition, NYSERDA, the AGs, the CEC, Joint Comment, and the CA IOUs recommended that DOE promptly implement the 45 lm/W minimum requirement for GSLs. The CEC and CA IOUs stated that the 45 lm/W backstop has been triggered and is not a discretionary action; because DOE failed to meet its statutory requirements as of January 1, 2017, DOE has been legally obligated to enforce the backstop for GSLs since January 1, 2020. The CEC stated that the 45 lm/W backstop should be applied immediately for the existing GSL definitions and applied on the operative date of the final rule for the proposed expanded GSL definitions. (CEC, No. 15 at p. 2)

NEMA recommended a two-step approach in enacting a 45 lm/W minimum requirement: (1) Manufacture-by date of certain lamp types in effect one year after final rule publication in the Federal Register , and (2) sell-by date of same lamp types effective one year following manufacture-by date. (NEMA, No. 9 at pp. 5-6) NEMA stated it is not opposed to regulating different lamp groups in different years. NEMA and GE Lighting suggested regulating A-line lamps first, followed by reflector lamps, then decorative lamps, all separated by at least a year to account for timing of manufacturer and retailer resets. NEMA recommended that decorative lamp types follow A-lamps by a minimum of two years, as the decorative lamp market is less transitioned to LEDs. GE Lighting agreed, adding that the A-line market has the highest percentage of LED socket penetration followed by reflector lamps and then decorative lamps have the least. GE Lighting also added that product capacity is higher for LED A-line lamps and much lower for LED decorative lamps. NEMA added that exempted reflector lamps (R20, R30 and R40) could also be regulated using the current IRL regulations in a separate phased-in year. NEMA recommended an end date for manufacture/import and a year-later date for sell through for any regulation. NEMA stated that this approach would allow sell through to clear out existing incandescent inventory, avoid stranded assets and empty store shelves, and have a limited effect on energy saving due to the short life of the lamps. (NEMA, No. 9 at pp. 9-10; GE Lighting, No. 14 at pp. 2-3)

The CA IOUs stated that DOE should issue the GSL backstop standard without delay and consider phased-in effective dates for certain lamps per the provision in EISA and as deemed necessary based on information received from manufacturers and retailers. (CA IOUs, No. 17 at pp. 2-3) The CA IOUs stated that the 45 lm/W efficacy standard is far below typical LED performance and recommended that after implementing the January 2017 Definitions, DOE undertake further rulemakings for GSILs and GSLs as soon as possible. (CA IOUs, No. 17 at p. 3) NYSERDA stated that its 2020 Stocking and Shelving Survey  13 study found that most retailers rely on manufacturers to provide compliant products and manufacturers anticipate increases in standards but will not initiate product changes without a high level of certainty that the requirements will go into effect. (NYSERDA, No. 10 at pp. 4-5; AGs, No. 11 at p. 2)

ASAP stated that DOE could consider implementing the standards in a phased approach with standards going into effect for high-volume lamps sooner than lamps that sell more slowly and need longer to clear inventory. ASAP stated, however, while it's important that the standard is implemented smoothly and without needless market disruption, the standard is also two years delayed and is needed to protect the climate and result in savings. (ASAP, Public Meeting Transcript, No. 7 at pp. 30-32) NASEO and ASAP stated Executive Order 13990, under which DOE identified light bulb rules for review, directs DOE to complete work on these and other reviews by December 31, 2021. NASEO and ASAP urged DOE to finalize the GSL definitions and adopt the 45 lm/W backstop standard no later than December 31, 2021. (NASEO, No. 8 at p. 2; ASAP, No. 19 at pp. 2-3)

While this final rule does not propose any new or amended standards or address the applicability of the 45 lm/W backstop requirement, on December 13, 2021, DOE issued a notice of proposed rulemaking to codify in the CFR the backstop requirement for GSLs. 86 FR 70755. As discussed previously, a final rule codifying the backstop requirement is being issued simultaneously with this rule. In that rule, DOE is addressing application of the backstop requirement to lamps that become GSLs or GSILs via this final rule and, consequently, the dates of required compliance for GSLs and GSILs, so that manufacturers of newly regulated GSILs will not have to comply with immediately sequential standards.

DOE estimated the annualized national economic costs and benefits associated with the expansion of the GSL definition and the proposed implementation of the 45 lm/w backstop relative to a no-new standard case. DOE first considered the product price and energy use of commercially-available lamp options in the expanded GSL definition, including those that would be prohibited under implementation of the 45 lm/W backstop and more efficacious GSLs that would continue to be available. DOE then developed a shipments model to project lamp shipments within the expanded GSL definition for the no-new-standards case and for the 45 lm/W backstop case over a thirty-year period between 2022-2051. Shipments were estimated using a consumer-choice model sensitive to first cost, energy savings, lamp lifetime, and the presence of mercury. The shipments analysis also considered the impact of price learning on product price. Based on the shipments projections, DOE calculated the national consumer economic impacts of the expanded definition and 45 lm/W backstop, by comparing the total installed product costs and operating costs in the 45 lm/W backstop case to the no-new-standards case.

DOE also analyzed the reduction in several greenhouse gases and other pollutants that would result from the expanded GSL definition and the proposed 45 lm/W backstop using emissions intensity factors intended to represent the marginal impacts of the change in electricity consumption associated with amended or new standards. 14 As part of the development of this final rule, for the purpose of complying with the requirements of Executive Order 12866, DOE also considered the estimated monetary benefits from the reduced emissions of CO 2, CH 4 , N 2 O, NO X , and SO 2 . DOE notes that it would have reached the same conclusion presented in this document in the absence of the social cost of greenhouse gases (“SC-GHG), including the February 2021 Interim Estimates presented by the Interagency Working Group on the Social Cost of Greenhouse Gases.

On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the federal government's emergency motion for stay pending appeal of the February 11, 2022, preliminary injunction issued in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the preliminary injunction is no longer in effect, pending resolution of the federal government's appeal of that injunction or a further court order. Among other things, the preliminary injunction enjoined the defendants in that case from “adopting, employing, treating as binding, or relying upon” the interim estimates of the social cost of greenhouse gases—which were issued by the Interagency Working Group on the Social Cost of Greenhouse Gases on February 26, 2021—to monetize the benefits of reducing greenhouse gas emissions. In the absence of further intervening court orders, DOE will revert to its approach prior to the injunction and present monetized benefits where appropriate and permissible under law.

For the purpose of complying with the requirements of Executive Order 12866, DOE estimates the monetized benefits of the reductions in emissions of CO 2 , CH 4 , and N 2 O by using a measure of the social cost (“SC”) of each pollutant ( e.g., SC-GHGs). These estimates represent the monetary value of the net harm to society associated with a marginal increase in emissions of these pollutants in a given year, or the benefit of avoiding that increase. These estimates are intended to include (but are not limited to) climate-change-related changes in net agricultural productivity, human health, property damages from increased flood risk, disruption of energy systems, risk of conflict, environmental migration, and the value of ecosystem services. DOE exercises its own judgment in presenting monetized climate benefits as recommended by applicable Executive orders and guidance, and, as stated previously, DOE would reach the same conclusion presented in this document in the absence of the social cost of greenhouse gases, including the February 2021 Interim Estimates presented by the Interagency Working Group on the Social Cost of Greenhouse Gases.

DOE estimated the global social benefits of CO 2 , CH 4 , and N 2 O reductions ( i.e., SC-GHGs) using the estimates presented in the Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive Order 13990 published in February 2021 by the Interagency Working Group on the Social Cost of Greenhouse Gases (IWG) (IWG, 2021). 15 The SC-GHGs is the monetary value of the net harm to society associated with a marginal increase in emissions in a given year, or the benefit of avoiding that increase. In principle, SC-GHGs includes the value of all climate change impacts, including (but not limited to) changes in net agricultural productivity, human health effects, property damage from increased flood risk and natural disasters, disruption of energy systems, risk of conflict, environmental migration, and the value of ecosystem services. The SC-GHGs therefore, reflects the societal value of reducing emissions of the gas in question by one metric ton. The SC-GHGs is the theoretically appropriate value to use in conducting benefit-cost analyses of policies that affect CO 2 , N 2 O and CH 4 emissions. As a member of the IWG involved in the development of the February 2021 SC-GHG TSD), the DOE agrees that the interim SC-GHG estimates represent the most appropriate estimate of the SC-GHG until revised estimates have been developed reflecting the latest, peer-reviewed science.

The SC-GHGs estimates are presented in DOE's technical support document (“TSD”)  16 and were developed over many years, using transparent process, peer-reviewed methodologies, the best science available at the time of that process, and with input from the public. Specifically, in 2009, an interagency working group (IWG) that included the DOE and other executive branch agencies and offices was established to ensure that agencies were using the best available science and to promote consistency in the social cost of carbon (SC-CO 2 ) values used across agencies. The IWG published SC-CO 2 estimates in 2010 that were developed from an ensemble of three widely cited integrated assessment models (IAMs) that estimate global climate damages using highly aggregated representations of climate processes and the global economy combined into a single modeling framework. The three IAMs were run using a common set of input assumptions in each model for future population, economic, and CO 2 emissions growth, as well as equilibrium climate sensitivity (ECS)—a measure of the globally averaged temperature response to increased atmospheric CO 2 concentrations. These estimates were updated in 2013 based on new versions of each IAM. In August 2016 the IWG published estimates of the social cost of methane (SC-CH 4 ) and nitrous oxide (SC-N 2 O) using methodologies that are consistent with the methodology underlying the SC-CO 2 estimates. The modeling approach that extends the IWG SC-CO 2 methodology to non-CO 2 GHGs has undergone multiple stages of peer review. The SC-CH 4 and SC-N 2 O estimates were developed by Marten et al. (2015) and underwent a standard double-blind peer review process prior to journal publication. In 2015, as part of the response to public comments received to a 2013 solicitation for comments on the SC-CO 2 estimates, the IWG announced a National Academies of Sciences, Engineering, and Medicine review of the SC-CO 2 estimates to offer advice on how to approach future updates to ensure that the estimates continue to reflect the best available science and methodologies. In January 2017, the National Academies released their final report, Valuing Climate Damages: Updating Estimation of the Social Cost of Carbon Dioxide, and recommended specific criteria for future updates to the SC-CO 2 estimates, a modeling framework to satisfy the specified criteria, and both near-term updates and longer-term research needs pertaining to various components of the estimation process (National Academies, 2017). Shortly thereafter, in March 2017, President Trump issued Executive Order 13783, which disbanded the IWG, withdrew the previous TSDs, and directed agencies to ensure SC-CO 2 estimates used in regulatory analyses are consistent with the guidance contained in OMB's Circular A-4, “including with respect to the consideration of domestic versus international impacts and the consideration of appropriate discount rates” (E.O. 13783, Section 5(c)).

On January 20, 2021, President Biden issued Executive Order 13990, which re-established the IWG and directed it to ensure that the U.S. Government's estimates of the social cost of carbon and other greenhouse gases reflect the best available science and the recommendations of the National Academies (2017). The IWG was tasked with first reviewing the SC-GHG estimates currently used in Federal analyses and publishing interim estimates within 30 days of the E.O. that reflect the full impact of GHG emissions, including by taking global damages into account. The interim SC-GHG estimates published in February 2021, specifically the SC-CH 4 estimates, are used here to estimate the climate benefits for this rulemaking. The E.O. instructs the IWG to undertake a fuller update of the SC-GHG estimates by January 2022 that takes into consideration the advice of the National Academies (2017) and other recent scientific literature.

The February 2021 SC-GHG TSD provides a complete discussion of the IWG's initial review conducted under E.O. 13990. In particular, the IWG found that the SC-GHG estimates used under E.O. 13783 fail to reflect the full impact of GHG emissions in multiple ways. First, the IWG found that a global perspective is essential for SC-GHG estimates because it fully captures climate impacts that affect the United States and which have been omitted from prior U.S.-specific estimates due to methodological constraints. Examples of omitted effects include direct effects on U.S. citizens, assets, and investments located abroad, supply chains, and tourism, and spillover pathways such as economic and political destabilization and global migration. In addition, assessing the benefits of U.S. GHG mitigation activities requires consideration of how those actions may affect mitigation activities by other countries, as those international mitigation actions will provide a benefit to U.S. citizens and residents by mitigating climate impacts that affect U.S. citizens and residents. If the United States does not consider impacts on other countries, it is difficult to convince other countries to consider the impacts of their emissions on the United States. As a member of the IWG involved in the development of the February 2021 SC-GHG TSD, DOE agrees with this assessment and, therefore, in this final rule DOE centers attention on a global measure of SC-GHG. This approach is the same as that taken in DOE regulatory analyses from 2012 through 2016. Prior to that, in 2008 DOE presented Social Cost of Carbon (SCC) estimates based on values the Intergovernmental Panel on Climate Change (IPCC) identified in literature at that time. As noted in the February 2021 SC-GHG TSD, the IWG will continue to review developments in the literature, including more robust methodologies for estimating a U.S.-specific SC-GHG value, and explore ways to better inform the public of the full range of carbon impacts. As a member of the IWG, DOE will continue to follow developments in the literature pertaining to this issue.

While the IWG works to assess how best to incorporate the latest, peer reviewed science to develop an updated set of SC-GHG estimates, it set the interim estimates to be the most recent estimates developed by the IWG prior to the group being disbanded in 2017. The estimates rely on the same models and harmonized inputs and are calculated using a range of discount rates. As explained in the February 2021 SC-GHG TSD, the IWG has recommended that agencies revert to the same set of four values drawn from the SC-GHG distributions based on three discount rates as were used in regulatory analyses between 2010 and 2016 and subject to public comment. For each discount rate, the IWG combined the distributions across models and socioeconomic emissions scenarios (applying equal weight to each) and then selected a set of four values recommended for use in benefit-cost analyses: An average value resulting from the model runs for each of three discount rates (2.5 percent, 3 percent, and 5 percent), plus a fourth value, selected as the 95th percentile of estimates based on a 3 percent discount rate. The fourth value was included to provide information on potentially higher-than-expected economic impacts from climate change. As explained in the February 2021 SC-GHG TSD, and DOE agrees, this update reflects the immediate need to have an operational SC-GHG for use in regulatory benefit-cost analyses and other applications that was developed using a transparent process, peer-reviewed methodologies, and the science available at the time of that process. Those estimates were subject to public comment in the context of dozens of proposed rulemakings as well as in a dedicated public comment period in 2013.

The SC-CO 2 values used for this final rule were generated using the values presented in the 2021 update from the IWG's February 2021 TSD. The SC-CO 2 estimates from the latest interagency update are presented in DOE's TSD. For purposes of capturing the uncertainties involved in regulatory impact analysis, DOE has determined it is appropriate to include all four sets of SC-CO 2 values, as recommended by the IWG. 17 DOE multiplied the CO 2 emissions reduction estimated for each year by the SC-CO 2 value for that year in each of the four cases. To calculate a present value of the stream of monetary values, DOE discounted the values in each of the four cases using the specific discount rate that had been used to obtain the SC-CO 2 values in each case.

The SC-CH 4 and SC-N 2 O values used for this final rule were generated using the values presented in the 2021 update from the IWG. 18 The SC-CH 4 and SC-N 2 O estimates from the latest interagency update are presented in DOE's TSD. To capture the uncertainties involved in regulatory impact analysis, DOE has determined it is appropriate to include all four sets of SC-CH 4 and SC-N 2 O values, as recommended by the IWG. DOE multiplied the CH 4 and N 2 O emissions reduction estimated for each year by the SC-CH 4 and SC-N 2 O estimates for that year in each of the cases. To calculate a present value of the stream of monetary values, DOE discounted the values in each of the cases using the specific discount rate that had been used to obtain the SC-CH 4 and SC-N 2 O estimates in each case.

The estimated monetary health benefits from the reduced emissions of SO 2 and NO X emissions was estimated based on the latest benefit per ton estimates for the relevant sector from the EPA's Benefits Mapping and Analysis Program. 19

DOE converted the time-series of costs and benefits into annualized values based on the present value in 2021, as shown in Table IV.1. DOE calculated the present value using discount rates of 3 and 7 percent for consumer costs, benefits, and health benefits from the reduction of SO 2 and NO X emissions and case-specific discount rates for the value of the other greenhouse gas (“GHG”) (CO 2 , N 2 O, and CH 4 ) reduction benefits. For presentational purposes, the climate benefits associated with the average SC-GHG at a 3 percent discount rate are shown in Table IV.1 in the following section, but the Department does not have a single central SC-GHG point estimate, and it emphasizes the importance and value of considering the benefits calculated using all four SC-GHG estimates.

This final rule constitutes 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 subject to review by the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”).

In addition, the Administrator of OIRA has determined that the regulatory action is an “economically significant” regulatory action under section (3)(f)(1) of Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(C) of the Order, DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the regulatory action, together with, to the extent feasible, a quantification of those costs. This assessment can be found in DOE's technical support document (“TSD”) and the methodology is summarized in III.H. 20

On August 5, 2021, the OCC published Bulletin 2021-35, “Community Reinvestment Act, Fair Housing Act, and Equal Credit Opportunity Act: OCC Contact Information for Certain Notices and Posters,”  1 which announced the new physical mailing address of the OCC's CAG, “P.O. Box 53570, Houston, TX 77052.” The previous CAG mailing address was 1301 McKinney Street, Suite 3450, Houston, Texas 77010-3031. The OCC's regulation in appendix A to 12 CFR part 14 sets forth a consumer grievance process that contains the previous mailing address for the OCC's CAG. This final rule amends appendix A to 12 CFR part 14 to remove the outdated CAG mailing address and replace it with the current CAG mailing address.

The OCC is issuing this final rule without prior notice and the opportunity for public comment and without the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA). 2 Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  3

The OCC believes that there is good cause to issue this final rule without notice and public procedure because the rule makes a technical change to update a physical mailing address for the OCC's CAG and does not alter any substantive standard. Therefore, there is good cause to dispense with the APA prior notice and public comment process because it is unnecessary since the change of CAG's address in 12 CFR part 14 is a non-substantive, technical amendment to the OCC's rule.

The APA also requires a 30-day delayed effective date, except for (1) substantive rules which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause. 4 The OCC finds good cause to publish this final rule with an immediate effective date because, as described above, this final rule merely reflects a change of address in existing regulations and does not alter any substantive standard.

Section 722 of the Gramm-Leach-Bliley Act  5 requires Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The OCC has sought to present this final rule in a simple and straightforward manner.

In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-3521, the OCC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently-valid Office of Management and Budget (OMB) control number. The OCC has reviewed this final rule and determined that it does not introduce a new collection of information pursuant to the PRA.

The Regulatory Flexibility Act (RFA)  6 requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. 7 The RFA applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). Consistent with section 553(b)(B) of the APA, the OCC has determined for good cause that general notice and opportunity for public comment is unnecessary because the rule makes a technical change to update a physical mailing address for the OCC's CAG and does not alter any substantive standard, and, therefore, the OCC is not issuing a notice of proposed rulemaking. Accordingly, the OCC has concluded that the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply.

As a general matter, the Unfunded Mandates Reform Act of 1995 (UMRA)  8 requires the preparation of a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. However, the UMRA does not apply to final rules for which a general notice of proposed rulemaking was not published. 9 Consistent with section 553(b)(B) of the APA, the OCC has determined for good cause that general notice and opportunity for public comment is unnecessary because the rule makes a technical change to update a physical mailing address for the OCC's CAG and does not alter any substantive standard, and, therefore, the OCC is not issuing a notice of proposed rulemaking. Accordingly, the OCC has not prepared an economic analysis of the rule under the UMRA.

Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994, 10 in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions, the OCC must consider, consistent with the principles of safety and soundness and the public interest: (1) Any administrative burdens that the final rule places on depository institutions, including small depository institutions and customers of depository institutions, and (2) the benefits of the final rule. This final rule does not impose additional reporting, disclosure, or other requirements on an insured depository institution. Therefore, section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 does not apply to this final rule.

Before a rule can take effect, the Congressional Review Act (CRA), 5 U.S.C. 801 et seq., provides that the OCC must submit to Congress and to the Comptroller General the rule along with a report indicating whether it is a “major rule.” In general, if a rule is a “major rule,” the CRA provides that unless Congress enacts a joint resolution of disapproval, the rule takes effect the later of: (1) 60 Days after Congress receives the required report or publication of the rule in the Federal Register , whichever is later; or (2) the date the rule would otherwise take effect. 11 The CRA defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget finds has resulted in or is likely to result in (1) an annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (3) a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 12

OIRA has determined that this final rule is not a major rule. As required by the CRA, the OCC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.

For the reasons set out in the preamble, 12 CFR part 14 is amended as follows:

FCA's objectives in adopting this rule are to:

• Ensure the Farm Credit System's (System) capital requirements, including certain regulatory disclosures, reflect the current expected credit losses methodology (CECL), which revises the accounting for credit losses under U.S. GAAP; and

• Ensure conforming amendments to other regulations accurately reference credit losses.

In 1916, Congress created the System to provide permanent, stable, affordable, and reliable sources of credit and related services to American agricultural and aquatic producers. 1 As of January 1, 2022, the System consists of three Farm Credit Banks, one agricultural credit bank, 64 agricultural credit associations, one Federal land credit association, several service corporations, and the Federal Farm Credit Banks Funding Corporation (Funding Corporation). System banks (including both the Farm Credit Banks and the agricultural credit bank) issue Systemwide consolidated debt obligations in the capital markets through the Funding Corporation, 2 which enables the System to extend short-, intermediate-, and long-term credit and related services to eligible borrowers. Eligible borrowers include farmers, ranchers, aquatic producers and harvesters, their cooperatives, rural utilities, exporters of agricultural commodities products, farm-related businesses, and certain rural homeowners. The System's enabling statute is the Farm Credit Act of 1971, as amended (Act). 3

On September 23, 2019, FCA published in the Federal Register a notice of proposed rulemaking (proposed rule or proposal) seeking public comment on revisions to certain regulations to address changes to credit loss accounting under U.S. GAAP. 4 In particular, FCA proposed to amend certain rules to reflect the Financial Accounting Standards Board's (FASB) issuance of Accounting Standards Update (ASU) No. 2016-13, Financial Instruments—Credit Losses, Topic 326, Measurement of Credit Losses on Financial Instruments (ASU 2016-13). FASB's new accounting standard for credit losses applies to all System institutions. 5

ASU 2016-13 introduces CECL, which replaces the incurred loss methodology for financial assets measured at amortized cost. This update is discussed in more detail in the next section, Overview of Changes to U.S. GAAP. FCA proposed to revise the tier 1/tier 2 capital rule in part 628 to distinguish which credit loss allowances under the new accounting standard would be eligible for inclusion in a System institution's regulatory capital.

FCA's tier 1/tier 2 capital rule in part 628 are similar to the standardized approach capital rules the Federal banking regulatory agencies (FBRAs)  6 adopted for the banking organizations they regulate (U.S. Rule), while taking into account the cooperative structure and the organization of the System. FCA's proposed CECL rule was similar to the FBRAs' final CECL rule, which was published in February 2019. 7

Unlike the CECL rule adopted by the FBRAs, FCA did not propose a phase-in of the day-one impacts of CECL on regulatory capital ratios. The CECL Transition Provision section below discusses why a transition period for System institutions is unnecessary and would create undue burden and complexity.

As part of efforts to address the disruption of economic activity in the United States caused by the spread of COVID-19, the FBRAs adopted a second CECL transition provision. 8 This second CECL transition provided banking organizations that were required to adopt CECL for purposes of U.S. GAAP on January 1, 2020, the option to delay, for up to two years, an estimate of CECL's impact on regulatory capital, followed by a three-year transition period ( i.e., a five-year transition period in total).

As discussed below, FCA received four comment letters on the proposed rule. These comments, together with FCA's responses to those comments, are addressed in the Final Rule section below. FCA is finalizing most provisions as proposed. However, FCA is making changes to certain provisions in response to comments, as discussed below.

In June 2016, FASB issued ASU No. 2016-13, Topic 326, Financial Instruments—Credit Losses, 9 which revises the accounting for credit losses under U.S. GAAP. In pertinent part, ASU No. 2016-13:

• Introduces CECL, which replaces the incurred loss methodology for financial assets measured at amortized cost;

• Introduces the term purchased credit deteriorated (PCD) assets, which replaces the term purchased credit impaired (PCI) assets;

• Modifies the treatment of credit losses on available-for-sale (AFS) debt securities; and

• Requires certain disclosures of credit quality indicators by year of origination (or vintage).

CECL differs from the incurred loss methodology in several key respects. CECL requires System institutions to recognize lifetime expected credit losses for financial assets measured at amortized cost, not just those credit losses that have been incurred as of the reporting date. CECL also requires the incorporation of reasonable and supportable forecasts in developing an estimate of lifetime expected credit losses, while maintaining the current requirement for System institutions to consider past events and current conditions. Furthermore, the probable threshold for recognition of allowances in accordance with the incurred loss methodology is removed under CECL. Estimating expected credit losses over the life of an asset under CECL, including consideration of reasonable and supportable forecasts, results in earlier recognition of credit losses than under the existing incurred loss methodology.

In addition, CECL replaces multiple impairment approaches in existing U.S. GAAP. CECL allowances will cover a broader range of financial assets than allowance for loan losses (ALL) under the incurred loss methodology. Under the incurred loss methodology, in general, ALL covers credit losses on loans held for investment and lease financing receivables, with additional allowances for certain other extensions of credit and allowances for credit losses on certain off-balance sheet credit exposures (with the latter allowances presented as a liability). 10 These exposures will be within the scope of CECL. In addition, CECL covers credit losses on held-to-maturity (HTM) debt securities.

As mentioned above, ASU No. 2016-13 also introduces PCD assets as a replacement for PCI assets. The PCD asset definition covers a broader range of assets than the PCI asset definition. CECL requires System institutions to estimate and record credit loss allowances for a PCD asset at the time of purchase. The credit loss allowance is then added to the purchase price to determine the amortized cost basis of the asset for financial reporting purposes. Post-acquisition increases in credit loss allowances on PCD assets will be established through a charge to earnings. This is different from the current treatment of PCI assets, for which System institutions are not permitted to estimate and recognize credit loss allowances at the time of purchase. Rather, in general, credit loss allowances for PCI assets are estimated after the purchase only if there is deterioration in the expected cash flows from the assets. 11

ASU No. 2016-13 also introduces new requirements for AFS debt securities. The new accounting standard requires a System institution to recognize credit losses on individual AFS debt securities through credit loss allowances, rather than through direct write-downs, as is currently required under U.S. GAAP. AFS debt securities will continue to be measured at fair value, with changes in fair value not related to credit losses recognized in other comprehensive income. Credit loss allowances on an AFS debt security are limited to the amount by which the security's fair value is less than its amortized cost.

Upon adoption of CECL, a System institution will record a one-time adjustment to its credit loss allowance as of the beginning of its fiscal year of adoption equal to the difference, if any, between the amount of credit loss allowance required under the incurred loss methodology and the amount of credit loss allowance required under CECL. Except for PCD assets, the adjustment to credit loss allowance would be recognized with offsetting entries to deferred tax assets (DTAs), if appropriate, and to the fiscal year's beginning retained earnings.

The effective date of ASU No. 2016-13 varies for different financial institutions. The original effective date for public business entities (PBEs) that are not Securities and Exchange Commission (SEC) filers, such as the Funding Corporation, 12 was the fiscal year beginning after December 15, 2020, including interim periods within that fiscal year, and that was the timeframe in effect when FCA published the proposed CECL rule. After publication, on October 18, 2019, FASB amended the effective dates of certain major accounting standards, including ASU No. 2016-13. Specifically, for entities such as the Funding Corporation, ASU No. 2016-13 is effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. 13 System institutions will implement the new standard on January 1, 2023, and Systemwide combined financial statements for the quarter ending March 31, 2023, will reflect the new standard. 14

Changes necessitated by CECL to a System institution's retained earnings, DTAs, and allowances will affect the institution's regulatory capital ratios. 15 Specifically, retained earnings are a key component of a System institution's common equity tier 1 (CET1) capital. 16 An increase in a System institution's allowances, including those estimated under CECL, generally will reduce the institution's earnings or retained earnings, and therefore its CET1 capital. 17

Depending on the nature of the difference, DTAs arising from temporary differences (temporary difference DTAs) are included in a System's institution's risk-weighted assets or are deducted from CET1 capital. 18 Increases in allowances generally give rise to increases in temporary difference DTAs that will partially offset the reduction in earnings or retained earnings. 19 Under § 628.20(d)(3), the ALL is included in a System institution's tier 2 capital up to 1.25 percent of its standardized total risk-weighted assets (as defined in § 628.2) not including any amount of the ALL. 20

To address the forthcoming implementation of changes to U.S. GAAP resulting from the FASB's issuance of ASU No. 2016-13 and to improve consistency between FCA's capital rules and U.S. GAAP, FCA proposed to amend the capital rules in part 628 to identify which credit loss allowances under the new accounting standard would be eligible for inclusion in a System institution's regulatory capital. Because FCA's capital rules are generally similar to the U.S. Rule, FCA's proposed CECL rule was generally similar to the FBRAs' final CECL rule.

In particular, FCA proposed to add adjusted allowances for credit losses (AACL) as a newly defined term in its capital rules. Under the proposal, AACL included credit loss allowances related to financial assets, except for allowances for PCD assets and AFS debt securities. 21 AACL was eligible under the proposal for inclusion in a System institution's tier 2 capital subject to the current limit for including ALL in tier 2 capital under the capital rules. 22 The proposed rule provided separate capital treatment for allowances associated with AFS debt securities and PCD assets that would apply to System institutions upon adoption of ASU 2016-13. Unlike the CECL rule adopted by the FBRAs, FCA did not propose a phase-in of the day-one impacts of CECL on regulatory capital ratios.

FCA's proposed rule also revised capital disclosure requirements that apply to System banks following their adoption of CECL  23 and made conforming amendments to other regulations so they refer to credit loss allowance and reflect the implementation of ASU No. 2016-13.

FCA received four comment letters on the proposed rule: One letter from the Funding Corporation on behalf of the System's Accounting Standards and CECL Workgroups (System Workgroups Letter);  24 one letter from CoBank, ACB (CoBank Letter), a System bank;  25 and one letter each from Northwest Farm Credit Services, an Agricultural Credit Association (Northwest Letter)  26 and Capital Farm Credit, ACA (Capital Letter), 27 both System associations. All commenters generally supported many significant aspects of the proposed rule and expressed similar comments. CoBank expressly stated it supported the System Workgroups Letter. The two associations offered comments consistent with certain aspects of the System Workgroups Letter.

All commenters supported FCA's new defined term “Adjusted Allowances for Credit Losses” and the modification to the definition of “carrying value.” All the commenters also supported the existing limit on the inclusion of the allowance in tier 2 capital of 1.25 percent of risk-weighted assets.

All commenters asked FCA to follow U.S. GAAP for disclosure and reporting requirements, including the conforming amendments FCA proposed, rather than introducing specific disclosures different than those required by U.S. GAAP. In addition, all commenters suggested the rule should contain a general reference to the effective date required by U.S. GAAP rather than specifying an effective date.

All commenters believe FCA should adopt an optional transition period for the day-one impact CECL may have on institutions' regulatory capital to align more closely with the approach taken by the FBRAs. Additionally, all commenters asked FCA to exclude any day-one impact of CECL from the year-over-year change in CET1 capital referred to in § 628.20(f)(5)(ii), to avoid a negative impact on an institution's ability to make capital distributions, including the payment of patronage.

As discussed above, FCA's capital rules are similar to the U.S. Rule, while taking into account the cooperative structure and the organization of the System. This final rule is similar in many respects to the FBRAs' CECL rule.

FCA is adopting as final, without change from the proposal, the proposed definition of the new capital term AACL. As proposed, FCA is revising the capital rules to reflect the revised accounting standard for credit losses under U.S. GAAP as it relates to System institutions' calculation of regulatory capital ratios. The new capital term AACL, which replaces the existing term ALL, applies to all System institutions.

FCA is also adopting without change its proposal, consistent with the treatment of ALL under FCA's existing capital rules, to make amounts of AACL eligible for inclusion in an institution's tier 2 capital up to 1.25 percent of the institution's standardized total risk-weighted assets not including any amount of the AACL.

All commenters supported the new defined term AACL and the continuation of the existing limit on the inclusion of the allowance in tier 2 capital.

CECL allowances cover a broader range of financial assets than the ALL under the incurred loss methodology. Under FCA's existing capital rules, ALL includes valuation allowances that have been established through a charge against earnings to cover estimated credit losses on loans or other extensions of credit as determined in accordance with U.S. GAAP. Under CECL, credit loss allowances represent an accounting valuation account, measured as the difference between the financial assets' amortized cost basis and the amount expected to be collected on the financial assets ( i.e., lifetime credit losses). Thus, AACL includes allowances for expected credit losses on HTM debt securities and lessors' net investments in leases that have been established to adjust these assets to amounts expected to be collected, as determined in accordance with U.S. GAAP. AACL also includes allowances for expected credit losses on off-balance sheet credit exposures not accounted for as insurance, as determined in accordance with U.S. GAAP. As described below, however, credit loss allowances related to AFS debt securities and PCD assets are not included in the definition of AACL.

As the FBRAs have said they are doing for the banking organizations that they regulate, FCA intends to monitor the impacts of this 1.25 percent limit on regulatory capital and System institution lending practices after the final rule is effective. FCA's ongoing monitoring will include the review of data, including data provided by System institutions. FCA will also monitor the FBRAs' actions in this area. FCA will consider the information it is monitoring in determining whether a further change to the FCA's capital rules' treatment of AACL might be warranted. To the extent FCA determines further revisions to the capital rules are necessary, the Agency would seek comment through a separate proposal.

FCA is adopting as final, without change from the proposal, a revision to the definition of carrying value. Under the existing definition at § 628.2, carrying value means, with respect to an asset, the value of the asset on the balance sheet as determined in accordance with U.S. GAAP. Under the final rule, and consistent with the FBRAs' final CECL rule, the definition of carrying value is revised to add a provision that, for all assets other than AFS debt securities and PCD assets, the carrying value is not reduced by any associated credit loss allowance. All commenters supported this proposed revision to the definition of carrying value.

Current accounting standards require a System institution to make an individual assessment of each of its AFS debt securities and take a direct write-down for credit losses when such a security is other-than-temporarily impaired. The amount of the write-down is charged against earnings, which reduces CET1 capital and results in a reduction in the same amount to the carrying value of the AFS debt security. ASU 2016-13 revises the accounting for credit impairment of AFS debt securities by requiring System institutions to determine whether a decline in fair value below an AFS debt security's amortized cost resulted from a credit loss, and to record any such credit impairment through earnings with a corresponding allowance.

Similar to the current regulatory treatment of credit-related losses for other-than-temporary impairment, under the final rule all credit losses recognized on AFS debt securities will correspondingly affect CET1 capital and reduce the carrying value of the AFS debt security. Since the carrying value of an AFS debt security is its fair value, which would reflect any credit impairment, credit loss allowances for AFS debt securities required under the new accounting standard are not eligible for inclusion in a System institution's tier 2 capital.

The final rule maintains the requirement that valuation allowances be fully charged against earnings in order to be eligible for inclusion in tier 2 capital. The final rule, however, excludes PCD allowances from being included in tier 2 capital; rather, a System institution will calculate the carrying value of PCD assets net of allowances.

Under the new accounting standard, PCD assets are acquired individual financial assets (or acquired groups of financial assets with shared risk characteristics) that, as of the date of acquisition and as determined by an acquirer's assessment, have experienced a more-than-insignificant deterioration in credit quality since origination. The new accounting standard will require System institutions to estimate expected credit losses that are embedded in the purchase price of a PCD asset and recognize these amounts as an allowance as of the date of acquisition. As such, the initial allowance amount for a PCD asset recorded on a System institution's balance sheet will not be established through a charge to earnings. Including allowances in tier 2 capital that have not been charged against earnings would diminish the quality of regulatory capital. Post-acquisition increases in allowances for PCD assets will be established through a charge against earnings.

Accordingly, the final regulation provides that valuation allowances charged to retained earnings, in accordance with U.S. GAAP ( i.e., the allowances required at CECL adoption), are eligible for inclusion in tier 2 capital. This treatment of PCD assets, in effect, will reduce a System institution's standardized total risk weighted assets, similar to the proposed treatment for credit loss allowances for AFS debt securities.

Consistent with FCA's proposal and with the FBRAs' final CECL rule, this final rule does not allow System institutions to bifurcate PCD allowances to include post-acquisition allowances in the definition of AACL. As discussed in the preamble to the proposed rule, FCA is concerned a bifurcated approach could create undue complexity and burden for System institutions and believes requiring System institutions to calculate the carrying value of PCD assets net of allowances appropriately accounts for post-acquisition allowances in the calculation of regulatory capital. 28 FCA received no comments concerning not allowing a bifurcated approach.

Unlike the FBRAs' final CECL rule, FCA did not propose and is not adopting an optional phase-in of the day-one impacts of CECL on regulatory capital ratios. The FBRAs included an optional transition period for banking organizations to reduce the potential day-one adverse impacts CECL may have on a banking organization's regulatory capital ratios. The FBRAs included this transition period because of concerns that some banking organizations might face difficulties in capital planning because of uncertainty about the economic environment at the time of CECL adoption. 29

All commenters asked FCA to adopt an optional transition period for the day-one impact CECL may have on an institution's regulatory capital to more closely align with the approach adopted by the FBRAs. 30 Two commenters stated that FCA should follow its own objective in the capital rules that became effective January 1, 2017, which was to ensure the System's capital requirements were comparable to the Basel III framework and the U.S. Rule. 31 Two commenters asserted that FCA's statement in the preamble to the proposed rule that all institutions will be sufficiently capitalized to absorb the day-one impacts of CECL is not supported by firm estimates. 32 Additionally, all commenters stated that as of their comment submission date, System institutions had not yet fully implemented CECL and were not able to definitively assess possible capital impacts of the implementation. 33

FCA disagrees with these commenters. As when FCA proposed this rule, FCA continues to believe a transition provision is unnecessary for any System institution. First, even without a transition period, FCA expects all institutions will be sufficiently capitalized to absorb the day-one impact of CECL for the purpose of complying with regulatory capital requirements. Second, FCA's capital requirements are comparable to the Basel III framework and the U.S. Rule even without an optional phase-in period. Finally, adopting an optional phase-in period would create significant operational burden and complexity with no corresponding benefit to the safety and soundness of System institutions. 34

The first reason a transition period is not necessary is because even without one, FCA expects all institutions will be sufficiently capitalized to absorb the day-one impact of CECL for the purpose of complying with regulatory capital requirements. FCA expects allowances estimated under CECL will likely increase at most System institutions, causing CET1 capital (including retained earnings) to decrease and tier 2 capital to increase. Total capital, which is generally the most constraining capital ratio for associations, would remain largely unchanged. For System banks, where the tier 1 leverage ratio is generally the most constraining capital ratio, FCA expects credit losses under CECL to result in little to no change for bank allowance levels. 35 FCA continues to believe all System institutions will continue to comply with regulatory capital ratios and buffers without a transition period. 36

Contrary to the commenters' assertions, FCA's expectations for the day-one impact of CECL are supported by firm estimates. For the proposed rule, FCA analyzed allowance amounts from the Uniform Reports of Financial Condition and Performance (Call Report) for all System institutions under various stress scenarios. 37 For the final rule, FCA analyzed allowance amounts from updated Call Report data for all System institutions and completed a review of select System institutions' model development and implementation of CECL. 38 Additionally, since the proposed rule comment period closed, regulatory capital levels remain satisfactory, indicating the System is well positioned to absorb the day-one impact of CECL. In addition, the credit quality of the System's combined loan portfolio remains strong as of December 31, 2021. 39

Based on these reviews, unless existing and future expected economic conditions significantly deteriorate after publication of this rule and before the January 1, 2023, effective date of this rule, FCA expects all institutions will be sufficiently capitalized to absorb the day-one impact of CECL for the purpose of complying with regulatory capital requirements. More specifically, FCA continues to believe the regulatory capital ratios of all System institutions—CET1; tier 1; total capital; and tier 1 leverage—will remain above the regulatory minimums and buffers after the implementation of CECL, even without a transition period. FCA considered this analysis as part of its determination not to provide an optional transition period for System institutions.

The second reason a transition period is not necessary is that FCA disagrees with the commenters' position that not adopting an optional phase-in period would diverge from FCA's capital rule objective to ensure the System's capital requirements are comparable to the Basel III framework and the U.S. Rule. FCA views comparability as ensuring the overall regulatory outcome of FCA's capital requirements are comparable with the U.S. Rule as appropriate, taking into account the differences between System institutions and banking organizations subject to the U.S. Rule. 40 While many requirements in FCA's capital rules are similar or identical to requirements in the U.S. Rule, comparability does not mean every provision and requirement in the U.S. Rule should be incorporated into FCA's capital rules. FCA's minimum capital requirements ensure the quality and quantity of capital are comparable to that of the U.S. Rule and reflect principles outlined in the Basel III framework, ensuring an overall uniform standard of capital quality that is consistent and transparent.

In adopting the tier 1/tier 2 capital rule in 2016, FCA did not adopt the majority of phase-in and transitional periods that were included in the U.S. Rule. 41 At the time, FCA determined most of these transitional and phase-in periods were not needed to give System institutions sufficient time to come into compliance with the new rules. 42 FCA's analysis at the time evidenced that all System institutions would exceed the minimum regulatory capital ratios on the effective date of the rule. Since January 1, 2017, the effective date of the rule, as FCA expected, System capital levels have remained satisfactory and all System institutions have exceeded all minimum regulatory capital requirements as well as applicable capital conservation and leverage buffer requirements.

In general, banking organizations regulated by the FBRAs may have a larger day-one impact from adopting CECL and a phase-in may be more appropriate to ensure their regulatory capital compliance. The lending operations of many of these banking organizations—including unsecured lending such as credit cards—have historically caused banking organizations to experience higher credit losses (as a percentage of loans) than System institutions. In contrast to many banking organizations, the System lends primarily to agriculture and other eligible borrowers in rural areas. Approximately 50 percent of the System's combined loan portfolio is in real estate mortgage and rural residential real estate loans. These real estate loans are generally long-term and well-secured, and they are generally expected to have lower credit losses than commercial real estate loans.

The final reason an optional transition period is not needed is that it would lead to unnecessary complexity and operational burden. An optional transition period would require changes to existing Call Report schedules that would require institutions to change existing reporting processes each year of the transition period. For example, new, more complex calculations would be necessary for each year of the transition period (based on the percentage of the transition amount allowed for the year) for reporting items such as retained earnings, average assets, AACL, and other assets. The Call Report would also need to be updated to reflect new temporary line items such as the CECL transition amount. 43

If System institutions were not sufficiently capitalized to absorb the day-one impact of CECL, FCA believes the complexity and operational burden of an optional transition period might be warranted to provide relief from regulatory capital requirements. However, all System institutions are expected to be sufficiently capitalized to absorb the day-one impact and comply with regulatory capital requirements without an optional transition period.

An optional transition period could also be difficult to implement and maintain for System institutions in districts that make use of common standardized applications for computing and reporting regulatory capital. A transition period utilized by some institutions in such districts but not by others would appear to complicate supporting the common reporting platforms for those institutions. In addition, allowing an optional transition period would create a lack of comparability among System institutions' capital levels.

The commenters asked FCA to state in this final rule that the Agency will work with individual institutions to provide regulatory relief similar to a transition period if the day-one impacts of CECL cause a significant impact to an individual institution's regulatory capital ratios. FCA confirms the Agency will work with individual institutions if the day-one impact of CECL causes them not to comply with the regulatory capital requirements but does not commit to granting relief. As stated in the preamble to the proposed rule, if closer to the adoption of CECL its day-one impact threatens regulatory capital compliance, FCA may consider options to reduce the unanticipated impacts of implementing CECL. The type of action would depend on, among other factors, the significance of CECL's impact on an individual institution, the institution's capital strategy, business planning, and implementation efforts, 44 and how widespread the issue is throughout the System.

For these reasons, FCA declines to adopt a transition period for the day-one impact CECL may have on an institution's regulatory capital.

All commenters asked FCA to exclude any day-one CECL impacts from § 628.20(f)(5)(ii).

Section 628.20(f) requires System institutions to obtain prior approval from FCA before making any cash distributions of capital included in tier 1 or tier 2 capital. FCA's “safe harbor” deemed prior approval provisions, at § 628.20(f)(5), provide that System institutions are deemed to have prior approval from FCA to distribute cash payments as long as certain conditions are met. One of the conditions, in § 628.20(f)(5)(ii), stipulates that, after any such cash payments have been declared and defined by resolution of the board, the dollar amount of CET1 capital at quarter-end equals or exceeds the dollar amount of CET1 capital on the same quarter-end in the previous calendar year. 45

Commenters believe FCA should exclude the day-one impacts CECL will have on the dollar amount of CET1 capital from compliance with this condition so that CECL implementation would not impact a System institution's ability to make cash capital distributions, including patronage payments, under the “safe harbor.” Commenters seek this exclusion so the existing deemed prior approval process would continue without interruption.

FCA disagrees with this request for several reasons. First, FCA believes it is unlikely the day-one impact would result in CET1 capital declining to the same level of CET1 capital on March 31, 2022 (the quarter-end of the prior year). The “safe harbor” essentially limits System institutions (without express FCA prior approval) to distributing net income for the current quarter (in which the distribution is declared and defined by resolution of the board) and the prior 3 quarters.

In practice, System institutions rarely make capital distributions—including paying dividends on preferred stock, making cash patronage payments, or redeeming or revolving equities—that equal net income for the current quarter and prior 3 quarters. Rather, in the last three years, System associations have reported, on average, distributing at least 40 percent of their net income in cash patronage. 46 This means the overwhelming majority of associations have had sufficient capacity both to pay cash patronage and to build capital.

FCA continues to expect System boards to give significant thought to capital distribution decisions and how they impact overall capitalization of their institution, especially regarding a cash payment that equals 12-months of net income. In the unlikely event CECL's day-one impact reduces CET1 capital to a level where an institution could not use the “safe harbor” to make a cash patronage distribution in line with prior years, the appropriateness of making such a cash patronage distribution may be questionable.

Second, in the unlikely event CECL implementation would cause a System institution's CET1 capital to be less than the same quarter-end in the previous calendar year, that does not preclude the institution from paying patronage. An institution that wants to pay cash patronage but that cannot satisfy the “safe harbor” deemed prior approval requirements under § 628.20(f)(5) may request the prior approval of FCA for such distribution under § 628.20(f)(2) and (3). 47 In addition, a System institution may allocate equities to its member-borrowers as a form of patronage without needing to satisfy any requirements that could be affected by any day-one impacts from CECL.

FCA is adopting as final the proposed requirement for System banks to update their disclosures required under § 628.63 to reflect the adoption of CECL. Section 628.63 imposes public disclosure requirements for System banks related to the capital requirements contained in part 628. The public disclosure requirements are designed to provide important information to market participants on the scope of application, capital structure, risk exposures, risk assessment processes, capital adequacy of the bank, and techniques the bank uses to identify, measure, monitor, and control risks. The final rule replaces requirements to disclose ALL with requirements to disclose AACL. Additionally, the final rule updates references to “probable loan losses” and “loan losses” with references to allowance for credit losses (ACL)  48 or AACL, as applicable. FCA did not receive any comments related to the proposed bank disclosure amendments in § 628.63.

To reflect changes in U.S. GAAP concerning CECL, FCA anticipates revising the Call Reports in the first quarter of 2023. These revisions would specify the affected line items in the capital schedules and the newly defined term AACL. In addition, FCA intends to update the Call Report instructions for all references to ALL.

FCA is not adopting the proposed requirement for System institutions to provide a vintage year credit loss analysis disclosure in §§ 620.5  49 and 630.20. 50 However, the final rule adopts all the other proposed conforming changes.

Existing FCA regulations at §§ 620.5 and 630.20 require that the discussion and analysis of risk exposures analyze the ALL. 51 The proposal amended these disclosure requirements to update references to the ALL with the newly defined U.S. GAAP term ACL. The proposal also required a new credit loss analysis disclosure by vintage year. 52

All commenters noted that a vintage year disclosure of the ACL is not required by U.S. GAAP. The commenters requested FCA not introduce specific disclosure requirements in §§ 620.5 and 630.20 that may result in regulatory disclosures being different than those required by U.S. GAAP. The commenters believe removing the vintage year requirement would eliminate the need for FCA to update regulations in the event of any subsequent changes in U.S. GAAP. Because of the overlap of U.S. GAAP disclosures and FCA's requirement to disclose the “Allowance for credit losses-to-loans,”  53 the final rule removes the vintage year requirements for the allowance analysis in §§ 620.5(g)(1)(iv)(B) and 630.20(g)(1)(ii)(B), as requested by the commenters. However, consistent with the proposal, the final rule replaces the term ALL with ACL and requires a discussion of the adequacy of the allowance for credit losses given reasonable and supportable forecasts.

The proposal made a conforming amendment to replace the key financial ratio “Allowance for loan losses-to-loans” with “Allowance for credit losses-to-loans” in the selected financial disclosure requirement for banks and associations in § 620.5(f). The commenters requested that FCA retain the existing ratio. The commenters believe retaining the existing ratio would avoid the need to reconcile financial data included in the regulatory financial disclosures with the U.S. GAAP balance sheet. The commenters stated a reconciliation would become necessary if the allowance for off-balance sheet credit exposures, which is a liability for U.S. GAAP purposes, were included within the definitions of “Allowance for credit losses” in the proposed rule. The commenters proposed as an alternative to require the denominator of the ratio (loans) be expanded to include total off-balance sheet credit exposures to keep the ratios comparable.

FCA disagrees with the commenters' suggestion and continues to believe System disclosures should remain generally consistent with those of the financial services industry, as they have been since at least 1986. FCA's disclosure requirements in the annual report to shareholders and investors are similar to, though not as extensive as, those required by the SEC and other financial regulators. 54 The disclosure reporting requirements originally adopted by FCA in 1986 were generally similar to the SEC Industry Guide 3, Statistical Disclosure by Bank Holding Companies (Industry Guide 3). 55 Subsequent to FCA's proposed CECL rule, the SEC updated and codified certain Industry Guide 3 disclosure requirements, including requirements for a similar Allowance for Credit Losses-to-loans ratio disclosure. 56 The FCA continues to believe that System institution shareholders should have access to comparable disclosures made to shareholders of other financial institutions in order to enhance the borrower ownership and control mandated by the Act.

Similarly, the proposal made a conforming amendment to replace the balance sheet line item “Allowance for losses” with “Allowance for credit losses” in the selected financial disclosure requirement for banks and associations in § 620.5(f). Commenters s uggested FCA retain the current § 620.5(f)(1)(i)(D) requirement to disclose the allowance for loan losses, rather than adopting the proposed requirement to disclose the allowance for credit losses. Commenters stated the new requirement could result in regulatory disclosure requirements that are different than those required by U.S. GAAP.

FCA disagrees with the commenters' suggestions regarding the usage of “Allowance for credit losses” in § 620.5(f)(1)(i)(D) as FCA believes it is important for users of the annual report to understand the amount of potential credit losses to which each bank and association may be exposed. While certain regulatory disclosures, such as the proposed § 620.5(f)(1)(i)(D), may require a reconciliation with U.S. GAAP, FCA continues to believe shareholders should have access to comparable disclosures provided to shareholders of other financial institutions. By retaining the conforming proposed financial disclosures in the final rule, System institutions will be required to provide transparent and comparable disclosures similar to others in the financial services industry. 57

FCA received no comments relating to any other proposed conforming change and adopts them as proposed.

A number of existing FCA regulations outside of part 628 refer to ALL or to “loan loss.” As discussed above, ASU No. 2016-13 removes impairment approaches and related terminology, including replacing the term ALL with ACL. Accordingly, most of the conforming changes outside of part 628 are to replace ALL or “loan loss” with ACL or “credit loss,” as appropriate. In addition, several existing regulations that refer to “allowance for losses” more appropriately refer to ACL.

Most of the conforming changes to regulations within part 628 (as well as to regulations that refer to regulations within part 628), replace “ALL” with “AACL.” In the capital disclosures at §  628.63, the final rule replaces references to “probable loan losses” and “loan losses” with ACL or AACL, as applicable.

The final rule makes conforming changes in the following parts:

Under U.S. GAAP, System institutions are required to implement the new standard for purposes of Systemwide combined financial statements for the Call Report quarter ending March 31, 2023. Thus, the final rule will be effective January 1, 2023, for System institutions.

All commenters recommended that FCA not adopt a specific effective date and instead include a more generic reference to the effective date required by U.S. GAAP. When FCA's proposed rule was published in September of 2019, as discussed above, CECL was scheduled to be effective for PBEs that are not SEC filers, such as the Funding Corporation, on January 1, 2021. After FCA's proposed rule was published, FASB deferred the mandatory effective date of CECL for such entities to January 1, 2023. 58 FCA agrees with System commenters that this final rule should be effective consistent with U.S. GAAP. If FASB changes the effective date of CECL for System institutions, FCA will update the effective date of this final rule consistent with the System's implementation date of CECL.

FCA expects to issue supervisory guidance on the ACL and update existing guidance referencing ALL. Until that time, many concepts, processes, and practices detailed in existing supervisory guidance on the ALL continue to remain relevant under CECL. Relevant guidance includes, but is not limited to, information related to management's responsibility for the allowance estimation process, the board of directors' responsibility for overseeing management's process, and the need for institutions to appropriately support and document their allowance estimates. 59 Until new guidance is issued, institutions should consider the relevant sections of existing ALL guidance in their implementation of the new accounting standard.

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), FCA hereby certifies that this final rule would not have a significant economic impact on a substantial number of small entities. Each of the banks in the System, considered together with its affiliated associations, has assets and annual income in excess of the amounts that would qualify them as small entities. Therefore, System institutions are not “small entities” as defined in the Regulatory Flexibility Act.

Under the provisions of the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Management and Budget's Office of Information and Regulatory Affairs has determined that this final rule is not a “major rule” as the term is defined at 5 U.S.C. 804(2).

The FAA issued AD 2020-05-12, Amendment 39-19860 (85 FR 14562, March 13, 2020) (AD 2020-05-12), for all Gulfstream Aerospace Corporation Model GVII-G500 and GVII-G600 airplanes. AD 2020-05-12 required revising the existing AFM to limit the maximum crosswind component for landing and increase the normal approach speeds, based on steady-state winds and wind gusts. AD 2020-05-12 was prompted by a report of a landing incident, which occurred on February 6, 2020, where the alpha (angle of attack) limiter engaged during the landing flare in unstable air, resulting in a high rate of descent landing and damage to the airplane. The FAA issued AD 2020-05-12 to address inappropriate alpha limiter engagement during the landing flare, which can limit pilot pitch authority during a critical phase of flight near the ground, and result in a high rate of descent landing with possible consequent loss of control of the airplane on landing.

After the FAA issued AD 2020-05-12, a second landing event occurred on April 4, 2022. As in the first event, the alpha limiter engaged during the landing flare in unstable air, resulting in a high rate of descent landing and damage to the airplane. In both events, the angle of attack (AOA) protection function (alpha limiter) of the flight control computer (FCC) engaged and overrode the pilot pitch control inputs which the flight control law erroneously predicted would exceed the stall AOA. This resulted in a high rate of descent landing on the runway. Additionally, the pilots in both events had full aft-stick input when the aircraft contacted the runway, and the full-up pitch control did not arrest the high rate of descent landing.

The Model GVII-G500 and GVII-G600 alpha limiter function of the FCC is designed to prevent aerodynamic stalls and operates when airborne and operating in normal control law. The FCC uses many inputs including current AOA, rate of change of AOA, and pilot control stick inputs to determine alpha limiter activation. If the FCC predicts that critical AOA values will be exceeded, the FCC will activate the alpha limiting function. The FCC may activate the alpha limiting function when the AOA is not close to stall. Depending on the rate of AOA increase and pilot stick input, the alpha limiter may command nose down elevator to prevent a stall. It is clear from an analysis of both events that unintended alpha limiter engagement is primarily caused by rapid, large, and oscillating pilot control inputs near approach reference speeds, induced by unstable atmospheric conditions and gusty winds.

The aircraft level hazard is that inappropriate alpha limiter engagement during the landing flare, which can limit the pilot's ability to control pitch during a critical phase of flight near the ground, can result in a high rate of descent landing with possible consequent loss of control of the airplane on landing. It has been determined that the operating limitations mandated by AD 2020-05-12 are not adequate to prevent another occurrence. For these reasons, the AFM wind and gust operating limitations have been further restricted in this AD.

These more restrictive operating limitations do not relieve a pilot from their other regulatory obligations, including verifying destination wind forecasts prior to departure, monitoring winds en route, verifying that the approach briefing includes a cockpit brief of winds and weather, and confirming that the winds are still within acceptable limits just prior to landing. Pilots are responsible for becoming familiar with this information when performing preflight actions under 14 CFR part 91.103, 91.151, and 91.167. Furthermore, these limitations can only be exceeded when the pilot is exercising their authority under 14 CFR part 91.3.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD retains certain requirements of AD 2020-05-12, which requires the following sections of Gulfstream GVII-G500 Airplane Flight Manual, GAC-AC-GVII-G500-OPS-0001, Revision 5, dated March 3, 2020, which the Director of the Federal Register approved for incorporation by reference as of March 13, 2020 (85 FR 14562, March 13, 2020).

• Section 01-27-10, “Normal Control Laws,” of Chapter 01, “LIMITATIONS.”

• Step 8., “Final Approach Fix,” of Section 04-08-40, “One Engine Inoperative Landing Procedure,” of Chapter 04, “EMERGENCY PROCEDURES.”

• Step 11., “Landing,” of Section 03-12-10, “Zero Flaps or Partial Flaps Landings,” of Chapter 03, “ABNORMAL PROCEDURES.”

• Step 15., “Approach Speed,” of Section 01-03-40, “Airspeed Limitations,” of Chapter 01, “LIMITATIONS.”

This AD also requires the following sections of Gulfstream GVII-G600 Airplane Flight Manual, GAC-AC-GVII-G600-OPS-0001, Revision 3, dated March 3, 2020, which the Director of the Federal Register approved for incorporation by reference as of March 13, 2020 (85 FR 14562, March 13, 2020).

• Section 01-27-10, “Normal Control Laws,” of Chapter 01, “LIMITATIONS.”

• Steps 3. and 4. of Section 01-34-40, “Takeoff and Landing Data (TOLD),” of Chapter 01, “LIMITATIONS.”

• Step 8., “Final Approach Fix,” of Section 04-08-40, “One Engine Inoperative Landing Procedure,” of Chapter 04, “EMERGENCY PROCEDURES.”

• Step 11., “Landing,” of Section 03-12-10, “Zero Flaps or Partial Flaps Landings,” of Chapter 03, “ABNORMAL PROCEDURES.”

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This AD retains some of the AFM revisions required by AD 2020-05-12, as listed under the Related Service Information under 1 CFR part 51 section of this final rule.

For Model GVII-G500 airplanes, this AD also requires revising the following sections of the existing AFM to include more restrictive limitations and procedures.

• “Wind Conditions” of Section 01-02-10: “Runway, Slope, and Wind Conditions,” of Chapter 01, “LIMITATIONS.”

• “Day and Night, Visual and Instrument Flight Rules” of Section 01-03-10: “Types of Airplane Operations Permitted,” of Chapter 01, “LIMITATIONS.”

• “Approach Speed” of Section 01-03-40: “Airspeed Limitations,” of Chapter 01, “LIMITATIONS.”

• Section 01-22-10: “Autothrottle,” of Chapter 01, “LIMITATIONS.”

• “WARNING” information preceding “Approach/Landing Airspeeds” of Section 02-05-50: “Landing,” of Chapter 02, “NORMAL OPERATIONS.”

• “Introduction” and “Example” sections of Section 05-11-10: “Threshold Speeds” of Chapter 05, “PERFORMANCE.”

For Model GVII-G600 airplanes, this AD also requires adding or replacing the following sections of the existing AFM to include more restrictive limitations and procedures.

• “Wind Conditions” of Section 01-02-10: “Runway, Slope, and Wind Conditions,” of Chapter 01, “LIMITATIONS.”

• “Day and Night, Visual and Instrument Flight Rules” of Section 01-03-10: “Types of Airplane Operations Permitted,” of Chapter 01, “LIMITATIONS.”

• “Approach Speed” of Section 01-03-40: “Airspeed Limitations,” of Chapter 01, “LIMITATIONS.”

• Section 01-22-10: “Autothrottle,” of Chapter 01, “LIMITATIONS.”

• “WARNING” information preceding “Approach/Landing Airspeeds” of Section 02-05-50: “Landing,” of Chapter 02, “NORMAL OPERATIONS.”

• “Introduction” and “Example” sections of Section 05-11-10: “Threshold Speeds” of Chapter 05, “PERFORMANCE.”

The FAA considers this AD to be an interim action. The manufacturer is developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because inappropriate alpha limiter engagement during the landing flare can limit pilot pitch authority during a critical phase of flight near the ground and could result in a high rate of descent landing with possible consequent loss of control of the airplane. Given the significance of the risk presented by this unsafe condition, it must be immediately addressed. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0511 and Project Identifier AD-2022-00397-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Sanford Proveaux, Aerospace Engineer, Certificate Management and Safety Oversight Section, FAA, Atlanta ACO Branch, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5566; email: Sanford.Proveaux@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 120 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA's authority to issue rules 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 the Class E airspace extending upward from 700 feet above the surface at Brooks Field, Marshall, MI, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 11358; March 1, 2022) for Docket No. FAA-2022-0129 to amend the Class E airspace at Marshall, MI. 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 JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface to within a 6.3-mile (decreased from a 6.5-mile) radius of Brooks Field, Marshall, MI; removes the city associated with the airport in the header to comply with changes to FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; and removes the exclusionary language from the airspace legal description as it is not required.

This action is due to an airspace review conducted as part of the decommissioning of the Litchfield VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.

FAA Order JO 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, is non-controversial and unlikely to result in adverse or negative comments. 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 and 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 5-6.5.a. 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:

The FAA's authority to issue rules 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 the Class E airspace extending upward from 700 feet above the surface at Hugoton Municipal Airport, Hugoton, KS, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 12001; March 3, 2022) for Docket No. FAA-2022-0163 to amend the Class E airspace at Hugoton, KS. 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 JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface within a 6.5-mile (reduced from a 7.2-mile) radius of Hugoton Municipal Airport, Hugoton, KS; removes the Hugoton NDB and associated extension from the airspace legal description; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is necessary due to an airspace review conducted as part of the decommissioning of the Hugoton NDB which provided navigation information for the instrument procedures this airport.

FAA Order JO 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, is non-controversial and unlikely to result in adverse or negative comments. 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 and 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 5-6.5.a. 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:

The FAA's authority to issue rules 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 the Class E airspace extending upward from 700 feet above the surface at Jefferson Municipal Airport, Jefferson, IA, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 12000; March 3, 2022) for Docket No. FAA-2022-0164 to amend the Class E airspace at Jefferson, IA. 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 JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface within a 6.4-mile (increased from a 6.3-mile) radius of Jefferson Municipal Airport, Jefferson, IA; removes the Jefferson NDB and associated extension from the airspace legal description; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is necessary due to an airspace review conducted as part of the decommissioning of the Jefferson NDB which provided navigation information for the instrument procedures this airport.

FAA Order JO 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, is non-controversial and unlikely to result in adverse or negative comments. 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 and 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 5-6.5.a. 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:

The FAA's authority to issue rules 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 the Class E airspace extending upward from 700 feet above the surface at Northeast Ohio Regional Airport, Ashtabula, OH, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 11364; March 1, 2022) for Docket No. FAA-2022-0130 to amend the Class E airspace at Ashtabula, OH. 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 JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface at Northeast Ohio Regional Airport, Ashtabula, OH, by adding an extension 2 miles each side of the 259° bearing from the airport extending from the 6.5-mile radius of the airport to 9.6 miles west of the airport; removes the city associated with Ashtabula County Medical Center, contained within the airspace legal description, in the header to comply with changes to FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; and updates the name (previously Ashtabula County Airport), state, and geographic coordinates of Northeast Ohio Regional Airport to coincide with the FAA's aeronautical database.

This action is due to an airspace review conducted as part of the decommissioning of the Jefferson VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.

FAA Order JO 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, is non-controversial and unlikely to result in adverse or negative comments. 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 and 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 5-6.5.a. 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:

The FAA's authority to issue rules 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 the 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 establishes restricted area airspace at Fort Devens, MA, to enhance aviation safety and accommodate essential U.S. Army training activities.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0074 in the Federal Register (86 FR 17555; April 5, 2021), proposing to modify restricted areas R-4102A and R-4102B at Fort Devens, MA, to update the time of designation and the lateral boundaries of the areas. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. One comment was received from an individual commenter.

The commenter expressed concern about FAA's determination of “no significant impact” with regard to this action. The commenter likened it to FAA's decision in the case of Moore Army Airfield in which the commenter stated the 60 days comment period was waived. Moreover, the commenter stated that the public lacked the benefit of a noise impact study. Moore Airfield was closed during the 1990s and is now used for auto racing and for state police training. Finally, the commenter stated that they “disagree with lifting the restrictions that are currently over Oxbow Wildlife Refuge” as “[p]ropeller planes are dumping noise and leaded aviation fuel emissions.”

In this case, the Environmental Assessment (EA) and Finding of No Significant Impact (FNSI) were available for review and comment for 30 days, beginning June 22, 2018, and ending July 23, 2018. Copies of the EA and Draft FNSI were made available on the official Fort Devens website and printed copies were also made available at four local libraries: The Ayer Public Library, the Hazen Memorial Library in Shirley, the Harvard Public Library, and the Thayer Memorial Library in Lancaster. The Army received responses from the Massachusetts Historical Commission and Fitchburg Municipal Airport during the 30-day public review period. The Army carefully read and considered all comments received. Moreover, the EA's section on Biological Resources found that although biological communities are found in the surrounding areas, no noise impacts are anticipated on these communities because no changes are proposed to the types of aircraft or types and number of operations conducted within the airspace.

With regard to the commenter's final point, the current restricted area configuration does infringe on the southernmost part of the Refuge. However, this area is not available for use by the military for environmental reasons. Therefore, there is no justification for retaining restricted airspace over that location. Restricted areas are only designated when necessary to contain and segregate activities that would pose a hazard to aviation rather than address environmental concerns. The Oxbow Refuge is identified on Visual Flight Rules (VFR) aeronautical charts for pilot awareness. An advisory note on the chart requests that pilots maintain a minimum flight altitude of 2,000 feet above the ground if overflying the Refuge and similar sensitive areas.

This action amends 14 CFR part 73 by modifying the time of designation, and the boundaries of restricted areas R-4102A and R-4102B at Fort Devens, MA. The current time of designation is “0800 to 2200 Saturday, local time; other times by NOTAM issued 24 hours in advance.” This designation does not reflect the actual routine daily use of the airspace necessary to meet the training requirements at Fort Devens. The FAA is amending the time of designation to read: “Intermittent, 0730 to 2200 local time, daily; other times by NOTAM issued 24 hours in advance.” This change provides more accurate information to the aviation community about the current routine use of the airspace, and it eliminates the administrative workload now required to issue daily NOTAMs to activate the restricted areas.

The FAA is also modifying the boundaries of restricted areas R-4102A and R-4102B by removing sections of the restricted airspace that are not contained within the Fort Devens installation property boundaries. Additionally, this rule slightly expands the restricted areas on the northwest, northeast, and southeast sides to include small parts of the training area that are actually located within the Fort Devens installation property boundaries, but are outside of the current restricted area boundaries. Taken together, these restricted area boundary changes result in an overall reduction in the size of the restricted areas at Fort Devens. The result is improved functionality of the training area as well as increase safety during training operations.

During periods when the restricted areas are not needed by the using agency, the airspace will be returned to the controlling agency (FAA, Boston Approach Control) for access by other aviation users.

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 Department of Transportation (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 and 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 airspace action of modifying restricted areas R-4102A and R-4102B at Fort Devens, MA, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study for this rulemaking action. On May 31, 2019, in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, Paragraph 8-2, Adoption of Other Agencies' NEPA Documents, the FAA finalized its adoption Environmental Assessment of the Army's Establishment of Restricted Area Airspace (R-) 4102A/B at U.S. Army Garrison Fort Devens, Final Environmental Assessment of Airspace Change Proposal at U.S. Army Garrison Fort Devens, Massachusetts. The Army's Final EA analyzed the potential environmental impacts of the proposed establishment of additional restricted area airspace in support of the Army's training exercises. The additional restricted area airspace would lower the risk of encountering non-participating aircraft during those exercises. No changes to the types of aircraft or types and number of operations conducted within the airspace were proposed.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

The Railroad Retirement Board (Board) amends its disability regulations to allow video teleconferencing technology (VTT) to be used to conduct a psychological or a psychiatric consultative examination in a case where such technology permits proper evaluation of a claimant. A VTT consultative examination is an examination conducted through a telecommunications system that allows the examining physician or psychologist and the claimant to see and hear each other for the purpose of communication in real time. A VTT consultative examination must comply with all requirements for consultative examinations in subpart G of part 220 of the Board's regulations, 20 CFR part 220, subpart G. In addition, the following requirements must be followed if a VTT consultative examination is used. The examining physician or psychologist must be currently licensed in the state in which the provider practices.

The examining physician or psychologist must have the training and experience to perform the type of examination requested. The examining physician or psychologist must have access to VTT, and the claimant must live in the same state in which the provider practices. The claimant shall have the right to refuse a VTT consultative examination without penalty.

A proposed rule was published on February 3, 2022, and comments were requested by April 4, 2022, 87 FR 6094, February 3, 2022. One comment was submitted. While expressing support for the proposed change as “a positive change by the agency to embrace the technological transformation,” the commenter quoted the proposed sentence in § 220.57(c)(2), which states that “[t]he examining physician or psychologist has the training and experience to perform the type of examination requested” and commented that this statement does not quantify the required minimum years of experience for the examining physician or psychologist. The commenter explained that unless years of experience are specified, any physician with just 1 prior experience of performing such kind of examination will be qualified and suggested that the minimum number of years of experience be added to the clause to avoid any confusion and make the rule clear. The Board considered the commenter's suggestion, but decided not to quantify a minimum number of years of experience to use VTT as the examining physician or psychologist would be licensed and in good standing in the state in which he or she practices and would have the training and experience necessary to perform the type of examination or test required.

No changes were made in the proposed rule, which is now being published as a final regulation.

We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563.

This final rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Board believes that this final rule will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

We certify that this final rule would not have a significant economic impact on a substantial number of small entities because the final rule affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

This final rule will not 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, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This final rule does not create any new or affect any existing collections and, therefore, does not require OMB approval under the Paperwork Reduction Act.

For the reasons discussed in the preamble, the Railroad Retirement Board amends 20 CFR part 220 as follows:

Section 701 of the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015) (“BBA”), 28 U.S.C. 2461 note, substantially revised the prior provisions of the Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Public Law 101-410 (the “Inflation Adjustment Act”), and substituted a different statutory formula for calculating inflation adjustments on an annual basis.

In accordance with the provisions of the BBA, on June 30, 2016 (81 FR 42491), the Department of Justice published an interim rule (“June 2016 interim rule”) to adjust for inflation the civil monetary penalties assessed or enforced by components of the Department after August 1, 2016, with respect to violations occurring after November 2, 2015, the date of enactment of the BBA. Readers may refer to the SUPPLEMENTARY INFORMATION (also known as the preamble) of the Department's June 2016 interim rule for additional background information regarding the statutory authority for adjustments of civil monetary penalty amounts to take account of inflation and the Department's past implementation of inflation adjustments. The June 2016 interim rule was finalized without change by the publication of a final rule on April 5, 2019 (84 FR 13525).

After the initial adjustments in 2016, the BBA also provides for agencies to adjust their civil penalties on January 15 of each year to account for inflation during the preceding year, rounded to the nearest dollar. Accordingly, on February 3, 2017 (82 FR 9131), and on January 29, 2018 (83 FR 3944), the Department published final rules pursuant to the BBA to make annual inflation adjustments in the civil monetary penalties assessed or enforced by components of the Department after those dates, with respect to violations occurring after November 2, 2015.

The Department has continued to promulgate rules adjusting the civil money penalties for inflation thereafter. Most recently, the Department published a final rule on December 13, 2021 (86 FR 70740), to adjust the civil money penalties to account for inflation occurring since 2020.

As required, the Department is publishing this final rule to adjust for 2022 the Department's current civil penalties. Under the statutory formula, the adjustments made by this rule are based on the Bureau of Labor Statistics' Consumer Price Index for October 2021. The OMB Memorandum for the Heads of Executive Departments and Agencies M-22-07 (Dec. 15, 2021) https://www.whitehouse.gov/wp-content/uploads/2021/12/M-22-07.pdf (last visited May 2, 2022), instructs that the applicable inflation factor for this adjustment is 1.06222.

Accordingly, this rule adjusts the civil penalty amounts in 28 CFR 85.5 by applying this inflation factor mechanically to each of the civil penalty amounts listed (rounded to the nearest dollar).

Example:

• In 2016, the Program Fraud Civil Remedies Act penalty was increased to $10,781 in accordance with the adjustment requirements of the BBA.

• For 2017, where the applicable inflation factor was 1.01636, the existing penalty of $10,781 was multiplied by 1.01636 and revised to $10,957 (rounded to the nearest dollar).

• For 2018, where the applicable inflation factor is 1.02041, the existing penalty of $10,957 was multiplied by 1.02041 and revised to $11,181 (rounded to the nearest dollar).

• Had an adjustment rule been published in 2019, where the applicable inflation factor was 1.02041, the existing penalty of $11,181 would have been multiplied by 1.02522 and revised to $11,463 (rounded to the nearest dollar).

• For the final rule in 2020 ( in which the ending 2019 penalty amounts were used as the starting penalty amounts for purposes of calculation ) the starting penalty of $11,463 was multiplied by 1.01764 and revised to $11,665 (rounded to the nearest dollar.)

• For the final rule in 2021, where the applicable inflation factor was 1.01182, the existing penalty of $11,665 was multiplied by 1.01182 and revised to $11,803 (rounded to the nearest dollar).

• For this final rule in 2022, where the applicable inflation factor is 1.06222, the existing penalty of $11,803 is multiplied by 1.06222 and revised to $12,537 (rounded to the nearest dollar).

This rule adjusts for inflation civil monetary penalties within the jurisdiction of the Department of Justice for purposes of the Inflation Adjustment Act, as amended. Other agencies are responsible for the inflation adjustments of certain other civil monetary penalties that the Department's litigating components bring suit to collect. The reader should consult the regulations of those other agencies for inflation adjustments to those penalties.

Under this rule, the adjusted civil penalty amounts are applicable only to civil penalties assessed after May 9, 2022, with respect to violations occurring after November 2, 2015, the date of enactment of the BBA.

The penalty amounts set forth in the existing table in 28 CFR 85.5 are applicable to civil penalties assessed after August 1, 2016, and on or before the effective date of this rule, with respect to violations occurring after November 2, 2015. Civil penalties for violations occurring on or before November 2, 2015, and assessments made on or before August 1, 2016, will continue to be subject to the civil monetary penalty amounts set forth in the Department's regulations in 28 CFR parts 20, 22, 36, 68, 71, 76, and 85 as such regulations were in effect prior to August 1, 2016 (or as set forth by statute if the amount had not yet been adjusted by regulation prior to August 1, 2016).

The BBA provides that, for each annual adjustment made after the initial adjustments of civil penalties in 2016, the head of an agency shall adjust the civil monetary penalties each year notwithstanding 5 U.S.C. 553. Accordingly, this rule is being issued as a final rule without prior notice and public comment, and without a delayed effective date.

Only those entities that are determined to have violated Federal law and regulations would be affected by the increase in the civil penalty amounts made by this rule. A Regulatory Flexibility Act analysis is not required for this rule because publication of a notice of proposed rulemaking was not required. See 5 U.S.C. 603(a).

This final rule has been drafted in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), The Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1, General Principles of Regulation. Executive Orders 12866 and 13563 direct agencies, in certain circumstances, 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).

The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” section 3(f), and, accordingly, this rule has not been reviewed by the Office of Management and Budget. This final rule implements the BBA by making an across-the-board adjustment of the civil penalty amounts in 28 CFR 85.5 to account for inflation since the adoption of the Department's final rule published on December 13, 2021 (86 FR 70740).

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rule will not 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, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804.

Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Assistant Attorney General, Office of Legal Policy, by AG Order No. 5328-2022, and for the reasons set forth in the preamble, chapter I of title 28 of the Code of Federal Regulations is amended as follows:

On October 1, 2015, EPA promulgated a revised primary and secondary NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts per million (ppm) to a new more protective level of 0.070 ppm. See 80 FR 65292 (October 26, 2015). Pursuant to section 110(a)(1) of the CAA, states are required to submit SIP revisions meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. This particular type of SIP is commonly referred to as an “infrastructure SIP” or “iSIP.” States were required to submit such SIP revisions for the 2015 8-hour ozone NAAQS to EPA no later than October 1, 2018. 1

On September 24, 2018, Georgia met its requirement to submit an iSIP for the 2015 8-hour ozone NAAQS by the October 1, 2018, deadline. EPA subsequently approved most of the infrastructure SIP elements for the 2015 Ozone NAAQS for the State. 2 3 However, regarding the PSD elements of section 110(a)(2)(C), (D)(i)(II) (prong 3), and (J) (hereinafter referred to as element C, Prong 3, and element J, respectively), EPA conditionally approved  4 these portions of Georgia's iSIP submission because of outdated references to the federal guideline on air quality modeling found in Appendix W of 40 CFR part 51. 5

For elements C and J to be approved for PSD, a state needs to demonstrate that its SIP meets the PSD-related infrastructure requirements of these sections. These requirements are met if the state's implementation plan includes a PSD program that meets current federal requirements. Element D(i)(II) (prong 3) is also approvable when a state's implementation plan contains a fully approved PSD program. EPA's PSD regulations at 40 CFR 51.166(l) require that modeling be conducted in accordance with Appendix W, Guideline on Air Quality Models. EPA promulgated the most current version of Appendix W on January 17, 2017. See 82 FR 5182. Therefore, in order to approve the iSIP PSD elements for the 2015 8-hour ozone NAAQS, PSD regulations in SIPs are required to reference the most current version of Appendix W.

As discussed in the conditional approval for the 2015 ozone iSIP PSD elements, Georgia's SIP contained outdated references to Appendix W, and the State committed to update the outdated references and submit a SIP revision within one year of EPA's final rule conditionally approving these PSD elements. Accordingly, Georgia was required to make its submission by April 15, 2021. Georgia met this commitment by submitting a SIP revision to correct the deficiencies on September 1, 2020.

Through a Notice of Proposed Rulemaking (NPRM), published on March 16, 2022, EPA proposed to approve the September 1, 2020, revision to the SIP-approved PSD rule and proposed to convert the conditional approval to a full approval for Georgia, regarding element C, Prong 3, and element J, for the 2015 8-hour ozone NAAQS infrastructure SIP. 6 See 87 FR 14817. Comments on the March 16, 2022, NPRM were due on or before April 15, 2022. EPA did not receive any comments on the March 16, 2022, NPRM.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Georgia Rule 391-3-1-.02(7), titled “Prevention of Significant Deterioration of Air Quality,” state effective July 29, 2020. 7 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 8

EPA is finalizing approval of the aforementioned changes to the Georgia Rule 391-3-1-.02(7), Prevention of Significant Deterioration of Air Quality. EPA is also converting the conditional approval for element C, Prong 3, and element J, for the 2015 8-hour ozone Infrastructure SIPs to a full approval based on these revisions to the SIP-approved PSD regulations for Georgia.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided they meet the criteria of the CAA. This actions 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);

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2022. 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) of the CAA.

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

In accordance with the Clean Air Act (CAA or Act), EPA is approving the Areas' LMPs for the 1997 8-hour ozone NAAQS, adopted and submitted by NCDAQ as revisions to the North Carolina SIP on September 22, 2020. On April 15, 2004, EPA published a final rule designating the GSMNP, Triangle and Rocky Mount Areas nonattainment for the 1997 8-hour ozone NAAQS. 1 The GSMNP nonattainment area included portions of Haywood and Swain Counties. The Triangle nonattainment area included Durham, Franklin, Granville, Johnston, Orange, Person and Wake Counties in their entirety and the Townships of Baldwin, Center, New Hope and Williams in Chatham County. The Rocky Mount nonattainment area included Edgecombe and Nash Counties in their entirety. Subsequently, EPA approved the maintenance plans for the GSMNP, Triangle and Rocky Mount Areas and redesignated the Areas to attainment for the 1997 8-hour ozone NAAQS. 2

The Areas' LMPs for the 1997 8-hour ozone NAAQS, submitted by NCDAQ on September 22, 2020, are designed to maintain the 1997 8-hour ozone NAAQS within the GSMNP, Triangle and Rocky Mount Areas through the end of the second 10-year portion of the maintenance period beyond redesignation. As a general matter, the Areas' LMPs rely on the same control measures and relevant contingency provisions to maintain the 1997 8-hour ozone NAAQS during the second 10-year portion of the maintenance period as the maintenance plan submitted by NCDAQ for the first 10-year period.

In a notice of proposed rulemaking (NPRM), published on February 11, 2022 (87 FR 7970), EPA proposed to approve the Areas' LMPs because the State made a showing, consistent with EPA's prior LMP guidance, that the GSMNP, Triangle and Rocky Mount 1997 8-hour NAAQS Areas' ozone concentrations are well below the 1997 8-hour ozone NAAQS and have been historically stable and that it met the other maintenance plan requirements. The details of North Carolina's submission and the rationale for EPA's action are explained further in the February 11, 2022, NPRM. Comments on the February 11, 2022, NPRM were due on or before March 14, 2022.

One Commenter provided two separate comments on the February 11, 2022, NPRM. EPA's responses to those comments are provided below.

Comment 1: The Commenter indicates that North Carolina's SIP submissions and EPA's proposed approval are reliant on emissions from North Carolina's vehicle inspection and maintenance (I/M) program. Specifically, the Commenter expresses concerns about the effectiveness of the I/M program, citing expired tags, which the Commenter asserts indicate lapsed inspections and taxes to support highway safety measures.

Response 1: Neither of the maintenance plans for GSMNP and Rocky Mount are reliant on emission reductions from North Carolina's I/M program, so the comment is not applicable to this action as it relates to those areas. No county in the GSMNP and Rocky Mount Areas is subject to the North Carolina I/M program, and in a previous action, EPA approved a SIP revision which removed the applicable counties in the GSMNP and Rocky Mount Areas from North Carolina's I/M program on the basis that the emissions reductions from the program in these counties were not necessary to attain or maintain the NAAQS or meet any other applicable requirement of the CAA. 3 See 83 FR 48383 (September 25, 2018).

With regards to the Triangle Area, the maintenance plan is partially reliant on emission reductions from North Carolina's I/M program. As mentioned above, the Triangle Area includes Durham, Franklin, Granville, Johnston, Orange, Person and Wake Counties in their entirety and the Townships of Baldwin, Center, New Hope and Williams in Chatham County. Person County was never subject to North Carolina's I/M program, and thus, no emissions reductions from Person County related to North Carolina's I/M program were ever relied on in North Carolina's maintenance plan for the Triangle. Additionally, in the aforementioned September 25, 2018 action, EPA approved a SIP revision removing Chatham, Granville and Orange Counties in the Triangle Area from North Carolina's I/M program, finding that emission reductions from North Carolina's I/M programs were not needed from Chatham (which includes the Townships of Baldwin, Center, New Hope, and Williams), Granville and Orange Counties in the Triangle Area for that Area to stay in attainment and show continued maintenance for the NAAQS. See 83 FR 48383. Durham, Franklin, Johnston and Wake Counties are still subject to North Carolina's I/M program, and in a recent action, EPA approved a SIP revision from North Carolina to change the model year coverage for vehicles subject to North Carolina's I/M program. See 84 FR 47889 (September 11, 2019). In that action, EPA affirmed that the change to the model year coverage for vehicles in the applicable counites in the Triangle Area would not interfere with NAAQS compliance.

While EPA appreciates the Commenter's concerns related to possible expired tags, this is an enforcement and compliance issue, and expired tags alone are not indicative of the Triangle Area not being in overall compliance with the NAAQS. Ambient air monitoring is the tool that EPA uses to determine ongoing compliance with the NAAQS in this Area. Currently, the Triangle Area is in compliance for all NAAQS, and has been in compliance with all NAAQS for the past several years. EPA also notes that EPA's SIP authority does not extend to requiring taxes to support highway safety measures, so this concern is not relevant to EPA's action.

Comment 2: The Commenter appears to indicate that monitors in Wake County are not sited correctly to measure ambient air quality in the County, and therefore, do not provide adequate data to support EPA's action. Specifically, the Commenter questions the placement of the monitors, the sufficiency of the data that is collected, and the methods used to collect the data. In support of these assertions, the Commenter compares the Town of Fuquay Varina, metropolitan downtown Raleigh, and Durham (“the State Capital”). The Commenter also asserts that projects may have been “intentionally steered clear” of monitors “to provide an unrealistic picture of Wake County air degradation.”

Response 2: EPA disagrees with the Commenter's assertion that the monitors in Wake County are not sited appropriately to collect sufficient data to determine compliance with the NAAQS and support EPA's action. By regulation, states are required annually to submit monitoring network plans to provide their strategies for measuring ambient air quality statewide. EPA reviews these air monitoring network plans and makes determinations as to whether the plans are consistent with EPA's monitoring requirements at 40 CFR part 58. EPA last approved North Carolina's monitoring network plan on October 27, 2021, and made the determination (among other determinations) that North Carolina's monitoring network is adequate to measure ambient air quality for ozone statewide, including in Wake County. 4 As discussed in the NPRM, the LMPs for the Areas contain the State's commitment to continue to maintain a monitoring network in accordance with EPA requirements.

Further, EPA is not clear on the Commenter's assertion that projects may have been “intentionally steered clear” of monitors “to provide an unrealistic picture of Wake County air degradation,” and how this relates to air quality in the County. Notably, ozone is not directly emitted but instead is formed in the atmosphere under certain conditions with a mix of precursors, so it would not be possible for projects to be “intentionally steered clear” of ozone monitors to hypothetically manipulate air quality in the Area. In addition, the Commenter does not provide any technical information to support the assertions that ambient air quality monitoring in Wake County is not adequate.

EPA is taking final action to approve the GSMNP, Triangle and Rocky Mount LMPs for the 1997 8-hour ozone NAAQS, submitted by NCDAQ on September 22, 2020, as revisions to the North Carolina SIP. EPA is approving the Areas' LMPs because each LMP includes an sufficient update of various elements of the 1997 8-hour ozone NAAQS Maintenance Plans approved by EPA for the first 10-year period (including emissions inventory, assurance of adequate monitoring and verification of continued attainment, and contingency provisions), and retains the relevant provisions of the SIP under sections 110(k) and 175A of the CAA.

EPA also finds that the Areas qualify for the LMP option and that the Areas' LMPs are sufficient to provide for maintenance of the 1997 8-hour ozone NAAQS in the Areas over the second 10-year maintenance period ( i.e., through January 6, 2030 for the GSMNP Area, through January 5, 2027, for the Rocky Mount Area, and through December 26, 2027, for the Triangle Area).

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

• Are not significant regulatory actions 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);

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

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

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

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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

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

These SIP revisions are not approved to apply on any Indian reservation land or in any other area where 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing these actions 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 . These actions are 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 these actions must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2022. 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. These actions may not be challenged later in proceedings to enforce their requirements. See section 307(b)(2).

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

On October 15, 2020, the Commonwealth submitted changes to the Kentucky SIP for EPA approval. 1 The changes include updates to Regulation 401 KAR 63:010— Fugitive Emissions, which establishes control requirements for fugitive emissions. The October 15, 2020, SIP revision contains primarily minor non-substantive changes which concern minor language edits and renumbering changes throughout regulation 401 KAR 63:010. Additionally, the revision includes the removal of one provision regarding nuisances, the addition of one new requirement to use EPA's Reference Method 22, and the incorporation of two new definitions for “Emission time” and “Observation period,” to support this new requirement.

On March 8, 2022, EPA publish a notice of proposed rulemaking (NPRM) to approve the October 15, 2020, SIP revisions regarding 401 KAR 63:010. EPA's March 8, 2022, NPRM provides additional details regarding the background for this action and EPA's rationale for approving this revision. See 87 FR 12904. Comments on the March 8, 2022, NPRM were due on or before April 7, 2022. EPA received no comments on the March 8, 2022, NPRM.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Kentucky's Regulation 401 KAR 63:010— Fugitive Emissions, state effective on June 30, 2020, which updates the Commonwealth's fugitive emission provisions, except for the nuisance provision added to Section 3, Paragraph (4). 2 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

EPA is approving the revision to Regulation 401 KAR 63:010— Fugitive Emissions, which updates the Commonwealth's fugitive emissions rule. EPA is finalizing the approval of these changes to the SIP because they are consistent with the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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);

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2022. 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) of the CAA.

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

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

On May 20, 2021, 1 the EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they comply with the relevant CAA requirements.

In addition to replacing the previous versions of the submitted rules listed in Table 1, the EPA proposed to rescind South Coast Air Quality Management District (SCAQMD) Rule 1107, Coating of Metal Parts and Products, as it applies to the Riverside County portion of the MDAQMD, as requested by the California Air Resources Board (CARB). 2

In our May 20, 2021 proposal, the EPA also proposed to approve revisions to SCAQMD Rule 1107; however, we are not finalizing that action at this time. Our proposed action contains more information on the rules and our evaluation.

The EPA's proposed action provided a 30-day public comment period. We received three comments during this period, and each one was supportive of this proposed action.

No comments were submitted that change our assessment of the rules and rule rescission discussed above and as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these rules and rule rescission into the California SIP

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MDAQMD and the PCAPCD rules described in section I. of this preamble and set forth below in the amendments to 40 CFR part 52. 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 Clean Air Act, 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);

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

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

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

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

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

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

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

• Does not provide 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2022. 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 Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

On April 24, 2020, SC DHEC submitted a SIP revision to EPA for approval that includes changes to South Carolina Regulation 61-62.1, Definitions and General Requirements. In this document, EPA is finalizing approval to incorporate into South Carolina's SIP updates to Section III— Emissions Inventory and Emissions Statements and Section V— Credible Evidence of South Carolina Regulation 61-62.1. 1 EPA is finalizing approval of these changes because they meet the requirements of and are consistent with the CAA.

In a notice of proposed rulemaking (NPRM) published in the Federal Regist er on March 8, 2022 (87 FR 12902), EPA proposed to approve the aforementioned changes from South Carolina's April 24, 2020, SIP revision. The details of South Carolina's submittal and the rationale for EPA's approval are further explained in the March 8, 2022, NPRM. Comments on the March 8, 2022, NPRM were due on or before April 7, 2022. EPA did not receive any comments, adverse or otherwise, on the March 8, 2022, NPRM.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of South Carolina's Regulation 61-62.1, Definitions and General Requirements, Section III— Emissions Inventory and Emissions Statements and Section V— Credible Evidence, state effective on April 24, 2020. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2

EPA is finalizing approval of revisions to the SIP-approved version of South Carolina's Regulation 61-62.1, Section III— Emissions Inventory and Emissions Statements and Section V— Credible Evidence, state effective on April 24, 2020. EPA has determined that these revisions meet the applicable requirements of section 110 of the CAA and the applicable regulatory requirements at 40 CFR part 51.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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);

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

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

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

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

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

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

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

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

Because this final rule merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law, this final rule for the State of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” The CIN also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by state law or local governing bodies, in accordance with the Settlement Act.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2022. 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) of the CAA.

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

The Pacific Coast Groundfish Fishery Management Plan (PCGFMP), and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two-year periods ( i.e., a biennium). NMFS published the final rule to implement harvest specifications and management measures for the 2021-2022 biennium for most species managed under the PCGFMP on December 11, 2020, (85 FR 79880). NMFS also published a correction (85 FR 86853, December 31, 2020), and a correcting amendment (86 FR 14379, March 16, 2021) to implement the Council's recommendations for the 2021-2022 harvest specifications and management measures.

In general, the management measures set at the start of the biennial harvest specifications cycle help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the states of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.

At its March 8-14, 2022 meeting, the Council recommended decreasing the amount of Pacific halibut that vessels in the sablefish primary fishery north of Point Chehalis, WA, may retain incidentally to ensure that catch of Pacific halibut stays within its annual allocation. Pacific Coast groundfish fisheries are managed using harvest specifications or limits ( e.g., overfishing limits [OFL], acceptable biological catch [ABC], annual catch limits [ACL] and harvest guidelines [HG]) recommended biennially by the Council and based on the best scientific information available at that time (50 CFR 660.60(b)). During development of the harvest specifications, the Council also recommends management measures ( e.g., trip limits, area closures, and bag limits) that are meant to mitigate catch so as not to exceed the harvest specifications. The harvest specifications and mitigation measures developed for the 2021-2022 biennium used data through the 2019 fishing year. Each of the adjustments to management measures discussed below are based on updated fisheries information that was unavailable when the analysis for the current harvest specifications was completed. As new fisheries data becomes available, adjustments to management measures are projected so as to help harvesters achieve but not exceed the harvest limits.

Pacific halibut is generally a prohibited species for vessels fishing in Pacific Coast groundfish fisheries, unless explicitly allowed in groundfish regulations. The Council developed a Catch Sharing Plan for the International Pacific Halibut Commission (IPHC) Regulatory Area 2A, as provided for in the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773-773k) (Halibut Act), to allocate the Area 2A annual catch limit for Pacific halibut among fisheries off Washington, Oregon, and California. The IPHC annually sets allocations for the various IPHC regulatory areas, including Area 2A and NMFS implements these allocations for fishing in U.S. waters pursuant to the Halibut Act. NMFS also annual implements management measures and approves changes to the Catch Sharing Plan for Area 2A.

Under the Catch Sharing Plan, the sablefish primary fishery north of Point Chehalis, WA (46°53.30′ N. lat.) is allocated a portion of the Washington recreational allocation, which varies via a catch limit-dependent formula, as described in the Catch Sharing Plan and in regulations at 50 CFR 300.63(b)(3).

The sablefish primary fishery season is open from April 1 to October 31, though the fishery may close for individual participants prior to October 31 once they reach the cumulative limit associated with their tier assignment(s) for the primary fishery. Regulations at § 660.231(b)(3)(iv) allow vessels fishing in the sablefish primary fishery with a permit from the IPHC to retain Pacific halibut up to a set landing limit, which may be reviewed and modified throughout the sablefish primary fishery season to allow for attainment, but not exceedance of the Pacific halibut allocation. The objectives for the annual landing restrictions are to allow for incidental Pacific halibut catch and attain the Pacific halibut allocation, at about the same time the sablefish primary season ends (October 31), and to ensure an equitable sharing of the Pacific halibut landings among fishers.

On March 7, 2022, NMFS implemented a 2022 Area 2A catch limit of 1,490,000 pounds (lb) (675.9 metric tons (mt)) (87 FR 12604). As specified by the Catch Sharing Plan, since the 2022 Area 2A catch limit is less than 1.5 million pounds (680.4 mt), the incidental halibut limit for the sablefish primary fishery's allocation is 50,000 lb (22.7 mt) (87 FR 12604, March 7, 2022). In 2021, due to economic uncertainty, harvest during the regular sablefish primary fishery season was lower than predicted. As a result, at the September 2021 Council meeting, the Council recommended, and NMFS implemented, an emergency rule to extend the sablefish primary season, normally scheduled to end on October 31, until December 31, 2021 (86 FR 59873, October 29, 2021). Also, as part of that emergency rule, the incidental Pacific halibut retention allowance continued until the close of the Pacific halibut season on December 7, 2021. The 2021 season concluded with 98.7 percent of the 70,000 lb (31.8 mt) allowance for Pacific halibut landed. The effects of economic uncertainty resulting from the COVID-19 pandemic on sablefish primary fishery harvest are expected to be lessened in 2022, compared to 2021. If fishing patterns return to more typical seasonal efforts in 2022, the incidental Pacific halibut retention limit in place in 2021 may be too high, and harvest of Pacific halibut may accrue too quickly to allow retention throughout the entire sablefish primary season, which is ends on October 31, 2022. In addition, the incidental limit for Pacific halibut is 20,000 lb less than in 2021, at 50,000 lb. The most recent year with a 50,000 lb limit was 2018, and in that year 87 percent of the allocation was harvested. From 2019-2021, the 70,000 lb limit was between 90 and 113 percent attained each year. Therefore, at the March 2022 virtual meeting, the Council recommended a reduction in Pacific halibut retention allowance early in the 2022 sablefish primary fishery season to discourage targeted fishing while allowing small incidental catches through the end of the season on October 31.

The Council recommended, and NMFS is revising the incidental Pacific halibut retention regulations at § 660.231(b)(3)(iv) to decrease the incidental Pacific halibut catch limit to enable some incidental catch without exceeding the harvest limit. The limit will be reduced from 225 lb (102 kg) dressed weight of halibut for every 1,000 lb (454 kg) dressed weight of sablefish landed, and up to two halibut in excess of the ratio, to 150 lb (68 kg) dressed weight of halibut for every 1,000 lb (454 kg) dressed weight of sablefish landed, and up to two halibut in excess of the ratio. This decrease is expected to allow opportunity for total catch of Pacific halibut to attain, but not exceed, the 2022 allocation for the sablefish primary fishery north of Point Chehalis, WA (50,000 lb or 22.7 mt).

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based are available for public inspection by contacting Keeley Kent in NMFS' West Coast Region (see FOR FURTHER INFORMATION CONTACT , above), or view at the NMFS West Coast Groundfish website: https://www.fisheries.noaa.gov/species/west-coast-groundfish.

Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document affect commercial fisheries off the coast of Washington. No aspect of this action is controversial, and changes of this nature were anticipated in the final rule for the 2021-2022 harvest specifications and management measures, which was published on December 11, 2020 (85 FR 79880). Accordingly, for the reasons stated below, NMFS finds good cause to waive prior notice and comment.

At its March 2022 meeting, the Council recommended the decrease to the incidental Pacific halibut retention limit for vessels fishing in the sablefish primary fishery north of Point Chehalis. The sablefish primary fishery opened on April 1. The Council recommends this precautionary reduction be implemented as soon as possible, early in the season, in an effort to prolong the amount of time Pacific halibut may be retained in the sablefish primary fishery north of Point Chehalis.

Delaying implementation to allow for public comment would make it more likely for the sablefish primary fishery north of Point Chehalis to exceed its 2022 allocation of Pacific halibut before the end of the sablefish primary fishery season. Therefore, providing a comment period for this action could limit the equitable benefits to the fishery, and the vessels that participate in the fishery, as they rely on the Pacific halibut retention allowance throughout the entire season and could result in a greater risk of exceeding the Pacific halibut harvest allocation.

Because prior notice and an opportunity for public comment are not required to be provided for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no Regulatory Flexibility Analysis is required for this rule and none has been prepared.

Therefore, the NMFS finds reason to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) so that this final rule may become effective upon publication in the Federal Register . The adjustments to management measures in this document affect commercial fisheries by decreasing the incidental halibut retention limit in the sablefish primary fishery north of Point Chehalis, WA. This adjustment was requested by the Council's advisory bodies, as well as members of industry during the Council's March 2022 meeting, and recommended unanimously by the Council. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2021-2022 (85 FR 79880, December 11, 2020).

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: